INLR

Indian national
law review
December ‘ 2018
Indian national law review

thelawlearners.com 1|Page
Indian National LAW Review
VOLUME I ISSUE I
ADVISORY BOARD
Mr. K.T.S Tulsi
Member of Parliament, Senior Advocate & President of Criminal Justice
Society of India
EDITORIAL BOARD
EDITOR-IN-CHIEF
Prof. Dr. M.P. Singh
Renowned Legal Jurist and Author, Former Vice Chancellor of NUJS Kolkata
and Former Chancellor of Central University of Haryana
ASSOCIATE EDITORS
Hon'ble Justice Mr. Mohan Peires
Former Chief Justice of Sri Lanka, Retd. Attorney General & Former Chairman
of Seylan Bank
Prof. Dr. G.S Bajpai

Registrar and Professor of National Law University Delhi, President of Indian
Society of Victimology & Chairperson at the Centre for Criminology &
Victimology

VOLUME I ISSUE I
Prof. Dr. K. Jaishankar

Founder President of South Asian Society of Criminology & Victimology,
Founder of the Academic discipline Cyber Criminology, International
Ambassador to the British Society of Criminology & Editor in Chief of two
renowned Journals
Prof. Dr. Mrinal Raste

Former Vice Chancellor of Symbiosis International University & KIIT Law
School, Former Dean Amity University, University of Pune, Ansal University
and Alliance University, present Dean of NMIMS
Prof. Dr. Bhavani Prasad Panda

Former and Founding Vice Chancellor of Maharashtra National Law University
Mumbai
PUBLISHING EDITOR
Ms. Rhishika Srivastava
Law Student, Gujarat University
[ Sunderpur, Near BHU, Varanasi ]

VOLUME I ISSUE I
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© Indian National LAW Review, The LAW Learners : ALL RIGHTS

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VOLUME I ISSUE I
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MESSAGE FROM FORMER PRIME MINISTER OF INDIA,

DR. MANMOHAN SINGH

VOLUME I ISSUE I
FROM THE DESK OF THE PUBLISHING EDITOR
It gives me immense pleasure and joy to announce the first edition of Indian National LAW
Review- Volume 1. INLR even before its arrival has been bestowed with praiseworthy words
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Adding to the words of praise, we have many of precious jewels in our editorial and advisory
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I on behalf of the entire team look forward for your opinions and feedbacks to the Journal.

VOLUME I ISSUE I
MESSAGE FROM SHRI K.T.S TULSI [ MEMBER OF

PARLIAMENT AND SR. ADVOCATE]

VOLUME I ISSUE I
TABLE OF CONTENTS
1. REGULATORY ROLE OF UNITED NATIONS IN PROMOTING ECONOMIC GROWTH AND
DEVELOPMENT
BY SATISH KUMAR ............................................................................................10
2. AN ANALYSIS OF THE CONTEMPORARY CONSTITUTIONAL PROVISION: RIGHT TO
PRIVACY AS A FUNDAMENTAL RIGHT- CONCEPT, DEVELOPMENT, SCOPE AND
LIMITS WITH SPECIAL REFERENCE TO AADHAAR ISSUE

BY DEVANSH SARASWAT .................................................................................28
3. DIRECTIVE PRINCIPLES OF STATE POLICY: A MERE CONSTITUTIONAL RHETORIC
OR A REALITY?
BY BRIJRAJ DEORA ..........................................................................................57

4. POSITION OF SAME SEX MARRIAGES IN INDIA : A LEGAL ANALYSIS
BY AAYUSHI MUNGEE ......................................................................................72
5. CASE COMMENT : SHAYARA BANO & Ors. V. Union of India & Ors. W.P. No. 118
of 2016
BY JITIKA ..........................................................................................................85

VOLUME I ISSUE I
REGULATORY ROLE OF UNITED NATIONS IN PROMOTING

ECONOMIC GROWTH AND DEVELOPMENT
- Satish Kumar1
ABSTRACT
The UN was formulated and negotiated among the delegations from the Allied Big
Four (the United States, the United Kingdom, the Soviet Union and China) at the Dumbarton
Oaks Conference in 1944. After months of planning, the UN Conference on International
Organization opened in San Francisco, 25 April 1945, attended by 50 governments and a
number of non-governmental organizations involved in drafting the UN Charter.
Today the UN is the largest, most familiar, most internationally represented and most
powerful intergovernmental organization in the world. Its main objective lies in maintaining
the International Order along with Harmony and cooperation between the Nations.
Headquartered at New York, the United Nation at the onset had 51 member countries which
raised to 193 presently.
The paper talks about the Regulatory Role of the United Nations in terms of promoting
Economic Growth and Development across the Globe. It has relied upon various sources,
both online and offline, taking into account different surveys, reports, articles, news inter alia
for the purpose of analysis, interpretation, implementation and execution of the subject
matter.
The paper has been divided into four major aspects, the first among which deals with an in
depth analysis of Backdrop of the UN Charter, its establishment and its working towards the
1
Satish Kumar, 2nd year BA.LLB Banaras Hindu University Varanasi, satishbhulaw@gmail.com

thelawlearners.com 10 | P a g e
VOLUME I ISSUE I
economic Development. The subsequent portions reveal the stark reality of the challenges
faced by the poor population for accomplishment of economic justice despite of various
prepared laws and take into account, concrete data, statistics and reports to make evident the
conditions and ill effects of them. It further provides various measures to make economic
equality reach the weak section of the globe and positive upshots of the result in worldwide.
At the end, it attempts to deliver a comprehensive conclusion for readers, which talks about
the concern and puts forward, an organizational wrap up of the paper on both empirical and
human grounds.

VOLUME I ISSUE I
1. Introduction : Backdrop and Charter of 1945
Post World War II, the Failure of the then League of Nations was surfaced and a need for
creating a better suited Regulatory body was felt. Owing to the need, the Charter of United
Nations, 1945, an international foundational treaty was signed. 2 The charter was drafted at a
conference in San Francisco between April 1945-June 1945.34 It took its full effect from 24th
October 1945, along with the formation of the United Nations.
The earliest concrete plan for a new world organization began under the aegis of the US State
Department in 1939.5 The UN was formulated and negotiated among the delegations from
the Allied Big Four (the United States, the United Kingdom, the Soviet Union and China) at
the Dumbarton Oaks Conference in 1944. 67 After months of planning, the UN Conference on
International Organization opened in San Francisco, 25 April 1945, attended by 50
governments and a number of non-governmental organizations involved in drafting the UN
Charter8
Today the UN is the largest, most familiar, most internationally represented and most
powerful intergovernmental organization in the world.9Its main objective lies in maintaining
the International Order along with Harmony and cooperation between the Nations.
Headquartered at New York, the United Nation at the onset had 51 member countries which
raised to 193 presently.
2
"Introductory Note". Un.org. Archived from the original on 9 May 2005. Accessed on 6th June 2018.
3
"Charter of the United Nations|United Nations". [online] Available at: www.un.org. [Accessed 6th June 2018].
4
"History of the United Nations|United Nations".[online] Available at: www.un.org.[Accessed 6th June 2018.]
5
Hoopes, Townsend; Brinkley, Douglas (2000) [1997].FDR and the Creation of the U.N. New Haven,
Connecticut: Yale University Press. ISBN 978-0-300-08553-2.
6
Bohlen, C.E. (1973). Witness to History, 1929–1969. New York. p. 159.
7
Video: Allies Study Post-War Security Etc. (1944). Universal Newsreel. 1944. Accessed on 6th June 2018.
8
"San Francisco – the birthplace of the United Nations". San Francisco Chronicle.[ Accessed 6th June 2018].
9
Society, N. (2012). international organization. [online] National Geographic Society. Available at:
http://www.nationalgeographic.org/encyclopedia/international-organization/ [Accessed 6 Jun. 2018].
VOLUME I ISSUE I
The scope of the paper deals with the interpretation of the Regulatory role of the United
Nations in terms of Economic and Monetary Developments in Contemporary era.
2. Bretton Woods Financial and Monetary System
Huge concentration of power in smaller nations, along with the failure of economic system
after the two world wars, i.e. I World war leading to the II, led the political base of the
Bretton Woods Conference.10 To rebuild the world economy against the economic crisis
prevailing during the ongoing period of World War II, as many as 730 officials from the then
44 allied Nations, met in Bretton Woods, US for United Nations Monetary and Financial
Conference, popularly known as The Bretton Woods Conference. The said officials
negotiated and finally signed the Bretton Woods Agreement.11 The Monetary and Financial
System of the Bretton Woods hence established certain norms for the financial and economic
cooperation among United States, Canada, Western Europe, Australia and Japan. The
essential feature of the system was that each member nation adopted a monetary policy that
maintained its external interest rates within 1 percent to prevent the competitive devaluation
of the currencies.1213The system created, led to the formation of the International Monetary
Fund (IMF) and International Bank of Reconstruction and Development,1415 which ultimately
10
John Maynard Keynes and International Relations: Economic Paths to War and Peace. Oxford: Oxford
University Press. ISBN 978-0-198-29236-4.
11
Department of State, U. (2009). Proceedings and Documents of the United Nations Monetary and Financial
Conference, Bretton Woods, New Hampshire, July 1-22, 1944. 2nd ed. [ebook] USA, pp.1629-36. Available at:
https://fraser.stlouisfed.org/scribd/?item_id=7569&filepath=/docs/publications/books/1948_state_bwood_v2.pdf
&start_page=506 [Accessed 6 Jun. 2018].
12
IMF Articles of Agreement, Article IV, [online] Available at:
https://fraser.stlouisfed.org/scribd/?item_id=7570&filepath=/docs/publications/books/1948_state_bwood_v1.pdf
&start_page=954, pp. 945–48.[Accessed 6 June 2018].
13
IMF Articles of Agreement, Articles VI, VIII, and XIV, [online] Available
at: https://fraser.stlouisfed.org/scribd/?item_id=7570&filepath=/docs/publications/books/1948_state_bwood_v1.
pdf&start_page=960, pp. 951–52, 954–57, 965–66.[Accessed 6 June 2018].
14
"About the IMF".IMF. Retrieved 14 October 2012
15
Ottenhoff, Jenny (2011). World Bank (Report). Center for Global Development.Retrieved 2012-06-05.
VOLUME I ISSUE I
became the part of World Bank Groups. The organizations became effective and operational
from 1945, after a sufficient number of member countries ratified the same. 16
3. Regulatory Role of the United Nations
The United Nations is an intergovernmental organization which is created for the purpose of
promotion of International Cooperation and International Order. 17 The organization is
financed by the voluntary aid of the member countries and its main objectives include
maintaining international peace and security, promoting human rights, fostering social and
economic development, and other international affairs. 18
In terms of the economic regulatory role played by the United Nations, it can be seen that
there lies a separate sub-regulatory body under the UN called The United Nations Economic
and Social Council, which deals with the Economic aspect of the World and strives to
promote healthy flow of economy amongst the member Nations. The UNECOSOC is one of
the six principle regulatory bodies under the United Nations having as many as 54
members, 19 the key committees of which include the World Bank and the International
Monetary Fund. ECOSOC serves as the central forum for discussing international economic
and social issues and formulating policy recommendations addressed to member states and
the United Nations system. 20
16
Edward S. Mason and Robert E. Asher, "The World Bank Since Bretton Woods: The Origins, Policies,
Operations and Impact of the International Bank for Reconstruction". (Washington DC: Brookings Institution,
1973), 29.
17
Nations, U. (2015). The United Nations Sysytem. [ebook] New York: United Nations. Available at:
http://www.un.org/en/aboutun/structure/pdfs/UN_System_Chart_30June2015.pdf?user=17 [Accessed 6 Jun.
2018].
18
Supra Note 16.
19
Supra Note 16.
20
Un.org. (2009). UN Economic and Social Council. [online] Available at:
https://www.un.org/en/ecosoc/about/index.shtml [Accessed 6 Jun. 2018].
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Viewed as separate from the specialized bodies it co-ordinates, ECOSOC's functions include
information gathering, advising member nations, and making recommendations.2122ECOSOC
may also grant consultative status to non-governmental organizations, 23 by 2004, more than
2,200 organizations had received this status.24Owing to its broad mandate of coordinating
many agencies, ECOSOC has at times been criticized as unfocused or irrelevant.25
Further, the agencies of IMF and World Bank that work under the UN strive to promote
regulatory flow of economy among the Nations.
3.1. International Monetary Fund
The International Monetary Fund is an international organization consisting of "189

countries working to foster global monetary cooperation, secure financial stability, facilitate
international trade, promote high employment and sustainable economic growth, and reduce
poverty around the world."26Headquartered at The Washington D.C, and formed at the
Bretton Woods Conference, it is the brainchild of Harry Dexter White and John Maynard
Keynes.27 It plays a central role in the management of balance of payments difficulties and
international financial crises. 28 It works by the principle of quota pooling of the member
21
Fomerand, Jacques (2009). The A to Z of the United Nations. Lanham, Maryland: Scarecrow Press.
ISBN 978-0-8108-5547-2.p.103-104
22
Supra Note 19.
23
Supra Note 19.
24
Fasulo, Linda (2004). An Insider's Guide to the UN. New Haven, Connecticut: Yale University Press.
ISBN 978-0-300-10155-3.p. 156.
25
Fasulo, Linda (2004). An Insider's Guide to the UN. New Haven, Connecticut: Yale University Press.
ISBN 978-0-300-10155-3. pp. 153–155
26
IMF.(2018). About the IMF. [online] Available at: http://www.imf.org/en/About [Accessed 6 Jun. 2018].
27
James M Boughton. (2002). Why White, Not Keynes? Inventing the Postwar International Monetary
System..1st ed. [ebook] IMF. Available at: https://www.imf.org/external/pubs/ft/wp/2002/wp0252.pdf [Accessed
6 Jun. 2018].
28
Lipscy, Phillip (2015). "Explaining Institutional Change: Policy Areas, Outside Options, and the
BrettonWoods Institutions" (PDF).American Journal of Political Science.59 (2): 341–356.
doi:10.1111/ajps.12130.
VOLUME I ISSUE I
countries, wherein the needy country can borrow the money on a loan basis. As accounted in
2016, the total holdings of the IMF were reported to be about $666 Billion. 29
By holding funds, gathering statistics and taking surveillance of member Nations 30, IMF
continues its working to improvise the world economy. 313233
3.2 World Bank
The World Bank, also known as Banque Mondiale34 is an International Banking Institution
that provides loans to different countries of the World for large scale projects. 35It is also a
regulatory institution set up under the UN. It has two sub institutions called IBRD 36 and
IDA37 which as a whole constitute the World Bank Group.
The World Bank's stated goal is the reduction of poverty38 which its Articles of Agreement
define as commitments to the promotion of foreign investment and international trade and to
the facilitation of capital investment.3940
4. Economic Organizations under the United Nations
29
IMF.(n.d.). The IMF at a Glance. [online] Available at: http://www.imf.org/en/About/Factsheets/IMF-at-a-
Glance [Accessed 6 Jun. 2018].
30
Schlefer, Jonathan. "There is No Invisible Hand". Harvard Business Review. Harvard Business Review.
31
Escobar, Arturo. 1980. Power and Visibility: Development and the Invention and Management of the Third
World. Cultural Anthropology 3 (4): 428–443.
32
Articles of Agreement.(2016). 1st ed. [ebook] IMF. Available at:
https://www.imf.org/external/pubs/ft/aa/pdf/aa.pdf [Accessed 6 Jun. 2018]..
33
Imf.org. (n.d.). Articles of Agreement of the International Monetary Fund -- 2016 Edition. [online] Available
at: http://www.imf.org/external/pubs/ft/aa/index.htm [Accessed 6 Jun. 2018]..
34
"Banquemondiale". Retrieved 25 October 2017.
35
"About Us".World Bank.[online] Available at:www.web.worldbank.org/wbsite/external/extaboutus/
[Accessed on 6 Jun. 2108]
36
International Bank of Reconstruction and Development. [online] Available at: www.worldbank.org/en/who-
we-are/ibrd [Accessed on 6 Jun. 2018].
37
International Development Association [online] Available at: ida.worldbank.org [Accessed on 6 Jun. 2018].
38
Clemens, Michael A.; Kremer, Michael (2016). "The New Role for the World Bank". Journal of Economic
Perspectives. 30 (1): 53–76. doi:10.1257/jep.30.1.53. ISSN 0895-3309.
39
Articles of Agreement: as amended effective 16 February 1989.
40
Supra Note 34.
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Under the canopy of the United Nations, there lie various branches of organizations that work
towards the betterment of the World Economy. To name a few include United Nations
Conference on Trade and Development (UNCTAD), United Nation Commission on
International Trade Law (UNCITRAL), United Nations Industrial Development Organization
(UNIDO) and New International Economic Order (NIEO). An analysis of the aforementioned
organizations gain prominence here, as the scope of the paper restricts itself to the Economic
aspect of UN Regulations.
4.1. United Nation Conference on Trade and Development

UNCTAD is a permanent intergovernmental body established by the UN general assembly in
1964.41 It is a part of UN Secretariat, United Nations Development group, inter alia and is
headquartered at Geneva. Its reporting organizations include UN General Assembly and
Economic and Social Council. 42 It currently has a strength of 194 member states43 and further
experiences the participation of Non-Government Organizations. 44
The first UNCTAD conference took place in Geneva in 1964, the second in New Delhi in
1968, the third in Santiago in 1972, fourth in Nairobi in 1976, the fifth in Manila in 1979, the
sixth in Belgrade in 1983, the seventh in Geneva in 1987, the eighth in Cartagena in 1992, the
ninth at Johannesburg (South Africa) in 1996, the tenth in Bangkok (Thailand) in 2000, the
eleventh in São Paulo (Brazil) in 2004, the twelfth in Accra in 2008, the thirteenth
in Doha (Qatar) in 2012 and the fourteenth in Nairobi(Kenya) in 2016.45
41
Unctad.org. (n.d.). UNCTAD | About. [online] Available at: http://unctad.org/en/Pages/aboutus.aspx [Accessed
6 Jun. 2018].
42
Supra Note 40.
43
UNCTAD e-Handbook of statistics 2017.(2017). Home. [online] Available at:
http://stats.unctad.org/handbook/ [Accessed 6 Jun. 2018].
44
List of non-governmental organizations participating in the activities of UNCTAD.(2011). 2nd ed. [ebook]
UNCTAD. Available at: http://unctad.org/en/docs/tdngolistd12_en.pdf [Accessed 6 Jun. 2018].
45
Unctad.org. (n.d.). UNCTAD | UNCTAD Conferences. [online] Available at:
http://unctad.org/en/Pages/Meetings/UNCTAD-Conferences.aspx [Accessed 6 Jun. 2018].
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The main objectives of UNCTAD include providing support to developing countries to

access the benefits of a globalized economy; equipping the member countries in dealing with
the economic drawbacks and crisis, and helping them to use trade, benefits and technology
for their inclusive and sustainable development. This is done by providing analysis,
consensus creating facilities, and offering technical assistance to the member nations. 46
4.2. United Nations Commission on International Trade Law
United Nations Commission on International Trade Law is the core legal body of the United
Nations in the field of International Trade Law. It is a legal body which specializes in the
field of commercial law reforms for the World. It works towards modernizing and
harmonizing the rules on International Business. With the view to increase trade
opportunities worldwide, UNCITRAL formulates modern, fair, and harmonized rules on
commercial transactions. 47
UNCITRAL was established by the United Nations General Assembly by resolution 2205
(XXI) of 17 December 1966.48 Members of UNCITRAL are selected from among States
Members of the United Nations and represent different legal traditions and levels of
economic development.49 The original membership comprised 29 States, which was
46
Web.archive.org. (2011). UNDG Members. [online] Available at:
https://web.archive.org/web/20110511144047/http:/www.undg.org/index.cfm?P=13 [Accessed 6 Jun. 2018].
47
Uncitral.org. (n.d.). About UNCITRAL. [online] Available at:
http://www.uncitral.org/uncitral/en/about_us.html [Accessed 6 Jun. 2018].
48
General Assembly resolution 2205 (XXI) Establishment of the United Nations Commission on International
Trade Law.[ebook] Available at: http://www.uncitral.org/pdf/english/texts/general/12-57491-Guide-to-
UNCITRAL-e.pdf [Accessed 6 Jun. 2018]
49
A Guide to UNCITRAL.(n.d.). [ebook] UNCITRAL. Available at:
http://www.uncitral.org/pdf/english/texts/general/12-57491-Guide-to-UNCITRAL-e.pdf [Accessed 6 Jun.
2018].
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expanded by the United Nations General Assembly in 19734 to 36 States and again in 20025
to 60 States.50
The main tasks of UNCITRAL hence include:
 Coordinating the work of organizations active in this field and encouraging

cooperation among them;
 Promoting wider participation in existing international conventions and wider
acceptance of existing model and uniform laws;
 Preparing or promoting the adoption of new international conventions, model laws
and uniform laws and promoting the codification and wider acceptance of
international trade terms, provisions, customs and practices, in collaboration, where
appropriate, with the organizations operating in this field;
 Promoting ways and means of ensuring a uniform interpretation and application of
international conventions and uniform laws in the field of the law of international
trade;
 Collecting and disseminating information on national legislation and modern legal
developments, including case law, in the field of the law of international trade;
 Establishing and maintaining a close collaboration with the United Nations
Conference on Trade and Development;
 Maintaining liaison with other United Nations organs and specialized agencies
concerned with international trade.51
4.3. United Nations Industrial Development Organization
50
Facts about UNCITRAL (n.d.). [ebook] UNCITRAL. Available
at:http://www.uncitral.org/pdf/english/uncitral-leaflet-e.pdf. [Accessed 6 Jun. 2018].
51
A Guide to UNCITRAL.(2013). 4th ed. [ebook] Vienna: United Nations, pp.1-4. Available at:
http://www.uncitral.org/pdf/english/texts/general/12-57491-Guide-to-UNCITRAL-e.pdf [Accessed 6 Jun.
2018].
VOLUME I ISSUE I
UNIDO is a specialized agency of the United Nations that promotes Industrial Development
for Poverty Reduction, Inclusive Globalization and Environmental Sustainability. 52The Lima
Declaration, as adopted by the 15th Session of the UNIDO General Assembly in 2013, states
that the main mission of the UNIDO is to promote and accelerate Inclusive and Sustainable
Industrial Development (ISID) in member states.53
Up till 17th May 2018, The UNIDO had 168 member nations as its team, 54 who discuss,
regulate and decide the functioning of the policy making organs of the UNIDO. The SDG-9
(Sustainable Development Goals-9), also known as global goals fully showcases the mandate
of the UNIDO and states that UNIDO shall strive to “Build resilient infrastructure, promote
inclusive and sustainable industrialization and foster innovation” 55
The targets of Goal 9 include56:

• Develop quality, reliable, sustainable and resilient infrastructure, including regional and
transborder infrastructure, to support economic development and human well-being, with a
focus on affordable and equitable access for all
• Promote inclusive and sustainable industrialization and, by 2030, significantly raise
industry’s share of employment and gross domestic product, in line with national
circumstances, and double its share in least developed countries
• Increase the access of small-scale industrial and other enterprises, in particular in
developing countries, to financial services, including affordable credit, and their integration
into value chains and markets
• By 2030, upgrade infrastructure and retrofit industries to make them sustainable, with
increased resource-use efficiency and greater adoption of clean and environmentally sound
52
Unido.org. (n.d.). UNIDO in brief | UNIDO. [online] Available at: https://www.unido.org/who-we-are/unido-
brief [Accessed 6 Jun. 2018].
53
Supra Note 51.
54
Unido.org. (n.d.). Member States List | UNIDO. [online] Available at: https://www.unido.org/member_states
[Accessed 6 Jun. 2018].
55
Unido.org. (n.d.). UNIDO focusing on Sustainable Development Goals | UNIDO. [online] Available at:
https://www.unido.org/who-we-are/unido-focusing-sustainable-development-goals [Accessed 6 Jun. 2018].
56
Supra Note 54.
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technologies and industrial processes, with all countries taking action in accordance with
their respective capabilities
• Enhance scientific research, upgrade the technological capabilities of industrial sectors in
all countries, in particular developing countries, including, by 2030, encouraging innovation
and substantially increasing the number of research and development workers per 1 million
people and public and private research and development spending
• Facilitate sustainable and resilient infrastructure development in developing countries
through enhanced financial, technological and technical support to African countries, least
developed countries, landlocked developing countries and small island developing states
• Support domestic technology development, research and innovation in developing
countries, including by ensuring a conducive policy environment for, inter alia, industrial
diversification and value addition to commodities
• Significantly increase access to information and communications technology and strive to
provide universal and affordable access to the Internet in least developed countries by 2020
UNIDO’s mission echoes SDG-9, but also aligns with all other development goals, including
those related to poverty eradication, creating full and productive employment, protecting the
environment, achieving gender equality and the empowerment of women and girls, etc.
Further the 2030 agenda of the UNIDO includes Achieving industry related goals and
targets.57
4.4. New International Economic Order (NIEO)
The NIEO, was a pile of proposals put forward by the developing countries in the United
Nation Conference on Trade and Development58. It came somewhere in between 1970s and
57
The 2030 Agenda for Sustainable Development: Achieving the industry-related goals and targets. (2017). 1st
ed. [ebook] UNIDO. Available at: https://www.unido.org/sites/default/files/2015-
12/ISID_SDG_brochure_final_0.pdf [Accessed 6 Jun. 2018].
58
Assembly, U. (1974). A/RES/S-6/3201 - Declaration on the Establishment of a New International Economic
Order - UN Documents: Gathering a body of global agreements. [online] Un-documents.net. Available at:
http://www.un-documents.net/s6r3201.htm [Accessed 6 Jun. 2018].
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aimed at promoting trade interest, and developed assistance for the growing nations. The
member countries of the Non Alignment Movement (NAM) demanded this order. 59
The name was coined from the Declaration for the Establishment of a New International
Economic Order, adopted by the United Nations General Assembly in 1974, and referred to a
wide range of trade, financial, commodity, and debt-related issues (1 May 1974, A/RES/S-
6/3201).60 Along with the declaration, a Programme of Action and a Charter of Economic
Rights and Duties of States (12 December 1974, A/RES/29/3281)61 were also adopted.
The major tenants of the NIEO stated that:
1. Developing countries must be entitled to regulate and control the activities

of multinational corporations operating within their territory.
2. They must be free to nationalize foreign property on conditions favorable to them.
3. They must be free to set up associations of primary commodities producers and all
other States must recognize this right and refrain from taking economic, military, or
political measures calculated to restrict it.
4. International trade should be based on the need to ensure stable prices for raw
materials, and should provide economic and technical assistance without any strings
attached.62
5. Cartagena Commitment
The South African Countries of Bolivia, Columbia, Ecuador, Peru and Venezuela were
persuaded by the fact that the Cartagena Agreement comprising of Latin American economic
59
Web.archive.org. (2016). 16th NAM Summit. [online] Available at:
https://web.archive.org/web/20140208210716/http://nam.gov.ir/Portal/Home/Default.aspx?CategoryID=27f3fbb
6-8a39-444e-b557-6c74aae7f75f [Accessed 6 Jun. 2018].
60
Supra Note 57.
61
Assembly, U. (1974). A/RES/29/3281 - Charter of Economic Rights and Duties of States - UN Documents:
Gathering a body of global agreements. [online] Un-documents.net. Available at: http://www.un-
documents.net/a29r3281.htm [Accessed 6 Jun. 2018].
62
Supra Note 57.
VOLUME I ISSUE I
Integration is a common economic goal. They hence agreed to enter into the Cartagena
Agreement.
The Cartagena Agreement comprised of the Legally Drafted agreement, protocols, treaties,
decisions, and the Board’s Resolutions. There was the Establishment of a Court of Justice
under the agreement, in the city of Quito, Ecuador.63
The objective of the Agreement are to promote the balanced and harmonious development of
the Member Countries under equitable conditions, through economic and social integration
and cooperation; to accelerate their growth and the rate of creation of employment; to
facilitate their participation in the process of regional integration, looking ahead toward the
gradual formation of a Latin American Common Market. The Agreement also seeks to reduce
external vulnerability and to improve the position of the Member Countries within the
international economic context; to strengthen subregional solidarity, and to reduce existing
differences in the levels of development among the Member Countries. The fulfillment of
these objectives shall lead to an enduring improvement in the standard of living of the
Subregion´s population.64
To fulfill the objectives of the Agreement, the following mechanisms and measures, the
following mandates are employed: 65
 The gradual harmonization of economic and social policies and the approximation of
national laws in regard to pertinent matters.
63
Article 6,Sice.oas.org.(n.d.). SICE- Court of Justice- Cartagena Agreement. [online] Available at:
http://www.sice.oas.org/Trade/Junac/Tribunal/cartageA.asp [Accessed 6 Jun. 2018].
64
Article 1,Sice.oas.org.(n.d.). SICE- Court of Justice- Cartagena Agreement. [online] Available at:
http://www.sice.oas.org/Trade/Junac/Tribunal/cartageA.asp [Accessed 6 Jun. 2018].
65
Article 3, CODIFICATION OF THE ANDEAN SUBREGIONAL INTEGRATION AGREEMENT
(CARTAGENA AGREEMENT).(2018). 1st ed. [ebook] America: World Bank Group. Available at:
http://CODIFICATION OF THE ANDEAN SUBREGIONAL INTEGRATION AGREEMENT
(CARTAGENA AGREEMENT) [Accessed 6 Jun. 2018].
VOLUME I ISSUE I
 Common industrial policies, the intensification of the subregional industrialization

process, the implementation of industrial policies, and other forms of industrial
integration.
 A more advanced schedule of trade liberalization than the commitments derived from
the Treaty of Montevideo 1980;
 A Common External Tariff, preceded by the adoption of a Common Minimum
External Tariff;
 Programs that accelerate the development of agricultural and agro-industrial
sectors;
 Channeling of internal and external resources to the Sub-region to finance those
investments that are needed in the integration process;
 Physical integration.
6. Roles of ITO, GATT and WTO in supplementing the working of

United Nations towards promoting economic Growth and
Development
The World is large and hence it never counts as a good idea to have a single regulatory body
for the same. The economic regulations that aim to create world prosperity are not solely on
the shoulders of The United Nations. Rather there are number of other World Organizations
that share the working and strive to create an economically better earth by supplementing the
United Nations. The most prominent of them include International Trade Organization (ITO),
World Trade Organization (WTO) and General Agreement on Trade and Tariff (GATT)
6.1 The International Trade Organization (ITO)

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As the name suggests, the ITO, is an international institution for the regulation of the World
Trade. The principal aims of ITO are steady growth of real income, increase in the
production, consumption of goods and services, promotion of industrial and general
economic development, encouragement of international flow of investment and also to
promote reduction of tariffs. It aims to enable countries, by increasing opportunities for their
trade and development, to abstain from measures 'disrupting world commerce and reducing
employment.66 Undoubtedly, all these objectives point out to one sole and ultimate objective
which ITO seeks to achieve is the financial growth of nations across the world. ITO seeks to
achieve economic growth by providing sops and benefits to nations which open up their
economy and provide subsidies that produce more goods.
6.2. General Agreement on Trade and Tariff (GATT)
GATT is recognized as the first worldwide multilateral free trade agreement.67 The purpose
of GATT was to prevent harmful trade protectionism and open up economies so as to provide
further facilities to all which results in economic growth eventually. GATT promoted free
trade across its member nations and aimed for worldwide growth. It is pertinent to note that
because of the policies of GATT, world trade boosted 8 percent a year which was faster than
world economic growth.68 Added to that, GATT has put prominent efforts in the promotion
of world peace as well, which indirectly supports growth due to no animosity amongst the
world nations. GATT has as well led to various other agreements which are in line with it and
thus has contributed in economic inclusion worldwide.
6.3. World Trade Organization (WTO)
66
Wyndham, E. (n.d.). INTERIM ARRANGEMENTS AND POSTPONEMENT OF ITO. 1st ed. [ebook]
Washington: ITO. Available at: https://docs.wto.org/gattdocs/q/GG/SEC/53-36.PDF [Accessed 6 Jun. 2018].
67
History and purpose of GATT [online] Available at: https://www.thebalance.com/gatt-purpose-history-pros-
cons-3305578 [Accessed on 6 Jun 2018].
68
Supra Note 66.
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The relationship between trade and jobs is an established one and it is an accepted principle
that trade can lead to employment generation and further to economic and financial growth.
The sole aim of WTO can be summarised as three basic goals i.e. higher living standards, full
employment and sustainable development. WTO aims for free and fair trade and ultimately
for economies to be open. Open economies tend to grow faster and more steadily than
closed economies and economic growth is an important factor in job creation.69 Open
economies provide various better opportunities as well as facilities which are unavailable in a
closed economy. Trade often acts as a catalyst for higher efficiency and productivity which
shall further lead to financial growth. The ultimate goal of WTO is job creation, growth and
development.70
7. Summing Up
The United Nations created by the mutual agreement of the Nations, is indeed a prominent
regulatory body for the World. It acts as a Balancer and maintains the Balance of Power
between Nations, which is undoubtedly essential for the World Peace. This balance is
maintained in every aspect of dealings including the economic face. The aim of the paper was
the analysis of this regulatory role played by the United Nations in promoting Economic
Growth and Development for the entire world.
It was observed that by the Virtue of its own authority, coupled with the sub-authorities
created by the UN, with respect to the Economic regulations and maintenance of the
Countries, UN promotes economic independence, healthy competition, adequate trade inter-
alia among the Nations. Apart from the bodies created, it has signed numerable treaties and
conventions that aim to create a prosperous World Economy.
69
World Trade Organisation [online] Available at:
https://www.wto.org/english/thewto_e/whatis_e/10thi_e/10thi03_e.htm [Accessed on 6 Jun. 2018]
70
Supra Note 68.
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At the end, it was also inferred that alongside all the measures undertaken by the UN and its
constituent bodies, the presence of independent world bodies like ITO, WTO, GATT and the
like makes the realization of the objective possible. The organs of the UN along with
Independent world bodies together play a pivotal role in the prosperity and growth of the
World. Although unenforceable to a large extent, The UN exercise credulous control towards
the growth and harmony of the World.

VOLUME I ISSUE I
AN ANALYSIS OF THE CONTEMPORARY

CONSTITUTIONALPROVISION: RIGHT TO PRIVACY AS A
FUNDAMENTAL RIGHT-CONCEPT, DEVELOPMENT,
SCOPE AND LIMITS WITH SPECIAL REFERENCE TO
AADHAAR ISSUE
- Devansh Saraswat 71
ABSTRACT
The paper presents the subject, Judicial Trends in the Right to privacy and its development to
a Fundamental Right. The purpose of the Research paper is to understand the development
ofRight to Privacy in India from no right to a Right Fundamental to everyone’s life. It
attempts to define Privacy and observe the implications in International scenarios like The
USA,UK, along with landmark cases and their analysis for support in this regard. The paper
then focuses on the most significant aspect i.e. judicial decisions and application whether
Right to Privacy is an inherent Right in the Indian Constitution.
The objective is to study the Historical Journey of this Right, from M.P.Sharma to the present
K.S.Puttaswamy’s case. It is essential to witness how various early cases like A.K Gopalan,
M.P Sharma and Kharak Singh negated the presence of this right, while later cases like
Gobind v.State of Madhya Pradesh, PUCL and Rajagopal gave birth to it.
The paper has as well attempted to comprehend the actual issue which gave rise to the
instant case. It has as well discussed the conflict between National interest and Personal
interest, with an in depth analysis of the same.
71
3rd Year BBA.LLB Student, Gujarat National Law University Gandhinagar, dsaraswat04@gmail.com .
VOLUME I ISSUE I
An in depth analysis of the above mentioned theme has been presented along with an
organisational conclusion of the subject matter. The paper has sought to resort to different
reliable sources, both online and offline, inclusive of different online reports, surveys,
statistics, studies, books and articles inter alia for the purpose of research, analysis,
interpretation and execution of the subject matter and ensures maximum creativity, research
work, and personal ideas in the same.

VOLUME I ISSUE I
1. Introduction :What is Privacy?
Before dwelling into the larger plethora of concepts of defining various aspects of Right to
Privacy, it becomes important to understand the meaning of Privacy in both, its real and
abstract sense.
Privacy, U.S. Supreme Court Justice Louis Brandeis pronounced it “the most comprehensive
of rights and the right most valued by civilized men.”72 Commentators have declared it
“essential to democratic government,” critical to “our ability to create and maintain
different sorts of social relationships with different people,” necessary for “permitting and
protecting an autonomous life,” and important for “emotional and psychological
tranquillity.”73 It has been hailed as “an integral part of our humanity,” the “heart of our
liberty,” and “the beginning of all freedom.”74
Privacy in its fullest and precise sense conveys the meaning of “A state in which one is not
observed or disturbed by other people.”75 It is the state of being free from Public Attention.
It is basically the ability of an individual to seclude himself from his environment and
provide only selective information about himself or his life to the entire world. Although the
notion of how one perceives Privacy varies from individual to individual or to pinpoint from
culture to culture.. Generally the term privacy is used to keep such things secluded from
others or the society, which count in the domain of personal or intimate in people’s respective
perspectives. However sometimes, though rarely, it also includes seclusion of information
which counts as security of an individual. In other words chipping in with folks, only the
72
Warren & Brandeis, The Right to Privacy, 4 Harvard Law Review 193, 194 (1890), available at
http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html , last seen on
01/09/2017.
73
Right to Privacy, Law Teacher, available at https://www.lawteacher.net/free-law-essays/constitutional-
law/right-of-privacy-in-english-courts-constitutional-law-essay.php, last seen on 27/08/2017.
74
Neil M. Richards & Daniel J. Solove, Privacy as A Right, 98 California Law Review 1887, 1924 (2010),
available
at http://scholarship.law.berkeley.edu/californialawreview/vol97/ , last seen on 28/08/2017.
75
Privacy,Legal Information Institute,available at https://www.law.cornell.edu/wex/privacy , last seen on
30/08/2017.
VOLUME I ISSUE I
picky particulars, which in turn could not possess any sort of threat to his security. For
instance, data like one’s account details, PINS, are kept private and not shared with the world
to protect and maintain the security.
However Privacy should and must not be confused with hiding or not sharing each and every
information about oneself in the name of security. The State needs certain inputs regarding
the identity of the individuals in order to maintain the security of the nation. If we assume a
situation where Privacy has a concrete and hard rule of not sharing any personal information
with anyone, it becomes fairly observable even to a lay man that such liberty will be
negatively utilized to much larger extent by enemy aliens, rather than its positive side. Also
in order to check periodic tax paying, corruption and the like, it is vital for the institutions of
state to have access to some of the information regarding individual’s identity, and hence, this
in turn, can never be justified as keeping it hidden in the name of security and privacy.
Privacy is often defined as zero disturbances from others, or simply being free. Legally,
privacy can be defined as the right of people to lead their lives in a manner that is
reasonably secluded from public scrutiny.76 Right to privacy, which has now been guaranteed
by a nine Judge Constitution bench to all the Indian citizens, remains the most conversed
subject due to its ambiguous nature.
Right to privacy has been guaranteed by as many as 167 Constitutions in the world, 77 which
portrays the positive picture of International Judicial trend. The right has not been protected
by States Constitutionally but it has been fairly protected by the Judiciary of these nations.
USA, Japan, UK are some of these nations where the Judiciary has interpreted their
Constitution in a way so as to provide Privacy as a right to all the citizens. The Apex Court of
India has recently laid down that Right to Privacy is a Fundamental Right guaranteed to all
76
Privacy,The Free Dictionary,available at http://legal-dictionary.thefreedictionary.com/privacy, last seen on
09/09/2017.
77
Right to Privacy,Constitute, available at https://www.constituteproject.org/search?lang=en&key=privacy
, last seen on 09/09/2017.
VOLUME I ISSUE I
individuals and is inherent as well as intrinsic in Article 21 of The Indian Constitution, which
provides for Right to Life. Judicial trends of the past have been set aside with this decision,
completely overruling prominent cases like M.P. Sharma v. Satish Chandra 78 and Kharak
Singh v. State of U.P.79
It is significant to comprehend the emergence of Right to Privacy and trends of the Judiciary
of not classifying Right to Privacy as a fundamental right to the present judgement in Justice
K.S.Puttaswamy v. Union of India. 80
Thus Privacy itself is a conflicting term when comes to its Practical application, this being the
reason for mentioning the relevance of its abstract definition in the very first paragraph. It can
hence be concluded that
“Privacy is the ability to seclude some information form others and selectively showcasing
relevant details to the world, subject to national and international rules and requirements,
which goes without mentioning is not arbitrary and vital for nation in real sense.”
2. Right to Privacy: Common, Constitutional or Fundamental Right?
2.1. International Interpretations:
Some experts assert that in fact the right to privacy should not be defined as a separate legal
right at all.
In The USA, Privacy has not been specifically provided in the Constitution but the Fourth
Amendment provides this right to some extent, inter alia the right of people to be secure in
78
(1954) AIR 300.
79
(1963) AIR 1295.
80
Writ Petition (Civil) No. 494 of 2012 (Supreme Court, 24/08/2017).

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their persons, houses, papers and effects, against unreasonable searches and seizures. 81 In the
year 1886 in Boyd v. United States82 the US Supreme Court held that compulsory production
of a person’s private papers to be used in evidence against him in a judicial proceeding is
invasion of his sacred rights and is in contravention to the Fourth Constitutional Amendment.
Like the USA even in UK, the father of common law Right to Privacy is not a
constitutionally recognized right, nevertheless it is being interpreted as a part and parcel of
breach of confidentiality, thus making its infringement, actionable under the law.
In Schering Chemicals v Falkman83, Lord Denning interpreted the right to Privacy by his
judgment which read as “as freedom of expression is a fundamental human right, so also is
the right of privacy.”
2.2 Judicial tendencies in UK And USA
One of the oldest democracies The USA and the founder of the Common law system,
England do not posses Privacy as a Right in their Supreme document and other laws.
However the Judiciary has shown enthusiastic and fervent approach not only in the inclusion
of Right to Privacy as an inherent right of the individuals but also in extending the ambit of
the protection guaranteed by this right.
2.2.1 The USA
In The USA, Privacy has not been specifically provided in the Constitution but the Fourth
amendment provides this right to some extent, inter alia “the right of people to be secure in
their persons, houses, papers and effects, against unreasonable searches and
seizures.”84Although several data protection laws exist in USA as compared to none in India.
81
U.S. Const., Amend. IV
82
116 US 616 (1886, Supreme Court of the United States).
83
QB 526 (1985, Supreme Court of UK).
84
U.S. Const., Amend. IV
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As early as 1886 in Boyd v. United States85 the US Supreme Court held that compulsory
production of a person’s private papers to be used in evidence against him in a judicial
proceeding is invasion of his sacred rights and is in contravention to the Fourth
Constitutional Amendment. In one of the most celebrated decision of the US Supreme Court
Roe v. Wade86the Court held with the majority of 7:2 held that a woman had full rights to
decide on termination of her pregnancy by abortion. Since then it has been held in various
decisions that :
“The Constitution does not explicitly mention any right of privacy. In a line of decisions,
however, the Court has recognised that a right of personal privacy, or a guarantee of certain
areas or zones of privacy, does exist under the Constitution”87
2.2.2 The UK
The right of privacy in the UK is not legally enforceable at common law, but it has been
acknowledged by the English courts repeatedly. However, the judiciary has endeavoured to
develop the doctrine of breach of confidence in a way that provides a limited right to privacy,
particularly since the Human Rights Act 1998 as the Legislature has not been keen to do so.
Consequentially in Malone v Metropolitan Police Commissioner88 the Apex Court of UK
held that telephone tapping by the police could not be unlawful as there was no right to
privacy at common law that could be breached. Since then, the petitioners along with the
Judiciary strived to rely on breach of right to confidence, which is a flexible doctrine used to
85
86
87
Ibid.; Carey v. Population Services International 431 US 678 (1977); Planned Parenthood v. Casey 505 US
833 1992; Kyllo v. United States 533 US 27 (2001); Lawrence v. Texas 539 US 558 (2003).
88
2 AII ER 620 (1979, Supreme Court of United Kingdom).
VOLUME I ISSUE I
protect private information. In Prince Albert v. Strange 89, granting an injunction of private
etchings in a newspaper it was held that,
“Every man has a right to keep his own sentiments, if he pleases. He has certainly a right to
judge whether he will make them public or not.”
Lord Denning in Schering Chemicals v. Falkman90 stated that as freedom of expression is a

fundamental human right, so also is the right of privacy.
2.3 The Indian Context
The right to privacy can signify a plethora of meanings for different individuals. One may
demand sexual autonomy, by striking down Section 377 of the Indian Penal Code citing this
judgement, some may want female autonomy by demanding their right to dignity and bodily
integrity by respecting the reproductive choice of women and termination of pregnancy,
privacy can effortlessly enter the ambit of marital rape and criminalise it in the near future,
for others it may purport to data privacy in this fast transforming digital economy. Albeit,
Right to privacy is subject to reasonable restrictions and is not unlimited. 91
2.3.1 History
The earliest concepts of 'right to privacy' in Indian jurisprudence dates back to late 1800s
when Pardanashin women were allowed not to contract due to their wilful seclusion from the
entire world. Moreover, a local British court upheld privacy of a pardanashin woman to
access her balcony without the fear of the neighbourhood gaze. The jurisprudence has
evolved ever since then and the right has gained constitutional recognition as an integral part
89
41 ER 1171 (1849, High Court of Chancery).
90
1 QB 1 (1982, Supreme Court of UK).
91
K.S.Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Supreme Court, 24/08/2017).
VOLUME I ISSUE I
of personal liberty92 and the right to freedom of movement, 93 thus being an element of human
dignity and inherent in the Constitution. The pre independence era did not saw many issues
concerning this due to high literacy as well as ignorance of rights. Furthermore, the British
did not provide much scope in their laws for this right to be claimed before the courts and
thus it always remained dormant.
2.3.2 Judicial Trends in India
Although the Right to Privacy not being expressly provided for anywhere in the Indian
Constitution, but it has been claimed by various Petitioners approaching the Courts, while on
the contrary, the Courts have been negating the presence of this right in the Constitution. It is
significant to consider that the founding fathers of the Constitution in the Constituent
Assembly did not completely affirm the notion of Right to Privacy to the citizens and neither
as well reject it out rightly. The draft report of the Subcommittee proposed the following
which inter alia provided for,
 “The right of every citizen to the secrecy of his correspondence.” 94 (Clause 9(d))
 “The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures.” (Clause 10)
Eventually both the clauses were dropped from the Chapter on Fundamental Rights, as it
would had led to more harm than good for the State, as believed by Dr. B.N.Rao and Sir
Alladi Krishnaswamy.
92
AlimpanChaterjee, Constitutional Issues and Judicial Responses in India, Social Sciences Research
Network(10/05/2012) , available at file:///F:/SSRN-id1440665%20(1).pdf - Yahoo! Yahoo India Search Results,
last seen on 11/09/2017.
93
Khare v. State of Delhi (1950) SCR 519
94
B. Shiva Rao, The Framing of India’s Constitution, 139 (2nd ed., 1967).
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Post Independence various cases have come up before the Indian Judiciary and it is
significant to observe the Interpretation in this regard so as to discover the varying trends and
appreciate them.
i) A.K.Gopalan v. State of Madras95 : Mutually exclusive Rights
In the instant case a petition was filed by the applicant under article 32 of the constitution of
India for a writ of Habeas corpus against his detention in the Madras jail since three years,
violating his Right to Life96 and Freedom of Movement.97 It was held by the Supreme Court
that the subject matter of Article 19(1)(d) and Article 21are not identical and they proceed on
total principles. Article 19 was to not apply to a law affecting personal liberty to which art 21
applies and the latter did not provide any protection against a competent legislative action. In
the Gopalan perspective, free speech and expression was guaranteed by Article 19(1)(a) and
was hence excluded from personal liberty under Article 21.98
ii) M.P.Sharma v. Satish Chandra99 : Privacy nowhere enshrined
It was as early as 1954, merely after four years of arrival of The Indian Constitution that the
concept of Right to Privacy was put before the Indian Judiciary in the quench of justice.
An investigation was ordered by the Government of India under Companies Act against
Dalmia Jain Airways Ltd alleging malpractices within the company and attempts to conceal
from shareholders the actual state of affairs by submitting false accounts. Warrants were
95
(1950) AIR 27.
96
Art.21, the Constitution of India.
97
Art. 19(1)(d), the Constitution of India.
98
Supra 13.
99
(1954) AIR 300.
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issued, searches were carried out and voluminous documents were seized. The aggrieved
parties challenged the constitutional validity of searches claiming that it had violated the
fundamental rights of the petitioners under Article19(1)(f) and Article 20(3) of the
Constitution.
An eight judge bench in the present case dismissed the existence of Right to Privacy by
merely considering the Constituent Assembly’s views and the provisions of The American
Constitution (Fourth Amendment), which negated the presence of Right to Privacy as a
Fundamental or Legal Right. The eight judge bench unanimously observed that,
“When the Constitution makers have thought fit not to subject such regulation to
constitutional limitations by recognition of the fundamental right to privacy, analogous to the
American Fourth Amendment, there is no justification for importing into it, a totally different
fundamental right by some process of strained construction.”100
iii) Kharak Singh v. State of UP101 : Privacy invation does not

violate Fundamental Right
One Petitioner Kharak Singh was challaned in a case of dacoity in 1941, but was released for
want of evidence. Uttar Pradesh Police later opened a history sheet against him and brought
him under surveillance. This was done in exercise of the powers under Chapter XX of the
Uttar Pradesh Police Regulations. Kharak Singh filed a Writ petition and challenged
Constitutional validity of Chapter XX as it violated Articles 19(1)(d) — right to freedom of
movement and Article 21 which guarantees Right to Life and Personal Liberty.
100
Ibid.
101
(1963) AIR 1295.
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The six judge bench by a majority of 5:1 invalidated domiciliary visits at night authorised by
Regulation 236 (b) of Chapter XX of the UP Police Regulations but held rest of the provision
valid. The bench went on to declare that,
“The right of privacy is not a guaranteed right under our Constitution, and therefore the
attempt to ascertain the movement of an individual is merely a manner in which privacy is
invaded and is not an infringement of fundamental rights.”102
Justice SubbaRao dissented and stated that, “It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but they said right is an essential
ingredient of personal liberty.”103 Citing Wolf v. Colorado104, he pointed out the importance
of security of one’s privacy against arbitrary intrusion by the police has same application in
India as in America.
iv) R.M.Malkani v. State Of Maharashtra 105 : Phone tapping does

not violate right
In R.M.Malkani case the Court upheld the phone tapping of a guilty person with a shocking
ratio that, “Where a person talking on the telephone allows another person to record it or to
hear it, it cannot be said that the other person who is allowed to do so is damaging,
removing, tampering, touching machinery battery line or post for intercepting or acquainting
himself with the contents of any message.”106
102
Ibid.
103
Ibid.
104
105
(1973) 1 SCC 471.
106
Ibid.
VOLUME I ISSUE I
v) Gobind v. State of Madhya Pradesh107 : Right to Privacy

subject to State Interest / Right to Privacy Recognized
The facts of the instant case were somewhat similar to that of the Kharak Singh case. The
Court relied upon the lately decided cases Griswold v. Connecticut108 and Jane Roe v.
Henry Wade,109introducing the compelling state interest test from the American
jurisprudence in India. The court stated that right to privacy of an individual would have to
give way to larger state interest, the nature of which must be convincing. A law if infringes
Right to Privacy it must satisfy the State interest test, hence forth the State interest
importance would be ascertained.
The case partially recognised Right to Privacy and held that it was absolutely subject to
restrictions and Public interest and it has to be ascertained on a case to case basis.
vi) Later Judgements : Widening the scope of Right to Privacy
In Rajagopal v. State of Tamil Nadu110, publication authored by a convict was challenged,

which was allowed by the Court and held that Privacy is a part of Article 21 and also right to
be let alone is intrinsic in it.
In 1997, PUCL v. Union of India111 overruling the R.M.Malkani case the SC unequivocally
held that individuals had a privacy interest in the content of their telephone communications.
It stated that the right to hold telephonic conversation can certainly be claimed as Right to
Privacy.
107
(1975) 2 SCC 148.
108
381 US 479 (1965,Supreme Court of the United States).
109
110
(1994) 6 SCC 632.
111
(1997) 1 SCC 301.
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The later cases held that reproductive choice of women constitutes her privacy 112, involuntary
narco analysis is invalid 113, and right of a single parent to apply for birth certificate.114
vii) Naz Foundation vs. Govt. of NCT Delhi 2006 – Interference

with personal liberty must follow a procedure
The Apex Court, while dealing with the case defined three conditions under which an
individual can claim Right to Liberty. In other words a concept of Right to Privacy was
evolved, combining three pre requisites:
Any law interfering with personal liberty of a person must satisfy a triple test:
(i) it must prescribe a procedure;
(ii) the procedure must withstand a test of one or more of the fundamental rights conferred
under Article 19 which may be applicable in a given situation; and
(iii) it must also be liable to be tested with reference to Article 14. As the test propounded by
Article 14 pervades Article 21 as well, the law and procedure authorising interference with
the personal liberty must also be right and just and fair and not arbitrary, fanciful or
oppressive.115
3. K.S.Puttaswamy v. Union of India 116
The Constitutional validity of Aadhaar had been challenged as it was concerned with private
data of citizens. On 24th August 2017, a nine judge bench led by Justice Khehar has ruled
112
Suchita v. Chandigarh Administration (2009) 9 SCC 1.
113
Selvi v. State of Karnataka (2010) 7 SCC 263.
114
ABC v. The State(NCT of Delhi)(2015) 10 SCC 1.
115
Naz Foundation v. Govt. of NCT Delhi (2010) CriLJ 94.
116
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that Right to Privacy is a Constitutionally protected Fundamental Right, intrinsic to Life and
Liberty i.e. Article 21 of the Constitution. It was held that,
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to
be left alone. 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.”117
Life and Personal Liberty are inalienable rights which are inseparable. However the right to
privacy is not absolute in all senses, a law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on fundamental rights. 118 In the context
of Article 21 an invasion of privacy must be justified on the basis of a law which lays a
procedure which is fair and reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21.
The nine-judge bench of the Supreme Court has unanimously delivered its judgment
in Justice K.S. Puttaswamy (Retd.) v. Union of India holding that privacy is a constitutionally
protected right which not only emerges from the guarantee of life and personal liberty in
Article 21 of the constitution, but also arises in varying contexts from the other facets of
freedom and dignity recognised and guaranteed by the fundamental rights contained in Part
III of the Indian constitution. The Bench overruled the earlier mentioned decisions which
contained observations
that the Indian constitution does not specifically protect the right to privacy. Justice D.Y.
Chandrachud, while delivering the main judgment, has held that privacy is intrinsic to life,
liberty, freedom and dignity and therefore, is an inalienable natural right. The concept of
117
Ibid.
118
Ibid.
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Right to Privacy henceforth got an exclusive status of a Fundamental Right. The judgment
asserts,
“To live is to live with dignity. The draftsmen of the constitution defined their vision of the
society in which constitutional values would be attained by emphasising, among other
freedoms, liberty and dignity… Dignity is the core which unites the fundamental rights
because the fundamental rights seek to achieve for each individual the dignity of existence.
Privacy with its attendant values assures dignity to the individual and it is only when life can
be enjoyed with dignity can liberty be of true substance.”119
The judgment also rejected the very submission which contends privacy to be reserved by
few. On this ground, It was held that:
“It is privacy which is a powerful guarantee if the state were to introduce compulsory drug
trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation,
the choice of a family life and the dignity of being are matters which concern every individual
irrespective of social strata or economic well- being. The pursuit of happiness is founded
upon autonomy and dignity. Both are essential attributes of privacy which makes no
distinction between the birth marks of individuals.”120
3.1 Interpretation of the Concept- Chandrachud v. Chandrachud
The most stimulating and thought- provoking part of the two judgments, one in the case of
ADM Jabalpur (1976) and the other, the most recent and unanimous 9 judge bench decision
(2017) of exclusive participation of Right to Privacy, in being the fundamental Right, is the
119
120
Ibid.
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divergent judgments of father and son Justice YV Chandrachud and Justice DY Chandrachud
in interpreting the Concept of the Right to Privacy.
The Author of the latest Supreme Court Judgment on Right to Privacy, Justice DY
Chandrachud, junks his father’s former CJI justice YV Chandrachud’s Emergency ruling on
the concept of the same.
In the case of ADM Jabalpur justice YV Chandrachud said “When histories of nations are
written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to
be consigned to the archives, reflective of what was, but should never have been.”121On the
other hand justice DY Chandrachud, striking a discordant note in the Privacy verdict said
about ADM Jabalpur case that: “The judgments rendered by all the four judges constituting
the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable
to human existence. They constitute rights under natural law.”122
4. Analysing the Judicial development of Privacy law
India showcases a complex scenario when it comes to the interpretation of Right to Privacy.
Historical evidences present that the nation witnessed quite many interpretations of Right to
Privacy being a legally recognized right or not. The earliest scenario and interpretations
present that Right to Privacy was at its beginning was merely recognized as a common right
and not otherwise. With passage of decades however, it got the status and interpretation of a
constitutional right and finally after the landmark and unanimous judgment of nine-judge
bench in the Supreme Court, Right to Privacy has now been a part of fundamental Rights
under the domain of Article 21 i.e. Right to life and personal liberty.
Right to Privacy was never incorporated in the Indian Constitution nor has been provided by
any Ordinary law in India. The Judicial interpretations as well as development of the law has
121
ADM Jabalpur v. ShivKantShukla(1976) SCR 172.
122
Supra 14.
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led to the emergence of this right, which remains ambiguous till date. Privacy still remains as
subjective as it can be comprehended by one, unless a law governs the same, which is highly
unlikely as the Government is unwilling to take a step ahead. The cases portray shift of the
judiciary in striking out Privacy as any right to providing Right to Privacy, which is inherent
to the Constitution.
The Judiciary had initially looked through the Indian Constitution in a very rigid and
inflexible manner. The M.P. Sharma case was decided merely by considering the American
law and decision of the Constituent Assembly, without taking into account any other
considerations whatsoever. Whereas the Kharak Singh case went on to state that even late
night periodical visits in house and unreasonable surveillance do not infringe any
Constitutional rights and amount to violation of Privacy solely. Both these decided cases can
be clearly inferred to be based on the principles laid down in A.K.Gopalan case. The
Judiciary has not endeavoured at all to innovate or apply principles of Article 19 and 21 taken
together, effectively. If it were done so, Right to Privacy would have been effortlessly
recognised as an inherent Fundamental Right post independence, subject to reasonable
restrictions.
The later case of R.M.Malkani laid down a bad law that phone tapping is not violative of
Fundamental Rights merely because the communication cannot be distorted in any manner,
which has been severely criticised. This was overruled in the much celebrated PUCL case
which guaranteed phone conversations as a Right to Privacy. Right to Privacy has been
strengthened in the post liberalisation era. In a similar state, Rajagopal and Gobind case held
that Privacy was intrinsic to Article 21 of the Indian Constitution but was not at all absolute
and cannot be claimed without passing the State and Public interest test and also by public
officials in discharge of official duties.By this time, privacy had assumed an inherent role in
our fundamental rights jurisprudence that helped us lead a dignified life without fearing
surveillance.
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The content of the constitutional right to privacy and its limitations have proceeded on a case
to case basis, each precedent seeking to build upon and follow the previous formulations. 123
The foundation of Right to Privacy rests upon M.P.Sharma, Kharak Singh and Gobind cases,
further contributed by Rajagopal, PUCL, Selvi and ABC cases. The right to privacy has been
traced in the decisions which have been rendered over more than four decades to the
guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19. The
Right to Privacy, partially, had been granted due to changing needs and circumstances and
being the need of the hour.
The recent judgement has laid down that Right to Privacy is a Fundamental Rights inherent in
Article 21 of the Constitution and includes at its core the preservation of personal intimacies,
the sanctity of family life, marriage, procreation, the home and sexual orientation. 124It
protects individual autonomy and power of individuals to take decisions for their life.
The right to Privacy has seen many ups and downs since independence. It has been refused
by the early judgements post independence devoid of being expressly provided in the
Constitution. The later jurisprudence saw changing connotations of Privacy and it being
granted to some extent and in a very few cases. Post 1990s there has been a shift towards
Right to Privacy becoming a complete Right and being allowed in various cases. Although it
is not absolute whatsoever and is subject to reasonable restrictions.
The Right becoming a Fundamental right will certainly give rise to various Judicial
pronouncements in the near future, as there would be a rise in disputes. Judiciary has played a
very significant role by granting Privacy as a Fundamental right by protecting the liberty of
individuals.
123
Supra 13.
124
Supra 13.
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4. Elucidation And Perception of The Right to Privacy:
It now goes without saying that the Indian judiciary, experienced and showcased complex
and diverse interpretations of what actually comes under the domain of Right to Privacy and
under which legal right, this concept falls. The earliest of those interpretations did not even
attempt to include this Right in even the range of a Constitutional Right. However, conditions
and interpretations, both evolved gradually and today we are acquainted with a
constitutionally protected and a Fundamental right, which nonetheless plays a role of a gift to
the individuals by the judiciary, serving as the legal Guardian of the Indian Constitution.
4.1 Applications of the new born Concept
This advancement in legal judgments opened various roads to new ideas and concepts of
affirmative effects of Right to Privacy.
4.1.1 A new question of Interpretation-
The concept of Right to Privacy raised yet another question about its implication. The Indian
Constitution, like other Statutes including Law of Contracts, Criminal Laws, and the like
provides for age of maturity to be 18 years. It is a matter of great interest whether or not the
implication of Right to Privacy as a fundamental right comply its effect of enforcement on
all, irrespective of the age they belong to, or the majors i.e. Adult section of India.
4.1.2Advancements and positive Upshot of Right to Privacy-

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The inclusion of the Right in the genre of basic and Fundamental Rights may give effect to
various noted and significant indirect yet positive consequences which can extend to:
4.1.3Attainment of Sexual Autonomy-

Dignity is the core which unites the fundamental rights because the fundamental rights seek
to achieve for each individual the dignity of existence. Privacy with its attendant values
assures dignity to the individual and it is only when life can be enjoyed with dignity can
liberty be of true substance, Says Justice DY Chandrachud while drafting the judgment of the
Landmark case Justice KS Puttuswamy V. Union Of India 125, uphealing the Right to Privacy
as a Fundamental Right.
This concept of Right to Privacy paved Way for the attainment of Sexual Autonomy by girls,
women and specially the married women. Any interruption, major or minor, with respect to
sexual wants, needs or unwillingness in performance may result in intrusion of her Right to
Privacy which in turn will become the infringement of Fundamental Right.
The major concern today which is the issue of Marital Rape, may also witness some sort of
changes and may invite new ambit of penalty or punishments, if it be put under the domain of
infringement of the Fundamental Right of Privacy of the lady.
Recent Judicial trends have revealed that, not even giving sexual pleasure or maintaining
sexual relationship with either of the spouse may serve as a ground for divorce, however the
inclusion of the concept of Right to Privacy as a fundamental right of a citizen may further
obviate this effect or if not, act as a conflicting or defending legal argument or statute against
the former.
4.1.4 Making Effective, Article 377-

Article 377 of the Constitution of India provides for rights of LGBT Community in the
country. In a judgment passed by Hon’ble Delhi High Court, allowing same sex marriage
125
Ks Puttuswamy V Union Of India Writ Petition (Civil) No. 494 of 2012.
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which is still pending in the Supreme Court for the final verdict, may also get enforced
allowing the inclusion of right to privacy as a fundamental right of individual. It may be
argued with legal support that the very constitution provides for Privacy as a fundamental
right and hence non allowance of same sex marriage is the violation of fundamental right to
privacy of the LGBT Community without any reasonable or just cause.
4.1.5 Reasonable Restrictions- What Can Be?

Barring one, no other Fundamental Right provided to us is true and absolute in spirit. All of
them come with certain pre-defined “Don’ts’s” , termed in legal terminology as Reasonable
Restrictions. It is a curious question to delve into what can and cannot be the Reasonable
Restrictions of the Right to Privacy as a fundamental Right . A fundamental Right can be
exercised till it keeps a distance from infringement of other fundamental right and the
Constitution itself provides for such limits. It may be seen that the right to Privacy too will
come with certain restrictions relating to public order, morality, health and requirements of
other statutes.
5. Compromising Citizens Privacy For National Interest :Fundamental

Right v. National Interest
In the Indian Democracy, barring one, no other Fundamental Right can be exercised in its
complete sense. Even the Golden triangle of the fundamental rights i.e those under Article
14(Right to Equality), Article 19(Right to Freedom) and Article 21(Right to Life) cannot be
exercised in their truest sense, under National Emergency. 126Although it is said to be a bad
law, but it clearly points out the conclusion that if for the nation, even the most crucial of all
the fundamental rights may undergo certain limitations and restrictions, let alone the
126
ADM Jabalpur v. SS Shukla, (1976)1207 AIR, 172 SCR (India).
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youngest Right to Privacy. Hence, it can be said that for the sake of the advancement and
protection of the country, certain compromises can be made on and by the citizen to their
Privacy, provided the means and methods to achieve the end is under due process of law,
ensures safety to its citizens and leaves no room for fear of infringement of their privacy and
security. 127Even the constitution of India provides for certain fundamental duties for Citizens
to ensure a balanced cooperation between the State and its members for its smooth and
harmonious functioning,-
 To uphold and protect the sovereignty, unity and integrity of India 128;
 To defend the country and render national service when called upon to do so 129;
Hence there lies a fundamental duty on the part of the citizen to contribute towards the
welfare state up to a possible level, ensuring the betterment of his nation. In the democracy
like ours, where the State provides us with Fundamental Rights fully exercisable by us
without infringement, it is fairly reasonable for it to expect a minute cooperation from its
inhabitants.
6. VITALITY OF PRIVACY- WITH OR WITHOUT RESTRICTIONS?
Privacy as a whole is a multi-fold act, and has layers when it comes to different strata of
society or the Nation. To the same individual, it may and in fact it does play different airs at
distinct points of time in life. As pointed by Aristotle, Man is a social animal, he cannot
survive without the society, it becomes fairly visible to clinch that he has diverse roles to play
in the world around him. Hence, the notion of Privacy also fluctuates as per his roles. As a
husband, privacy carries a different connotation, than that of being a parent. By the same
token, the meaning of Privacy as a Citizen of India is pretty as like as chalk and cheese to
127
U.S. CONST.
128
INDIA CONST. art.51A, cl.c.
129
INDIA CONST. art.51A, cl.d.
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other forms of the same. It in a sense implies his sovereignty provided to him by the State
itself, to which he has delegated his rights and powers. By a Citizen’s Privacy he infers some
of his information, which he possess as a citizen of the nation and which, if altered may serve
as a threat to him and the country at large, including information related to his identity,
security, etc amongst other things.
However, irrespective of the vitality Privacy has on Citizens, it comes with certain dont’s,
technically referred to as ‘Restrictions’, in the context of Public Policy, National and
International interest, etc. Despite a general consensus on the value of privacy, it certainly has
limits. For example, even before the CMS, India’s information Technology (Amendment)
Act, 2008, allowed the government to ‘intercept, monitor, or decrypt’ any information
‘generated, transmitted, received, or stored in any computer resource’ in the interest of
‘sovereignty or integrity of India, defence of India, security of the State, friendly relations
with foreign States, or public order or for preventing incitement to the commission of any
cognizable offence relating to above or for investigation of any offence 130. For those in
favour of compromise, the key point is that such surveillance is no big deal given the
rationale behind it. Loren Thompson argues: “compared with the threat posed by terrorists
bent upon destroying a Nation, tracking presents at worst only modest danger to our
liberties. Its main purpose is to protect those liberties, not subvert them”131. In other words,
privacy might be important, but is it so important that we should risk national and
international security rather than compromise a little.132
130
Human Rights Watch. (2017). India: New Monitoring System Threatens Rights. [online] Available at:
https://www.hrw.org/news/2013/06/07/india-new-monitoring-system-threatens-rights.
131
Anon, (2017). [online] Available at:
https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/sites/lorenthompson/2013/06/07/wh
y-nsas-prism-program-makes-sense.pdf.
132
Foreign Policy.(2017). In Defense of PRISM. [online] Available at: http://foreignpolicy.com/2013/06/07/in-
defense-of-prism/.
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7. A SENSIBLE TRADE OFF?
Not long ago, in the preceding paragraph, a vital need vis a vis need of reasonable restrictions
on the concept of Privacy as a whole, was advocated. Redeploying unfathomable to the
subject of Restrictions imposed by Government, for the sake of National interest, even the
most skeptical of man would agree that for the upward mobility of the Nation, it becomes
focal for the State to have access to the information of its Citizens, their records, conducts
and identity amongst other things. With no trouble, it can be grasped that having gen of a
resident’s data, shall lead the Nation towards advancement, by minimizing chances of Tax
evasion, Harboring, Fraud, Crimes, etc, and would also lead towards reaching of better
incentives to all the Citizens, curbing chances of misappropriation and the like by the
officials or members of the Family for that matter.
However, despite of the pros that are attached with making the Government cognizant of the
minutiae of its inhabitants, it is very essential that there exists, the presence of a proper means
on the side of the leaders to achieve the very End. One must assure that the procedure that
needs to be followed for the same, is airtight and in no case, has the potency to harm or
misuse the details of Citizens against the state, for instance giving birth to terrorism, wars,
homicides, frauds, nuisance and the like. For that matter, the recent most verdict of the
Supreme Court on Right to Privacy, being a fundamental right, triggered by the Aadhaar
issue in the recent case133, leaves room for doubts and discussions about the compromise
made on the Privacy, inclusive of the biometrics of the citizens, being a Fair trade off or not!
7.1 AADHAAR ISSUE
The AadhaarCard, came in India, as an alternative to the identity cards possessed by the
residents of the country. The amicable purpose of the same was to present a concrete proof
about the citizenship of an individual in India. However, with passage of years, it started
133
Supra Note 1.
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acquiring more of a compulsory document, which was not the case earlier. Conditions started
getting negative response when it came to linking of Aadhaar cards with all the documents
and details of the Citizens, and took the worst shape when it asked for linking Biometrics i.e.
the fingerprints and eyescan of the residents.
According to the perspective in person, I comprehend the Aadhaar Issue as A JUST END
BUT WRONG MEANS. I would support the notion that such information, if used by the
State under complete confidentiality would not harm the citizens, as any such case shall make
the government directly liable, which even the government shall resist to carry. However the
method and execution adopted by the same to implement it, is doubtful and can lead to
threats to National sovereignty.
Cyber security concerns in the face of clandestine, untargeted surveillance are not only about
national security but also citizens' right to privacy. Whether or not it succeeds in its declared
primary aim of targeted welfare services for the poor, Aadhaar enables surveillance and
tracking. Aadhaar promoters claim that access to its data base will not be permitted to any
agency, and will be secure from intelligence agencies that spy on citizens. This claim is
questionable since, according to its website, UIDAI contracted to receive technical support
for biometric capture devices, from L-1 Identity Solutions, Inc. a US-based intelligence and
surveillance corporation, whose top executives are acknowledged experts in the US
intelligence community. Other companies awarded contracts for key aspects of the Aadhaar
project, are Accenture Services Pvt Ltd (implementation of Biometric Solution for UIDAI)
which works with US Homeland Security, and Ernst & Young (setting up of Central
Identities Data Repository (CIDR) and Selection of Managed Service Provider(MSP)).134
It is difficult to have confidence in the security of sensitive national information when the
134
S.G.Yombatkere, m. (2017). AADHAAR Cuts Into Personal Privacy and National Security. [online] The
Citizen. Available at: http://www.thecitizen.in/index.php/NewsDetail/index/1/7121/AADHAAR--Cuts-Into-
Personal-Privacy-and-National-Security
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technical provider which creates, holds or manages the database is a business corporation
with strong connections to foreign intelligence organizations.
Furthermore US corporations are mandated by US law to reveal to the US government,

information obtained during their legitimate operations, when necessary. The extent to which
India's cyber security has been already invaded by surveillance is not even known, and when
the security of the Aadhaar system is not water-tight, compromise on it will tantamount to
compromise of national security. As far as institutional cyber security in India is concerned,
barring one database protected by an indigenously developed network security system,
official databases in India, including Aadhaar's Central ID Repository (CIDR), are protected
by purchased commercial network security and cryptographic products.
There is little need to emphasise the vulnerability of the Aadhaar database to access by
unauthorized person/agency for data destruction, corruption or simply copying by
surveillance or hacking. The effect on individual privacy is unquestionably adverse.
When it comes to a Tradeoff between Privacy and National Interest, even Etymologically it
becomes next to impossible to maintain the maximum preciseness of balance between the
two. However, if a reliable mean get carried out to attain the National Interest, assuring the
Citizens that the compromise made by them for the upliftment of the realm, would never
result in anuy sort of infringement or threat to their privacy and security, neither by domestic
nor by any international enemy, and if so happens, in all cases the state shall take stringent
methods to reassure the dignity to its citizen, the Tradeoff can be said to be justified up to an
extent. Though this has not yet been the case with India. Undoubtedly it has resolved to a
resort to ensure advancement of the Citizens and the Nation as a whole, however the presence
of loopholes in the due Execution of the same pushes it to an unfair side of Compromising

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Citizens Privacy and possessing a threat to it, which can never be justified until and unless it
resorts to an unfailing modus.
7.2.THE LATEST AADHAR RULING
In the landmark K.S. Puttuswamy v. Union of India, the Apex Court with a subsequent ruling
of 4:1 upheld the Constitutional Validity of the Aadhar Card as a proof of identity. However
there were certain reservations made by the Court with respect to the exorbitant importance
being given to the same. The court gave a balanced decision stating that although the validity
of Aadhar in the light of fundamental right to privacy cannot be challenged, there shall lie
certain areas where Aadhar cannot be made mandatory including the PAN- Account
verification, mobile sim verification inter alia. This if not complied with, shall certainly
violate the fundamental right to privacy of the people which the state is not authorized to do.
Aadhar hence was lifted to being the identity proof of the people along with the means of
getting certain subsidiary benefits to the marginalized section.
However the lone dissenting judge in the judgment Justice Chandrachud, who is considered
to be a new face of Judicial Liberty openly expressed his disregards for Aadhar being flawed,
unconstitutional and against the Fundamental Rights of the Citizens. He expressed concern
over making and passing Aadhar bill as a money bill, thereby smelling political suspicion in
the issue. He opined that in his view the very concept of aadhar stands against the dictates of
the Law of the Land, i.e. the Indian Constitution and hence he could not convince himself in
believing the positive upshots of Aadhar.
Nevertheless, the majority judgment as always taken into official consideration, made Aadhar
valid and constitutional provided it does not exceed the scope of its creation.
8. Conclusion:

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From the various stats, figures, cases and their respective judgments one can possibly mould
or make his own mindset regarding what exactly is privacy, what are the inputs and outputs
of The Right to Privacy. It is evident that the Right to Privacy had its own voyage both in
International and Indian Scenario. However it sailed through various odds and finally
acquired a status of fundamental Right in India by the Unanimous verdict of 9 judge bench
authored by DY Chandrachud J.
The concept of Right to Privacy has still miles to go before its actual implication, the very
first and foremost, as its application in determining the linkage of aadhaar to various personal
details. The Concept involves numerous interpretations and aspects rather is a magnificent
idea involving plethora of sub fields.
If applied in its truest spirit this concept will open gates to various age old issues and
concerns and provide for their remedies, however if used maliciously, which is in majority of
times, this too will undergo the bias and prejudiced concept reserved for few and the elite.
Needless to say, every idea or concept blooms by mutual coordination, it has to be a five end
corporation by Judiciary, legislature, Executive, Press and People to validate, provide,
execute, showcase and understand respectively the very concept of this new Right which until
biased has the potency to bring peace and happiness in the Nation.

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DIRECTIVE PRINCIPLES OF STATE POLICY: A MERE

CONSTITUTIONAL RHETORIC OR A REALITY?
- BRIJRAJ DEORA135
ABSTRACT
This research paper throws light on the status of Directive Principles of State Policies in the
Constitution of India. It critically analyses the inclusion of this concept in Constitution with
its non-justiciable character in Indian legal regime. This paper also examines whether it is a
mere rhetoric concept in Constitution or a reality of those fundamental principles proposed
by the founding fathers of Constitution for the socio economic rights of citizenry. It also
focuses on how despite being its non-enforceable status in courts of law, Judiciary has
assumed them as basis standards to be complied with while enacting a law? Judiciary in its
role of Judicial Activism, Judicial Review and PIL has not just made DPSP a collection of
socio economic principles but signified its role towards making of welfare state. Criticism of
DPSP as being just principles added in Constitution towards achieving framework of modern
Constitution also fades away by the increasing importance of it as guiding principles for
governing bodies in democratic structure. This paper concludes that non-enforceable
character of DPSP does not make it a paralyzed part of Constitution but a main organ of
Democratic setup.
135 rd
3 Year BA.LLB Student, Gujarat National Law University Gandhinagar, brijrajdeora.official@gmail.com .

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1. INTRODUCTION
“Injustice anywhere is a threat to justice everywhere”

Martin Luther King Jr.
The discussion on the status of Directive Principles of State Policies, hereafter referred to
as DPSPs, in constitution ranges from the claim that they are mere constitutional promises
devoid of practicability to fundamental principles which are consumed by the citizens. In a
common parlance DPSP are principles which guide a government in present action and future
direction regarding its nation and people. Various Scholars have defined it in their ways as
SM Mehta recognized DPSP as those ideals which should be considered by the state when
forming the policies and making laws in order to secure ‘social, economic and political
justice’ to all. 136Further, he noted that DPSP enshrined under the constitution are the
principles which provides the ‘aims and objects of the state’ to be fulfilled by it. He further
notes that these set of principles ensures the life to the aspirations of the people and the
nation.137In this regard, Chinnappa have to say that “directive principles specify the programs
and the mechanics of the state to attain the constitutional goals set out in the preamble”. 138
Therefore, Metha and Chinnappa held DPSP as the means and ends to attain socio-economic
and political justice. They are instrumental in furthering the aspirations of the people and
implementing the very aims and objectives of DPSP. Thus, Directive Principles of the State
Polices are considered to be core and living constitutional principles.
Similarly it is noted by Basu that the part IV of the Constitution [of India] embodies DPSP,
which provides directions to the State, guiding it with the establishment of an economic and
136
SM Mehta, A Commentary on Indian Constitutional law (Deep & Deep Publications 1990) 215.
137
Bertus De Villiers, ‘Directive Principles of State Policy and Fundamental Rights: The Indian Experience’
(1992) 8 S. Afr. J. on Hum. Rts. 29, 30-34.
138
Reddy Chinnappa, The Court and the Constitution of India: Summit and Shallows (OUP 2010) 73.
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social democracy, as proposed by the Preamble”. 139 DPSP are considered as standards of
achievement which all the government organs in running their business should aim for.
They also aim to establish social and economic democracy promised in the Preamble. They
were inserted with the aim of establishing a ‘socialist pattern in the society’ and not
subscribe to either of the extremes-Individualism or Socialism. 140
Thus DPSP are collections of constitutional provisions that require a state to carry out
certain obligations in fulfilment of its mandate for the citizenry”. By the same token Ceazar
considered the DPSP as “blue-prints for good governance and social justice for all” which
helps the nation to realize its national ideals. Democracy being a process taking time to be
built, making DPSP a part of this democratic process to advance socio-economic and
political development will make DPSP real constitutional principles. Till the constitutional
democracy is functioning in a place, DPSP will hold a vital role as it has to provide tools
and inputs for the functioning of state organs namely the legislative, executive and
judiciary.
Contrary to that, there are many scholars who believe that DPSP are just constitutional
promises having no mechanism for their enforcement. It was also argued by some members
of the constitutional assembly during its debate of the Indian Constitution that given “the
political and programmatic nature” of DPSP coupled with their non-judicial enforcement,
they should not be part of the constitution.141Though Das accepted it without any doubt that
DPSP are important, but he believes that rather than making it a part of the main chapter of
the constitution it should be included in “an appendix to the Constitution” if it is required. 142
Joshi strengthen this assertion by adding to it that there should be no space for “political
139
Durga Das Basu, Introduction to the Constitution of India (15th ed., Prentice Hall of India 1993) 475
140
Durga Das Basu, Introduction to the Constitution of India (22nd ed., 2015)163
141
Constitutional Assembly Debate Vol. 4 362-364.
142
Constitutional Assembly Debate Vol. 4 366-368.
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manifestos in a constitution” as constitution surpasses short lived political goals. 143Whereas

Seervaialso argued stating the inclusion of DPSP in a constitution is simply a rhetorical
concept of “hopes, ideals and goals” lacking actual realities supported by political
mechanism of enforcement as opposed to legal enforcement.144
The argument of these authors does not have a clear stand on one side it holds DPSP as
those political ideals which are believed to be short lived than other constitutional principles
which stays comparatively longer. Thus concludes that the Constitution should not make
such short lived political ideas as part of it. On other side, even if DPSP are believed to be
as durable ideals to guide the state’s functioning, their non-enforceability will render them
empty promises. Thus as per these authors, in either way DPSP are mere rhetorical than
practical principles which a constitutional democracy could not afford to have. Whereas
Usman argues that DPSP are defect to the constitutional design and compromises with the
idea of constitutionalism and supremacy of the constitution. 145
DPSP are therefore constitutional instructions provided and monitored by the people for the
government to uplift the rights, needs, and interests of these people. Regarding this the
Gledhill stated that though the DPSP are non-justiciable, the decisions of courts will be
affected by it in the same manner as the Magna Carta and the Preamble of the American
Declaration of Independence has affected the decisions of English judges and American
judges respectively. 146 Thus, the DPSP’s role as constitutional principles should not be
under-estimated it being non- justiciable.
143
G Joshi, The Constitution of India (1958) 108.
144
HM Seervai, Constitutional Law of India (1984) 1577.
145
Jeffrey Usman, ‘Non-Justiciable Directive Principles: A Constitutional Design Defect’ (2007) 15 Mich. St.
J. Int'l L.643.
146
Alan Gledhill, The Republic of India: The Development of its Law and Constitution (2nded, Stevens & Sons
1964) 161-2
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Hence, it is justified that constitutionalizing DPSP is a fruitful endeavour for democratic

culture, human rights and social justice as they being dynamic pillars which grows with
time and develops the constitution asa true living document -which fulfils the present day
the demands of people. DPSP provides much space for political dialogue unlike
fundamental rights and thereby will enhance the democratic culture. 147Its moral and
political character for governance will provide the people a sense of power which is
manifested in elections. While applying and interpreting laws, the judicial sense of the
DPSP will definitely render justice and uphold it as a constitutional principle.
2. A RHEOTIC CONCEPT OR REALITY
Having the arguments for as well as against the constitutionalizing DPSP, the enforcement
problem of it is not an extraordinary constitutional problem attributed to the nature of
DPSP. The chapter of fundamental rights in the constitution also finds difficulty in its
enforcement although not to the same extent. Similarly, this holds true for other
constitutional provisions for examples the separation of power, division of power and the
independence of the judiciary to mention some. India is a country that has shown
commendable progress in the judicial implementation of DPSP whereas country like
Ethiopia even couldn’t enforce the fundamental rights. Thus, the problem relating to the
enforcement of DPSP is not sufficient to justify the DPSP of being a simple rhetoric
concept.
Sir B.N. Rau believed that these Principles had an “educative value”. 148 This educative value
was for reminding those in power what the aim of the Indian polity is. All the provisions in
the Part encompass the goal of the Welfare State that is India. Therefore, the justification to
the above assertion whether DPSP are mere constitutional rhetoric’s or realities depends on
147
WiktorOsiatynski, Human Rights and Their Limits (Cambridge University Press 2009)) 70-99
148
Durga Das Basu, Introduction to the Constitution of India (22nd ed., 2015) 170
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the constitutional, democratic and socio-economic setups. The functioning democracy

existing with a multi-party system that takes into consideration the ideals of the constitution
in general and DPSP in particular as a subject of political debate, a accountable government
which respects and fulfils the wishes of the people as envisaged in the constitution [DPSP], a
dynamic civil society with active citizenry, and an independent and impartial judiciary that
ultimately checks and balances the powers of the legislative and executive will change the
aspirations expressed in the DPSP into a reality.
The Supreme Court in the landmark judgement of Air India Statutory Corporation v. United
Labour Union149, has rightly observed that DPSPs are forerunners of the U.N. Convention on
Right to Development. In Unnikrishnan‟s case150the Supreme Court went to the extent of
observing that the Directive Principles constitute “Conscience of the Constitution”. They are
imbedded as an integral part of the Constitution and that they now stand elevated to
inalienable fundamental human rights. Though non-justiciable, they are justiciable by
themselves. 151
3. SUITABILITY OF DPSP FOR JUDICIALENFORCEMENT
It is usually out of the reach of court’s jurisdiction to enforce DPSP’s. The concept originally
adopted from Irish Constitution does not impose any duty on judiciary and executive but only
on the parliament at the time of making laws. It expressly renders DPSP’s unenforceable by
judiciary.
The Indian Constitution though expressly excludes judicial adjudication on DPSP matters, it
surpasses duties on DPSP to all executive organs.152 The query now arises that if Judiciary
149
Air India Statutory Corporation v United Labour UnionAIR [1997] SC 645
150
J.P Unni Krishnan v State of Andhra PradeshAIR[1993] SC 2178
151
Narender Kumar, Constitutional Law of India (8th ed., 2014)480
152
Indian Constitution (n 35), article 36 and 37.
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cannot consider DPSP as a justiciable claim, then how will it fulfill this constitutional duty?
On this aspect Chinnappa concluded that courts are not precluded by the non-justiciability of
DPSP while interpreting the constitution and laws but their power is limited and courts are
barred to issue directions to parliament and the state legislatures to formulate laws. 153 Despite
the non-justiciable character of DPSP drawn by constitution, a huge jurisprudence has been
developed by the Indian courts by using them extensively to enforce fundamental rights.
Looking at the fundamental character of DPSP as a constitutional principle and its impact in
realizing the aspirations of the citizens, the Indian judiciary has chosen to adjudicate matters
based on DPSP as well. For the judiciary to take such initiative, it demands some sort of
activism towards making constitution as a practical document and thus providing economic
and social justice to concerned citizens by acting as guardian of the constitution and justice.
‘Elections and Public opinion’ forms the main implementing forces for DPSP as the judicial
organs assumes a big responsibility to keep these constitutional promises alive in the
occasion where legislative and executive break these promises 154and in case the judiciary
unable to exercise its function of guardian of constitution, its provisions of DPSP will remain
mere promises without any utility and will be defect in constitutional design as the great
scholar Usman observes.
The ‘judicial revolution’ brought by the active participation of it to safeguard the

constitutional order and to render social justice to the people, supported by the public opinion
looks feasible and consistent with the constitutional framework to bring change. If the
Judicial system safeguards the constitutional schemes and acquires legitimacy for its
functions, the support of public towards the judgment would be enormous and after all that
have a great impact on its execution. At the end, this does not only bring the enforcement of
human rights but also takes the country towards democratization. For the multiple problems
153
Reddy Chinnappa, The Court and the Constitution of India: Summit and Shallows (OUP 2010) 73
154
Jeffrey Usman, ‘Non-Justiciable Directive Principles: A Constitutional Design Defect’ (2007) 15 Mich. St. J.
Int'l L.643
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which the country’s political legal system faces, judicial revolution cannot be a panacea for
all but would definitely fairly attempt for positive change.
4. FACTORS THAT TAKES ‘DPSP’ FORWARD

Though the nature of DPSP is expressly non-justiciable in Indian Constitution, they assume
central place where the judiciary adjudicates the human rights. Various multiple factors also
help DPSP to get important consideration from judiciary. The prime factors among those are
Judicial Review, Judicial Activism and Public Interest Litigation. For better understanding of
the role of DPSP in judicial enforcement of Socio-economic rights, it is requisite to consider
the importance of these factors as they only carry DPSP towards socio economic and political
justice. The main objective here is to examine how judicial review, judicial activism and
Public interest Litigation raised DPSP from just being that the judiciary did not take
cognizance of to principles which play important role in matter of constitutional adjudication.
4.1 JUDICIAL REVIEW
It empowers the judiciary to safeguard the constitution from legislative and executive
intrusion. In the words of Alexander Hamilton from the federalist papers, the judiciary neither
possesses the sword nor the purse but is empowered to pass judgments whose enforcement
depends on the executive.155Further adding to this he states that position of courts is
appropriate to balance the wills of the people and legislature within the constitutional
framework. In this respect, the role of judicial review is very significant as it maintains and
furthers the constitutional ideals and keeps the functions of legislature and executive in
consonance with the constitution. The moral reading of the constitution which judicial review
155
Alexander Hamilton, Federalist Paper, Federalist No.
78,<http://www.foundingfathers.info/federalistpapers/fed78.htm> accessed 08 March 2015
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presupposes gives life and content to the ideals of the constitution. 156It is the judicial review
which assists the Indian judiciary to make sense of DPSP in the constitutional adjudication.
The power of judicial review is granted to Supreme Court as well as all the High Courts by
the Constitution of India. 157And this judicial review empowers these courts with the power
to adjudicate on the actions of both the legislative and executive as void if the action is
contrary to constitutional provisions. The judicial system is not just the final adjudicator
among these parliamentary institutions but also a protector of the constitutional scheme,
democracy and personal liberties.158Sharan observes that judicial review is a corner-stone
of constitutionalism in the federal systems like India as that implies limited government
also.159 He further observed that in country like India where the public opinion doesn’t get
sufficient weightage, it is the duty of judicial system to rescue the general public from
supremacy of executives and tyranny of those sitting in majority in parliament otherwise
that could make constitution ill balanced. 160
Therefore, the judiciary is entrusted with dual tasks of defending the individual liberty of
people with enhancing constitutional democracy as proposed by the constitution. The
Doctrine of ‘Basic Structure’ is also the invention of Judiciary in its judicial review function
to safeguard the continuity and integrity of the basic features of Constitution as envisaged
by its farmers. Although it is not clear that what constitutes ‘Basic Structure’ Doctrine but
the individual dignity secured by various freedoms and basic rights in Part III and
obligation to make a welfare state by Part IV i.e. DPSP, also forms a part of this which is
156
Ronald Dworkin, Freedom’s Law: The Moral Readings of The American Constitution (Harvard University
Press 1997).
157
Indian Constitution (n 53), articles 13, 32, 131-136,143m, 226 and 246.
158
VibhutiShekhawat, ‘Judicial Review in India: Maxims and Limitations‘(1994), The Indian Journal of Political
Science, Vol. 55, No. 2, 177-182.
159
P. Sharan. ‘Constitution of India and Judicial Review’ (1974), The Indian Journal of Political Science, Vol.
39, No. 4, 526-537, 526
160
ibid
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protected from legislative tyranny and political parties superiority. 161 Thus judiciary by the
way of judicial review has major role in forming DPSP part and parcel of the basic structure
doctrine although it is expressly stated that they are not justiciable.
The judiciary as an organ of the state takes seriously its duty towards DPSP and has been
applying it in making decisions. In addition, the judiciary on numerous occasions shows
that when the legislative and executive organs fail to perform their constitutional duty
towards DPSP, it has stepped in defence of DPSP. For instance, in the case of Central
Inland Water v BrojoNath, the Supreme Court notes that the duty of the court is not only to
apply DPSP but also to make the other organs apply them, and in the event of contrary
action prevent such action.162 In the Municipal Council, Ratlam vs Shri Vardhichand case,
the court says that “where Directive Principles have found statutory expression in Do’s and
Dont’s the court will not sit idly by and allow municipal government to become a statutory
mockery.”163 In the case of State of Himachal Pradesh vs a Parent of a Student of Medical
College, the court notes that although it is a matter for the legislative and executive to
introduce legislation not for the judiciary, the latter can certainly require either the
legislative or the executive to carry out their duties under the Constitution if they fail to
carry out.164 Thus, the instrument of judicial review gives the court an active role to uphold
and enforce DPSP by itself and to require others to do the same.
4.2 JUDICIAL ACTIVISM
In the same way like judicial review, the main concern of discussion on judicial activism is
to examine how it could be helpful for the judicial enforcement of DPSP. As already
mentioned, judicial review is the means for judicial activism, the latter provides force for
161
Sanjay Jain and Aathya Narayan, Basic Structure constitutionalism: Revisiting KesavanandaBharati(Eastern
Book Company 2011), 160.
162
Central Inland Water v BrojoNathGanguly&Anr[1986] SCR (2) 278
163
Municipal CouncilRatlam v ShriVardhichand&Ors.[1981] SCR (1)97
164
State of Himachal Pradesh v A Parent of a Student of Medical[1985] SCR (3) 676
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the enforcement of DPSP with a huge scale and intensity to raise citizens from socio-
economic and political injustice. The important observation is that the allegiance of
judiciary with the citizens to advance justice and enforce human rights can harmonise
supremacy of executive as well as tyranny of majority. The active participation of the
judicial system has allowed the citizens to enjoy socio-economic rights as provided in the
DPSP despite its non-justiciability.
Though DPSP has taken its shape from the doctrine of judicial independence, now it has
grown enough to resolve pertinent social-economic and political problems in the
democracy. Chinnappa states that “the role of judicial Activism is not more or less than the
activity to bring social justice to the doorstep of citizens especially in grey areas which no
statute made by a legislature covers.”165 Due to the impact of the Constitution in uplifting
citizens and the clear picture of social realities enables the judiciary to bring the
Constitution and the law to the service of the nation. 166
In the landmark judgment of State of Kerala v N.M Thomas167, Court gave verdict that there
is no anti-thesis between Fundamental Rights and Directive Principles and are supplement the
other. Directive Principles and Fundamental Rights should be continued in harmony with
each other and every attempt should be made by the court to resolve any apparent
inconsistencies between them. In Pathumma Vs State of Kerala168, Court has emphasized that
the purpose of the Directive Principles is to fix certain socio-eco goals for immediate
attainment by bringing about a nonviolent social revolution. The constitution aims at bringing
about synthesis between Fundamental Rights and the Directive Principles. In Olga Tellis v
Bombay Municipal corpn.169,Court has affirmed that since Directive Principles are
165
Reddy Chinnappa, The Court and the Constitution of India: Summit and Shallows (OUP 2010) 257.
166
Jamie Cassels, ‘Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?’
(1989), 7 Am. J. Comp. L,497.
167
State of Kerala v N.M ThomasAIR [1976] SC 490
168
Pathumma v State of KerelaAIR [1978] SC 771
169
Olga Tellis v Bombay Municipal corpn.AIR[1986] SC 194
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fundamental in the governance of the country they must, therefore, be regarded as equally
fundamental to the understanding and interpretation of the meaning and content of
Fundamental Rights. In Minerva Mills Vs Union of India170Chandrachud, C.J., said that
“Fundamental Rights are not an end in themselves but are the means to an end.” The end is
specified in the Directive Principles.
The main concern of Indian judicial system has been the rights and justice of those who
could not access them due to various social, economic and political non favourable
circumstances and thus judiciary has been able to grant the constitutional package of rights
to these people.171 Therefore, judicial activism has provided life to the constitutional
provisions of fundamental rights and DPSP, which otherwise may not be possible.
4.3 PUBLIC INTEREST LITIGATION
In the similar manner as judicial review and activism, this part observes how the Public
Interest Litigation (PIL) has made capable the poor, vulnerable and under privileged people
to reach at the doors of justice i.e. court rooms. PIL has been playing a significant role for
the better enforcement of human rights both in the courts/commissions of international
arena as well in national courts.172This has proven extremely helpful for human rights
litigants in India and in uplifting the socio-economic rights under the DPSP. Fundamental
rights does not got recognition under Indian Constitution but also provided with the proper
remedy for it violations.173Due to the lack of awareness of rights and resources by the
citizens, it is not easy for general people to litigate their rights in courts. 174
170
Minerva Mills v Union of IndiaAIR [1980] SC 1789,1806,1807
171
S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (OUP 2000).
172
VinodhJaichand, ‘Public Interest Litigation Strategies for Advancing Human Rights in Domestic Systems of
Law’ (2004), SUR International Journal of Human Rights, Year 1 NO. 1
173
Indian constitution (n 53), article 32
174
Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ (2009), C.J.Q., VOL 28, ISSUE 1, 24
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Judiciary being the guardian of fundamental rights and looking at these practical realities,
has introduced the concept of PIL with the sole purpose to bring rights and justice to the
benefit of the poor and the vulnerable. 175Also it is an commendable attempt of Judiciary
that it introduced PIL and made the constitutional rights a consumable commodity to all
Indians. PIL enable anyone, may it be lawyers, academics, Non-Governmental
Organisations (NGOs) and any interested person to bring a case on behalf of a victim or
victims in the public interest without being a victim.
Courts have not only liberalized the standing rules, but also have actively taken their roles
in cases of PIL. Thus deviating from standards of common law proceedings, courts actively
indulge them in asking questions and proposing solutions. In special circumstances courts
also appoint fact finding commissions and amicus curie depending upon facts to facts basis.
Therefore the approach of courts is also people friendly towards the discharge of justice. In
addition to that epistolary jurisdiction is also adopted by courts where informal petitions by
the way of letters, telegrams, newspaper reports and other informal means are also
entertained. 176
The judiciary also emphasized that public interest litigation is not an adversarial but a
collaborative and cooperative project in which all concerned parties should work together to
realize the human rights of disadvantaged sections of society. 177The Supreme Court in a
number of occasions has stated the rationality behind PIL. The role of the judiciary and the
principles of Constitutional interpretation were stated in the cases like SP Gupta v Union of
India178and the case of Bihar Legal Support Society v. The Chief Justice of India &Ors.179,
the courts attempt was to make the constitutional rights a consumable commodity to all
175
Zachary Holladay, ‘Public Interest Litigation in India as a Paradigm for Developing Nations’ (2012), Indiana
Journal of Global Legal Studies Vol. 19 NO. 2.
176
SarbaniSen, Public Interest Litigation in India: Implications for Law and Development (Mahanirban Calcutta
Research Group 2012),15
177
Sathe, Judicial Activism in India, pp.207–208, 235–237.
178
SP Gupta v Union of IndiaAIR [1982] SC 149
179
Bihar Legal Support Society v The Chief Justice of India &Ors[1986] 4 SCC 767
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Indians and thus they backed the PILs. Hence, PIL is a vital procedural engine for socio-
economic rights litigation in India.
5. CONCLUSION AND OBSERVATIONS
From the observations of great scholars and above discussion on DPSP, it is concluded that
three fundamental pillars as common denominators can be drawn. The first is DPSP are
fundamental principles of a constitution which guides the overall activities of the state
towards the citizenry. Second, DPSP are mainly directed to socio-economic rights. Third, the
judiciary has a role to play for the enforcement of DPSP. The role of the judiciary to guard
DPSP is crucial as the legislative and executive organs are unable or unwilling to adhere to
the DPSP.
Further talking on its being a Rhetoric concept or Reality towards promoting socio-economic
rights of citizenry, the actual utility of the ‘directive’ in the Constitution has always been
controversial issue and the critics have gone even to the extent of calling them as pure
window dressing or pious superfluities yet these principles have a great significance from the
political standpoint and thus proven not to be just rhetoric. These directives being in the
nature of a standing reminder to the Government as to what it has to do for its people, any
Government violating these mandates would be called upon to answer the electorate at the
election time.
On the other side, DPSP has emerged as the principles for bringing the socio economic and
political realities on the doorsteps of legislatures. It may be said that far from being mere
wishful ideals or pious thoughts, the Directive Principles of State Policy have served a useful
purpose in visualizing India is a Welfare State. Some of the Directive Principles would not
only serve the cause of socialism but would also help in ensuring the real enjoyment of
Fundamental Rights in the context of the twentieth century. Judiciary has a decisive role in

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making DPSP the principles of socio economic justice and has thus made the non-justiciable
character of it as just a faded shade apart from its brighter beginning in the democratic spirit.
By extending DPSP principles to right to life, the Indian judiciary has managed to enforce the
right to food, the right to health, the right to shelter and the right to livelihood as part and
parcel of the right to life. Although DPSP are non-justiciable and there is no socio-economic
rights in the Indian Constitution, the judiciary by availing the power of judicial review,
engaging in activism and liberalizing the standing rules has established enforceable biosphere
of socio- economic rights within the ambits of the right to life.
Judicial Review, Judicial Activism and Public Interest Litigations have been the engines of
DPSP in constantly uplifting the Socio economic causes and thus made the justice delivery
system an efficient and effective for raising the concerns of under privileged and socially
backward class of people. Judiciary in these three prominent functionality has been
determinately safeguarding the true spirit of democratic nation and thus also not letting the
aims and dreams of founding fathers of Constitution a mere Rhetoric concept but bringing the
reality of the socio economic rights of citizens into a better legal regime.

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POSITION OF SAME SEX MARRIAGES IN INDIA: A LEGAL

ANALYSIS
Aayushi Mungee180
ABSTRACT
This paper aims to recommend that the option of marriage, not merely civil unions, should be
made legally available for LGBT people in India. In advocating a case for same-sex
marriage, this paper tries to present a scenario for reshaping marriage itself by disengaging
the social contract that is the basis of marriage from the religious and cultural significance
that our history has placed on the institution since its establishment. Committed unions
among the humanity should be encouraged and enjoy appropriate legal and social
protection, but there is no need to impede these unions with irrelevant religious associations
and traditional prejudices.
This paper contends that the acceptance of same-sex marriage will require changes in public
attitudes. For biological, historical, and religious reasons, marriage has been considered to
be a right of the heterosexual couples throughout most of human history. As known, one
180
4th year BBA. LLB Student, ICFAI University Dehradun, aayudu777@gmail.com
VOLUME I ISSUE I
reason for having the institution of marriage is to reproduce and protect children, as
according to the human experience, in general, children grow up better as individuals and
collective unit of the society when raised by loving parents instead of being homeless,
abandoned or raised by the State itself. As a known fact, only heterosexual couples produce
children through “standard” reproduction (genital-to-genital intercourse).
The paper lastly presents a comparative analysis with family law in India, and the legality of
same-sex marriages under the relevant statutes. Alternative institutions like civil unions are
also analyzed.
1. INTRODUCTION
Marriage, contrary to popular opinion, is not a personal relationship. It is a social institution

that is constantly evolving, and any view contradicting popular views on marriage are
repressed.181 The definition of ‘Marriage’ given in the Merriam Webster dictionary is (a) the
state of being united to a person of the opposite sex as husband or wife in a consensual and
contractual relationship recognized by law (b) the state of being united to a person of the
same sex in a relationship like that of a traditional marriage [same-sex marriage] (c) the
mutual relation of married persons [wedlock] (d) the institution whereby individuals are
joined in a marriage.
In an era where even the dictionaries have started recognizing the same-sex marriages, are
countries ready to accept them. Out of the total 195 countries of the world, only 27 of them
have recognized same-sex marriages in some form. These are:
1. The Netherlands(2000)
181
Joyce Aschenbrenner, Politics and Islamic Marriage Practices in the Indian Subcontinent, 42 ANTHROPOL.
Q. 305–315 (1969); CHRISTOPHER LASCH, The Suppression Of Clandestine Marriage In England: The
Marriage Act Of 1753, SALMAGUNDI 90–109 (1974).
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2. Belgium(2003)
3. Canada(2005)
4. Spain(2005)
5. South Africa(2006)
6. Norway(2008)
7. Sweden(2009)
8. Argentina(2010)
9. Portugal(2010)
10. Iceland(2010)
11. Denmark(2012)
12. Uruguay(2013)
13. Brazil(2013)
14. New Zealand(2013)
15. England and Wales(2013)
16. France(2013)
17. Luxembourg(2014)
18. Scotland(2014)
19. United States(2015)
20. Ireland(2015)
21. Finland(2015)
22. Greenland(2015)
23. Colombia(2016)
24. Malta(2017)
25. Australia(2017)
26. Germany(2017)

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This means that only 13.8% nations have legalized same-sex marriages. This clearly shows
that the legal recognition of same-sex relationships has been and still remains an important
but also argumentative issue worldwide.
The movement for LGBT rights had an advancement since the early 1970’s. The first change
came in 1973 when the American Psychiatric Association removed homosexuality from its
list of mental disorders, which was followed shortly by the American Psychological
Association and the American Medical Association. Subsequently in 1975, the U.S. Civil
Service Commission removed its ban on the employment of gays and lesbians which
provided them a basic right to employment without unnecessary social hassles. Progressing to
changes on a larger scale, cities such as San Francisco, Minneapolis, Seattle, and Detroit—
and some smaller municipalities like Ann Arbor, MI, and Austin passed gay rights
ordinances, removing the employment discrimination against homosexuals.
Beyond the increasing numbers of political ordinances and laws in favour of homosexuality,
social historians displayed the societal mindset. They describe the period from 1910 to 1920
as one of enormous social ferment, manifest in part by the beginnings of a revolution in
gender roles and in sexual practices outside marriage182.
It can be seen that marriage holds significantly more appeal for same-sex couples than do
other relationship statuses. Same-sex couples are more likely to marry in the first year after
marriage is open to them than they are to enter into other status categories in the first year
after those become available183.
2. CHANGE IN THE LEGAL SYSTEM
182
NANCY F. COTT, P UBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION 158–59 (2000)
183
United States v. Bitty, 208 U.S. 393, 401 (1908) (quoting Murphy v. Ramsey, 114 U.S. 15, 45
(1885))
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Until the beginning of the 21st century, there was no modern law enacted that recognized the
legality of same-sex marriages. Polls across the America 184 and Europe185 show that support
for same-sex marriage has been rising at a steady rate.
But there’s always another aspect to the issue. There are instances of African countries
criminalizing homosexuality and enforcing extremely harsh penalties against homosexuals.
Examples of this are the draconian laws enforced by Nigeria186, Uganda187and several Central
African countries188.
This chain of judgments was started in 2013, when the Supreme Court of United States ruled
in favour of the rights of same-sex couples in Hollingsworth v. Perry189 and United States v.
Windsor190. In these judgments, the Supreme Court of United States ruled that any ban on
same-sex marriage would be unconstitutional and that the Federal Government would have to
recognize any marriages that were conducted at the state level. Another judgment improving
the stand of homosexuality was Obergefell v. Hodges 191where the Supreme Court of US held
that states cannot refuse to issue same-sex marriage licences, effectively legalizing gay
marriage across the United States.
184
Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, GALLUP (2011)
(accessible at
http://www.gallup.com/poll/147662/First-Time-Majority-Americans-Favor-Legal-Gay-Marriage.aspx) (last
accessed August 10th,2015); Margarita Corral, Support for Same-sex Marriage in Latin America, in LATIN
AMERICA PUBLIC OPINION PROJECT, “INSIGHTS” SERIES (2010) (accessible at
http://www.vanderbilt.edu/lapop/insights/I0844.enrevised.pdf) (last accessed August 13th, 2015).
185
Most Irish people support gay marriage, poll says, PINKNEWS (2011),
http://www.pinknews.co.uk/2011/02/24/most-irish-peoplesupport- gay-marriage-poll-says/ (last visited August
15th, 2015).
186
Adam Nossiter, Nigeria Tries to “Sanitize” Itself of Gays, THE NEW YORK TIMES, February 8, 2014,
http://www.nytimes.com/2014/02/09/world/africa/nigeria-uses-law-and-whip-to-sanitize-gays.html (last visited
August 12th, 2015).
187
Paul Semugoma, Chris Beyrer& Stefan Baral, Assessing the effects of anti-homosexuality legislation in
Uganda on HIV prevention, treatment, and care services, 9 SAHARA-J J. SOC. ASP. HIVAIDS 173–176
(2012).
188
Review of Legal Frameworks and the Situation of Human Rights related to Sexual Diversity in Low and
Middle Income Countries, JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS (UNAIDS) (2009)
189
Hollingsworth v. Perry, 133 S. Ct. 2652
190
United States v. Windsor, 133 S. Ct. 2675
191
Obergefell v. Hodges, 135 S. Ct. 2584
VOLUME I ISSUE I
It is unarguable that the initial focus has to be on de-criminalising consensual sexual acts. But
this in itself will not end the discrimination faced by persons who are engaged in long-term
committed relationships with others of their own sex. It would require legal recognition of
long-term same-sex unions, on par with heterosexual marriages.
Both inside and outside the LGBT communities, there are differing views about the
desirability of marriage—either in any given individual’s personal life or as to government
policies that use marriage as a condition for a wide range of benefits 192.There are, however,
compelling practical reasons to seek social and legal recognition of same-sex relationships.
Certain legal benefits such as succession, maintenance, and pension rights that are available
to married couples are not available to same-sex couples. Economic benefits from laws like
the Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1923 are
given only to those related by blood or marriage 193.
3. ALTERNATIVES TO MARRIAGE
3.1 Live in relationships
Live in relationships, also called cohabitation relationships, have been growing increasingly
popular in various countries, including India. In most places, people who do not have an
option of getting married or recognized in any official capacity resort to this option 194.
In India, they have been recognized as official marriages in certain circumstances195.

Although same-sex marriages are still not recognized, even if they fall under the same
circumstances.
192
Mary L. Bonauto, Goodridge in Context, 40 Harv. C.R.-C.L. L. Rev. 1 (2005).
193
Employment Provident Fund Scheme, S. 2(g) (1952). Workmen’s Compensation Act, S. 2(d) (1923).
194
Kathleen Kiernan, Cohabitation in Western Europe: Trends, Issues, and Implicaitons, in ALAN BOOTH,
ANN C. CROUTER & NANCY S. LANDALE, JUST LIVING TOGETHER: IMPLICATIONS OF
COHABITATION ON FAMILIES, CHILDREN, AND SOCIAL POLICY (2002).
VOLUME I ISSUE I
3.2 Civil Unions
Some countries have the alternative to marriage known as Civil Unions, they carry all the
benefits and protection of marriage. Same as marriage, they also have to carry all the
responsibilities of marriage 196. They were meant to be a compromise, where same-sex
couples got all the benefits of marriage, although the definition of traditional marriage would
be unchanged, therefore avoiding the conflict with religious entities.
The problem is of course, with the attempt to reinstate a system of separates but equals that
defined the Jim Crow laws in the United States before the Civil Rights movement 197. It shows
that same-sex partners are being treated in a way that is considered to be “lesser” than the
institution of marriage, which is reserved for straight couples, who would be considered more
“natural” or “pure”198. Such unions have no equivalent in India.
4. HINDU MYTHOLOGY ON SAME-SEX MARRIAGE
The texts of Kamasutra, a fourth century sacred treatise on eroticism describes women’s
manly behaviour during intercourse but has been interpreted as describing only heterosexual
interactions, however it can be interpreted as something related to acceptance of
unconventional, non-normative sexual acts199. The Kamasutra states that two male friends
195
IndraSarma v. V.K.V. Sarma, AIR 2014 SC 309
196
William N. JrEskridge, Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions, 64
ALBANY LAW REV. 853
(2000).
197
LESLIE VINCENT TISCHAUSER, JIM CROW LAWS (2012).
198
Alison Avery et al., America’s Changing Attitudes toward Homosexuality, Civil Unions, and Same-Gender
Marriage: 1977–2004, 52 SOC.WORK 71–79 (2007); Paul R. Brewer & Clyde Wilcox, Same-Sex Marriage and
Civil Unions, 69 PUBLIC OPIN. Q. 599–616 (2005).
199
‘VatsyanaKamasutra’ by Ruth Vanita in Same-Sex Love and the English Literary Imagination (New York:
Columbia University Press, 1996), pp.46-53.
VOLUME I ISSUE I
who care for and trust each other may ‘unite’ (II. 9. 36). The term used is
‘parasparaparigraham’, meaning mutual marriage, intercourse, take, accept or seize 200.
In the Manusmriti, the chapter on penance and expiation, it is noted that if a kanya (virgin)
got intimate with another kanya, they would be fined 200 panas (currency of the time), pay
the double of the bride price during marriage and receive 10 lashes of the rod. If a stri
(married woman) got intimate with another a kanya, she shall immediately have her head
shaved, get two fingers cut off and be made to ride through the town on a donkey201.
Although there are several dharmic texts that contain prohibitions of homosexuality, there are
also a number of mythological stories that show homosexual experiences as natural and
joyful202.This shows that homosexual interactions were not acceptable even then, however,
the punishments were not as severe as they are now under the Indian Penal Code.
5. POSITION OF INDIAN LAW
The Indian laws holds a very diplomatic approach towards legality of homosexuality. They
are framed in such a manner that it does not expressly prohibit same-sex marriage. For
example, when the Hindu Marriage Act defines the people who will be eligible to marry
under the act203, it does not lay down any provision that states specifically that only people of
the opposite-sex can get married to each other.
Section 377(now repealed) of the Indian Penal Code 1861, provided that whoever voluntarily
has carnal intercourse against the order of nature with any man, woman or animal shall be
punished with imprisonment for life, or with imprisonment of either description for a term
200
APTE, V. S. The student’s Sanskrit-English Dictionary (Delhi, MotilalBanarasidass, 2000), 319
201
NARRAIN, A. ‘Queer. Despised Sexulaity, Law and Social Change’, published by ‘BOOKS for CHANGE’,
1st edition 2004, page 36.
202
NANCY BONVILLAIN, WOMEN AND MEN: CULTURAL CONSTRUCTS OF GENDER, at 281 (Prentice Hall) (2001)
203
Section 2, The Hindu Marriage Act, 1955.
VOLUME I ISSUE I
that may extend to ten years, and shall also be liable to fine. For an act to constitute a carnal
intercourse, penetration is sufficient to be the offence described in this section204.
However, consummation of marriage, in the case of two males getting married, would be a
violation of criminal laws. In addition, even if same-sex partners were allowed to be legally
married, there is always the chance that they may be prosecuted for their sexual relationship.
Therefore, any marriage that might exist, at least in the case of two males getting married,
would be one without any sexual activity. If the couple decides to engage in sexual activity,
they would have to constantly worry about prosecution under the Indian Penal Code.
A change in approach came with judgment of Delhi High Court in Naz Foundation v. Govt.
of NCT of Delhi205which stated that Section 377 of the Indian Penal Code was
unconstitutional insofar as the restrictions on homosexual activity were concerned. The Court
read the word “sex” with a liberal interpretation, including biological sex, as well as sexual
orientation into the word. This approach specifically indicates that any law which specifically
targets homosexuals would be prima facie void.
But his case was later overruled in Suresh Kumar Koushal v. Naz Foundation206 by the
Supreme Court of India. The Supreme Court stated that role of reforming the law was that of
the legislature, and that the judiciary could not strike down certain provisions of the law. The
bench, however, only commented on the ability of the High Court to strike down the law,
they did not vitiate the opinion of the Delhi High Court that Section 377 was unconstitutional.
In the case of Hindu marriages, it is not unusual for people to get married and not get the
official documentation of the marriage. In case the need for legal intervention was necessary,
the judges would examine evidence of the marriage. It may include photographs and
recordings which are used to see if two people were married. The need for following the
204
Section 377, Indian Penal Code 1861
205
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.
206
Suresh Kumar Koushal v. Naz Foundation, AIR 2014 SC 563.
VOLUME I ISSUE I
ceremonies is emphasized. Since human mythology placed importance on the fulfillment of

ceremonies, Indian laws too recognizes it and not following the ceremonies could result in
the marriage not being legitimate 207. If the ceremonies cannot be proved, there can be no
valid Hindu marriage208.
Even though they might have completed all the required procedures and ceremonies for
marriage, same-sex couples have not been able to get official recognition. The couples
involved would have been married in every sense of the word, in accordance to the rites and
ceremonies prescribed by religion, however, they would not be considered married from the
perspective of the State.
In the case of Suresh Kumar Koushal v. Naz Foundation209, the Court held that the
classification between those indulging in carnal intercourse in the ordinary course and against
the order of nature is intelligible, thus making Section 377 not violative of Article 14 of the
Constitution210. This judgment clearly ignored the precedents which require a justification of
the classification in relation to the stated objective being pursued.
Secondly, the Court held that Section 377 did not violate Article 15, providing no reasons
whatsoever. It failed to address one of the crucial issue on which the judgment of Naz
Foundation was based. The reasons in Naz Foundationas to why discrimination on the
grounds of sexual orientation was violative of Article 15 and that the term “sex” in the Article
included “sexual orientation”. Similarly, the bench discussed several landmark cases under
Article 21 but did not provide any reasoning as to how Section 377 is not in violation of
Article 21.
207
Vishnu Prakash v. Sheela Devi, (2001) 4 SCC 729.
208
Margaret Palai v. SavitriPalai, AIR 2010 Ori 45.
209
(2014) 1 SCC 1
210
Constitution of India 1950
VOLUME I ISSUE I
Finally, the Court stated that the decision to repeal Section 377 had to be left to the
Parliament, effectively directing a group that it recognizes as a minority that its rights should
be protected by the majoritarian arm of government i.e. Parliament 211.
But the situation changed in Sept. 2018 when the Supreme Court of India overruled its 2013
decision and partially struck down Section 377 which was a controversial British-era law
banning unnatural intercourse. The Bench stated that consensual carnal intercourse between
two adults, in a private space, whether between heterosexuals or homosexuals, does not in
any way hamper public decency and morality. The other part i.e. carnal intercourse with
children, animals or bestiality, still remains in force. 212
6. SAME-SEX MARRIAGE UNDER THE HINDU MARRIAGE ACT,

1955
The Hindu Marriage Act explains who a Hindu is under the Explanation clause of Section 2
that “The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:
 any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
 any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina
or Sikh by religion and who is brought up as a member of the tribe, community, group
or family to which such parent belongs or belonged; and
 any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh
religion.”
211
Gautam Bhatia, The Unbearable Wrongness of Koushal v. Naz Foundation, Indian Constitutional Law and
Philosophy (December 11, 2013), http://indconlawphil.wordpress.com/2013/12/11/the-unbearable-wrongness-
of-koushal-vs-naz-foundation/
212
Navtej Johar v. Union of India Writ Petition Criminal No. 76 of 2016
VOLUME I ISSUE I
Section 5 of the Act speaks of the conditions constituting a valid marriage. It states“A
marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:
i. neither party has a spouse living at the time of the marriage;

ii. at the time of the marriage, neither party (a) is incapable of giving a valid consent to it
in consequence of unsoundness of mind; or (b) though capable of giving a valid
consent, has been suffering from mental disorder of such a kind or to such an extent
as to be unfit for marriage and the procreation of children; or (c) has been subject to
recurrent attacks of insanity
iii. the bridegroom has completed the age of [twenty-one years] and the bride, the age of
[eighteen years] at the time of the marriage;
iv. the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two
v. the parties are not sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between the two;”.
Nowhere in this section has the gender of the parties to a marriage been specified. As it
clearly says that a marriage maybe solemnized between any two Hindus, and considering
how a marriage is a union of two spirits, and as per Hindu Philosophy, the spirit or the Atman
has no gender 213, this is very much in consonance with the Hindu beliefs. However, this has
given rise to varied debates with regard to the acceptance of same sex marriages. There is no
law that exists for the governance of marriage between two people of the same sex, however,
the law with marriage doesn’t expressly prohibit it, nor does it have clarity with regard to
parties, thus making a provision for a huge confusion and debate.The issues with Section 5 is
the provision for the minimum age of the bride and bridegroom214, however, there are no
213
Atman: The Soul, The Real Self, http://iskconeducationalservices.org/HoH/concepts/101.htm.
214
Section 5, clause (iii), The Hindu Marriage Act, 1955.
VOLUME I ISSUE I
gender specifications and no definition of the bride and the bridegroom, also, there is no
specification there needs to be both a bride and a bridegroom for the marriage.
However gender specification is not expressly stated in the Hindu Marriage Act, but it can be
understood from the language which in itself negates the approval of same sex marriages; as
in Section 13 (2) (iv) it is mentioned, “that her marriage (whether consummated or not) was
solemnized before she attained the age of fifteen years and she has repudiated the marriage
after attaining that age but before attaining the age of eighteen years.” Thus, this provides a
hint of the gender of the person entered into marriage nullifying the argument that the gender
is nowhere mentioned in the Act.
7. CONCLUSION
The law in India with regard to marriage between two people of the same sex isn’t clear. The
fact that in the surrogacy bill215, where the government doesn’t want to allow homosexual
couples to hire surrogates shows that the government at least acknowledges their existence,
their acceptance goes a long way though.
But now with decriminalization of laws such as Section 377 of IPC, the people are now free
to accept and practice their sexual orientation without the fear of being subjected to legal
harassment and arrested and sent to prison.
The first step towards accepting same-sex marriages have been taken by the decriminalization
of homosexuality by amending Section 377 of the Indian Penal Code, the next should be to
make the provisions of the Hindu Marriage Act clearly gender specific, and avoiding the
issues of misinterpretation and confusion.
215
Surrogacy (Regulation) Bill, 2016
VOLUME I ISSUE I
CASE COMMENT : SHAYARA BANO & Ors. V. Union of India

& Ors.216
- Jitika217
It has been said –

“of all the permitted, divorce is the worst in the sight of God”.218
Talaq was considered abominable by the Prophet as it not only interfered in the happiness of
conjugal life but it also had negative consequences in the tending and upbringing of children.
If it is not absolutely necessary, it is strongly disapproved and discouraged against. Talaq can
be opted by the men in the case where he is fully convinced that the marriage has been
broken irretrievably. Abu Hurayrah re-counts what the Prophet has said in regards to Divorce
216
Writ Petition No. 118 of 2016
217
3th year BA. LLB Student, Maharshi Dayanand University Rohtak, 2004jitika@gmail.com
218
http://www.spiritofislam.co.in/spiritnew/index.php/divorce-in-islam
VOLUME I ISSUE I
“Marry, do not divorce, for God does not like men and women who relish variety in sex
matters.”219
The process of Talaq is quite simple. The Muslim law provides for two types of talaq to men-
1. TalaqulSunnat
2. Talaq e Bidat
The former is considered the more virtuous form of Talaq whereas the latter is considered to
be the less virtuous form.
1. Talaq-ul-Sunnat –
It is the approved form of Talaq. It has two sub categories-
i. Talaqahsaan –
Considered to be the most proper or the best form of Talaq. Because it is

needed to be pronounced only once, there is no reason that the bad should be
spoken again and again. Conditions that are needed to be fulfilled –
a) Husband must pronounce in one single sentence

b) Can be pronounced only in Tuhr (state of purity)
c) Husband must abstain from exercising conjugal rights after his
pronouncement of Talaq. Otherwise the pronouncement of Talaq stands
revoked.
219
Muslim Law of Divorce by KN Ahmed, 1978
VOLUME I ISSUE I
Why is it considered to be the best? 220Talaqahsaan is revocable during period

of Iddat and also provides the man option of re-marrying (twice, after which
there is no option of reconciliation) his wife after the expiration of Iddat.
Note – Here the woman doesn’tmarry another man, to marry her husband
again.
ii. Talaqhasan
Considered to be a proper or good form of Talaq. Here the Husband

pronounces the Talaq thrice in three successive Tuhr of woman. 221 With last
pronouncement i.e. the third pronouncement the Talaq becomes final and
irrevocable. The moment the Husband utters the last pronouncement; the
marriage is dissolved irrespective of iddat.
It is important that no intercourse takes place in the tuhr in which the Talaq is
pronounced by the Husband.
The importance of hasan is understood by knowing the background of pre-

islamic Arabian Practice, under which the cycle of revocation and remarriage
was quite prevalent.222
In Talaqhasan, after Talaq is finalized the husband do have the option of
marrying again. But here is the main difference between Ahsaan and Hasan.
Here, for to marry her husband again the woman will have to get married to
220
Personal laws in crisis, Syed Tahir Mahmood, 1986.
221
Muslim Law of Divorce by KN Ahmed, 1978
222
Ibid.
VOLUME I ISSUE I
another man, consummate that marriage with him.Then that man will give her
Talaq, and only after that she can marry her first Husband.
The intent of marrying the woman to another man was to chastise and penalize
the husband, who thoughtlessly repudiated his wife.
Both these forms provide an opportunity to compensate for hasty action. To undo the
harm caused by cancelling the Divorce given to his wife and to have the chance to continue
his marriage as before. Revocation of Talaq can be done only two times, the third time, it will
become irrevocable.
2. Talaq-e-Biddat
It is the most disapproved form of Talaq. Having no recognition in either Hadis or
Quran, it is just the matter of innovation. This form of Talaqisn also known as Talaq-
ul-Bain. It was introduced by Omeyyads in second century of Islam and has gain
prevelance in India since. Amir Ali says – This type of Talaq was introduced by
Omayyid Monarchs to escape from the strictness of law and they wanted to find a
“loophole” to complete their purposes.
It is considered to be based on some distorted ideas. Some of the Muslim Schools that
recognize the ‘Talaq-e-Biddat describe it as “a sinful form of divorce”.
Talaq-e-Biddat, also known as Talaq-ul-Bidda has two ways to be pronounced –
a. When the Talaq Declaration is made thrice in one go–

“I divorce thee, I divorce thee, I divorce thee”

VOLUME I ISSUE I
With utterance of last word, the Talaq becomes final and irrevocable. There is no
time of reconciliation between husband and wife. It is called Triple Irrevocable
Talaq.
b. When the Talaq Declaration is made by uttering the words once –

I divorce thee by Talaq-ul-biddat.
The pronouncement can be made even when the woman is in her Mensuration
Period. This Talaq is also final and irrevocable and is called Single Irrevocable
Talaq.
These kind of Talaq are referred to be theologically and morally wrong.
The Practise of Halala –

Same as in Talaqhasan, if the man wants to re-marry his wife the following steps
are followed –
1. The Divorced Wife is made to marry another man.
2. That marriage must be consummated.
3. The other man divorces the wife.
4. Now she can marry her first husband again.
The Case of Triple Talaq
Background of the Case -
Shayara Bano(wife) was married to Rizwan Ahmed(husband) for 15 years. In 2016, Rizwan
divorces her through instantaneous triple talaq(talaq -e biddat). A Writ Petition is filed by
ShayaraBanoin the Supreme Court to hold three practices – talaq-e-biddat, polygamy, nikah-
halala– unconstitutional as they are violating to Articles 14, 15, 21, 25 of the Constitution.
VOLUME I ISSUE I
After the acceptance of ShayaraBano’s petition, the Apex Court formed a 5 judge
constitutional Bench. On 22nd August 2017, Bench pronounced its decision in regards to the
the Triple Talaq Case, declaring that the practice was unconstitutional by a 3:2 majority.
The 5 Judge Bench of SC held that -

“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-
biddat’ – triple talaq is set aside.”
Issues
i. Whether the practice of talaq-e-bidat an essential practice of Islam?

ii. Whether the practice of Triple Talaq violates any fundamental right.
In regards to the first issue the Court held that:
“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s
eyes, will not change without this practice.”
Joseph, J. said -
“Merely because a practice has continued for long, that by itself cannot make it valid if it
has been expressly declared to be impermissible.” 223
Analysis –
Triple Talaq, right now, is one of the heated issue in the country. Today lots of cases have
arisen and forced us to ponder upon and take action on this issue.
223
SCC Blog. (2018). In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice
set aside by a 3:2 majority | SCC Blog. [online] Available at: https://blog.scconline.com/post/2017/08/22/in-the-
historic-judgment-sc-says-that-triple-talaq-is-not-fundamental-to-islam-practice-set-aside-by-a-32-majority/
[Accessed 9 Oct. 2018].
VOLUME I ISSUE I
A family in India is destroyed in just few moments, just a word repeated thrice can wreck the
life of a woman. The practice of Triple Talaq promotes cruelty towards women. It promotes
exploitation. It shows how a man recklessly ends the marriage on his whims.
It is not the first time that a judgement has been made on Triple Talaq – in the case Dagdu
Latur vs. Rahimb Dagdu Pathan, 2002 Bombay High Court - It was held by the full
bench that 224“a Muslim husband cannot dissolve a marriage at will and for triple talaq to be
valid the facts of the due talaq procedure should be proved in court.”
Case of ShamimAra vs. State of U.P. &Anr -: Invalidate the arbitrary triple talaq, It was
held by SC that the facts which lead to talaq must be proven and just a document stating the
date or events of talaq will not be considered as the valid talaq.
Masroor Ahmed vs. State (NCT of Delhi) &Anr. - Holding the instant talaq as invalid, it
was held by the Delhi High Court that “..where a talaq is revocable, the attempts at
reconciliation can take place even after the pronouncement. This is so, because, in a
revocable talaq, the dissolution of marriage does not take place at the time of pronouncement
but is automatically deferred till the end of the iddat period.”
Recently, in news articles we come across clippings of Muslim Husbands giving their wives
Talaq on matter as small as waking up late and as petty as making a burnt roti or using extra
salt in food. This is the apparent exploitation and disregard to women. It raises the question
whether can we, in under the cover of personal law, attack the rights of women? Another
point to mention is that, nowhere in Hadis or Quran the practice of Triple Talaq is mentioned.
224
The Indian Express. (2018). This is not the first time Indian courts have invalidated instant triple talaq.
[online] Available at: https://indianexpress.com/article/india/this-is-not-the-first-time-indian-courts-have-
invalidated-instant-triple-talaq/ [Accessed 17 Oct. 2018].
VOLUME I ISSUE I
It has been the matter of innovation by which people made a distorted law for selfish and
thoughtless purposes without caring what consequences a woman will have to face.
The Supreme Court's decision, has no doubt, positively affected the women victims of the
instantaneous and unilateral triple talaq. It has given voice to the sufferers of this practice.
However, we can’t ignore the refusal of the Court to comment and reason on the issue of
discrimination.
Present Scenario –
This decision of the Apex Court has made triple talaq no longer legal throughout India.
Following the judgment, the government has introduced a bill to criminalize triple talaq. The
Lok Sabha passed the bill in December 2017 and is currently tabled before the Rajya Sabha
to be taken up in the coming Winter Session.


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