Law and Social Transformation of India Notes | LL.M. Semester 1 | Mumbai University | munotes

A worked distinction. If the number of women in paid employment rises because more offices open, that is social change. If a statute gives a daughter the same right in her father's property that a son has, and she can enforce it against her brothers in court, that is social transformation: the rule of the institution itself has been altered.

The first direction: society produces law

Most law begins as something people were already doing. A custom becomes settled, then expected, then enforced, and at some point a court begins to treat it as binding. The chapter on [Custom as a Source of Law] takes this apart.

Personal law is the clearest Indian example. The rules that govern marriage, divorce, succession, adoption and maintenance for a Hindu, a Muslim, a Christian and a Parsi did not begin in a legislature. They came from religious texts, from commentaries on those texts, and from the customs of communities, and the State later gave some of them statutory form.

So did much of the general law. The law of contract codified mercantile practice; the law of property codified what conveyancers were already doing; the criminal law codified what a society had already decided it would not tolerate.

And the law reflects a society's power as well as its habits. Who is in a legislature decides what a legislature passes. A law is not only a mirror of a society's morals; it is a mirror of who in that society is able to get a law passed.

The second direction: law changes society

A statute can make illegal what a society has done for centuries. Untouchability was practised in India for two thousand years, and article 17 of the Constitution abolished it in a single sentence on 26 January 1950.

A statute can create a right that did not exist. Before the Hindu Succession Act 1956, a Hindu woman generally held property she inherited as a limited estate that reverted on her death. Section 14 of that Act made her the full owner of it.

A statute can make an institution do something it never did. Before 2005, a coparcenary in Hindu law consisted of male members. After the amendment of that year, a daughter is a coparcener by birth in her own right in the same manner as a son.

A court can do the same thing without a statute. In [Judicial Activism and Public Interest Litigation] we will see the Supreme Court create a remedy where Parliament had made none, most famously in the guidelines against sexual harassment at the workplace.

But none of this is automatic. A law that is not enforced, or that nobody can afford to invoke, changes the statute book and nothing else. That is the subject of [What Law Cannot Do: The Limits of Legislating Change], and it is the half of this paper that separates a good answer from a superficial one.

Why the Indian Constitution took the second view

Because the people who wrote it said so. The Preamble opens with the words "WE, THE PEOPLE OF INDIA" and resolves to secure to all citizens justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

Read that as a description of India in 1950 and it is false. Read it as a programme, and it is the plainest statement in Indian law that the document was meant to change the society it was written for rather than to describe it.

Part IV makes the programme concrete. Article 36 says that in Part IV, unless the context otherwise requires, "the State" has the same meaning as in Part III. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but that the principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

That second half of article 37 is the sentence this paper turns on. It tells the State to legislate towards a set of social results, and it is worked out in full in [The Directive Principles and the Welfare State].

The two views are not really opposed

A society that has changed will accept a law that a society that has not will ignore. Widow remarriage was legalised in 1856 and remained rare for a century; the law was ahead of the society and could not carry it.

Equally, a law can be the thing that begins the change. Compulsory registration of marriages, or a legal minimum age, alters what people expect of each other long before it alters what they believe.

The useful question is therefore not which view is right. It is what conditions a law needs in order to work: how far the change is from what people already do, whether there is an authority willing to enforce it, whether the people it protects can reach that authority, and whether the community that loses by it can be brought along.

Every later chapter of this book is an application of that question to one Indian institution. When you read about dowry, or child marriage, or reservation, or the pavement dweller, you are reading about a law that was meant to change something, and about how far it did.

A worked example

Take Sunita, born in a village in Maharashtra in 2003. Her grandmother was married at fourteen, could not inherit her father's land, and had no remedy against her husband short of leaving him.

The law that applies to Sunita is different at four points. The Prohibition of Child Marriage Act 2006 makes a marriage before eighteen an offence and gives her the right to have it annulled up to two years after she turns eighteen. The Hindu Succession Act as amended in 2005 makes her a coparcener in her father's ancestral property by birth. The Protection of Women from Domestic Violence Act 2005 gives her a civil remedy, including a right to reside in the shared household, without her having to prosecute anybody. Article 21A and the Right of Children to Free and Compulsory Education Act 2009 gave her a right to be in school until she was fourteen.

Now ask the second question. Was she in fact married at seventeen? Did she in fact claim a share against her brothers? Did she in fact go to a Protection Officer? For each right, the answer depends on whether she knew of it, whether anybody near her would enforce it, and what it would cost her within her family to insist on it.

Both halves of that example are this subject. The first half is law as an instrument of social change. The second half is its limits.

What this does NOT mean

It does not mean that law is the only agent of change. Education, industrialisation, urbanisation, the media, migration and technology change societies without any legislature acting, and the chapters in [Modernisation and the Law] deal with law running behind those forces rather than leading them.

It does not mean that all legal change is progress. A law can entrench an inequality as easily as it can remove one, and colonial law in India did both.

And it does not mean that a society either produces its law or is produced by it. The relationship runs in both directions at once, and an answer that picks one and defends it will be weaker than one that shows where each is true.

Quick revision

Law and society influence each other in both directions. Law as a product of society is the historical school, Savigny, custom and personal law. Law as an instrument of change is the sociological school, Roscoe Pound and social engineering. Social change is any alteration in social arrangements; social transformation is a change in the basic structure of them. The Preamble is a programme, not a description. Article 36 defines "the State" for Part IV; article 37 makes Part IV unenforceable but fundamental in governance and imposes a duty to apply it in making laws. A law changes a society only where it is enforceable, reachable and not impossibly far from what people already do.

Test yourself

1. State the relationship between law and society. One of mutual influence. Law reflects a society's customs, religion, economy and distribution of power, and is in that sense its product; it is also the instrument by which a society deliberately alters those same things. The two propositions are not alternatives, and the useful question is when each holds.

2. What is the difference between social change and social transformation? Social change is any alteration in a society's arrangements, usually gradual and usually unplanned. Social transformation is a deliberate change in the basic structure of those arrangements, which is what MU's paper is named for and what the Constitution set out to do.

3. Which two articles of the Constitution set up the duty to legislate for social ends, and what does each say? Article 36, which gives "the State" in Part IV the meaning it has in Part III, and article 37, which makes the Directive Principles unenforceable by any court but declares them fundamental in the governance of the country and imposes on the State the duty to apply them in making laws.

4. Give one Indian example of law following society and one of law leading it. Following: personal law, which took its rules from religious texts and community custom and was later given statutory form. Leading: article 17, which abolished untouchability outright in a society that had practised it for centuries.

5. Why is a law that nobody enforces still a change in the law but not a social transformation? Because a transformation is a change in what an institution actually does. An unenforced statute alters the statute book and leaves the arrangement it was aimed at exactly as it was, which is why the enforcement question is part of every answer in this paper.

Look closely at what article 15(2) does. It binds not only the State but any person. A shopkeeper who refuses to serve a customer on the ground of caste is acting against a fundamental right. That horizontal operation is unusual, and it exists because the framers knew that the exclusion they were legislating against was practised by private persons in private premises.

Two: conferment of rights. The law gives a person a claim they did not have and a forum to press it in. Article 21A makes free and compulsory education for children between six and fourteen a fundamental right. The Hindu Succession (Amendment) Act 2005 gives a daughter the position of a coparcener. The Protection of Women from Domestic Violence Act 2005 gives a woman a right to reside in the shared household.

Three: creation of institutions. The law builds a body whose business is the change. The National Commission for Women, the National Commission for Scheduled Castes, the Child Welfare Committees under the Juvenile Justice Act, the Internal Committee under the sexual harassment Act, the Legal Services Authorities, the Protection Officer under the domestic violence Act: none of these existed before a statute made it, and each exists to make a right operable by somebody who could not otherwise operate it.

Four: the alteration of expectations, which is the slowest and the most important. Once a rule is law, the person who benefits from the old arrangement can no longer say that it is simply how things are. A landlord who evicts a tenant, a father who marries off a daughter of fifteen, a contractor who employs a boy of twelve, all now do something that has a name and a penalty. The change in what people can say about their own conduct precedes the change in the conduct.

Three worked instances, each verified

Instance one: a court decision that produced a constitutional amendment within a year.

Facts. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, decided 9 April 1951 by Kania CJ and six other judges. The Government of Madras allotted seats in the State's engineering and medical colleges among named communities by a Communal Government Order. Champakam Dorairajan, a Brahmin, and another petitioner said that they had been denied admission on the ground of caste and religion, contrary to article 29(2). The State relied on article 46, the Directive Principle on the educational and economic interests of the weaker sections.

Held. The order was void. Article 29(2) forbids the denial of admission to a State-maintained or State-aided educational institution on grounds only of religion, race, caste, language or any of them, and it is subject to no exception. The Directive Principles, being unenforceable, cannot override a fundamental right.

Why it matters here. Parliament answered the decision with the Constitution (First Amendment) Act 1951, which inserted article 15(4) enabling the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The whole modern law of reservation rests on that clause. It is the clearest instance in the paper of law being used deliberately, and quickly, to produce a social result a court had blocked.

Instance two: a court making the law because there was none.

Facts. Vishaka v. State of Rajasthan, AIR 1997 SC 3011, (1997) 6 SCC 241, decided 13 August 1997 by Verma CJI, Sujata V. Manohar and Kirpal JJ. A social worker in Rajasthan was gang-raped, it was alleged, for her work against child marriage. Social action groups petitioned under article 32, not to punish the offenders but to have the Court fill the absence of any law against sexual harassment at the workplace.

Held. Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognised basic human right. In the absence of enacted law the Court laid down guidelines and norms, drawing on international conventions including the Convention on the Elimination of All Forms of Discrimination against Women, and directed that they be strictly observed at all workplaces. The directions were declared binding and enforceable in law until suitable legislation was enacted to occupy the field.

Why it matters here. The instrument was used by a court rather than a legislature, and the court said openly that it was legislating and for how long. Sixteen years later Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, which is dealt with in [Sexual Harassment at the Workplace].

Instance three: enforcement machinery created by direction.

Facts. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, (1984) 3 SCC 161, decided 16 December 1983 by Bhagwati, Pathak and Amarendra Nath Sen JJ. An organisation working against bonded labour wrote to the Court about workmen in the stone quarries of Faridabad, alleging that they were held in bondage in conditions of extreme deprivation. The Court appointed commissioners to visit the quarries and report.

Held. The petition was maintainable under article 32, and the Court could appoint commissioners to gather material, because insisting on adversarial proof would deny relief to exactly the people article 32 exists for. On the merits the Court issued detailed directions to the Central Government and the State of Haryana on the identification, release and rehabilitation of bonded labourers and on the enforcement of the labour laws, holding that the right to live with human dignity under article 21 derives its life breath from the Directive Principles.

Why it matters here. The Bonded Labour System (Abolition) Act had been in force since 1976. The prohibition existed; what did not exist was any means by which a bonded labourer could reach a court. The case shows that the instrument is not the statute alone but the statute plus a route to a remedy.

Distinctions worth keeping straight

Do not treat the two columns as a quarrel between schools. The Hindu Marriage Act 1955 is in both: it took the ceremonies from custom and the grounds of divorce from policy.

A worked example

A State wants to end the practice of separate drinking water arrangements for Scheduled Caste households in its villages. Its law department asks what instruments are available.

Mechanism one, prohibition. Article 15(2)(b) already forbids any citizen being subjected to any restriction with regard to the use of wells, tanks and bathing ghats maintained wholly or partly out of State funds or dedicated to the use of the general public, and it binds private persons as well as the State. Section 4 of the Protection of Civil Rights Act 1955 already punishes enforcing a disability on the ground of untouchability in the use of a water source. So the prohibition exists; a new one adds nothing.

Mechanism two, conferment of rights. Give the excluded household a statutory claim, and a forum. Section 12 of the 1955 Act already helps: where the act is committed in relation to a member of a Scheduled Caste the court shall presume it was done on the ground of untouchability unless the contrary is proved. Without that presumption the claimant must prove a motive, which is the reason such cases fail.

Mechanism three, institutions. Section 15A obliges the State Government to provide legal aid, special courts, committees to assist implementation, periodic surveys, and the identification of areas where persons are under a disability. Those are the instruments that have not been used, and using them is the answer to the department's question.

Mechanism four, expectations. Publishing the survey, naming the villages, and prosecuting visibly changes what the dominant household can say about its own conduct. That is slow, and it is what actually ends the practice.

Now the honest part of the answer. Each of the four already exists on the statute book, and the practice continues. The instrument was not missing; the enforcement was, and the limits of that are the whole of [What Law Cannot Do: The Limits of Legislating Change]. A student who proposes a fifth statute here has not read the first four.

What this does NOT mean

It does not mean that a law works because it is passed. That is the whole of the next chapter, and an answer that only argues the thesis will read as one-sided to any examiner who has set the "extent to which" version of the question.

It does not mean that the instrument is always used for good ends. The same technique that abolished untouchability was used to sterilise people during the Emergency and to detain them without trial. Instrumentalism is a claim about what law can do, not a guarantee about what it will be used for.

And it does not mean that courts and legislatures are interchangeable. A court can only act on a case somebody brings; it cannot fund a school or run a rehabilitation scheme, and its directions bind only as long as somebody returns to enforce them. A legislature can do those things and has to answer for them. [Judicial Activism and Public Interest Litigation] deals with the criticism that follows from this.

Quick revision

The instrumentalist thesis: law is a purposive instrument for producing a chosen social result. In India it is constitutional policy, not theory: Preamble, article 37, Part IV. Four mechanisms: prohibition, conferment of rights, creation of institutions, alteration of expectations. Article 15(2) and article 17 bind private persons as well as the State. Champakam Dorairajan produced article 15(4) by the First Amendment in 1951. Vishaka legislated in the absence of a statute and said so, and the Act of 2013 followed. Bandhua Mukti Morcha shows that a prohibition without a route to a remedy is not an instrument.

Test yourself

1. State the instrumentalist thesis in exam wording. That law is not merely a record of existing social morality but a purposive instrument by which the State deliberately alters social arrangements, and that in India this is constitutional policy: the Preamble sets out a social order that did not exist, and article 37 makes it the duty of the State to apply the Directive Principles in making laws.

2. Name the four mechanisms and give one provision for each. Prohibition, article 17. Conferment of rights, article 21A. Creation of institutions, the Internal Committee under the Act of 2013. Alteration of expectations, which no single provision carries and which every one of them contributes to.

3. Why is article 15(2) unusual among fundamental rights? Because it operates against private persons and not only against the State: it forbids any citizen being subjected to a disability with regard to access to shops, restaurants, hotels, places of public entertainment, wells, tanks, roads and places of public resort. The framers legislated horizontally because the exclusion was practised privately.

4. Which case produced article 15(4), and how? Champakam Dorairajan, AIR 1951 SC 226, in which the Court struck down the Madras Communal Government Order because article 29(2) admits of no exception and a Directive Principle cannot override a fundamental right. Parliament answered with the First Amendment, which inserted article 15(4).

5. What does Bandhua Mukti Morcha add to the thesis that Vishaka does not? Vishaka shows the instrument being used where there was no law at all. Bandhua Mukti Morcha shows that where there was a law, the Bonded Labour System (Abolition) Act 1976, the missing element was a route by which the person it protected could reach a court, and that the Court supplied that route by relaxing standing and appointing commissioners.

Why it matters here. The offence was proved, and it still took two appeals for the conviction to stand. The case is the standing illustration in this paper of how far a criminal statute has to travel through an administration and a judiciary before it produces the result the legislature wanted.

Three: the protected person cannot reach the court

The bonded labourer, the pavement dweller, the child in a workshop and the woman in a violent household have this in common: they cannot litigate. They have no money, no lawyer, often no literacy, and in most cases no way of being absent from where they are for a day.

This is the limit that Indian law has tried hardest to answer. The relaxation of standing in S.P. Gupta v. President of India, 1981 Supp SCC 87, the treatment of a letter as a petition in People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235, and the appointment of commissioners in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, are all attempts to remove the same obstacle, and they are dealt with in [Judicial Activism and Public Interest Litigation].

But the answer is partial. Public interest litigation depends on somebody else bringing the case, which means the change reaches the groups that have an organisation speaking for them and not the ones that do not.

Four: prohibition drives a practice out of sight

Dowry is prohibited, and dowry is universal. The reason is in the structure of the offence: both families are parties to it, both would be prosecuted, and the only witnesses are the two families.

Sex selection is prohibited, and the sex ratio at birth tells us it continues. The prohibited act happens in a clinic between a doctor and a patient, both of whom want it to happen and neither of whom will complain.

The general point is that a prohibition needs a complainant. Where the statute makes both sides of a transaction liable, or where the only person harmed is not yet born, or is a child, the offence is committed without anybody to report it.

Five: law reaches conduct, not belief

Article 17 abolished untouchability, and the Act of 1955 punishes its practice. Neither obliges anybody to change what they think about caste, and neither could.

This is not a defect in the drafting. A liberal legal order cannot legislate belief; it can only regulate conduct and hope that the conduct changes the belief in time. Ambedkar's argument, that political democracy cannot survive on a base of social inequality, is exactly this point stated as a warning.

The practical consequence is that the same statute produces different results in different places. Where the surrounding attitude has shifted, the law is enforced and complied with; where it has not, the law is a formality.

The other half: the law is not therefore useless

Because a legal rule changes what people can defend. After article 17, the practice of untouchability is not merely disapproved of; it is unlawful, and the person practising it is on the wrong side of the Constitution. That is a different position to argue from.

Because it gives the person who wants to resist something to hold on to. A daughter who wants her share, a woman who wants to leave, a boy who wants to go to school: each of them now has a rule to point at, whether or not they can reach a court today.

Because institutions accumulate. A Commission that publishes a report every year, a Child Welfare Committee that sits, a Legal Services Authority that runs a Lok Adalat, all change the surroundings slowly even when no individual case is spectacular.

And because the law can be redesigned when it fails. The Protection of Civil Rights Act 1955 largely failed, and Parliament answered with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, which is a much sharper instrument. Section 15A of the 1955 Act, inserted in 1976, requires the State Governments to take specific measures including legal aid, special courts and periodic surveys, which is an admission in the statute itself that a prohibition alone had not worked.

A worked example

Take a village where the Scheduled Caste families are not served at the tea stall. The law forbids it: article 15(2), article 17 and section 4 of the Protection of Civil Rights Act.

Now follow the case. Somebody must complain, to a police station where the officer may be from the dominant community and where the accused is a local shopkeeper. A charge must be framed and witnesses must give evidence, and every witness lives in the village and will still live there after the trial. The trial takes years, during which the complainant's family draws its water and buys its groceries from the same people.

And now change one fact at a time. Give the complainant a Legal Services Authority lawyer, and the case survives longer. Move the trial to a Special Court under the Act of 1989, and it moves faster. Make the offence one where the officer must register a first information report, and the first stage stops failing. Each is an answer to one of the five limits, and none of them is an answer to the fifth.

Distinctions worth keeping straight

What this does NOT mean

It does not mean law should not attempt what society resists. If law only codified the existing consensus it could never transform anything, and the Constitution would be a description rather than a programme.

It does not mean the failures are the fault of the drafting. Most of the statutes in this paper are competently drafted. What they lack is the surrounding machinery, and that is a budgetary and administrative failure rather than a legislative one.

And it does not mean the two chapters contradict each other. The thesis is that law is an instrument. This chapter says what kind of instrument: a slow one that needs to be held.

Quick revision

Five limits: the gap between rule and norm; enforcement by officials drawn from the same society; the protected person's inability to reach a court; prohibition without a complainant; and the reach of law over conduct but not belief. Appa Balu Ingale: conviction under section 4 of the 1955 Act restored after two acquittals, and the standing illustration of limit two. Bandhua Mukti Morcha: a prohibition since 1976 with no route to a remedy, and the Court supplying the route. Section 15A of the 1955 Act is Parliament admitting in the statute that prohibition alone had failed. The Act of 1989 is the redesign.

Test yourself

1. Name the five limits. The gap between the legal rule and the social norm; enforcement by an administration drawn from the same society; the protected person's inability to reach a forum; prohibition without a complainant; and the reach of law over conduct but not belief.

2. Why does a prohibition on dowry or on sex selection fail in a way that a prohibition on theft does not? Because both parties to the transaction want it to happen and neither will complain, so the offence produces no complainant. A theft produces a person who has lost something and will report it.

3. What did Appa Balu Ingale decide, and why is it in this chapter? It restored a conviction under section 4 of the Protection of Civil Rights Act 1955 for preventing members of a Scheduled Caste from taking water from a borewell, and held that the Act must be given a purposive construction. It is here because the offence was proved and the conviction still needed two appeals, which is the enforcement limit in a single case.

4. What does section 15A of the Protection of Civil Rights Act tell you about the success of that Act? That Parliament itself concluded prohibition had not worked. Section 15A, inserted in 1976, obliges State Governments to provide legal aid, to set up special courts, to appoint officers and to conduct periodic surveys, which is machinery being added because the offence provisions alone had produced very little.

5. Does the existence of these limits defeat the instrumentalist thesis? No. It qualifies it. Law changes the terms on which a practice can be defended, gives the person who resists something to invoke, builds institutions that accumulate, and can be redesigned when it fails, as the Act of 1989 redesigned the Act of 1955. What it cannot do is produce the change by being enacted.

His famous generalisation is that the movement of progressive societies has hitherto been a movement from status to contract. In an early society a person's rights and duties are fixed by the group they are born into: their family, their caste, their sex, their age. In a developed society those rights and duties come increasingly from agreements the person has made.

Take the sentence apart before using it. "Status" means a legal position a person holds by birth or by membership, which they did not choose and cannot renounce. "Contract" means a legal position they created by their own agreement. Maine is describing a direction of travel, not a completed journey, and he says "progressive societies" because he thought most societies had not moved at all.

Why an Indian student should be careful with it. Maine wrote as a colonial administrator, and the generalisation was used to justify a great deal. It is still the most useful single sentence in this paper for describing what the Hindu Code Bills, the labour legislation and the reservation provisions were trying to do: move a person's legal position off their birth.

The school's other members, briefly

Sir Henry Maine belongs to the comparative wing. Savigny's own followers, especially Puchta, made the Volksgeist doctrine more rigid than Savigny had left it.

Eugen Ehrlich took the argument further and is worth a sentence here. He distinguished the law of the State from the "living law", the norms that actually govern conduct in the associations people belong to, and said that the centre of gravity of legal development lies not in legislation nor in juristic science nor in judicial decision but in society itself. He is dealt with again in [Bentham, Marx and Ehrlich: The Other Answers].

Where the school is right about India

Personal law is Volksgeist in statutory form. The rules governing marriage, succession and adoption for a Hindu came from smritis, from commentaries such as the Mitakshara and the Dayabhaga, and from the custom of particular regions and communities. No legislature invented them; the Hindu Code Bills of the 1950s reformed something that already existed.

Custom is recognised as a source by the statutes themselves. The Hindu Marriage Act 1955, section 3(a), defines "custom" and "usage" as any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided that it is certain and not unreasonable or opposed to public policy, and that where it applies only to a family it has not been discontinued by the family. Section 7 makes a Hindu marriage solemnisable in accordance with the customary rites and ceremonies of either party. The chapter on [Custom as a Source of Law] works this out.

The Constitution itself protects some of it. Article 371A provides that no Act of Parliament in respect of the religious or social practices of the Nagas, Naga customary law and procedure, or the ownership and transfer of land and its resources, shall apply to Nagaland unless the Legislative Assembly of Nagaland so decides. Article 371G does the same for the Mizos. Those two articles are the historical school written into a modern constitution, and they are dealt with in [Legal Pluralism, and the Forums the State Did Not Create].

And the failures of transplanted law support Savigny. Provisions modelled on English or American statutes have repeatedly worked differently in India because the surrounding institutions were different, which is exactly his objection to codes imposed from outside.

Where the school is wrong about India, and it matters

Whose spirit is the Volksgeist? A society divided by caste, religion, language and sex does not have one common consciousness. What is presented as the spirit of a people is very often the conviction of the group in that society which is able to speak for it.

On the historical school's own logic, untouchability was law. It was ancient, continuous, uniformly observed and carried the force of law in the community. If custom is the test, article 17 is an imposition. The Constitution decided otherwise, and that decision is the whole of this paper.

The school explains stability and cannot explain change. If law expresses a people's conviction, a change in the law needs a prior change in the conviction, and the historical school has no account of where the first change comes from.

And it makes reform look like violence. Every reform statute in this book, from the prohibition of sati to the criminalisation of triple talaq, is an interference with a tradition. The historical school gives their opponents their best argument, which is why a student who can state that argument properly can answer the reform questions much better than one who cannot.

A worked example

Take the abolition of a practice by statute in a village of five thousand people. The practice is old, everybody knows the rules of it, and disputes about it are settled by elders whose decisions are obeyed.

Savigny's account. The rules are law in the only sense that matters, because they express what this community believes and they work. A statute from a distant capital, in a language most of the village does not read, enforced by an officer who visits twice a year, is not law; it is a command that may or may not be obeyed.

Pound's account, from the next chapters. The rules serve the interests of some members of the community at the expense of others, and those others have interests too. The statute is an attempt to weigh both sets of interests, and it comes from a body in which the losing side has a vote.

Ambedkar's account, which decides the Indian position. For the person at the bottom of that village, the elders are not a source of law but the source of the exclusion; a distant government at least does not live next door. The Constitution therefore takes the individual and not the village as its unit.

Notice that all three accounts are true descriptions of the same village. The essay MU wants is the one that sets them against each other and then says which the Constitution chose and why.

Distinctions worth keeping straight

What this does NOT mean

It does not mean the historical school defends every tradition. Savigny was making a claim about the source of law, not a claim that whatever is old is good.

It does not mean tradition and legislation are alternatives in India. Every personal-law statute in this book is legislation working on tradition, and the interesting question is always how much of the tradition it kept.

And it does not mean "law is the product of tradition and culture" is a complete answer to MU's question. The question in the 77232 paper adds "critically evaluate the role of Law in transformation of the society meeting the ever-changing needs of society", which asks for both this chapter and the two before it.

Quick revision

Savigny, 1814, against Thibaut's proposal to codify: law is the expression of the Volksgeist, grows like a language, and cannot be imposed. Puchta hardened it; Maine supplied the comparative method and the movement from status to contract; Ehrlich supplied the living law. In India: personal law, section 3(a) and section 7 of the Hindu Marriage Act, and articles 371A and 371G. Against it: a divided society has no single spirit, untouchability satisfies every test of custom, and the school cannot explain change. The Constitution chose the individual over the community as its unit, which is Ambedkar's answer to Savigny.

Test yourself

1. What is the Volksgeist, and what follows from it? The common consciousness or spirit of a people, which Savigny treated as the source of law. It follows that law is found rather than made, that it grows organically like a language, and that a code imposed on a people whose convictions it does not express will fail.

2. State Maine's proposition and define both of its terms. That the movement of progressive societies has hitherto been a movement from status to contract. Status is a legal position held by birth or membership, unchosen and unrenounceable. Contract is a legal position created by the person's own agreement.

3. Give two places where Indian law recognises the historical school. Section 3(a) of the Hindu Marriage Act 1955, which gives a continuously and uniformly observed rule the force of law if it is certain, not unreasonable and not opposed to public policy; and articles 371A and 371G, which exclude Parliament's laws on Naga and Mizo customary law and social practices unless the State Assembly resolves otherwise.

4. What is the strongest objection to the historical school, put in Indian terms? That untouchability satisfies every test the school applies to a custom: ancient, continuous, uniformly observed and locally binding. If custom is the source of law, the school has no ground on which to condemn it, and article 17 becomes an imposition rather than a correction.

5. How would you use both schools in one answer? State the historical thesis and its Indian evidence; state the instrumentalist thesis and its Indian evidence; show that they describe the same institution from different positions within it; and conclude with the constitutional choice, which is that the Preamble treats the social order as something to be secured rather than described.

Peaceable enjoyment. The practice must have been enjoyed without dispute. A practice that has been repeatedly contested has not become settled.

The statutory definition, from the Act itself

Section 3(a) of the Hindu Marriage Act 1955 is the model, and it should be quoted. The expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: provided that the rule is certain and not unreasonable or opposed to public policy; and provided further that in the case of a rule applicable only to a family, it has not been discontinued by the family.

Read what that packs in. Continuity, uniformity, antiquity, the force of law, certainty, reasonableness, public policy, and the family-custom proviso, all in one subsection. Six of the seven common law tests are there.

Note the units it recognises. A local area, a tribe, a community, a group, or a family. A custom in Indian law need not be territorial; it can attach to a caste or even to a single family.

Where the Act then uses custom

Section 7: ceremonies. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. Where such rites include the saptapadi, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

Section 5(iv) and 5(v): prohibited relationships and sapinda relationship. The parties must not be within the degrees of prohibited relationship, and must not be sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.

Section 29(2): a saving. Nothing contained in the Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of the Act.

Put those together and the picture is clear. The Act supplies a uniform frame and lets custom fill in the ceremony, widen the prohibited degrees, and preserve a customary divorce. That is legislation working with the historical school rather than against it.

Custom, article 13 and the reform problem

Article 13(3)(a) defines "law" for the purposes of Part III as including any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. So a custom having the force of law is "law", and a custom inconsistent with a fundamental right is void to the extent of the inconsistency.

That is the doorway through which reform enters. A community may not defend an excluding practice by saying that it is custom, because a custom having the force of law is subject to Part III like any other law.

But the doorway has a much argued edge. Whether uncodified personal law is "custom or usage having the force of law" within article 13(3)(a), and so open to challenge under Part III, is the question dealt with in [Personal Law: What It Is, and Why India Has Several]. It is the single most contested point in the religion topic.

A worked example

Kavita and Rohit belong to a community in which a marriage may be dissolved by an agreement in writing before the caste panchayat, and this has been so for as long as anybody can remember. Kavita's father produces a deed of divorce from twenty years earlier in the same family.

Step one: is there a custom? It must be shown to be ancient, continuous, uniform, certain, obligatory, reasonable, and not opposed to public policy. Custom is a question of fact and must be pleaded and proved by the party who asserts it; it is not judicially noticed.

Step two: does the Act save it? Section 29(2) preserves any right recognised by custom to obtain the dissolution of a Hindu marriage, so a proved customary divorce survives the Act.

Step three: is it consistent with the Constitution? If the custom permitted the husband to dissolve the marriage at will and gave the wife no corresponding right, it would have to answer article 14 and article 15(1) through article 13(3)(a).

Step four, which students forget: who proves it? Kavita's father. A single deed from one family twenty years ago is evidence of an instance, not proof of a custom, and the burden of establishing all seven tests is on him.

What this does NOT mean

It does not mean that anything old is a custom. Antiquity is one test of seven, and the two that defeat most claims are certainty and reasonableness.

It does not mean a custom prevails over a statute. It yields to an express statutory provision. Where a statute preserves it, as sections 7 and 29(2) do, it operates because the statute allows it to.

And it does not mean custom is a merely historical curiosity. It decides live questions about who may marry whom, what ceremonies validate a marriage, and whether a divorce outside a court is recognised.

Quick revision

Custom is the oldest source of law. Seven tests: antiquity, continuity, uniformity and certainty, obligatory force, reasonableness, consistency with statute and public policy, and peaceable enjoyment. Section 3(a) of the Hindu Marriage Act 1955 packs six of them into one subsection and recognises customs of a local area, tribe, community, group or family. Section 7 lets custom supply the ceremonies, including saptapadi; section 5(iv) and (v) let it permit a marriage otherwise prohibited; section 29(2) preserves a customary divorce. Article 13(3)(a) makes a custom having the force of law "law" for Part III, which is how reform reaches it. Custom is a question of fact and must be pleaded and proved.

Test yourself

1. Give the statutory definition of custom in Indian law. Section 3(a) of the Hindu Marriage Act 1955: a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided it is certain and not unreasonable or opposed to public policy, and provided that a family custom has not been discontinued by the family.

2. List the tests a custom must satisfy. Antiquity, continuity, uniformity and certainty, obligatory force, reasonableness, consistency with statute law and public policy, and peaceable enjoyment.

3. Name three sections of the Hindu Marriage Act that give custom operative effect. Section 7, customary rites and ceremonies including saptapadi; section 5(iv) and (v), where custom permits a marriage within the prohibited degrees or between sapindas; and section 29(2), which saves a customary right to obtain dissolution of the marriage.

4. How does the Constitution reach a custom? Through article 13(3)(a), which includes custom or usage having the force of law within the definition of "law", so that a custom inconsistent with a fundamental right is void to the extent of the inconsistency.

5. Who must prove a custom, and what is the commonest reason a claim of custom fails? The party asserting it, because custom is a question of fact and is not judicially noticed. Most claims fail on certainty, because the practice cannot be stated in a fixed form, or on reasonableness.

The engineer has a specification. For law, the specification is the catalogue of interests, which is chapter 70.

And the engineer tests the structure. Pound's test is whether the actual working of the legal order secures the interests it set out to secure, which is why he insisted that jurisprudence must study law in action and not only law in books.

The distinction between law in books and law in action is his, and it is worth remembering by name. It is the same distinction this book uses whenever it asks whether a statute changed anything, and it is the direct ancestor of every empirical study of the working of Indian legislation.

The five things a jurist has to do

Pound set out a programme, and an answer that gives it in order is a good answer.

One, a factual study of the actual social effects of legal institutions and doctrines. Not what a rule says it does, but what happens where it operates.

Two, sociological study in preparation for lawmaking. The comparative study of the working of the same rule elsewhere, before enacting it here.

Three, a study of the means of making legal precepts effective. He said that the life of the law is in its enforcement, and that the study of enforcement had been neglected in favour of the study of doctrine.

Four, a sociological legal history. Not the history of doctrines for their own sake, but of what social effects doctrines have produced and how.

Five, the recognition of the importance of individualised application. Equity in the wide sense: the machinery by which a general rule is fitted to a particular case, which he said the law had been embarrassed about and should not be.

And a sixth he added later: an effort to make effort more effective in achieving the purposes of law. A ministry of justice, or a permanent body charged with law reform, is his practical proposal.

Why Indian law is a good example of the theory

Because the Constitution states an end. The Preamble is a specification in Pound's sense: a description of the structure to be built rather than of the structure that exists.

Because Part IV is a catalogue of social interests. Articles 38 to 51 name, in almost so many words, the interests the legal order is to secure: welfare, a minimised inequality of income and status, adequate means of livelihood, distribution of ownership, health of workers and children, equal justice and free legal aid, village panchayats, work and education, living wages, workers in management, a uniform civil code, early childhood care, the weaker sections, nutrition, the environment, monuments, the separation of the judiciary, and international peace.

Because the framers argued about weighing. The Constituent Assembly's long argument about property, and the whole of the constitutional history in [The Ninth Schedule and the Property Amendments], is a legislature and a court weighing an individual interest against a social one.

And because the courts have said so. In February 2026 the University quoted Pound directly and asked the student to analyse the role of the judiciary in India in promoting social justice and social change in that light. That is an invitation to say that Indian judicial review of social legislation is Pound's programme carried out by judges.

A worked example

A State legislature proposes to fix a ceiling on agricultural landholdings and to redistribute the surplus.

Pound's first question is what claims are in play. The holder's claim to keep what he owns. The tenant's claim to the land he works. The landless labourer's claim to a livelihood. The general claim of the society to food production and to the security of acquisitions.

His second is how to classify them. The holder's claim is an individual interest of substance, in Pound's terms an interest of personality and of substance. The labourer's claim is both an individual interest and part of a social interest in the individual life. The society's claim to security of acquisitions is a social interest in the general security.

His third is which to secure and how far. The legislature decides that the social interest in the individual life outweighs, up to a ceiling, the individual interest in substance, and that the general security is respected by paying compensation.

His fourth is the machinery. Ceiling authorities, declarations of surplus, appeals, and a register. Without it the statute secures nothing, which is Pound's third jurisprudential task.

His fifth is the test. How much land was actually declared surplus, how much was distributed, and to whom. That is law in action, and it is the question [Ceilings, Tenancy and Redistribution] asks.

What Pound is NOT saying

He is not saying that law should give everybody what they want. He is saying that the demands are more numerous than the goods, and that the legal order's job is to satisfy as many as possible with the least sacrifice of others.

He is not saying that law is only a tool of the State. The interests are the ones people actually assert, not the ones a government prefers, and the jurist's first task is to find out what they are.

He is not saying that principles do not matter. Received ideals are part of his materials. What he denies is that principles can be applied without asking what they will do.

And he is not a utilitarian in Bentham's sense. Bentham weighed pleasures and pains on one scale. Pound weighs claims, and his difficulty, which is chapter 80, is that he never supplied the scale.

Quick revision

Roscoe Pound, American sociological jurisprudence, building on Ihering. Law is social engineering: an instrument for building an efficient social structure. The end of law is to satisfy the maximum of wants with the minimum of friction and waste. The engineer has a task, materials, a specification and a test. Law in books against law in action. Five, later six, jurisprudential tasks: factual study of effects, study in preparation for lawmaking, study of making precepts effective, sociological legal history, individualised application, and a permanent agency for reform. In India the Preamble is the specification and Part IV is the catalogue.

Test yourself

1. State Pound's theory in exam wording. That law is social engineering, an instrument for building an efficient structure of society, whose end is to satisfy the maximum of human wants with the minimum of friction and waste, and whose method is to identify the claims people make, classify them as interests, decide which to recognise, fix the limits within which each is secured, and devise the machinery for securing them.

2. Whose work was Pound building on, and what did that predecessor say? Rudolf von Ihering, who denied that law is a self-contained logical system and said that law is a means to an end and the end is the securing of interests.

3. Explain the engineering metaphor in four parts. A task, satisfying human demands; materials, the existing precepts, technique and received ideals; a specification, the catalogue of interests; and a test, whether the legal order in operation actually secures them.

4. Name Pound's jurisprudential tasks. A factual study of the social effects of legal institutions; sociological study in preparation for lawmaking; study of the means of making precepts effective; a sociological legal history; recognition of the importance of individualised application; and, added later, a permanent effort to make legal effort more effective.

5. Why is Part IV of the Indian Constitution a good illustration of Pound? Because it is a written catalogue of the social interests the legal order is directed to secure, and because article 37 makes applying it a duty of the State in making laws, which is Pound's specification and his second task written into a constitution.

Social interests

Claims involved in social life and asserted in the title of that life. Pound listed six, and this is the list examiners look for.

One, the social interest in the general security. Safety, health, peace and order, the security of acquisitions and the security of transactions. It is the oldest and the first the law secured.

Two, the social interest in the security of social institutions. Domestic institutions, religious institutions, political institutions and economic institutions. The interest is in the institution itself continuing, not in any individual's advantage from it.

Three, the social interest in general morals. The claim of the society against conduct that offends its moral sentiments.

Four, the social interest in the conservation of social resources. The use and conservation of natural resources, and the protection and training of dependents and defectives, in Pound's language, which meant the claim that human resources not be wasted.

Five, the social interest in general progress. Economic progress, political progress and cultural progress: freedom of trade, free speech, free science, free education and the encouragement of arts and letters.

Six, the social interest in the individual life. The claim that each individual be able to live a human life according to the standards of the society: self-assertion, opportunity and conditions of life. Pound thought this the most important of the six.

Jural postulates

Pound also asked what a society's members assume about each other. He set these out as jural postulates of civilised society: that others will not commit intentional aggression; that a person may control for beneficial purposes what they have discovered, created or acquired; that those with whom they deal will act in good faith and will make good reasonable expectations; that others will act with due care not to cast unreasonable risk on them; and that those who maintain dangerous things will restrain them.

Why they matter. The postulates are how a jurist finds out what interests a particular society at a particular time recognises without simply asking a government. They are society-specific, and Pound expected them to change.

And an Indian jurist added to them. Julius Stone reworked the list, and Indian writers have proposed postulates for Indian conditions, but MU's questions do not go beyond Pound's own.

The rule about weighing, which is the examinable point

Pound insisted that interests be weighed on the same plane. An individual interest must be compared with another individual interest, and a social interest with another social interest; comparing an individual interest with a social interest stacks the scale, because putting the claim of one person against the claim of a whole society will always defeat the person.

So a claim must be restated at the same level before it is weighed. A newspaper's individual interest in publishing is restated as the social interest in general progress, in the free circulation of opinion; then it can be weighed against the social interest in the general security.

The February 2026 question is exactly this. Pound's sentence about reconciling and harmonizing conflicting interests is a claim about weighing, and the second half of the question, on the role of the judiciary in India in promoting social justice, asks the student to show an Indian court doing it.

A worked example

A State enacts that no industry shall discharge effluent into a river, and a tannery employing two hundred people says the plant will close.

Restate every claim as an interest. The owner's claim to carry on business is an individual interest of substance, freedom of industry. The workers' claim to continued employment is an individual interest of substance, continuity of employment. The residents' claim to clean water is an individual interest of personality, freedom from injury, but it is also, and more usefully, the social interest in the general security, health, and in the conservation of social resources.

Now weigh on the same plane. Do not weigh two hundred jobs against the health of a society; the second wins automatically and nothing has been decided. Restate the owner's and the workers' claims as the social interest in general progress, economic progress, and the residents' claim as the social interest in the general security and in the conservation of resources. Now the question is real, and it is the one Indian environmental cases actually argue.

Then look for machinery that satisfies both. A period to install treatment, a fund to compensate displaced workers, and a standard that can be measured. That is the engineer's answer: not choosing between the claims but designing a structure that carries both loads.

What this does NOT mean

It does not mean the list is closed. Pound expected it to change, and the interests an Indian legal order recognises today include some he never named, privacy and a healthy environment among them.

It does not mean an interest is a right. Naming an interest tells you what somebody is claiming; it does not tell you whether the law secures it.

And it does not mean the theory decides cases. It supplies a way of stating the problem. What it does not supply is the measure by which one interest outweighs another, and that omission is the next chapter.

Quick revision

An interest is a demand, desire or expectation which human beings seek to satisfy and of which the ordering of human relations must take account. Three classes: individual, public, social. Individual: personality, domestic relations, substance. Public: the State as juristic person, and the State as guardian of social interests. Six social interests: general security; security of social institutions; general morals; conservation of social resources; general progress; and the individual life. Jural postulates: no intentional aggression, control of what one has acquired, good faith, due care, restraint of dangerous things. Weigh on the same plane, never an individual interest against a social one.

Test yourself

1. Define an interest in Pound's own terms. A demand or desire or expectation which human beings, individually or in groups or associations or relations, seek to satisfy, and of which the ordering of human relations in civilised society must take account.

2. Name the three classes and the subdivisions of the individual class. Individual, public and social. Individual interests are of personality, in domestic relations, and of substance.

3. List the six social interests. General security; security of social institutions; general morals; conservation of social resources; general progress; and the individual life.

4. State the rule about weighing and say why it matters. Interests must be weighed on the same plane, individual against individual and social against social. It matters because putting one person's claim against a whole society's decides the case before it is argued, so a claim must be restated at the same level before it is weighed.

5. What are jural postulates, and what work do they do? They are the assumptions members of a civilised society make about each other: no intentional aggression, control of what one has acquired, good faith and the fulfilment of reasonable expectations, due care, and restraint of dangerous things. They let a jurist identify what interests a particular society recognises at a particular time, and Pound expected them to change with the society.

Three: the catalogue is circular

Pound found his interests by studying what legal systems already recognised. The list is therefore a description of the existing law dressed as a justification for it, and an interest that no legal order has yet secured is unlikely to appear in it.

The answer. The objection has force but is not fatal, because Pound also insisted that the jurist survey the claims people actually assert, which is not the same as surveying the claims already secured. Interests unknown to Pound, privacy among them, have entered the catalogue in exactly the way his method predicts.

Four: law reduced to a tool

If law is only an instrument, its content is whatever the engineer decides, and the theory has nothing to say against an unjust legal order. A regime that catalogues interests carefully and secures the ones it likes satisfies the theory perfectly.

The answer. This is the standing objection to every functional theory of law, and Pound's own writing on the received ideal of the social order shows he did not think law was value-free. But the theory contains no internal limit, and this is why writers on human rights have preferred theories that do.

Five: the Marxist objection

Balancing assumes that the parties come to the scale as equals. The Marxist criticism is that in a society divided by class, the legislature, the courts and the profession are drawn from one side of the division, so the weighing is done by the party with an interest in the outcome, and calling the result a balance conceals what is happening.

The Indian version of the objection is stronger than the general one. In a society divided by caste as well as class, the person whose interest is systematically outweighed is the person least represented among those doing the weighing, which is the point made in [What Law Cannot Do: The Limits of Legislating Change].

The answer. Pound's own third jurisprudential task, the study of making legal precepts effective, is an admission that securing an interest on paper is not securing it. And a constitution that reserves seats, creates commissions and provides legal aid is an attempt to change who is at the scale.

Six: the realist objection

Karl Llewellyn and the American realists said the theory produces a filing system. Classifying a claim as an individual interest of substance tells you nothing about whether a particular judge on a particular day will decide for the claimant.

The answer. Pound was not trying to predict decisions; he was trying to describe what a legal order is doing. But the realists were right that the theory operates at a level of generality at which no case is decided, and it is why Pound himself is more often quoted in legislatures than in judgments.

Two further points worth making

The theory has no account of enforcement failure. It assumes that once an interest is secured by law it is secured. This book is largely a record of interests secured in law and not in fact.

And the categories overlap. Almost every claim can be stated as an individual interest, a public interest and a social interest at once, and the theory gives no rule for choosing the statement. Since the statement decides what it is weighed against, a great deal turns on a step the theory leaves free.

A worked example of the second criticism

A statute prohibits the publication of a book that a religious community says insults it.

Pound's machinery works perfectly up to a point. The author's claim is restated as the social interest in general progress, in free science and free opinion. The community's claim is restated as the social interest in general morals, and as the social interest in the security of social institutions, religious institutions. Both are now on the same plane and the comparison is fair.

And then the theory stops. Which is heavier? Nothing in Pound answers it. A judge who says that free opinion outweighs offended sentiment, and a judge who says the reverse, have both applied the theory correctly.

In India the answer is supplied from outside the theory. Article 19(1)(a) with the restrictions in article 19(2), the public order limit in article 25, and the tests the Supreme Court has built on them. That is the scale Pound lacked, and it comes from a constitution rather than from jurisprudence.

What this does NOT mean

It does not mean the theory is useless. It gives a lawmaker a method: find the claims, classify them, restate them on the same plane, decide the limits and build the machinery. Four of those five steps are real work and are done badly all the time.

It does not mean the criticisms cancel each other. The Marxist and the realist objections point in different directions, but a good answer can hold both, because both say that the interesting action happens at a step the theory does not describe.

And it does not mean an examiner wants only the attack. MU's twenty-five mark questions ask for an analysis of the role of law in the light of Pound's theory. That requires the theory, the criticisms, and a position.

Quick revision

Six criticisms: the metaphor hides who sets the specification; there is no scale of values, which is the central one and which Pound partly conceded; the catalogue is circular; law reduced to an instrument has nothing to say against an unjust order; the Marxist objection that the weighing is done by the interested party; and the realist objection that classification predicts nothing. Two more: no account of enforcement failure, and overlapping categories with no rule for choosing a statement. The Indian answer to the second criticism is that the Constitution supplies the scale Pound did not.

Test yourself

1. State the central criticism of the theory. That it supplies no scale of values. Once interests are catalogued and placed on the same plane the theory says weigh them and says nothing about what to weigh them with, so the decisive step is left to whoever happens to be doing the weighing.

2. Why is the engineering metaphor said to mislead? Because an engineer receives his specification from outside engineering, while a legal order has to choose its own ends. The metaphor makes a political choice look like a technical one.

3. What is the circularity objection? That Pound derived his catalogue of interests from what legal systems already secured, so the list describes existing law and is then used to justify it, and a claim no legal order has yet recognised is unlikely to appear in it.

4. State the Marxist criticism in Indian terms. That balancing presupposes equal parties at the scale, whereas the legislature, the judiciary and the profession are drawn disproportionately from the groups whose interests are being weighed against those of the least represented, so a "balance" describes the outcome of an unequal contest.

5. How far does the Indian Constitution answer the criticisms? Substantially as to the second and the first: the Preamble and Part IV supply the specification and the scale, and articles 14, 19, 21 and 25 and the basic structure doctrine supply the measure. It does not answer the fifth, which is about who does the weighing rather than about what is on the scale.

Marx: law as superstructure

The claim is about the direction of causation. In the Marxist account, the mode of production of material life conditions the social, political and intellectual life process in general. The relations of production form the economic structure of society, the real foundation, on which rises a legal and political superstructure.

Law belongs to the superstructure. It does not create the relations of production; it registers, protects and legitimises them. Property law is the clearest instance: the legal form of ownership follows the economic fact of control.

The Communist Manifesto puts the polemical version. Addressing the bourgeoisie, it says that your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the economical conditions of existence of your class.

And the prediction is that law withers. Since law exists to manage class conflict, a society without classes has no need of it, and the State and its law wither away.

What follows for this paper. On this account the reform statutes in the later chapters are at best palliative: they redistribute a little without touching the relations that produced the inequality, and they may do harm by making the arrangement look tolerable.

And the answers to it. The prediction about withering has not been borne out anywhere. The Indian Constitution's own design assumes that law can act on the base rather than only reflect it, which is what article 39(b) and (c) and the whole of the land reform programme were about. And the Marxist account explains class better than it explains caste, which in India is a serious limitation, and is exactly Ambedkar's objection.

Ehrlich: the living law

His proposition is a single sentence and it should be quoted. The centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.

What he means by the living law. The norms that actually govern life in the associations people belong to, the family, the workplace, the village, the trade, whether or not any court has ever heard of them. A merchant's contract is governed by the practice of the trade far more than by the Contract Act, because the parties settle almost every dispute without a court.

He distinguished the living law from the norms for decision. Norms for decision are what a court applies when a dispute finally reaches it. Ehrlich's point is that this is a small and unrepresentative fraction of the law that actually orders society.

Why he belongs in this book more than in most. Every topic in Module IV is Ehrlich: alternative dispute mechanisms, Nyaya Panchayats, Gram Nyayalayas and the caste panchayat are all norms and forums that exist outside the State's courts. [Legal Pluralism, and the Forums the State Did Not Create] is the chapter that owns the point.

The criticism. Ehrlich blurs the difference between a social norm and a legal one: if every rule an association enforces is law, the word ceases to distinguish anything. And a living law can be an oppressive law, which is the Indian objection: the caste panchayat is living law.

How the five theories line up

A worked example

A statute abolishes bonded labour and declares every bonded debt extinguished.

Bentham asks what the consequences are and for whom. Freedom for the labourer, a loss to the creditor, a possible loss of the only credit available in the village, and a net calculation that has to include the rehabilitation that must follow.

Marx asks what has changed underneath. The labourer is free of the debt and still landless; the creditor still owns the land and the labourer still needs work. The legal form of the relation has changed and its economic content has not, which is why the practice reappears.

Ehrlich asks what norm the village actually runs on. If the debt is still acknowledged inside the community and still enforced by social means, the living law has not changed and the statute has altered only the norms for decision.

Pound asks how the interests were weighed and what machinery was built. And this book's own answer, in [Manual Scavenging and Bonded Labour], is that the machinery was the missing part.

The strongest exam answer holds all four questions at once. Each is a different reason the same statute did less than it promised, and none of them is the reason on its own.

What this does NOT mean

It does not mean the theories are alternatives to be chosen between. They answer different questions: where law comes from, what it is for, what limits it, and where it actually operates.

It does not mean Bentham is only of historical interest. Cost-benefit analysis of regulation, and the whole apparatus of legislative impact assessment, is utilitarianism in modern clothes.

And it does not mean the Marxist account is refuted by the failure of the prediction. The claim that legal change without economic change is unstable is a claim this book tests repeatedly, and it survives more of the tests than students expect.

Quick revision

Bentham: pain and pleasure, the principle of utility, the greatest happiness, calculation before enactment, codification and hostility to judge-made law; executed in India through the nineteenth-century codes; criticised because happiness cannot be summed and because it leaves no room for a right against the calculation. Marx: base and superstructure, law as the will of a class made into a law for all, and the withering away of the State; explains class better than caste. Ehrlich: the centre of gravity of legal development lies in society itself; the living law against the norms for decision; the whole of Module IV is an application of it; criticised because it blurs the legal and the social, and because a living law can be an oppressive one.

Test yourself

1. State Bentham's principle of utility and his practical programme. That an action is approved or disapproved according to its tendency to augment or diminish the happiness of the party whose interest is in question, the community's interest being the sum of its members'. His programme was calculation before legislation and the replacement of the common law by a code.

2. What is the base and superstructure argument, and what does it say about reform statutes? That the relations of production form the real foundation on which a legal and political superstructure rises, so law registers and legitimises existing economic relations rather than creating them. Reform statutes therefore redistribute at the margin without altering the relations that produced the inequality.

3. Quote Ehrlich's central proposition and explain the distinction it rests on. That the centre of gravity of legal development lies not in legislation nor in juristic science nor in judicial decision but in society itself. It rests on the distinction between the living law, the norms actually governing the associations people belong to, and the norms for decision, which courts apply to the small fraction of disputes that reach them.

4. Which of the five theories does Indian personal law illustrate, and why more than one? The historical school, because its content came from religious texts and community custom; and Ehrlich's living law, because most of it is administered inside communities and never reaches a court. It also illustrates Pound, because the Hindu Code Bills were a legislature weighing the interest in an institution against the interest in the individual life.

5. Why is the Marxist account said to fit India imperfectly? Because it is built on class, and the division this paper is mostly about is caste, which is a status order rather than an economic one and which persists across changes in the relations of production. That is Ambedkar's objection, and it is why he insisted on social democracy as a condition of political democracy.

"and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation". Fraternity is the only one of the four that is promoted rather than secured, because it cannot be conferred. Dignity of the individual is the phrase that later carried the whole of the modern law under article 21.

Justice, liberty, equality, fraternity: the order is Ambedkar's argument

In the Constituent Assembly, Ambedkar treated the three as a union and not a list. Liberty without equality would produce the supremacy of the few over the many; equality without liberty would kill individual initiative; and without fraternity, liberty and equality would require a constable to enforce them.

And he warned that the document was entering a contradiction. On 26 January 1950 India would have political equality and social and economic inequality: one man one vote and one vote one value in politics, and a denial of one man one value in social and economic life. He asked how long the contradiction could last and said that if it lasted long it would put political democracy in peril.

That passage is quoted in a judgment this book has verified. Ramaswamy J set it out in State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126, and called it the beacon light in the administration of the law under the Protection of Civil Rights Act and other social legislations.

Why this belongs in a chapter on the Preamble. The Preamble is the resolution; Ambedkar's speech is the reason the resolution had to be made. Together they are the best short answer to any question about why India treats law as an instrument of transformation.

The Forty-second Amendment, and what it did and did not do

Three words were added in 1976: "Socialist", "Secular", and "integrity". The amendment is often described as inserting new ideals. The Supreme Court has taken the view that both socialism and secularism were already implicit in the scheme, and that the amendment made explicit what was implicit.

Secularism was so held in S.R. Bommai v. Union of India, (1994) 3 SCC 1. The judges recorded that Kesavananda Bharati and Indira Nehru Gandhi v. Raj Narain had already held secularism to be a basic feature, and that by the Forty-second Amendment what was implicit was made explicit.

The practical significance is for challenges to the amendment itself. A challenge to the words on the ground that they change the character of the Constitution has to meet the answer that they describe what the document already was.

Is the Preamble part of the Constitution?

The question is not academic; it decides whether the Preamble can be amended and whether it can be used to interpret.

The earlier view was that it was not part. In the Berubari Union reference the Supreme Court treated the Preamble as a key to the mind of the makers but not as part of the Constitution, and Mudholkar J noted that view in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, adding that in one sense it does not form part of the Constitution and in another sense it does, and that the Indian Preamble gives a direction and purpose reflected in Parts III and IV.

Kesavananda Bharati settled it. The Preamble is part of the Constitution. It follows that it can be amended under article 368, and equally that an amendment cannot destroy the basic features it declares.

And its interpretive use is settled too. Where the language of a provision is clear, the Preamble does not control it. Where the language is ambiguous or admits of more than one meaning, the Preamble is a legitimate aid and the meaning that advances its objects is preferred.

A worked example

A statute reserves a proportion of seats in a State's medical colleges for candidates from a district that is educationally backward, and it is challenged under article 14.

Step one: is the language of article 14 ambiguous? Article 14 forbids the denial of equality before the law and the equal protection of the laws. The word "equality" does not tell you whether treating unequals alike is equality, so there is something to interpret.

Step two: what does the Preamble supply? Equality of status and of opportunity, and justice, social and economic. That supports reading article 14 as permitting, and sometimes requiring, differential treatment aimed at removing an existing disadvantage.

Step three: what does the Preamble not do? It does not authorise the reservation. The authority is article 15(4) and article 15(5), which are express provisions. The Preamble supplies the reading of article 14 in which those provisions are not an exception to equality but an application of it, which is the argument in [Protective Discrimination].

Step four, the limit. If the classification is arbitrary or the reservation exceeds what the express provisions permit, the Preamble cannot save it, because a Preamble does not confer power.

What this does NOT mean

It does not mean the Preamble is a source of power. No legislature can enact under the Preamble and no citizen can sue on it. It states objects.

It does not mean the Preamble is unenforceable in every sense. It is not directly enforceable, but as part of the Constitution and as a statement of basic features it does real work: an amendment that destroyed what it declares would fail the basic structure test.

And it does not mean the words added in 1976 changed the Constitution's character. The Court's position is that they made explicit what was already there, which is why they survived the challenge to the Forty-second Amendment that destroyed other parts of it.

Quick revision

The Preamble: sovereign, socialist, secular, democratic, republic; justice social economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; fraternity assuring the dignity of the individual and the unity and integrity of the Nation. "Socialist", "Secular" and "integrity" added by the Forty-second Amendment 1976. Berubari treated it as a key but not part; Kesavananda Bharati held it part of the Constitution, amendable but not so as to destroy basic features; Bommai held that secularism was already a basic feature and that the amendment made the implicit explicit. Interpretive rule: no help where the words are clear, a legitimate aid where they are ambiguous. Ambedkar: liberty, equality and fraternity as a union, and the warning about a life of contradictions, quoted in Appa Balu Ingale.

Test yourself

1. Reproduce the four objects in the order the Preamble states them. Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

2. Which words were added in 1976, and what did the Supreme Court say about their effect? "Socialist", "Secular" and "integrity". In Bommai the Court recorded that secularism had already been held a basic feature in Kesavananda Bharati and Indira Nehru Gandhi, and that the Forty-second Amendment made explicit what had been implicit.

3. Is the Preamble part of the Constitution, and what turns on the answer? Yes, since Kesavananda Bharati. It follows that it may be amended under article 368 and that an amendment destroying the basic features it declares is invalid, and that it is an aid to interpretation where a provision is ambiguous.

4. Why is "secure" the important verb? Because to secure something is to bring about what is not yet there. It is the clearest textual indication that the Constitution was written as a programme for a society rather than as a description of one.

5. State Ambedkar's contradiction and say why it belongs with the Preamble. That from 26 January 1950 India would have political equality and social and economic inequality, and that a democracy resting on that contradiction is in peril. It belongs with the Preamble because the Preamble is the resolution and the contradiction is the reason the resolution was needed.

The socialistic group

Article 39. The State shall direct its policy towards securing an adequate means of livelihood for all citizens, men and women equally, clause (a); that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, clause (b); that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment, clause (c); equal pay for equal work for both men and women, clause (d); that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength, clause (e); and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment, clause (f).

Article 39A. Equal justice and free legal aid: the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Inserted by the Forty-second Amendment, and the constitutional root of [Legal Aid].

Article 41. The right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of the State's economic capacity and development.

Article 42. Just and humane conditions of work and maternity relief.

Article 43. A living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular the promotion of cottage industries in rural areas.

Article 43A. Participation of workers in the management of undertakings, inserted in 1976.

Article 43B. Promotion of voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies, inserted by the Ninety-seventh Amendment in 2011.

Article 47. Raising the level of nutrition and the standard of living and improving public health, and in particular the prohibition of intoxicating drinks and drugs injurious to health except for medicinal purposes.

The Gandhian group

Article 40. The organisation of village panchayats and their endowment with such powers and authority as may be necessary to enable them to function as units of self-government. This is the article behind [Democratic Decentralisation and Local Self-Government].

Article 43, second half, and article 47's prohibition clause also belong to this group, as does article 48 in its first half.

Article 46. The promotion with special care of the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and their protection from social injustice and all forms of exploitation. This is the article the State relied on and lost in Champakam Dorairajan, and it runs through the whole of [Community and the Law: Caste, Tribe and a Plural Society].

Article 48. The organisation of agriculture and animal husbandry on modern and scientific lines, and in particular the prohibition of the slaughter of cows and calves and other milch and draught cattle.

The liberal-intellectual group

Article 44. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The whole of [The Uniform Civil Code] is this one sentence.

Article 45. Provision for early childhood care and education for all children until they complete the age of six years, as substituted by the Eighty-sixth Amendment in 2002, which moved the six-to-fourteen obligation into article 21A as a fundamental right.

Article 48A. Protection and improvement of the environment and safeguarding of forests and wild life, inserted in 1976, and the article on which [What the Courts Built out of Article 21] rests.

Article 49. Protection of monuments and places and objects of artistic or historic interest declared to be of national importance.

Article 50. Separation of the judiciary from the executive in the public services of the State.

Article 51. Promotion of international peace and security, the maintenance of just and honourable relations between nations, respect for international law and treaty obligations, and the encouragement of the settlement of international disputes by arbitration. This is the article through which international conventions entered Indian law in Vishaka.

The three phases of the relationship with Part III

Phase one, subordination. In State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, the Court held that article 29(2) admits of no exception and that the Directive Principles, being unenforceable, cannot override a fundamental right. Part IV had to conform to Part III.

Phase two, harmonisation. From the 1970s the Court moved to a rule of harmonious construction: neither Part is superior, and a provision should be read so that both operate. Part IV became an aid in reading Part III, which is how article 21 acquired the content it has.

Phase three, balance as a basic feature. In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, decided 31 July 1980, the Court struck down section 4 of the Forty-second Amendment, which had widened article 31C so that a law giving effect to ANY Directive Principle was immune from articles 14 and 19.

Facts. A sick textile undertaking nationalised under the Sick Textile Undertakings (Nationalisation) Act 1974 challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976; section 55 had inserted clauses (4) and (5) in article 368 declaring that no amendment could be questioned in any court and that there was no limitation on the constituent power.

Held. Both provisions were struck down. Clauses (4) and (5) destroyed limited amending power and judicial review, both basic features. The widened article 31C destroyed the harmony and balance between Parts III and IV, which is itself a basic feature: the Directive Principles may not be given effect by wholly abrogating the fundamental rights.

Why it matters. It is the authoritative statement of the relationship, and it is the answer to any question that asks whether social objectives may simply override individual rights.

What "welfare State" means here

Not a State that gives money away. A welfare State is one that accepts responsibility for the minimum conditions of its members' lives: livelihood, health, education, protection in old age and in sickness, and protection at work.

Part IV is that acceptance written into the Constitution. Articles 38, 39, 41, 42, 43, 45, 46 and 47 between them name every one of those conditions.

And the acceptance is what makes India's law of social security a constitutional subject rather than an administrative one. That is [Social Security Legislation].

A worked example

A State enacts a law reserving forty per cent of the produce of every private forest for sale to a State corporation at an administered price, and directs that the proceeds be used to fund village schools. A trader challenges it as an unreasonable restriction on the freedom of trade under article 19(1)(g).

Step one, find the Part IV provision the law serves. Article 39(b), that the ownership and control of the material resources of the community be so distributed as best to subserve the common good; article 41, the right to education within the State's economic capacity; and article 46, the educational interests of the weaker sections.

Step two, ask what work Part IV can do here. It cannot make the law valid by itself. A Directive Principle is not enforceable by any court, by the express words of article 37, and Champakam Dorairajan holds that Part IV cannot override a fundamental right.

Step three, ask where it CAN do work. In article 19(6). The question under article 19(1)(g) is whether the restriction is REASONABLE and in the interests of the general public, and a restriction that carries out a Directive Principle is strong evidence that it is. That is the settled use of Part IV: not as a source of power but as a measure of reasonableness.

Step four, check whether an amendment is in play. If the State had put the law in the Ninth Schedule, article 31B would arise, and after I.R. Coelho a post-1973 insertion is still open to a basic-structure challenge on the article 14, 19 and 21 test. That is the subject of [The Ninth Schedule and the Property Amendments].

Step five, the answer. The law is not immune because it serves article 39(b), but it is very likely reasonable BECAUSE it does, and the trader must show that the restriction goes beyond what that object needs, for example by attacking the price rather than the reservation.

And the general rule the example teaches. A Directive Principle never wins a case on its own and almost always changes the standard by which the case is decided.

What this does NOT mean

It does not mean a Directive Principle can be enforced. Article 37 is express. A petition to compel the State to secure a living wage will fail.

It does not mean the directives are of no legal effect. They justify a classification, support a reading of a fundamental right, answer a challenge under article 14 or 19, and, through article 31C as it survives, protect a law giving effect to article 39(b) or (c).

And it does not mean Part IV outranks Part III. After Minerva Mills the balance between them is itself a basic feature, so neither may be used to destroy the other.

Quick revision

Article 36, the definition; article 37, unenforceable but fundamental in governance and a duty to apply in making laws. Borrowed from Ireland, 1937. Groups: socialistic, 38, 39, 39A, 41, 42, 43, 43A, 43B, 47; Gandhian, 40, 43, 46, 47, 48; liberal-intellectual, 44, 45, 48A, 49, 50, 51. Three phases: Champakam Dorairajan, subordination; harmonious construction; Minerva Mills, the balance as a basic feature and the striking down of the widened article 31C and of article 368(4) and (5).

Test yourself

1. Quote article 37 and explain both halves. The provisions of Part IV shall not be enforceable by any court, but the principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. The first half means no suit lies on a directive; the second means a government cannot lawfully treat them as optional and a court will use them to read Part III.

2. Classify the Directive Principles and give two articles in each class. Socialistic: 39 and 41. Gandhian: 40 and 46. Liberal-intellectual: 44 and 50.

3. Trace the relationship between Parts III and IV through three cases or phases. Champakam Dorairajan, in which a Directive Principle could not override article 29(2); the phase of harmonious construction in which Part IV was used to read Part III widely; and Minerva Mills, in which the balance between the two Parts was held to be a basic feature and the widened article 31C was struck down.

4. Which articles of Part IV does this paper's other topics rest on? Article 39A for legal aid and alternative approaches; article 40 for decentralisation; article 44 for the uniform civil code; article 45 and article 39(e) and (f) for children; article 46 for the Scheduled Castes and Tribes; article 48A for the environment; and article 51 for the reception of international conventions.

5. Why did the framers make Part IV unenforceable? Because the goals require money and administration, which a court can order but cannot supply, and because the timing and means of achieving them are political questions. The framers stated the ends and left the pace to the political branches, while making the duty to work towards them constitutional.

The Maternity Benefit Act 1961. Paid leave and related protections for a woman before and after childbirth, dealt with in [Equal Pay and Maternity Benefit].

The Payment of Gratuity Act 1972. A terminal payment after five years of continuous service.

The Workmen's Compensation Act 1923, now the Employee's Compensation Act. Compensation for injury arising out of and in the course of employment, on a no-fault basis.

All five are now consolidated in the Code on Social Security 2020. The Code brings the provident fund, the insurance scheme, gratuity, maternity benefit, employee's compensation and the cess-financed building workers' fund into one statute, and extends definitions to gig workers, platform workers and unorganised workers.

One caution a student must record. Consolidation is not the same as commencement. A Code that has been enacted operates only from the date its provisions are brought into force, and an answer that treats an unnotified provision as operative law is stating something that is not the law.

The non-contributory half

Because most Indian workers never enter the contributory half. The National Sample Survey classification of the workforce as overwhelmingly informal is the fact the whole system is built around, and it is why India developed a second, tax-financed track.

The National Social Assistance Programme, which is the direct constitutional descendant of article 41: old-age pension, widow pension and disability pension, together with a family benefit on the death of a breadwinner.

The Mahatma Gandhi National Rural Employment Guarantee Act 2005, which gives a rural household a legal right to a hundred days of unskilled manual work in a financial year, and an unemployment allowance if work is not provided. It is the closest thing in Indian law to an enforceable right to work.

The National Food Security Act 2013, which gives entitlements to subsidised foodgrains to identified households and gives maternity benefit of a fixed sum to every pregnant and lactating woman other than those already covered.

The Unorganised Workers' Social Security Act 2008, now subsumed in the Code of 2020, which was the first attempt to build a frame for workers outside the formal sector.

And the Building and Other Construction Workers legislation of 1996, with its cess-financed welfare boards, which matters here because construction is where the workers in [Law as an Instrument of Social Change] were found.

The three structural weaknesses

One: coverage. A contributory scheme attaches to an identifiable employer and a regular wage. A worker who is self-employed, casual, seasonal, home-based or on a platform has neither, so the older half of the system passes them by. Extending definitions in a Code does not by itself register anybody.

Two: registration. Every non-contributory benefit runs through a list, and a person who is not on the list does not exist for the scheme. Migration, the absence of documents and the exclusion of the least literate are where the entitlements are actually lost.

Three: adequacy. A pension fixed in nominal terms and not revised is a pension that shrinks every year. Article 41's "within the limits of its economic capacity" gives no standard against which adequacy can be tested.

A worked example

Rekha works as a domestic worker in four households in Pune and is fifty-eight years old.

Which of the contributory laws reach her? None, in practice. There is no single employer, no establishment, no register of her employment and no contribution.

Which of the non-contributory ones might? The old-age pension under the National Social Assistance Programme when she turns sixty, if she is identified as belonging to a household below the poverty line and is on the list. Subsidised grain under the National Food Security Act, again if her household is on the list.

And what does the Code of 2020 change for her? It brings her within the definition of an unorganised worker and provides for schemes and for registration, which is the necessary first step and is not the same as a benefit.

The point of the example. MU's question asks whether Part IV reflects a welfare State. The honest answer is that the constitutional commitment is complete, the statutory architecture is now consolidated, and the coverage of the person the articles were written for is the unfinished part.

What this does NOT mean

It does not mean social security is charity. Article 41 speaks of public assistance as a matter of State duty, and the employment guarantee is drafted as a legal right with a remedy.

It does not mean an unenforceable directive produces nothing. Every statute above is the directive being applied in making laws, which is the second half of article 37 doing exactly what it says.

And it does not mean a court can order a scheme into existence. It can enforce a statutory entitlement once created, and it has repeatedly done so with food and with the employment guarantee; it cannot direct the State to legislate.

Quick revision

Constitutional base: articles 39(a), (d), (e) and (f), 41, 42, 43 and 43A. Contributory half: Employees' State Insurance Act 1948, Provident Funds Act 1952, Maternity Benefit Act 1961, Payment of Gratuity Act 1972, Employee's Compensation Act 1923, all consolidated in the Code on Social Security 2020, which also covers gig, platform and unorganised workers. Non-contributory half: National Social Assistance Programme, the rural employment guarantee of 2005, the National Food Security Act 2013, the Unorganised Workers Act 2008, and the construction workers' welfare boards. Three weaknesses: coverage, registration and adequacy. Consolidation is not commencement.

Test yourself

1. Which Directive Principles does social security legislation give effect to? Articles 39(a), (d), (e) and (f), 41, 42, 43 and 43A: adequate means of livelihood, equal pay, protection of workers' health and of children, the right to work and to public assistance in unemployment, old age, sickness and disablement, just and humane conditions and maternity relief, a living wage, and participation of workers in management.

2. Distinguish the contributory from the non-contributory half. The contributory half is employment-linked and financed by contributions from employer and employee, and it reaches only workers in notified establishments. The non-contributory half is tax-financed, reaches households identified on a list, and includes the pensions, the food entitlements and the employment guarantee.

3. What did the Code on Social Security 2020 do? Consolidated the provident fund, insurance, gratuity, maternity benefit, employee's compensation and construction workers' provisions into one statute, and extended its definitions to gig workers, platform workers and unorganised workers. Consolidation does not by itself bring a provision into force or register a worker.

4. Name the three structural weaknesses and give an example of each. Coverage, as with a domestic worker who has no single employer; registration, as where a migrant is not on the list that a benefit runs through; and adequacy, as where a nominal pension is not revised and falls in real value.

5. Is the right to work enforceable in India? Not as a Directive Principle: article 41 is unenforceable under article 37. But the Mahatma Gandhi National Rural Employment Guarantee Act 2005 creates a statutory right for a rural household to a hundred days of unskilled manual work, with an unemployment allowance if work is not provided, and that statutory right is enforceable.

Clause (k). Added in 2002 by the same amendment that inserted article 21A and rewrote article 45, so that the child has a right, the State has an obligation and the parent has a duty, all inserted at once. It is the tidiest example in the Constitution of a right and a duty being drafted together.

Enforceability, which is the question

Against a citizen, directly: no. Article 51A creates no offence and provides no penalty. A citizen who fails to develop a scientific temper commits no wrong known to law.

Where a statute gives a duty force: yes, through the statute. Duties in clauses (a), (c), (g) and (i) correspond to obligations under statutes such as the Prevention of Insults to National Honour Act 1971, the environmental legislation and the Prevention of Damage to Public Property Act 1984. What is enforced there is the statute, and article 51A supplies the constitutional purpose that supports it.

As an aid to construction: yes, and this is the important use. Where a fundamental right is being read, or where a restriction on one is being tested for reasonableness, article 51A is a legitimate consideration. A restriction that promotes a fundamental duty is more readily held reasonable.

As support for the validity of a law: yes. A statute enacted to give effect to a fundamental duty is a statute with a constitutional object, and that has weight when it is challenged.

And as a guide to State policy: in practice, yes. In Aruna Roy v. Union of India, (2002) 7 SCC 368, the National Curriculum Framework was upheld against a challenge that it introduced religious instruction contrary to article 28, and the reasoning treated the study of religions for the purpose of value education as consistent with the constitutional scheme. Article 51A(e) and (f) are part of the background against which such a scheme is judged. The case is worked in the religion topic.

The comparison students are asked for

The one line to remember about all three. Rights are claims a citizen has against the State, directives are goals the State owes the citizen, and duties are what the citizen owes back. The Constitution's authors added the third late, and the addition is why the Forty-second Amendment is remembered for something other than the Emergency.

A worked example

A municipal corporation prohibits the immersion of idols painted with lead-based paint in a lake, and the prohibition is challenged as violating article 25.

The right. Freedom to practise religion under article 25(1), subject to public order, morality and health.

The duty. Article 51A(g), to protect and improve the natural environment including lakes.

The directive. Article 48A, the State's duty to protect and improve the environment.

How they combine. The prohibition is a restriction on a religious practice, so the court asks whether it is covered by the health limitation in article 25(1) and whether the practice restricted is an essential religious practice at all. Article 48A and article 51A(g) support the reasonableness of the restriction; they do not by themselves authorise it. That is exactly the weight a fundamental duty carries: real, and never decisive on its own.

What this does NOT mean

It does not mean the duties are decorative. They are used in reasoning often enough that no answer can dismiss them.

It does not mean a court can order a citizen to perform one. Directions have been given to States to educate citizens about the duties; the duty itself remains without a sanction.

And it does not mean the list is complete or uncontroversial. Clause (b), the ideals which inspired the national struggle, and clause (j), striving towards excellence, are not the kind of thing a legal order can state operatively at all, and they are the standing example of the criticism that Part IVA is exhortation.

Quick revision

Part IVA, article 51A, inserted by the Forty-second Amendment 1976 on the Swaran Singh Committee's recommendation; clause (k) added by the Eighty-sixth Amendment 2002 alongside article 21A and the new article 45. Eleven duties, addressed to the citizen. No sanction, so not directly enforceable. Four real effects: enforcement through a statute that independently creates the obligation; aid in construing a fundamental right; a factor in the reasonableness of a restriction; and support for the validity of a law made to give a duty effect. The three clauses this paper uses are (e), practices derogatory to the dignity of women, (g), the environment, and (k), education.

Test yourself

1. When and how were the fundamental duties inserted, and what was added later? By the Constitution (Forty-second Amendment) Act 1976, inserting Part IVA and article 51A on the recommendation of the Swaran Singh Committee. Clause (k), the parent's duty to provide opportunities for education between six and fourteen, was added by the Eighty-sixth Amendment in 2002.

2. Are the fundamental duties enforceable? Not directly: article 51A creates no offence and provides no penalty, and no citizen can be punished for breaching a duty as such. They are enforceable indirectly through statutes that independently create the obligation.

3. Give the three indirect legal effects of article 51A. It supports the constitutional object of a statute that gives a duty force; it is a legitimate aid in construing a fundamental right; and it is a factor in judging whether a restriction on a fundamental right is reasonable.

4. Which fundamental duty was inserted with article 21A, and why does that matter? Clause (k), the parent's or guardian's duty to provide opportunities for education to a child between six and fourteen, inserted by the same Eighty-sixth Amendment that made article 21A a fundamental right and substituted article 45. It matters because the right of the child, the obligation of the State and the duty of the parent were drafted as one scheme.

5. State the standing criticism of Part IVA. That several clauses are exhortation rather than law. To cherish the noble ideals of the national struggle, or to strive towards excellence so that the nation rises to higher levels of endeavour, cannot be stated as an operative legal obligation, and their presence in a constitution invites the charge that the whole Part is rhetorical.

Two: declaring law under article 141. A proposition stated as the ratio of a Supreme Court decision binds every court in India until the Supreme Court itself departs from it. In a system with no legislature willing to act, this is how a rule enters the law.

Three: complete justice under article 142. The article has been used to dissolve a marriage that had irretrievably broken down where no ground under the statute existed, to award compensation where no statute provided for it, and to make transitional arrangements after striking a law down.

Four: judicial review, including of amendments.

Facts. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973 by a Bench of thirteen judges. The head of the Edneer Mutt in Kerala challenged the Kerala Land Reforms Act as amended in 1969 under articles 25, 26 and 31, and the petition grew into a challenge to the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments, the first of which had reversed Golak Nath by providing that nothing in article 13 shall apply to an amendment made under article 368.

Held. The Twenty-fourth Amendment was valid and Parliament may amend any part of the Constitution including Part III, but the amending power does not extend to altering the basic structure or framework of the Constitution. The Twenty-ninth Amendment was upheld, article 31B being a constitutional device to place specified statutes beyond attack under Part III. The second part of section 3 of the Twenty-fifth Amendment, which had excluded judicial review of a law made to give effect to article 39(b) and (c), was struck down.

Why it matters here. It is the outer limit of the judicial capacity: a court holding that there are things an elected Parliament with a two-thirds majority cannot do. Whatever view is taken of it, no account of the Indian judiciary as an agent of change can leave it out.

The role of the judiciary in promoting social justice and social change

That is the University's own phrase, and it is worth answering in its own words. The role of the judiciary in social change in India has four parts, and they are the four capacities set out above: widening a right so that it reaches a harm nobody had named, declaring the resulting rule for the whole country, ordering what complete justice requires, and refusing to let an amendment destroy the framework.

Judicial creativity is the name usually given to the first of them. A court exercising it is not inventing a right out of nothing; it is reading an existing text, most often article 21, so that it covers a situation the drafters did not describe, and then explaining why the text bears that reading.

Social justice is the second half of MU's phrase, and it enters the judicial function in a particular way. The Directive Principles are unenforceable, so a court cannot order the State to secure them; but article 37 makes them fundamental in governance, and a court reads Part III in their light. That is the mechanism by which the role of judiciary in promoting social justice operates: not by enforcing Part IV but by letting Part IV colour Part III.

Pound, and the February 2026 question

The question quoted Pound's sentence about reconciling and harmonizing conflicting interests and asked about the judiciary's role in promoting social justice and social change.

The connection to make is this. Pound's programme was that a legal order should identify the claims people make, place them on the same plane, decide which to secure and how far, and build the machinery. An Indian court doing constitutional adjudication does exactly that, and it does it with a written scale Pound never had.

Two examples make the point. In a reservation case the court weighs the claim of the individual candidate against the claim of a group historically excluded, and article 16(1) and article 16(4) are the plane on which it does so. In an environmental case it weighs employment against health, and articles 21 and 48A are the plane.

And Pound's third task, making precepts effective, is where the Indian court has gone furthest. Continuing mandamus, monitored compliance and the appointment of commissioners are all attempts to make an order operate, and they are the subject of the next chapter.

The case against the judiciary as an engine

It is not elected. A judge who reads a new right into article 21 has made a policy choice that nobody voted on and that cannot be reversed at an election.

It cannot pay for what it orders. A direction to build schools, appoint officers or run rehabilitation is a direction to spend money that a court did not raise and cannot allocate between competing demands.

It acts on the case in front of it. A court sees one river, one quarry, one school. A legislature can see the sector.

It cannot supervise. Once the judgment is delivered the Court's attention moves on, and unless somebody returns with a contempt petition, nothing happens. This is the standing weakness of judicial social reform and it is why so many of the directions in this book were repeated in later orders.

And the separation of powers is a two-way street. A court that legislates invites a legislature to adjudicate, and both have happened in India.

A worked example

Suppose there is no law against a practice that plainly injures a group, and a petition is brought under article 32.

What the court can do. Read the injury into an existing fundamental right, most likely article 21 or article 14. Declare the resulting proposition, which binds every court under article 141. Issue directions under article 32(2) to the authorities concerned. Make consequential orders under article 142. Retain the matter and require compliance reports.

What the court cannot do. Create an offence, impose a tax, allocate a budget, or bind a future Parliament. And it cannot act at all unless somebody brings a case.

How this differs from Vishaka. In Vishaka v. State of Rajasthan the Court did all five things it could do, and expressly said its guidelines would bind until suitable legislation occupied the field. That last phrase is a court acknowledging every one of the limits in this section.

What this does NOT mean

It does not mean judges make law in the ordinary sense. The declaratory theory, that a judge finds the law rather than making it, is still the formal position, and article 141 speaks of law "declared".

It does not mean judicial change is faster than legislative change. It is faster to obtain and much slower to implement, which is the reverse of what students assume.

And it does not mean the criticism is a reason for the courts to stop. The Indian answer has been that a court acts where the other branches have not, and the honest version of the answer adds that it acts badly where they will not.

Quick revision

Four capacities: reading a right widely, especially article 21; declaring law under article 141; complete justice under article 142; and judicial review, including of amendments after Kesavananda Bharati. Articles 32 and 226 are the doors; article 226 is wider in scope but is not itself a fundamental right. Five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto. Kesavananda Bharati: thirteen judges, the Twenty-fourth Amendment valid, the basic structure limit, the second part of section 3 of the Twenty-fifth struck down. Five criticisms: unelected, cannot fund, sees one case, cannot supervise, and provokes retaliation.

Test yourself

1. Which articles give the judiciary its capacity to change the law, and what does each do? Article 141, the law declared by the Supreme Court binds all courts; article 142, orders for complete justice, enforceable throughout India; article 32, the right to move the Supreme Court for enforcement of fundamental rights, with power to issue writs; article 226, the High Court's wider power for fundamental rights and for any other purpose.

2. Name the five writs and state each in one line. Habeas corpus, produce the person and justify the detention. Mandamus, perform the duty the law imposes. Prohibition, stop exceeding jurisdiction before deciding. Certiorari, send up the record so the decision may be quashed. Quo warranto, by what authority do you hold this public office.

3. What did Kesavananda Bharati decide, and why is it in a chapter on social change? That Parliament may amend any part of the Constitution but not so as to destroy its basic structure, and that the exclusion of judicial review in the Twenty-fifth Amendment was invalid. It belongs here because it marks the outer limit of judicial capacity: a court holding that an elected Parliament cannot do certain things at all.

4. Give three criticisms of the judiciary as an agent of social change. It is not elected and its policy choices are not reversible at an election; it cannot raise or allocate the revenue its orders require; and it cannot supervise compliance once the judgment is delivered, so its directions depend on somebody returning to enforce them.

5. How does Pound's theory connect to the Indian judiciary? A court doing constitutional adjudication performs Pound's programme: it identifies competing claims, restates them on the same plane, decides which to secure and how far, and increasingly tries to build machinery to make the decision effective. The difference is that the Indian court has a written scale, Parts III and IV, which Pound's theory never supplied.

Held. The petition was maintainable. Labour taken for less than the minimum wage is forced labour within article 23, because a person who works for less than the minimum wage is working under the force of economic circumstance rather than freely; article 23 is enforceable against private persons as well as against the State; and the employment of children under fourteen in construction contravenes article 24, construction being a hazardous employment.

Why it matters. Three propositions in one case: the epistolary jurisdiction, the horizontal operation of article 23, and the extension of article 24 to construction. The last of these is used again in [The Law against Child Labour].

The commissioner, and monitoring

Facts. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, (1984) 3 SCC 161, decided 16 December 1983 by Bhagwati, Pathak and Amarendra Nath Sen JJ. An organisation working against bonded labour wrote to the Court about workmen in the stone quarries of Faridabad in Haryana, alleging that they were held in bondage and lived in conditions of extreme deprivation. The Court appointed commissioners to visit the quarries and report.

Held. The petition was maintainable under article 32, and commissioners could be appointed to gather material, because insisting on adversarial proof would deny relief to exactly the people article 32 exists for. On the merits the Court issued detailed directions to the Central Government and the State of Haryana on identification, release and rehabilitation of bonded labourers and on the enforcement of the labour laws, holding that the right to live with human dignity under article 21 derives its life breath from the Directive Principles.

Why it matters. It settled that the Court may itself find facts in this jurisdiction, which is the largest single departure from the adversarial model, and it is the case that made monitored compliance ordinary.

The continuing mandamus

Facts. Vineet Narain v. Union of India, (1998) 1 SCC 226, AIR 1998 SC 889, decided 18 December 1997 by Verma CJI, Sen and Sethi JJ. The petition arose out of the Jain hawala diaries and the failure of the Central Bureau of Investigation to investigate persons named in them.

Held. The Court issued directions on the independence and functioning of the Central Bureau of Investigation and the Central Vigilance Commission, and in doing so used the technique it named continuing mandamus: instead of deciding and disposing of the case, the Court kept it pending and required periodic reports on the progress of the investigation, without itself directing the outcome.

Why it matters. It is the technique's clearest statement. A continuing mandamus is the judicial answer to the criticism in the previous chapter that a court cannot supervise: it supervises by not letting go of the case.

The four criticisms, and the answers

One: it is undemocratic. Policy is being made by judges. The answer is that the jurisdiction operates where the political branches have failed to act at all, and that the Court applies a written constitution rather than its preferences. The answer is only partly convincing, and the honest version says so.

Two: it is unmanageable. The Court cannot run a prison system, a police force or a school system by order. This is the strongest criticism and it is borne out by the number of directions in this book that had to be repeated.

Three: it invites abuse. Petitions filed for publicity, for private advantage or for delay. The courts have answered by imposing costs and by insisting on the bona fides that S.P. Gupta required.

Four: it reaches the represented. A group with an organisation gets a petition; a group without one does not. The jurisdiction was created for the voiceless and works best for those who have found a voice.

A worked example

A district has no functioning shelter for children found living on the street, though a statute requires one.

Who can bring the petition? Under S.P. Gupta, any member of the public acting bona fide, because the children cannot come themselves.

How can it be started? By a letter, under PUDR, or by an ordinary writ petition under article 32 or article 226.

How will the facts be found? By a commissioner appointed under Bandhua Mukti Morcha, because the petitioner cannot compel the district administration to produce records.

What order can be made? Directions to the State to comply with the statute, with a timetable.

And how will compliance happen? By a continuing mandamus under Vineet Narain: the case is kept pending and reports are called for. Without that last step, the order is a document.

What this does NOT mean

It does not mean anybody may sue about anything. The relaxation is for those who cannot come themselves. A petitioner with a personal or political motive, or one raising a grievance of persons perfectly able to sue, is outside it.

It does not mean the ordinary rules of evidence are abandoned. The commissioner's report is material, and the affected party must be heard on it.

And it does not mean judicial activism and public interest litigation are the same thing. Activism is an attitude to interpretation and to the other branches; public interest litigation is a procedure. A court can be activist in an ordinary appeal, and a public interest petition can be decided very conservatively.

Quick revision

S.P. Gupta, 1981: standing relaxed for a person or determinate class who cannot come to court by reason of poverty, helplessness, disability or a socially or economically disadvantaged position; any member of the public acting bona fide may move. PUDR, 1982: letter as petition; less than the minimum wage is forced labour under article 23; article 23 binds private persons; article 24 covers construction. Bandhua Mukti Morcha, 1983: commissioners to find facts; directions on bonded labour; article 21 draws its life breath from Part IV. Vineet Narain, 1997: continuing mandamus. Four criticisms: undemocratic, unmanageable, open to abuse, and reaching only the represented.

Test yourself

1. State the rule of standing as relaxed in S.P. Gupta. That where a legal wrong is caused to a person or a determinate class who by reason of poverty, helplessness or disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move the court for relief.

2. What three propositions does PUDR establish? That a letter may be treated as a writ petition; that labour for less than the minimum wage is forced labour within article 23 and that article 23 operates against private persons; and that the employment of a child under fourteen in construction contravenes article 24.

3. What is a continuing mandamus, and which case named it? A direction under which the Court keeps the matter pending and calls for periodic reports on compliance rather than disposing of the case, without itself directing the outcome. It was used and named in Vineet Narain v. Union of India.

4. Why was the power to appoint commissioners necessary? Because the persons on whose behalf these petitions are brought cannot gather or produce evidence, and an adversarial requirement of proof would deny relief to exactly the class article 32 exists to protect. Bandhua Mukti Morcha decided it.

5. Give the strongest criticism of the jurisdiction and the best answer to it. That a court cannot manage what it orders: it has no budget, no staff and no continuing attention, so directions about prisons, schools or police forces are repeated for decades. The best answer is the continuing mandamus, which converts a single order into supervision; the honest answer is that supervision by a court is a poor substitute for administration by a government.

Read clause (2) carefully, because it is the definition. Income inequalities are to be MINIMISED; inequalities in status, facilities and opportunities are to be ELIMINATED. And the unit is not only the individual but the group, whether identified by area or by vocation. A constitution that says that has committed itself to group-based remedies, which is the answer to any argument that the Constitution recognises only individuals.

Article 39 supplies the economic content: livelihood, distribution of material resources for the common good, prevention of concentration of wealth, equal pay, protection of the health and strength of workers and of children.

Article 46 supplies the social content: promotion with special care of the educational and economic interests of the weaker sections, and in particular of the Scheduled Castes and Scheduled Tribes, and their protection from social injustice and all forms of exploitation.

Four uses of the phrase in Indian law

One, as a directive. Articles 38, 39 and 46 direct policy, and a statute enacted under them has a constitutional object which supports its validity.

Two, as a canon of construction. Where a labour statute, a rent statute or a welfare statute is ambiguous, courts read it in favour of the person it was enacted to protect. That is a rule of interpretation with a name, and its name is social justice.

Three, as a justification for classification under article 14. A classification aimed at removing an existing disadvantage is reasonable because it serves the constitutional object.

Four, as an argument about the shape of the whole legal order. Ambedkar's warning about political democracy resting on social inequality is the fullest Indian statement of it, and it is quoted in the judgment worked in [What Law Cannot Do: The Limits of Legislating Change].

The criticisms, which MU's 2022 question invites

That the phrase is too vague to decide anything. Almost any policy can be defended as promoting social justice, and a term that cannot exclude anything cannot decide anything.

That group-based remedies entrench the groups. If benefits attach to a community, the community acquires an interest in remaining identified, which is the standing objection to caste-based reservation and is dealt with in [Reservation: The Constitutional Scheme].

That distribution without production is a distribution of shortage. The economic answer, and the reason article 41 carries the words "within the limits of its economic capacity and development".

And that the benefit reaches the top of the disadvantaged group. The creamy layer doctrine is the law's own acknowledgment of this, and it is worked in [Backward Classes, the Creamy Layer and the Ceiling].

MU's 2022 question puts the objection directly. Whether the reservation policy and scheme embodied in the Constitution has yet achieved its stated goal, explained in relation to the concept of social justice. That question wants the definition, the machinery, the evidence and a position.

A worked example

Two candidates apply for the last seat in a State medical college. Anjali's parents are doctors; Sunil is the first person in his family to finish school and belongs to a Scheduled Caste.

The corrective-justice account. They applied under the same rules and one scored higher. Whichever is admitted, the criterion should be the score, and to do otherwise is to treat one worse than the other for a reason unconnected with medicine.

The distributive-justice account. The two did not arrive at the examination hall from the same place, and treating unequally situated people identically reproduces the inequality rather than correcting it. The seat is a public resource being allocated across a society, not a prize in a private contest.

What the Constitution does with the two accounts. It keeps both. Article 16(1) and article 14 protect the first; article 15(4), article 16(4) and article 46 authorise the second; and the case law about the fifty per cent ceiling, the creamy layer and efficiency under article 335 is the law working out how much of each.

And the honest note. Nothing in the constitutional text says how much. That is the point made in [The Criticisms of Social Engineering]: the scale is written down, but where exactly the line falls is decided case by case.

What this does NOT mean

It does not mean social justice is the same as equality. Equality is a fundamental right with a text. Social justice is an objective, and it sometimes requires unequal treatment.

It does not mean it is enforceable. No suit lies for social justice, because articles 38, 39 and 46 are in Part IV.

And it does not mean it is only about caste. Article 38(2) names income, status, facilities, opportunities, areas and vocations, and this book applies the idea to women, to children, to linguistic minorities, to tribal communities and to the urban poor.

Quick revision

Social justice: the removal of disabilities and inequalities attaching to birth, sex, community or economic position, and the securing of the conditions of a dignified life. Preamble, first of three justices. Article 38(1), a social order in which justice informs all institutions; article 38(2), inserted 1978, minimise income inequality and eliminate inequalities of status, facilities and opportunities, among groups as well as individuals. Article 39, economic content; article 46, the weaker sections and the Scheduled Castes and Tribes. Distributive, not corrective. Four uses: directive, canon of construction, justification for classification, and an argument about the whole order. Four criticisms: vagueness, entrenchment of groups, distribution of shortage, and capture by the best-off within the group.

Test yourself

1. Define social justice as the Constitution uses it. The removal of the disabilities and inequalities that attach to a person by reason of birth, sex, community or economic position, and the securing to every person of the conditions of a dignified life; stated in the Preamble and elaborated in articles 38, 39 and 46.

2. Distinguish distributive from corrective justice and show why the distinction matters. Corrective justice repairs a wrong between two parties treated as equals; distributive justice allocates benefits and burdens across a society and takes account of starting positions. It matters because the objection to reservation is usually corrective and the defence is usually distributive, so the two arguments never meet unless the distinction is drawn.

3. What exactly does article 38(2) require, and why is its wording important? That the State strive to minimise inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also among groups residing in different areas or engaged in different vocations. The wording is important because it commits the Constitution to group-based remedies and because it asks for elimination of status inequality and only minimisation of income inequality.

4. Give two uses of social justice in legal reasoning that do not involve reservation. As a canon of construction, under which an ambiguous labour or welfare statute is read in favour of the person it protects; and as a justification supporting the validity of a statute challenged under article 14, because a classification aimed at removing an existing disadvantage serves a constitutional object.

5. State the strongest criticism and the law's own answer to it. That the benefit of a group-based remedy is captured by the best-off within the group, so the person it was designed for is reached last. The law's own answer is the creamy layer doctrine, which excludes the socially advanced among the beneficiaries from the benefit, though it does not apply to the Scheduled Castes and Scheduled Tribes in the same way.

Why India has more than one. Because the British administration, from the Regulation of 1772 onwards, decided to apply to Hindus and Muslims their own laws in these matters, and the practice hardened into a permanent feature of the legal system that independence did not remove.

The chapters on this plane. [Personal Law: What It Is, and Why India Has Several], [The Hindu Code Bills], [Muslim Personal Law and Maintenance: Shah Bano to Danial Latifi], [Triple Talaq], [Christian and Parsi Law, and the Special Marriage Act], and [The Uniform Civil Code].

Where the two planes meet, and why that is the hardest part of the topic

The meeting point is this question: is personal law subject to the fundamental rights?

If it is, then a rule of a personal law that discriminates between men and women is void under articles 14 and 15, and the courts can reform every personal law without Parliament.

If it is not, then personal law can be changed only by legislation, and the freedom of religion in article 25 protects it from the courts.

The doctrinal hinge is article 13(3)(a), which defines "law" for Part III as including custom or usage having the force of law. Whether uncodified personal law falls inside that definition is the most contested question in this topic and is argued out in [Personal Law: What It Is, and Why India Has Several].

And the practical consequence runs through five later chapters. Shah Bano, Sarla Mudgal, Shayara Bano and Sabarimala are all, at bottom, cases about how far a court may go into a religion's own rules.

A worked example of the confusion this chapter exists to prevent

Question: "Critically examine the relationship between Religion and Law in a secular state. Explain how does the Indian Constitution maintain a balance between religious freedom and social reform in India." That is February 2026, question 2.

The mistake. To answer it entirely with personal law: Shah Bano, triple talaq, the uniform civil code. Those are the second plane, and the question is mostly about the first.

The right shape. Articles 25 to 28 and what they permit the State to do; secularism as a basic feature; the essential practices doctrine as the line between the religious and the secular; article 25(2)(b) as the express reform clause; the temple-entry cases as the clearest working of it; and only then personal law, as the place where the balance is hardest to hold.

And the reverse mistake. MU's 2025 question, "In what ways do religious-based personal laws contribute to social division, and how can legal reforms promote uniformity and social harmony?", is entirely on the second plane. An answer that spends half its length on the essential practices doctrine has misread it.

The vocabulary this topic needs

Secular. Of or belonging to the world rather than to religion. A secular activity is one that can be described without reference to any religious doctrine.

Denomination. A religious sect or body having a common faith and organisation and designated by a distinctive name. It matters because article 26 gives rights to a denomination that article 25 gives to an individual.

Essential religious practice. A practice which the religion itself regards as an essential and integral part of it, and without which the religion would be fundamentally altered. Only such practices attract the fullest protection.

Personal law. Defined above.

Codified and uncodified personal law. Codified personal law is contained in a statute, such as the Hindu Marriage Act 1955; uncodified personal law is not, and Muslim personal law in India is largely uncodified. The distinction decides which route a reform must take.

Minority. A community numerically smaller than the rest of the population of the State, the unit of comparison being the State and not the country.

What this does NOT mean

It does not mean the two planes are unrelated. Article 25(2)(b), the reform clause, is on the first plane and does most of its work on the second.

It does not mean personal law applies only to family matters. It reaches property on death, and through wakfs and endowments it reaches large institutions.

And it does not mean that a secular State is one indifferent to religion. The Indian conception is dealt with in [Secularism], and it is not the wall-of-separation conception.

Quick revision

Two planes. First: religion as the subject of the law, articles 25 to 30, secularism, minorities, essential practices, the reform clause. Second: religion as the source of law, the personal laws of marriage, divorce, maintenance, guardianship, adoption and succession, and article 44. They meet at the question whether personal law is "law" within article 13(3)(a) and so subject to Part III. Vocabulary: secular, denomination, essential religious practice, personal law, codified and uncodified, minority.

Test yourself

1. State the two planes on which religion and law meet in India. Religion as the subject of the law, governed by articles 25 to 30, and religion as the source of the law, in the personal laws of the several communities with article 44 directing a uniform civil code.

2. Give three matters governed by personal law. Marriage and its conditions; divorce, maintenance and guardianship; and succession and inheritance. Adoption and, in some communities, endowments and wakfs are also personal law.

3. Why does India have more than one personal law? Because the colonial administration, from the Regulation of 1772, chose to apply to Hindus and to Muslims their own laws in matters of family and succession, and that practice hardened into a permanent feature of the legal system which independence did not remove.

4. What is the doctrinal question at which the two planes meet? Whether uncodified personal law is "law" within article 13(3)(a), which includes custom or usage having the force of law. If it is, it must answer Part III and can be reformed by a court; if it is not, it can be changed only by legislation.

5. Define denomination and say why the definition matters. A religious sect or body having a common faith and a common organisation and designated by a distinctive name. It matters because article 26 confers on a denomination rights to establish and maintain institutions, to manage its own affairs in matters of religion and to own and administer property, which are additional to the individual rights in article 25.

Explanation II matters more than students notice. It is the reason the temple-entry provision reaches Sikh, Jain and Buddhist institutions, and it is one of the provisions cited in arguments about whether those are separate religions for other purposes.

Article 26: the denomination's four rights

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

The critical distinction is between (b) and (d). Clause (b) is a right that the State may not take away; clause (d) is a right to administer property "in accordance with law", so a law regulating administration is valid.

Facts. Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388, decided 18 March 1954 by Mukherjea J with the Bench that had just decided Shirur Mutt. Trustees of Jain and other public religious trusts challenged provisions of the Bombay Public Trusts Act 1950 which subjected religious trusts to registration, to the control of a Charity Commissioner and to a contribution to a public trusts administration fund.

Held. A denomination's right under article 26(b) to manage its own affairs in matters of religion is not subject to State regulation, whereas the administration of its property under article 26(d) may be regulated by law. Provisions that took away the right of administration altogether and vested it in another authority were bad; provisions that merely regulated administration were upheld.

Why it matters. Every dispute about a State taking over a temple, a mutt or a wakf is decided on this line, and stating it precisely is worth a great deal in an answer.

And note the limitation clause. Article 26 is subject to public order, morality and health but NOT expressly to "the other provisions of this Part". That textual difference from article 25 is the beginning of every argument that a denomination's rights are stronger than an individual's, and it is argued out in [Temple Entry].

Article 27: no taxes for a religion

The text. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Two words carry the article. "Taxes", and "specifically appropriated". A fee, which is a payment for a service rendered, is not a tax, and Shirur Mutt is the leading authority on the distinction: a fee must be correlated to the expenses incurred in rendering the service, while a tax is a compulsory exaction for the general purposes of the State.

What follows. A levy on a temple's income to meet the cost of supervising temples generally can be sustained as a fee. A tax whose proceeds are earmarked for the promotion of one religion cannot.

Article 28: religion in educational institutions

The scheme is four-fold and depends on how the institution is funded.

Clause (1). No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

Clause (2). Clause (1) does not apply to an institution administered by the State but established under an endowment or trust which requires that religious instruction shall be imparted in it.

Clause (3). No person attending an educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction or to attend any religious worship without their consent, or, if a minor, without the consent of their guardian.

So the rule in a line. Wholly State-funded: no religious instruction at all. State-administered but founded on an endowment requiring it: permitted. Recognised or aided: permitted, but no person may be compelled to attend.

Facts. Aruna Roy v. Union of India, AIR 2002 SC 3176, (2002) 7 SCC 368, decided 12 September 2002. A public interest litigation challenged the National Curriculum Framework for School Education as introducing religious instruction contrary to article 28, and separately for want of consultation with the Central Advisory Board of Education.

Held. The petition was dismissed. Non-consultation was no ground, the Board not being a statutory body and nothing in the resolutions constituting it requiring consultation. On the substance, the study of religions for the purpose of value education, as distinct from instruction in a particular religion, is consistent with the constitutional scheme, and the Court connected it with article 51A(e) and with universal values as the foundation of education.

Why it matters. It is the authority on the difference between religious instruction, which article 28(1) forbids, and education about religions, which it does not.

A worked example

A State enacts that every temple with an annual income above a figure shall be administered by a board appointed by the Government, that a percentage of its income shall be paid into a fund used to maintain temples generally, and that no person shall be excluded from entry on the ground of caste.

The entry provision. Article 25(2)(b) expressly saves a law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus, and article 17 independently abolishes untouchability. Valid.

The levy. Article 27 forbids a TAX appropriated for the promotion of a particular religion. If the levy is correlated to the cost of the services of supervision rendered to the temples, it is a fee and survives; if it is a general exaction, it does not.

The board. Article 26(d) permits regulation of administration of property, so a supervisory board is possible; but if the board also decides matters of religion, worship, ritual, the appointment of priests by religious qualification, it trespasses on article 26(b), which Ratilal holds is not open to State regulation.

And the denominational question. If the temple was founded for the benefit of a particular denomination, article 26(b) has to be reconciled with article 25(2)(b), which is the problem worked in [Temple Entry].

What this does NOT mean

It does not mean religious freedom is absolute. Every one of the four articles carries limits, and article 25 carries four.

It does not mean the State may not touch religion. Article 25(2) is an express authority to regulate secular activity and to legislate for social welfare and reform, and it is the constitutional basis of most of the reform in this paper.

And it does not mean article 26 protects everything a religious body does. It protects matters of religion under clause (b), and administration of property under clause (d) only in accordance with law.

Quick revision

Article 25(1): all persons, freedom of conscience and the right freely to profess, practise and propagate, subject to public order, morality, health and the other provisions of Part III. Article 25(2)(a): regulation of economic, financial, political or other secular activity. Article 25(2)(b): social welfare and reform, and throwing open Hindu religious institutions of a public character; Explanation I, kirpans; Explanation II, Sikhs, Jains and Buddhists. Article 26: establish and maintain institutions, manage religious affairs, own property, administer it in accordance with law; subject to public order, morality and health only. Article 27: no tax specifically appropriated for a particular religion; a fee is not a tax. Article 28: no religious instruction in a wholly State-funded institution; permitted where an endowment requires it; no compulsion in a recognised or aided one.

Test yourself

1. Set out article 25(1) with its limitations. Subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

2. What are the four rights of a denomination under article 26, and which of them may the State regulate? To establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire property; and to administer such property in accordance with law. The State may regulate the administration of property under clause (d) but not the management of religious affairs under clause (b).

3. Explain article 27 and the distinction it depends on. No person may be compelled to pay a tax whose proceeds are specifically appropriated for the promotion or maintenance of a particular religion or denomination. It depends on the distinction between a tax, a compulsory exaction for general purposes, and a fee, which must be correlated to the expense of a service rendered and is therefore outside the article.

4. State the article 28 scheme in four lines. No religious instruction in an institution wholly maintained out of State funds; the prohibition does not apply where the institution is State-administered but was established under an endowment or trust requiring religious instruction; in a recognised or aided institution, no person may be required to take part in religious instruction or worship without consent, or a minor's guardian's consent.

5. What is the textual difference between the limitation clauses of articles 25 and 26, and why does it matter? Article 25 is subject to public order, morality, health AND the other provisions of Part III; article 26 is subject only to public order, morality and health. It matters because it is the starting point of the argument that a denomination's rights are not subject to the equality articles in the same way as an individual's, which is the central question in the temple-entry cases.

Why it matters. Read that holding carefully and notice what it is: a test that DEFERS to the religion. The court asks what this religion says about itself. On that version the doctrine protects a community against a court's own view of what religion ought to require.

The doctrine as qualified

Facts. The Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402, decided 17 March 1961 by Gajendragadkar J with four others. The Durgah Khwaja Saheb Act 1955 reorganised the administration of the Ajmer dargah after a committee of enquiry had reported on the management of the endowment. The Khadims, claiming to be a section of the Chishtia Soofies, challenged it under article 26.

Held. The Act was upheld. For practices to be treated as part of religion they must be regarded by that religion as its essential and integral part; otherwise purely secular practices which are not an essential or integral part of religion are apt to be clothed with a religious form and to claim protection under article 26. Similarly, practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices constitute an essential and integral part of a religion, their claim to protection must be carefully scrutinised, and the protection must be confined to religious practices that are an essential and integral part of it and no other.

Why it matters. This is where the doctrine turns. Shirur Mutt asked what the religion says; Durgah Committee permits the court to say that what the religion says is a superstitious accretion. The second question can only be answered by the court itself, and that is the whole of the criticism.

The alternative test: is the belief genuinely held?

Facts. Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748, (1986) 3 SCC 615, decided 11 August 1986 by Chinnappa Reddy and M.M. Dutt JJ. Three children of Jehovah's Witnesses in a Kerala school stood respectfully when the national anthem was sung but did not join in the singing, because their faith forbade them to sing any anthem. They were expelled.

Held. The expulsion violated articles 19(1)(a) and 25. The question is not whether a particular religious belief or practice appeals to the court's reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion; personal views and reactions are irrelevant. The children had not been disrespectful, and no provision of law obliged anyone to sing.

Why it matters. It is a different test, and a better one for a minority. It asks about the sincerity of the believer rather than the centrality of the practice in the religion, so a practice observed by one small group is protected as fully as one observed by a majority. Indian law has never chosen finally between the two tests, and an answer that shows both is stronger than one that gives only the first.

The four criticisms

One: it makes a secular court a theologian. To decide whether the exclusion of women from a shrine is essential to a faith, a judge must read that faith's texts and decide what they require. That is precisely the exercise a secular State is supposed to avoid.

Two: it privileges the textual and the organised. A religion with written doctrine and an established hierarchy can prove what is essential. An oral tradition, a tribal faith or a small sect cannot, and the doctrine therefore protects the well-documented.

Three: "superstitious accretion" has no legal content. Nothing distinguishes a superstitious accretion from a religious practice except the court's own view, which is the objection stated at its shortest.

Four: it decides the case at the threshold. Once a practice is held not to be essential, no balancing happens at all: the claimant simply has no right to weigh. The whole contest is settled by a characterisation.

And the answer to all four. Without some threshold test, article 25(2)(a) and article 26(b) cannot be applied, and any practice could be immunised by assertion. The doctrine is criticised because it is necessary and because no better test has been settled.

A worked example

A State law requires that a person appointed to perform worship in a temple must have a prescribed qualification, and a denomination says that its tradition requires the priest to be from a particular hereditary line.

Step one. Is the appointment of the priest a matter of religion under article 26(b), or is it the administration of the institution, which the State may regulate?

Step two. If it is a matter of religion, is the hereditary requirement an essential and integral part of the religion as that religion regards it, on Shirur Mutt, or is it an accretion, on Durgah Committee?

Step three. If it is essential, article 26(b) protects it; if it is not, the State may regulate.

Step four, which is the point of the example. The whole case has been decided at step two, by a court reading a religion's own materials, and neither party's constitutional rights have been weighed against each other at all. That is criticism four in a single case.

What this does NOT mean

It does not mean an inessential practice is unlawful. It means only that it does not attract the protection of articles 25 and 26, so an ordinary law may regulate it.

It does not mean the court decides what a religion ought to be. It decides what the religion regards as essential, which is why the material relied on is the religion's own texts and practice.

And it does not mean the doctrine is settled. It has been referred to larger Benches, and the alternative test in Bijoe Emmanuel has never been overruled.

Quick revision

The doctrine: articles 25 and 26 protect only practices which the religion itself regards as essential and integral. Shirur Mutt 1954: what is essential is to be ascertained primarily with reference to the doctrines of that religion itself, and expenditure or the employment of priests does not make a practice secular. Durgah Committee 1961: purely secular practices may be clothed in religious form, and practices though religious may be superstitious accretions, extraneous and unessential; protection is confined to what is essential and integral. Bijoe Emmanuel 1986: the alternative test, whether the belief is genuinely and conscientiously held. Four criticisms: the court as theologian, the privileging of textual and organised religion, the emptiness of "superstitious accretion", and disposal at the threshold without any balancing.

Test yourself

1. State the doctrine and its source. That articles 25 and 26 protect only those practices which the religion concerned regards as an essential and integral part of it. It comes from Shirur Mutt, AIR 1954 SC 282, where the Court said that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.

2. What did Durgah Committee add, and why is the addition controversial? That practices, though religious, may have sprung from merely superstitious beliefs and may be extraneous and unessential accretions, whose claim to protection must be carefully scrutinised. It is controversial because deciding that a practice is a superstitious accretion is something only the court can do, and it converts a deferential test into a judicial one.

3. What is the alternative test, and which case states it? Whether the belief is genuinely and conscientiously held as part of the profession or practice of religion, personal views and reactions being irrelevant. Bijoe Emmanuel v. State of Kerala states it.

4. Why is the doctrine necessary at all? Because article 25(2)(a) allows the State to regulate secular activity associated with religious practice and article 26(b) protects only matters of religion, so a boundary between the religious and the secular has to be drawn; and because without a threshold test any activity could be immunised from law by being described as religious.

5. Give the criticism that a minority religion would make. That the doctrine favours religions with written doctrine and an established hierarchy, which can prove what is essential, and disadvantages oral traditions, tribal faiths and small sects which cannot, so the protection is distributed according to how well documented a faith is rather than how sincerely it is held.

And the absence of an establishment clause. The Indian Constitution nowhere forbids the State from administering a religious institution, which is why the endowment legislation in [Freedom of Religion: Articles 25 to 28] is constitutional at all.

Secularism as a basic feature

Facts. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, decided 11 March 1994 by a Bench of nine judges. Proclamations under article 356 dismissing several State governments were challenged, including those made after the demolition of the Babri Masjid on 6 December 1992.

Held. Among much else, that secularism is a basic feature of the Constitution. The judges recorded that Kesavananda Bharati and Indira Nehru Gandhi v. Raj Narain had already so held, and that by the Forty-second Amendment what was implicit was made explicit. A State government that acts on a sectarian basis or in a manner subversive of the secular character of the Constitution may properly be dismissed under article 356, and a proclamation under that article is subject to judicial review.

Why it matters. Three separate consequences. An amendment destroying secularism would be invalid. A State government may lose office for acting against it. And the concept is justiciable rather than merely aspirational, which is what makes MU's question about a secular State a legal question.

The judgment also states the positive conception. The Court connected secularism with the principles of accommodation and tolerance and with India's composite culture, which is the sarva dharma sambhava conception given judicial form.

What secularism permits the State to do, and this is where students go wrong

Regulate the secular activity associated with religion. Article 25(2)(a).

Legislate for social welfare and reform. Article 25(2)(b), which is the whole of [Religious Freedom against Social Reform].

Throw open Hindu religious institutions of a public character. The same clause.

Administer religious endowments and regulate the administration of religious property. Article 26(d), as read in Ratilal.

Fund minority educational institutions. Article 30(2) forbids discrimination against a minority institution in granting aid, which assumes that aid is given.

Provide for education about religions. Aruna Roy, worked in the previous chapter.

What it may NOT do. Have a religion of its own; discriminate on the ground of religion; compel payment of a tax for a religion; provide religious instruction in a wholly State-funded school; or identify itself with, or allow itself to be controlled by, any religion.

The criticisms

That positive secularism is unprincipled. If the State may administer temples and fund madrasas, the difference between a secular State and a religious one becomes a matter of degree.

That it is applied unevenly. Reform has gone further in the majority community's law than elsewhere, because codification happened there, which is the argument in [The Uniform Civil Code].

That the essential practices doctrine is inconsistent with it. A secular court deciding what a religion essentially requires is doing the opposite of standing back, which is the criticism in the previous chapter.

And that it is fragile in practice. Bommai itself arose out of the demolition of a mosque, and the case is a reminder that the concept is tested by events rather than by argument.

A worked example

A State government declares a religious festival a public holiday, funds the repair of a temple damaged in a flood, and pays a stipend to the priests of one faith.

The holiday. A public holiday on a festival of any community is administratively neutral in form; India declares holidays for the festivals of several faiths, and the practice is defended as accommodation rather than establishment.

The repair. Funding the restoration of a building of historical or public importance, or of a place damaged by a natural disaster on the same terms as other buildings, is not a tax appropriated for the promotion of a religion under article 27, and article 49 directs the protection of monuments of national importance.

The stipend. A payment to the clergy of ONE faith, and only that faith, is the case that fails: it is the State favouring a religion, contrary to the equality articles, and if funded by an earmarked tax it also offends article 27.

The distinction to state in the answer. Positive secularism permits the State to deal with religion; it does not permit the State to prefer one.

What this does NOT mean

It does not mean the State is anti-religious. The Indian model is equal respect rather than indifference.

It does not mean religion is confined to private life. It is not, and the personal law system is the proof.

And it does not mean the word entered the Constitution in 1976. The Court's position is that it was there from the beginning and that 1976 made it explicit.

Quick revision

Positive secularism, sarva dharma sambhava, equal respect, against the negative wall-of-separation model. Textual base: Preamble; articles 14, 15(1), 16(2), 25, 26, 27, 28, 29 and 30. No establishment clause, which is why State administration of endowments is possible. Bommai 1994, nine judges: secularism is a basic feature; a State government acting on a sectarian basis may be dismissed under article 356; the proclamation is justiciable. Permitted: regulation of secular activity, social welfare and reform, temple entry, administration of property, aid to minority institutions, education about religions. Forbidden: a State religion, discrimination on religion, taxes for a religion, religious instruction in a wholly State-funded school.

Test yourself

1. Define Indian secularism and contrast it with the American model. That the State has no religion of its own, treats all religions equally and neither favours nor penalises anyone for their faith, while remaining free to regulate the secular activity associated with religion and to legislate for social welfare and reform. The American model is separation, under which the State withdraws from religion altogether; the Indian model is equal respect, under which it does not.

2. Which case held secularism to be a basic feature, and what else did it decide? S.R. Bommai v. Union of India, (1994) 3 SCC 1, a Bench of nine. It also held that a State government acting on a sectarian basis or subversively of the secular character of the Constitution may be dismissed under article 356, and that a proclamation under that article is subject to judicial review.

3. Give four things a secular State in India may lawfully do in relation to religion. Regulate secular activity associated with religious practice; legislate for social welfare and reform, including throwing open Hindu religious institutions of a public character; regulate the administration of religious property; and grant aid to minority educational institutions without discrimination.

4. Why did India not adopt the separation model? Because religion in India supplies family law, controls very large endowments and was the site of the exclusions the Constitution set out to end. A State that had withdrawn from religion could not have abolished untouchability in temples, reformed personal law, or protected a minority's schools.

5. State the strongest criticism of positive secularism. That it is unprincipled: once the State may administer temples, fund minority institutions and legislate on personal law, the line between a secular State and a religious one is a matter of degree, and the choice of which religion to regulate how far becomes a political question rather than a constitutional one.

Why it matters. It is the sharpest instance of secularism operating as an operative legal rule rather than as a description. It also shows the reach of the principle: it governs not only what the State does but how power in the State may be sought.

And note the disagreement. The minority read "his" narrowly and warned that the wider reading would prevent a candidate from raising the grievances of a disadvantaged community at all. That objection is real and belongs in a critical answer.

The rule in the federal structure

Bommai supplies it. A State government that acts on a sectarian basis, or in a manner subversive of the secular character of the Constitution, may be dismissed under article 356, and the proclamation is justiciable. The case is worked in [Secularism].

The practical significance. Secularism is not merely a limit on legislation; it is a condition of holding executive office in a State.

What the State may still do, and why that is not inconsistent

Administer endowments and regulate religious property. Article 26(d).

Fund minority institutions. Article 30(2) forbids discrimination in granting aid, which presupposes that aid may be granted.

Provide for education about religions. Aruna Roy.

Declare public holidays on the festivals of several communities. Accommodation of all rather than preference for one.

Reform a religion's own law. Article 25(2)(b), which is the subject of a later chapter.

The principle that reconciles these with the rule. Non-establishment in India means non-preference rather than non-involvement. A State that deals with every religion on the same terms has not adopted one.

A worked example

A State proposes three measures: a compulsory levy on cinema tickets to fund the construction of temples; a scheme funding the repair of any place of worship damaged in the recent floods; and a rule that the Chief Minister shall take the oath of office in the name of one deity.

The levy. Article 27 in terms. A tax specifically appropriated for the promotion of a particular religion. Void.

The flood scheme. Available to every place of worship on the same terms and directed at the consequence of a natural disaster rather than at the promotion of a religion. It survives, and it is the positive model working.

The oath. The Third Schedule prescribes the forms of oath, which permit swearing in the name of God or solemnly affirming. A rule prescribing ONE deity for every holder of the office identifies the State with a religion and offends articles 14, 15(1) and 25(1). Void.

The line the example draws. Money and form both matter. The question is never whether the State has touched religion but whether it has preferred one.

What this does NOT mean

It does not mean India has an establishment clause. It does not, and the result is reached by combination.

It does not mean a public official may not be religious. The rule binds the State, not the person.

And it does not mean religion may play no part in politics. It means that an appeal to religion for votes is a corrupt practice under section 123(3), which is a narrower proposition and the one Abhiram Singh decides.

Quick revision

Three limbs: no adopted religion; no tax specifically appropriated for a religion, article 27; no religious instruction in a wholly State-funded institution, article 28(1). No establishment clause; the result comes from articles 14, 15(1), 16(2), 25, 27 and 28 with the Preamble. Abhiram Singh 2017, seven judges: "his" in section 123(3) of the Representation of the People Act covers the religion of the candidate, a rival, an agent or the VOTER; the election process is a secular activity; a strong minority warned about silencing the grievances of disadvantaged communities. Bommai: a sectarian State government may be dismissed under article 356. Non-establishment in India means non-preference, not non-involvement.

Test yourself

1. How does the Constitution establish that India has no State religion? Not by an establishment clause, which it does not have, but by the combination of articles 14, 15(1) and 16(2), article 25, article 27's prohibition on taxes appropriated for a religion, and article 28(1)'s prohibition on religious instruction in a wholly State-funded institution, with "Secular" in the Preamble since 1976.

2. What did Abhiram Singh decide? That the word "his" in section 123(3) of the Representation of the People Act 1951 is not confined to the candidate's own religion, race, caste, community or language: an appeal in the name of the religion of the candidate, of a rival, of an agent or of the voter is a corrupt practice, because the electoral process is a secular activity.

3. Give the minority's objection in that case. That reading "his" widely would prevent a candidate from raising the grievances of a disadvantaged community at an election at all, and so would silence exactly the constituencies whose exclusion the Constitution was written to remedy.

4. Distinguish non-preference from non-involvement. Non-involvement means the State stays out of religion altogether, which India does not do: it administers endowments, aids minority institutions and legislates on personal law. Non-preference means the State deals with religions on equal terms and adopts none, which is what the Indian rule requires.

5. Apply the rule to a State scheme funding the repair of places of worship damaged by a flood. It is valid, because the scheme is available to every place of worship on the same terms and is directed at the consequences of a natural disaster rather than at the promotion of a religion, so it involves the State with religion without preferring one.

Abhiram Singh decided that the word "his" is not confined to the candidate, so an appeal in the name of the religion of the candidate, a rival, an agent or the voter is caught. The case is worked in the previous chapter.

The consequence. An election can be set aside for it, and the candidate can be disqualified. That makes it the only one of the four responses with a direct political sanction.

Three: the law about places of worship

The Places of Worship (Special Provisions) Act 1991 is eight sections and it is the most important statute in this chapter.

Section 3. No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.

Section 4(1). It is declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.

Section 4(2). Any suit, appeal or other proceeding pending on the commencement of the Act, in respect of the conversion of the religious character of any place of worship existing on 15 August 1947, shall abate, and no fresh suit or proceeding shall lie.

Section 5, the exception. The Act does not apply to the place of worship commonly known as the Ram Janma Bhumi-Babri Masjid and to any suit, appeal or proceeding relating to it.

Why the Act is here. Its object is to stop the past being litigated, on the view that a country in which the ownership of every place of worship is permanently open to challenge cannot be at peace. It is a legislature deciding that finality is worth more than correctness. The Act is worked in full in [Places of Worship, and the Character Frozen in 1947].

Four: article 356

Bommai. A State government that acts on a sectarian basis or in a manner subversive of the secular character of the Constitution may be dismissed, and the proclamation is subject to judicial review. It is the response of last resort and the only one directed at the State itself.

The critical half of the answer

The law reaches mobilisation and not belief. Everything above operates on an act: an appeal, a publication, a conversion of a building, a proclamation. None of it touches the sentiment that makes the act effective, which is the point made generally in [What Law Cannot Do: The Limits of Legislating Change].

The provisions are used unevenly. The speech offences are invoked constantly and the enmity provisions rarely produce convictions where violence has occurred, which is an enforcement failure rather than a drafting one.

A prohibition on appeals to religion can silence the excluded. That is the minority's warning in Abhiram Singh, and it is a real cost: a community whose grievance IS religious discrimination cannot easily raise it at an election without appealing to religion.

And freezing a dispute is not resolving it. The Places of Worship Act ends litigation about the past; it does not end the belief that the past was wrong, and the survival of the section 5 exception is itself evidence of the difficulty.

The honest conclusion. The legal apparatus is designed to keep religion out of the machinery of the State and out of the contest for it. It is not designed to make a society less religious or more united, and judged by that second standard it will always look like a failure.

A worked example

A candidate at a State election tells a meeting that a rival party has favoured one community in the allotment of land and that voters of his own faith should therefore support him. A local paper publishes it. A group then files a suit claiming that a mosque in the constituency was built over a temple.

The appeal. Section 123(3) with Abhiram Singh: an appeal on the ground of religion, whether the candidate's or the voter's, is a corrupt practice, and the election may be set aside.

The publication. Whether it promotes enmity between groups on grounds of religion is a question of fact under the Sanhita's provision, and the standard requires more than reporting.

The suit. Section 4(2) of the Places of Worship Act: no fresh suit or proceeding lies in respect of the conversion of the religious character of a place of worship existing on 15 August 1947, and the suit does not lie at all unless the place falls within the section 5 exception.

And the State's own conduct. If the State government then allots land on a sectarian basis, Bommai supplies the answer.

What this does NOT mean

It does not mean religion is a divisive factor in India. It means religious identity can be mobilised divisively, which is a different proposition and the one the law addresses.

It does not mean the legal apparatus has failed. It means it operates on a narrow class of acts, and measuring it against a wider aim produces a false verdict.

And it does not mean the answer should recite incidents. MU is examining a law paper. The incidents belong in a sentence; the provisions belong in the answer.

Quick revision

Diversity is not division; communalism is the political mobilisation of a religious community as a bloc. Four legal responses: the criminal law, promoting enmity and outraging religious feelings, now in the Bharatiya Nyaya Sanhita 2023; the electoral law, section 123(3) of the Representation of the People Act with Abhiram Singh; the Places of Worship (Special Provisions) Act 1991, sections 3, 4(1), 4(2) and the section 5 exception; and article 356 with Bommai. Four criticisms: the law reaches acts and not sentiment; uneven enforcement; the silencing risk in the electoral rule; and freezing a dispute is not resolving it.

Test yourself

1. Distinguish religious diversity from communalism. Diversity is the fact of several religions coexisting, which the Constitution accommodates. Communalism is the political mobilisation of a religious community as a bloc on the premise that its interests are opposed to another's, and it is what the legal apparatus in this chapter addresses.

2. Name the four legal responses and the instrument of each. The criminal law, through the offences of promoting enmity between groups and of outraging religious feelings, now in the Bharatiya Nyaya Sanhita 2023; the electoral law, through section 123(3) of the Representation of the People Act 1951; the Places of Worship (Special Provisions) Act 1991; and article 356 as construed in Bommai.

3. State sections 3, 4 and 5 of the Places of Worship Act. Section 3 prohibits the conversion of a place of worship of any denomination or section into one of a different denomination or section. Section 4(1) declares that the religious character of a place of worship as it existed on 15 August 1947 shall continue. Section 4(2) abates pending proceedings and bars fresh ones. Section 5 excepts the Ram Janma Bhumi-Babri Masjid and proceedings relating to it.

4. Give the critical objection to the electoral rule. That a wide prohibition on appeals to religion can silence a community whose grievance is itself religious discrimination, which is the warning of the minority in Abhiram Singh, so the rule that keeps religion out of elections may also keep out the only way some grievances can be raised.

5. Why does the Places of Worship Act prefer finality to correctness? Because a country in which the ownership and character of every place of worship remains permanently open to litigation cannot be at peace, so Parliament chose to close the past rather than to adjudicate it. The survival of the section 5 exception shows how difficult that choice was to make consistently.

Article 325. No person shall be ineligible for inclusion in, or claim to be included in a special electoral roll for, any constituency on grounds only of religion, race, caste, sex or any of them.

The other half of MU's question: the provisions that protect each religion's sphere

Article 25(1). Freedom of conscience and the free profession, practice and propagation of religion, to all persons equally.

Article 26. The denomination's four rights over its institutions and property.

Article 27. No compulsory taxation for a religion.

Article 28. No religious instruction in a wholly State-funded institution, and no compulsion in an aided or recognised one.

Articles 29 and 30. The right of any section of citizens having a distinct language, script or culture to conserve it, and the right of religious and linguistic minorities to establish and administer educational institutions of their choice, with article 30(2) forbidding discrimination against them in the grant of aid.

Article 16(5). The religious qualification for a religious office.

Article 30(1A). On compulsory acquisition of the property of a minority educational institution, the State shall ensure that the amount fixed does not restrict or abrogate the right guaranteed by article 30(1).

And the personal-law system itself, which is the largest single provision for each community retaining its own sphere and is dealt with from [Personal Law: What It Is, and Why India Has Several] onwards.

The evaluation MU asks for

The prohibitions are strong on paper and are enforced. Article 29(2) admits no exception; article 15(2) binds private persons; article 325 protects the vote.

The protections are equally strong, and that is the point. India does not achieve non-discrimination by making religion invisible. It achieves it by giving every religion the same protected sphere, which is positive secularism in operation.

The tension between the two sets is real. A minority institution's right to administer under article 30 and a citizen's right not to be denied admission under article 29(2) can pull against each other, and reconciling them is what the cases in the next two chapters do.

And the standing criticism is about differential reform. The State has legislated much further into one community's personal law than into others', which the majority experiences as unequal treatment and the minorities experience as the price of protection. That argument is set out fairly in [The Uniform Civil Code].

A worked example

A State-aided college run by a religious minority reserves half its seats for students of its own community and requires that its principal be of that faith.

The admissions. Article 29(2) forbids denying admission to a citizen on grounds only of religion in an institution receiving State aid. Article 30(1) gives the minority the right to establish and administer institutions of its choice. The reconciliation of the two is the subject of the cases in [Articles 29 and 30: The Minority's Educational Rights], and the short answer is that a minority aided institution may admit a proportion of its own community but not to the exclusion of others.

The principal. Not article 16 at all, because a private college is not an office under the State; and where a statute did prescribe a religious qualification for an office connected with a religious institution, article 16(5) would save it.

Change one fact. If the college were wholly maintained out of State funds, article 28(1) would additionally forbid religious instruction in it, and article 29(2) would apply with full force.

What this does NOT mean

It does not mean religion can never be a criterion. Article 16(5) permits it for a religious office, and articles 29 and 30 make it the basis of a protected right.

It does not mean article 15(1) reaches private conduct. It binds the State; article 15(2) is the horizontal one and it is confined to access to the listed places and facilities.

And it does not mean that a religion-based reservation is available. Reservation under articles 15(4) and 16(4) is for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, and the question of religion-based reservation is dealt with in [Reservation: The Constitutional Scheme].

Quick revision

Five prohibitions: article 15(1), the State, grounds only; article 15(2), everybody, access to the listed places; article 16(1) and (2), public employment, with the article 16(5) exception for religious offices; article 29(2), admission to a State-maintained or aided institution, no exception; article 325, the electoral roll. Protections that preserve each religion's sphere: articles 25, 26, 27, 28, 29, 30, 30(1A), 16(5) and the personal-law system. The tension is between article 29(2) and article 30(1), and it is reconciled in the minority-institution cases.

Test yourself

1. Name the five provisions prohibiting religious discrimination and say what is distinctive about each. Article 15(1), binds the State and requires that the ground be religion only; article 15(2), binds private persons and is about access; article 16(1) and (2), public employment; article 29(2), admission to a State-maintained or aided educational institution, subject to no exception; article 325, inclusion in an electoral roll.

2. What does article 16(5) permit, and why is it not an inconsistency? It permits a law requiring that the incumbent of an office connected with a religious or denominational institution, or a member of its governing body, profess a particular religion or belong to a particular denomination. It is not an inconsistency because the qualification is for a religious office, where the requirement is functional rather than discriminatory.

3. Why did article 29(2) produce a constitutional amendment? Because it admits of no exception, so in Champakam Dorairajan the Madras communal order could not be saved by article 46, and Parliament had to insert article 15(4) by the First Amendment to enable special provision for backward classes and for the Scheduled Castes and Tribes.

4. Give four provisions that preserve each religion's own sphere. Article 25, freedom of conscience and religion; article 26, a denomination's rights over its institutions and property; article 28, restrictions on religious instruction in State-funded institutions; and article 30, the right of minorities to establish and administer educational institutions, with article 30(2) forbidding discrimination in aid.

5. Where does the tension in this topic lie? Between article 29(2), the individual citizen's right not to be denied admission to an aided institution on the ground of religion, and article 30(1), the minority's right to establish and administer an institution of its choice. The cases reconcile them by permitting a minority aided institution to admit a proportion of its own community without excluding others.

Why it matters. It is the single most examinable proposition in this part of the topic, and its consequence is counter-intuitive: a community that is a majority nationally may be a minority in a particular State and enjoy article 30 rights there.

The statutory question: Bal Patil

Facts. Bal Patil v. Union of India, AIR 2005 SC 3172, (2005) 6 SCC 690, decided 8 August 2005 by Dharmadhikari and Balasubramanyan JJ. An organisation representing a section of the Jain community sought a mandamus directing the Central Government to notify Jains as a minority community under section 2(c) of the National Commission for Minorities Act 1992, which defines a minority as a community notified as such by the Central Government. The High Court had disposed of the petition because the wider question was pending before an eleven-judge Bench.

Held. The appeal was dismissed and no relief granted. Whether to notify a community under section 2(c) is a matter for the Central Government, and the Court declined to compel it. The judgment closed with observations that the State shall treat all religions and religious groups equally and with equal respect without interfering with their individual rights of religion, faith and worship, and directed the Commission to keep that perspective in view.

Why it matters. It fixes the route. Statutory minority status is conferred by executive notification, not declared by a court, and the constitutional right under article 30 does not depend on it.

And the sequel matters too. The Central Government subsequently notified the Jain community as a minority under the Act, which is a reminder that the case decided the route and not the merits.

The five notified communities, and then six

Under the National Commission for Minorities Act 1992 the Central Government notified five communities in 1993: Muslims, Christians, Sikhs, Buddhists and Zoroastrians, that is Parsis.

Jains were added by a notification in 2014, making six.

A student should be careful with two things here. First, the notified list operates for the purposes of the Act and of schemes made under it. Secondly, article 30 does not depend on it: a community that is a minority in a State on the T.M.A. Pai test has the constitutional right whether or not it appears on any list.

The three tests students should be able to distinguish

A worked example

A Marathi-medium school is established in Karnataka by a trust of Marathi speakers, and it claims the protection of article 30.

Step one, which community and which unit. Marathi speakers are a linguistic minority in Karnataka, because the unit is the State. That they are a very large community in Maharashtra and in India is irrelevant.

Step two, which right. Article 30(1), the right to establish and administer an educational institution of its choice, and article 30(2), no discrimination in the grant of aid on the ground that it is under minority management.

Step three, what the State may still do. Regulate in the interest of academic standards, prescribe qualifications for teachers and take measures against maladministration, on T.M.A. Pai, and more extensively if the school takes aid than if it does not.

Step four, what the notification has to do with it. Nothing. The National Commission for Minorities Act list is about religious minorities and about that Act; the constitutional right here is linguistic and comes from article 30.

What this does NOT mean

It does not mean a minority institution is beyond regulation. The right to administer is not a right to maladminister, and an aided institution has less autonomy than an unaided one.

It does not mean minority status is permanent or national. It is determined State by State, and a community's position can differ across the country.

And it does not mean a court will declare a community a minority under the Act. Bal Patil is express: the route is a notification by the Central Government.

Quick revision

No definition of "minority" anywhere in the Constitution. T.M.A. Pai Foundation, eleven judges, 2002: the unit for article 30 is the STATE, because article 30(1) puts religious and linguistic minorities on a par and India is divided into linguistic States. Section 2(c) of the National Commission for Minorities Act 1992: a minority is a community notified by the Central Government. Bal Patil 2005: the Court will not compel a notification; Jains were notified in 2014, making six notified communities with Muslims, Christians, Sikhs, Buddhists and Parsis. Article 29(1) protects any section of citizens with a distinct language, script or culture and is not confined to minorities.

Test yourself

1. Does the Constitution define "minority"? No. The word appears in the marginal note to article 29 and in article 30(1) and (2) and is nowhere defined, which is why the content has been supplied by the courts for constitutional purposes and by notification for statutory ones.

2. What is the unit for determining minority status under article 30, and what was the reasoning? The State. Article 30(1) places religious and linguistic minorities on a par, so the same unit must serve both; India is divided into linguistic States carved out on the language of the majority in each; and treating the country as the unit would make Telugu speakers a linguistic minority in Andhra Pradesh, which contradicts the concept of linguistic States.

3. How does a community become a minority under the Act of 1992, and what did Bal Patil decide about it? By notification of the Central Government under section 2(c). Bal Patil held that the Court would not compel the Government to notify the Jain community and that the matter is for the executive; the Government later notified Jains in 2014.

4. Name the notified minority communities. Muslims, Christians, Sikhs, Buddhists and Zoroastrians, notified in 1993, with Jains added in 2014.

5. How does article 29(1) differ from article 30(1)? Article 29(1) protects any section of citizens having a distinct language, script or culture of its own and does not require the section to be a minority at all. Article 30(1) is confined to minorities, whether based on religion or language, and confers the specific right to establish and administer educational institutions of their choice.

Article 30(2). The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

The general doctrine

Facts. The Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717, AIR 1974 SC 1389, decided 26 April 1974 by a Bench of nine judges. A Christian minority college affiliated to Gujarat University challenged provisions of the Gujarat University Act 1949 as amended, which required the university's approval for the appointment, dismissal and removal of staff, provided for a university representative in the selection committee, and required disputes with staff to go to a university tribunal.

Held. Provisions taking away the minority institution's power to choose and to discipline its own staff were held to violate article 30(1), while provisions aimed at maintaining academic standards and the efficiency of the institution were upheld. The Court set out the general position that the right to administer is not a right to maladminister, that regulation in the interest of the institution and of academic excellence is permissible, and that affiliation and recognition may be made subject to reasonable conditions.

Why it matters. It is the fullest statement before T.M.A. Pai of what article 30(1) protects and what it does not, and it is the case that established the distinction between regulation aimed at standards, which is valid, and regulation that transfers control, which is not.

The admission problem: article 29(2) against article 30(1)

Facts. St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, AIR 1992 SC 1630, decided 6 December 1991. St. Stephen's College, a Christian minority institution affiliated to Delhi University and receiving aid, admitted students partly on the basis of an interview and gave a preference to Christian candidates. The University required admissions strictly according to merit in the qualifying examination.

Held. The College is a minority institution entitled to article 30(1) protection. It may adopt its own procedure for admission, including an interview, provided the procedure is fair and transparent. On the reservation question, the Court held that a minority aided institution may give preference to candidates of its own community up to a limit, which it fixed at fifty per cent of the annual admissions, the rest being filled on merit from other communities.

Why it matters. It is the practical reconciliation of article 30(1) with article 29(2), and the fifty per cent figure is the number an examiner looks for. T.M.A. Pai later restated the position more generally, holding that the proportion must be reasonable and may vary with the type of institution, the population of the community and the needs of the region.

How much regulation is permitted, and on what scale

The scale runs with money and with recognition.

An unaided, unrecognised institution. The most autonomy; the State's interest is confined to general laws.

An unaided but recognised or affiliated institution. Reasonable conditions of recognition and affiliation, directed at standards.

An aided institution. More regulation, because public money is involved; T.M.A. Pai says in terms that the autonomy of a private aided institution is less than that of an unaided one.

A wholly State-maintained institution. Article 28(1) forbids religious instruction, and article 29(2) applies with full force.

And in every case the same two limits. The right to administer is not a right to maladminister, and regulation must be in the interest of the institution rather than a transfer of its management.

A worked example

A Christian minority society runs an aided school in Tamil Nadu. The State requires that fifty per cent of its seats be filled by the State's common admission list, that every teacher be appointed from a State-selected panel, and that its accounts be audited by the State auditor.

The seats. On St. Stephen's and T.M.A. Pai, a minority aided institution may prefer candidates of its own community up to a reasonable proportion; a direction that half its seats be filled from a State list is close to that line and would be judged on whether it leaves the institution a real minority character.

The teachers. On St. Xavier's, a provision that takes away the power to select staff and vests it elsewhere violates article 30(1). The State may prescribe qualifications; it may not make the appointments.

The audit. Regulation of administration in the interest of proper management, and clearly valid, particularly for an aided institution.

The pattern to notice. Standards and accountability, yes; control of the institution, no.

What this does NOT mean

It does not mean article 29 is only for minorities. Article 29(1) protects any section of citizens with a distinct language, script or culture, and article 29(2) protects every citizen.

It does not mean a minority institution may exclude everybody else. St. Stephen's fixed a proportion precisely because it may not.

And it does not mean the rights are religious rights. They are cultural and educational rights, held by linguistic minorities on exactly the same terms as religious ones, which is why the same articles reappear in the language topic.

Quick revision

Article 29(1): any section of citizens with a distinct language, script or culture may conserve it; not confined to minorities. Article 29(2): no citizen denied admission to a State-maintained or aided institution on grounds only of religion, race, caste or language. Article 30(1): all minorities, religious or linguistic, may establish AND administer institutions of their choice. Article 30(1A): compulsory acquisition must not abrogate that right, inserted 1978. Article 30(2): no discrimination in aid. St. Xavier's 1974, nine judges: regulation for standards valid, transfer of control invalid, no right to maladminister. St. Stephen's 1991: preference for the minority's own community up to fifty per cent of annual admissions in an aided institution. T.M.A. Pai 2002: the State is the unit; aided institutions have less autonomy; the proportion must be reasonable.

Test yourself

1. What does article 29(1) protect, and who holds the right? The right to conserve a distinct language, script or culture, held by any section of the citizens residing in India or any part of it that has one. It is not confined to minorities.

2. Why is "establish and administer" in article 30(1) important? Because the words are conjunctive: a minority claiming the right must show that it established the institution. A community cannot claim the right to administer an institution founded by somebody else.

3. What did St. Xavier's College decide? That provisions taking away a minority institution's power to select and discipline its own staff violate article 30(1), while provisions directed at academic standards and efficiency are valid; that the right to administer is not a right to maladminister; and that affiliation and recognition may be made subject to reasonable conditions.

4. How is the conflict between article 29(2) and article 30(1) reconciled? By allowing a minority aided institution to prefer candidates of its own community up to a reasonable proportion, fixed at fifty per cent of annual admissions in St. Stephen's, the remaining seats being filled on merit from other communities. T.M.A. Pai restated this as a requirement of reasonableness varying with the institution, the community and the region.

5. How does permissible regulation vary with funding? It increases with public money and with recognition. An unaided unrecognised institution is least regulated; a recognised or affiliated one is subject to reasonable conditions of recognition; an aided one has less autonomy still; and a wholly State-maintained institution is subject to article 28(1) and to article 29(2) in full.

Section 12. The Central Government causes the annual report, together with a memorandum of action taken on the recommendations and the reasons for the non-acceptance of any of them, to be laid before each House of Parliament.

What it can and cannot do

Can. Summon, examine on oath, require documents, requisition public records, receive affidavit evidence, inquire, study, report and recommend.

Cannot. Make an order binding anybody, award compensation, prosecute, or compel a government to act on a recommendation.

The one real teeth in the Act is section 12. A refusal to accept a recommendation has to be explained in a memorandum laid before Parliament. That is accountability by publicity, and it is the same technique used for the other commissions in this book.

The comparison an examiner rewards

The point of the table. The Scheduled Castes and Scheduled Tribes Commissions are CONSTITUTIONAL bodies under articles 338 and 338A, and the Union AND THE STATES must consult them on all major policy matters affecting those communities. The Minorities Commission is statutory and its Act imposes no duty of consultation at all. Note the contrast within the statutory tier as well: section 16 of the National Commission for Women Act 1990 does require the CENTRAL Government to consult that Commission on major policy affecting women. So the Minorities Commission is the weakest placed of the four, and the demand for constitutional status for it rests on exactly that.

A worked example

A State refuses to give a minority-managed school the aid it gives comparable schools, and a complaint is made to the Commission.

Step one. The complaint is within section 9(1)(d), a specific complaint regarding deprivation of the rights and safeguards of minorities, article 30(2) being the safeguard.

Step two. The Commission may summon the officers concerned, require production of the sanction files and take evidence on affidavit under its civil court powers.

Step three. It may take the matter up with the appropriate authorities and recommend that aid be granted.

Step four, the limit. If the State declines, the Commission cannot compel it. What follows is a report, and if the recommendation is not accepted, a memorandum before Parliament under section 12.

Step five, the real remedy. A writ petition under article 226 for enforcement of article 30(2). The Commission is a route, and not the only one or the strongest.

What this does NOT mean

It does not mean the Commission is useless. Its reports are the principal published record of the treatment of minorities by governments, and they are used in litigation and in policy.

It does not mean minority status under the Act is the same as under article 30. It is not, and the distinction is made in [Who Is a Minority].

And it does not mean a complaint to the Commission suspends a limitation period or replaces a legal remedy. It does neither.

Quick revision

National Commission for Minorities Act 1992; predecessor non-statutory body from 1978. Section 2(c): a minority is a community notified by the Central Government; six notified, Muslims, Christians, Sikhs, Buddhists, Zoroastrians and, from 2014, Jains. Section 3: Chairperson, Vice-Chairperson and five Members, five including the Chairperson from minority communities, three-year terms. Section 9: evaluate development, monitor safeguards, recommend, look into complaints, cause studies, report. Section 9(4): civil court powers on inquiry. Section 12: annual report laid before Parliament with a memorandum of action taken and reasons for non-acceptance. Statutory, not constitutional, unlike the Commissions under articles 338 and 338A.

Test yourself

1. Under what statute is the Commission constituted, and how is it composed? The National Commission for Minorities Act 1992. A Chairperson, a Vice-Chairperson and five Members nominated by the Central Government from persons of eminence, ability and integrity, of whom five including the Chairperson must be from the minority communities, each holding office for three years.

2. Give four of its functions. Evaluating the progress of the development of minorities; monitoring the working of the safeguards in the Constitution and in laws; making recommendations for their effective implementation; and looking into specific complaints of deprivation of rights and safeguards and taking them up with the appropriate authorities.

3. What powers does it have, and what powers does it not have? It has the powers of a civil court on inquiry: summoning and examining on oath, requiring discovery and production of documents, receiving affidavit evidence, requisitioning public records and issuing commissions. It cannot make a binding order, award compensation, prosecute or compel a government to act.

4. What is section 12 for? It requires the Central Government to lay the Commission's annual report before each House of Parliament together with a memorandum of the action taken on its recommendations and the reasons for the non-acceptance of any of them, which makes a refusal to act a matter of public record.

5. State the standing criticism of the Commission. That it is statutory rather than constitutional, so unlike the Commissions for the Scheduled Castes and Scheduled Tribes under articles 338 and 338A there is no duty on the Union and the States to consult it on major policy matters affecting minorities. Its Act contains no consultation provision at all, where the National Commission for Women Act 1990 at least binds the Central Government by section 16, and its recommendations carry correspondingly less weight.

What the State laws actually prohibit

Not conversion. Every one of them prohibits conversion by defined improper means.

Force, which in these Acts includes a show of force and a threat of injury, including a threat of divine displeasure or social excommunication.

Fraud, which includes misrepresentation.

Allurement or inducement, which includes the offer of a gift or gratification, whether in cash or in kind, and the grant of a material benefit.

And several require a prior intimation or a declaration to the District Magistrate, which is the provision most often challenged, because a requirement of notice before an act of conscience is a burden on the act.

The criticism to state. The definitions of allurement and of force are wide enough to cover the ordinary work of a religious institution that runs a school or a hospital, and the burden of proof provisions in the later Acts require the person who caused the conversion to prove it was proper. The Acts are defended as protecting the vulnerable and criticised as chilling a constitutional right, and MU's questions on religion as a divisive factor invite that argument.

The consequences of conversion inside the legal system

On personal law. A convert is governed prospectively by the personal law of the religion they have adopted. That is the reason the conversion cases in [The Uniform Civil Code] arose at all.

On an existing marriage. A conversion does not by itself dissolve a marriage already solemnised. Under section 13(1)(ii) of the Hindu Marriage Act 1955, the other spouse may petition for divorce on the ground that the respondent has ceased to be a Hindu by conversion to another religion; the marriage subsists until dissolved. That is the premise of Sarla Mudgal, in which a Hindu husband who converted to Islam and married again was held guilty of bigamy under section 494 of the Penal Code, and of Lily Thomas, which affirmed it.

On maintenance. Section 125 of the Code of Criminal Procedure applies to all persons irrespective of religion, so a change of religion does not defeat an order.

On reservation. A person who converts out of Hinduism, Sikhism or Buddhism ceases to be a member of a Scheduled Caste for the purposes of the Constitution (Scheduled Castes) Order 1950, because paragraph 3 of that Order provides that no person professing a religion different from Hinduism, Sikhism or Buddhism shall be deemed to be a member of a Scheduled Caste. Scheduled Tribe status is not conditioned on religion in the same way. This is a live and much litigated question, and it is dealt with again in [The Safeguards: Seats, Services and Commissions].

On guardianship and succession. These follow the personal law now applicable, which is why a conversion late in life can unsettle expectations of inheritance in a family.

A worked example

Ravi, a Hindu married under the Hindu Marriage Act, converts to Christianity. He wants to know four things.

Is the conversion lawful? Yes. Freedom of conscience under article 25(1) is absolute, and no State law prohibits conversion as such. If his State requires a declaration to the District Magistrate, he must make it.

Is his marriage dissolved? No. It subsists. His wife may petition for divorce under section 13(1)(ii) of the Hindu Marriage Act on the ground that he has ceased to be a Hindu by conversion.

May he marry again? Not until the first marriage is dissolved. On Sarla Mudgal and Lily Thomas, a second marriage during the subsistence of the first is void and is an offence under section 494 of the Penal Code, and conversion does not change that.

What happens to his children's position? Guardianship and succession will now be governed by the personal law applicable to him, and if he belonged to a Scheduled Caste the Presidential Order question arises.

What this does NOT mean

It does not mean conversion may be prohibited. No Indian statute prohibits conversion itself, and one that did would meet article 25(1) directly.

It does not mean a person may not propagate. They may, by an exposition of the tenets of their religion; what they may not do is claim a right that the exposition result in a conversion.

And it does not mean the anti-conversion laws are uncontroversial. They are among the most contested statutes in this paper, and an answer that states only the holding in Stainislaus and not the criticism is incomplete.

Quick revision

Article 25(1): freedom of conscience, and the right to profess, practise and propagate. Stainislaus 1977: "propagate" means to transmit or spread by an exposition of tenets; no fundamental right to convert another; what is freedom for one is freedom for the other in equal measure; the Madhya Pradesh and Orissa Acts fall under Entry 1 of List II, public order. What the Acts prohibit: force, including threat of divine displeasure or excommunication; fraud; allurement or inducement; and several require intimation to the District Magistrate. Consequences of conversion: prospective change of personal law; the existing marriage subsists, with divorce available under section 13(1)(ii) of the Hindu Marriage Act; section 125 CrPC unaffected; Scheduled Caste status lost under paragraph 3 of the 1950 Order.

Test yourself

1. What does "propagate" mean in article 25, and which case decides it? To transmit or spread one's religion from person to person or place to place by an exposition of its tenets. Rev. Stainislaus v. State of Madhya Pradesh decides it, holding that the article confers no right to convert another person to one's own religion.

2. On what legislative entry were the anti-conversion Acts upheld, and why? Entry 1 of List II, public order, on the reasoning that forcible conversion left unprohibited would create public disorder and that the expression "public order" has a wide connotation. The argument that such a law falls under Entry 97 of List I was rejected.

3. What do the State Acts actually prohibit? Conversion by force, which includes a threat of divine displeasure or social excommunication; by fraud, including misrepresentation; and by allurement or inducement, including a gift, gratification or material benefit. Several also require prior intimation or a declaration to the District Magistrate.

4. Does conversion dissolve a subsisting marriage? No. The marriage subsists, and under section 13(1)(ii) of the Hindu Marriage Act the other spouse may petition for divorce on the ground that the respondent has ceased to be a Hindu by conversion. A second marriage before dissolution is void and an offence under section 494 of the Penal Code, as Sarla Mudgal and Lily Thomas hold.

5. State the criticism of Stainislaus. That a right to propagate which cannot lawfully result in a conversion is a right emptied of its object; and that stretching "public order" to cover the manner of an individual conversion gives the States a legislative power over religion that Entry 1 of List II was not meant to confer.

Christian law, in the Indian Christian Marriage Act 1872, the Divorce Act 1869 and the Indian Succession Act 1925.

Parsi law, in the Parsi Marriage and Divorce Act 1936 and the succession provisions of the Indian Succession Act 1925.

And the Special Marriage Act 1954, which is not a personal law at all but a secular alternative available to any two persons whatever their religion, dealt with in [Christian and Parsi Law, and the Special Marriage Act].

The codified and uncodified distinction, which decides everything

A codified personal law is contained in a statute. It can be challenged under Part III like any other statute, because a statute is plainly "law" within article 13. That is how section 118 of the Indian Succession Act was struck down in John Vallamattom v. Union of India, and how sections of the Hindu Acts have been tested.

An uncodified personal law is not in a statute. Whether it can be challenged at all depends on whether it is "law" within article 13(3)(a), which includes custom or usage having in the territory of India the force of law.

The argument that it is not. Personal law derives from a religious source, not from the State, and article 25 protects the freedom to practise a religion; reform of it is committed by article 25(2)(b) to the legislature and by article 44 to the State, not to the courts. This is the position argued in Shayara Bano and accepted by the minority there.

The argument that it is. Article 13(3)(a) includes custom or usage having the force of law; a rule that Indian courts enforce as binding has the force of law whatever its origin; and to hold otherwise leaves a category of enforceable rules permanently outside the Constitution.

Why the argument has never been finally settled. Because the cases that could have settled it have been decided on narrower grounds. In Shayara Bano, two of the majority judges held that talaq-e-biddat was recognised by section 2 of the Act of 1937 and was therefore STATUTORY law within article 13, which avoids the general question, and the third held that the practice was not essential to the religion, which also avoids it.

The examinable point. State the question, state both arguments, and state that it remains open. An answer that asserts either position as settled law is wrong.

Why several personal laws is said to divide

Because the same event has different legal consequences depending on the religion of the parties. A wife's right to maintenance, a daughter's share, the grounds of divorce and the age of marriage have all differed between systems at various times.

Because reform has been uneven. Hindu law was codified and repeatedly amended; Muslim law was not, and the two statutes passed for it, in 1986 and 2019, were both reactive. The majority experiences this as unequal treatment; the minorities experience the demand for uniformity as an attack on identity. Both readings are honest and MU's 2025 question asks for both.

Because the burden falls unevenly within communities. Almost every rule this paper criticises operates against women, which is why the reform argument and the gender-justice argument are the same argument.

And because the system makes religion a legal status. A person's religion determines which court applies which law to their family. That is a legal category the Constitution's equality provisions do not otherwise recognise.

The other side, which a critical answer needs

Personal law is also a protection. For a small community, the survival of its own law is part of the survival of its identity, which is what articles 25, 26, 29 and 30 exist to protect.

Uniformity is not the same as equality. A uniform code drafted from the majority's law would be uniform and not equal, which is the strongest objection to a uniform civil code and is dealt with in that chapter.

And reform from inside works better than reform imposed. The Hindu Code Bills were carried by a legislature in which the affected community was the overwhelming majority, and that is not a position any minority is in.

A worked example

Two neighbours in Nagpur die intestate on the same day, each leaving a widow, a son and a daughter.

If both families are Hindu. The Hindu Succession Act 1956 applies. The widow, son and daughter each take an equal share as Class I heirs, and since 2005 the daughter is a coparcener in the coparcenary property in her own right.

If both families are Muslim. The rule of decision is Muslim personal law under section 2 of the Act of 1937, under which the shares of the widow, son and daughter are fixed by the applicable school and the daughter takes a share half that of the son.

If one family is Christian. The Indian Succession Act 1925 applies, under which the widow takes one third and the children share the remainder equally without distinction of sex.

What the example shows. The legal consequences of the same event differ by religion, and they differ in ways that are not consistently more or less favourable to any one group. That is the fact MU's question is about, and any answer that treats one system as uniformly worse than another has misdescribed it.

What this does NOT mean

It does not mean personal law is religious law. It is State law administered by State courts, drawn from religious sources and modified by legislation and by precedent.

It does not mean personal law is immune from the Constitution. Codified personal law plainly is not, and the position of uncodified personal law is unsettled rather than settled in its favour.

And it does not mean a uniform civil code is the only answer. Reform within each system, and the strengthening of the secular option in the Special Marriage Act, are the two alternatives most often proposed.

Quick revision

Personal law: family and succession law applied by reason of religion. Origin: the Regulation of 1772, Koran for Mahomedans and Shaster for Gentoos, administered by English courts. Four systems plus the Special Marriage Act 1954. Section 2 of the Shariat Act 1937 APPLIES Muslim law without stating it, so most of it is uncodified. Codified personal law is "law" for article 13; whether uncodified personal law is turns on article 13(3)(a) and is unresolved, because Shayara Bano was decided on narrower grounds. Divides because consequences differ by religion, because reform has been uneven, and because the burden falls on women; protects because identity and reform from within.

Test yourself

1. Define personal law and name its subject matter. The body of rules applied to a person by reason of the religion they profess, governing marriage, divorce, maintenance, guardianship, adoption, succession and in some communities endowments and wakfs.

2. Where does the Indian system come from? From the Regulation of 1772, by which Warren Hastings directed that in suits regarding inheritance, marriage, caste and other religious usages the laws of the Koran should be applied to Mahomedans and those of the Shaster to Gentoos, administered thereafter by English courts through pandits and maulvis.

3. What does section 2 of the Shariat Act 1937 do, and what does it not do? It provides that notwithstanding any custom or usage to the contrary, the rule of decision in the listed matters where the parties are Muslims shall be Muslim Personal Law. It applies that law; it does not codify or state it, which is why Muslim personal law in India is largely uncodified.

4. State the article 13 question and both answers. Whether uncodified personal law is "law" within article 13(3)(a), which includes custom or usage having the force of law, and so subject to Part III. Against: it derives from a religious source protected by article 25, and reform is committed to the legislature by article 25(2)(b) and article 44. For: a rule that courts enforce as binding has the force of law whatever its origin, and the contrary view leaves enforceable rules permanently outside the Constitution.

5. Give one reason personal law divides and one reason it protects. It divides because the same event, such as an intestate death, produces different legal consequences according to the religion of the parties, and because reform has gone much further in one system than in others. It protects because for a small community the survival of its own law is part of the survival of its identity, which articles 25, 26, 29 and 30 exist to guarantee.

Class I heirs. The widow, the son, the daughter and the mother, and the specified descendants of a predeceased child, all take simultaneously and to the exclusion of others.

And what it did not do until 2005. The Mitakshara coparcenary survived, and a daughter was not a coparcener. That was corrected by the amendment of 2005, dealt with in [Women's Property Rights].

The Hindu Adoptions and Maintenance Act 1956

A woman may adopt, and may give in adoption. Before the Act, a Hindu woman could not adopt in her own right.

A daughter may be adopted. The Act permits the adoption of a daughter, which the earlier law generally did not, since adoption existed for religious purposes tied to a son.

Maintenance is placed on a statutory footing, including the maintenance of a wife, of children, of aged parents and, under section 19, of a widowed daughter-in-law.

The Hindu Minority and Guardianship Act 1956

Section 6. The natural guardian of a Hindu minor boy or unmarried girl is the father, and after him the mother, with the proviso that custody of a minor under five shall ordinarily be with the mother.

The word "after" was the problem, and its reading is the subject of the case worked in [Empowerment of Women].

The opposition, and why it matters to this paper

The objection was constitutional as well as religious. It was said that a legislature elected on a limited franchise, and containing members of every religion, had no business rewriting the law of one community; that the reforms were foreign to Hindu tradition; and that the code should await a wider social consensus.

The Bill was dropped in 1951 and Ambedkar resigned. The single comprehensive Bill was abandoned; the four Acts followed after the first general election, when a differently composed Parliament passed them separately.

Three lessons this paper draws from that history.

One: the reform was carried by the affected community's own representatives. The legislature that enacted the Hindu Acts was overwhelmingly composed of members of the community whose law was being changed. No minority community is or can be in that position, which is the central practical objection to a uniform civil code imposed by the same legislature.

Two: splitting the reform made it possible. A single code was defeated; four Acts on marriage, succession, adoption and guardianship passed. That is a lesson about legislative technique which the uniform civil code debate has never absorbed.

Three: the change was real but partial. Monogamy became law and bigamous marriages continued to be contracted; the daughter became an heir and continued not to claim; the coparcenary survived for another half century. That is the argument of [What Law Cannot Do: The Limits of Legislating Change] in its clearest instance.

A worked example

Compare the position of a Hindu widow in 1950 and in 1957.

In 1950. Her husband could have taken a second wife lawfully. If he died, she took a limited estate in the property she inherited, which reverted on her death to his heirs rather than passing to hers. She could not adopt in her own right. She had no ground on which to seek a divorce.

In 1957. A second marriage by her husband would have been void and an offence. Any property she possessed she held as full owner under section 14. She could adopt a son or a daughter under the Adoptions Act. She could seek divorce on the statutory grounds in section 13, or judicial separation under section 10, and maintenance under sections 24 and 25.

And the fourth question, which the example exists for. How many widows in 1957 knew any of this, and how many had a court within reach? The statutes changed the rules completely and changed the practice slowly, which is the shape of every reform in this book.

What this does NOT mean

It does not mean Hindu law was made uniform. Custom is expressly preserved by sections 3(a), 5(iv), 5(v), 7 and 29(2) of the Marriage Act, so a great deal of variation survives inside the codified law.

It does not mean the reforms were complete. The coparcenary survived until 2005, and the guardianship provision was corrected by construction rather than by amendment.

And it does not mean the Acts apply only to Hindus in the religious sense. Section 2 of each applies them to Hindus, Buddhists, Jains and Sikhs, and to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew, which is a definition by exclusion.

Quick revision

Four Acts: Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Adoptions and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956. Preceded by the Rau Committee; introduced as one Bill by Ambedkar; dropped 1951, Ambedkar resigned; enacted in four pieces after the 1951-52 election. Marriage Act: section 5 conditions including monogamy and age, section 7 ceremonies, section 11 void marriages, section 13 divorce, section 13B mutual consent from 1976, sections 24 and 25 maintenance. Succession Act: section 14 full ownership for a female Hindu, Class I heirs, coparcenary untouched until 2005. Adoptions Act: a woman may adopt, a daughter may be adopted, statutory maintenance including section 19. Guardianship Act: section 6, father and "after him" the mother.

Test yourself

1. Name the four Acts and the year of each. The Hindu Marriage Act 1955; the Hindu Succession Act 1956; the Hindu Adoptions and Maintenance Act 1956; and the Hindu Minority and Guardianship Act 1956.

2. What did section 14 of the Hindu Succession Act do? It provided that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner and not as a limited owner, abolishing the Hindu woman's limited estate which had reverted on her death to the last full owner's heirs.

3. Give three changes the Hindu Marriage Act made to the position before 1955. It made monogamy a condition of a valid marriage and a bigamous marriage void and an offence; it introduced judicially granted divorce on statutory grounds, which most Hindus had not had; and it fixed statutory conditions of a valid marriage including minimum ages.

4. What happened to the original single Bill, and why does it matter? It was opposed on the ground that a secular legislature should not rewrite a religious community's law, was dropped in 1951 and Ambedkar resigned; the reforms were then enacted as four separate Acts after the first general election. It matters because it shows that splitting a contested reform made it passable, a lesson the uniform civil code debate has not absorbed.

5. Why is this the paper's best example of law as an instrument of change, and also of its limits? Because a legislature altered the family law of the largest community in India against organised opposition and made it stick, which is the instrument working; and because bigamous marriages continued, daughters did not claim, and the coparcenary survived to 2005, which is the limit.

The statute

The Muslim Women (Protection of Rights on Divorce) Act 1986 is seven sections.

Section 3(1). Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to: (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by the former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

Section 4. Where a divorced woman is unable to maintain herself after the iddat period, the Magistrate may order her relatives who would be entitled to inherit her property on her death to pay maintenance in proportion to what they would inherit; and where there are no such relatives or they are unable to pay, the Magistrate may order the State Wakf Board to pay.

Section 5. The parties may, by a declaration made jointly before the Magistrate, elect to be governed by sections 125 to 128 of the Code of Criminal Procedure instead.

Section 1. Short title and extent. The Act may be called the Muslim Women (Protection of Rights on Divorce) Act 1986 and extends to the whole of India, the exclusion of the State of Jammu and Kashmir having been omitted with effect from 31 October 2019.

Section 2, the definitions, and they decide who the Act reaches. A "divorced woman" means a Muslim woman who was married according to Muslim law and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law. The "iddat period" means three menstrual courses after the date of divorce if she is subject to menstruation; three lunar months after her divorce if she is not; and, if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier. "Magistrate" and "prescribed" are also defined.

Read the definition of "divorced woman" carefully. The Act applies only where the marriage was under Muslim law AND the divorce was in accordance with Muslim law. A woman married under the Special Marriage Act is outside it, and so is a woman whose marriage has not been dissolved at all.

Section 6. Power of the Central Government to make rules, in particular for the form of the affidavit or declaration to be filed under section 5, and for the procedure the Magistrate follows in disposing of applications under the Act, including the service of notices and the dates of hearing. Every rule is to be laid before each House of Parliament.

Section 7, the transitional provision, which decided a great many pending cases. Every application by a divorced woman under section 125 or section 127 of the Code of Criminal Procedure pending before a Magistrate on the commencement of the Act shall, notwithstanding anything in that Code and subject to section 5, be disposed of by that Magistrate in accordance with the provisions of the Act. Every application already before a court on 19 May 1986 was therefore transferred into the new scheme.

The Act's political purpose was clear. It took the divorced Muslim woman out of section 125 unless both parties agreed otherwise.

The second judgment

Facts. Danial Latifi v. Union of India, AIR 2001 SC 3958, (2001) 7 SCC 740, decided 28 September 2001 by a Constitution Bench of five. The validity of the Act of 1986 was challenged on the ground that it deprived divorced Muslim women of the maintenance available to every other divorced woman and so violated articles 14, 15 and 21.

Held. The Act was upheld and construed. The words of section 3(1)(a) are "a reasonable and fair provision AND maintenance to be made and paid to her within the iddat period". The Court held that the liability to make a reasonable and fair provision is not restricted to the iddat period: a divorced Muslim woman is entitled to a reasonable and fair provision for her FUTURE, which must be made and paid within iddat but which extends beyond it. Where she cannot maintain herself after iddat, section 4 makes her heirs and, failing them, the State Wakf Board liable. So construed, the provisions of the Act do not offend articles 14, 15 and 21. The Court noted that several High Courts had already so construed sections 3(1)(a) and 4.

Why it matters. It is the clearest instance in Indian law of a court neutralising a statute by construction rather than by striking it down, and it is the reason the popular account of this sequence is wrong.

Polygamy, which MU pairs with maintenance

The position. Muslim personal law permits a man up to four wives. Hindu law since 1955, Christian law and Parsi law require monogamy, and the Special Marriage Act requires it whoever marries under it.

What the law has done about it. It has not prohibited it. What it has done is close the route by which a person governed by a monogamous law could acquire a polygamous one, which is the conversion line of cases in [Conversion and the Law] and [The Uniform Civil Code].

And what the courts have observed. In Sarla Mudgal the concurring judgment recorded that many Islamic countries have themselves codified their personal law so as to prohibit or severely restrict polygamy, naming Syria and Tunisia among them, and that misapprehension prevails about bigamy in Islam.

The point to make in an answer. MU's question is about the interaction between law and TRADITION. The Indian answer has been to leave the tradition in place and to regulate its edges, which is a very different technique from the one used on Hindu law in 1955, and the difference is the whole of the uniform civil code debate.

A worked example

Shabana is divorced in 2026 and cannot maintain herself. She has one child aged three.

Under section 3(1)(a), read with Danial Latifi. Her former husband must make and pay, WITHIN iddat, a reasonable and fair provision for her future, which is assessed by reference to her needs beyond iddat and not merely during it, together with maintenance for the iddat period.

Under section 3(1)(b). A reasonable and fair provision and maintenance for the child for two years from the date of birth, if she maintains the child.

Under section 3(1)(c) and (d). The mahr, and the property given to her before, at or after the marriage.

If that is exhausted and she still cannot maintain herself. Section 4: an order against the relatives who would inherit from her, in proportion to their shares, and failing them against the State Wakf Board.

And if both she and her former husband so elect. Section 5: a joint declaration before the Magistrate, and sections 125 to 128 of the Code apply instead.

What this does NOT mean

It does not mean the Act reversed Shah Bano. It removed the section 125 route and Danial Latifi restored the substance through section 3(1)(a).

It does not mean a Muslim woman cannot use section 125 at all. Section 5 permits it by joint declaration, and the position of a woman who is not divorced is unaffected.

And it does not mean the sequence is only about maintenance. It is the paper's clearest case study of the three organs of the State acting on the same rule in different directions, which is what an essay on this topic should be about.

Quick revision

Shah Bano 1985: section 125 CrPC is general law and applies irrespective of religion; a divorced Muslim wife unable to maintain herself may apply; mahr does not discharge the liability; the article 44 observations made it a political event. The Act of 1986: section 1 extent; section 2 defines "divorced woman", married AND divorced under Muslim law, and the iddat period, three courses, three lunar months, or until delivery; section 3(1)(a) reasonable and fair provision and maintenance within iddat; (b) two years for a child; (c) mahr; (d) property; section 4 relatives and the State Wakf Board; section 5 joint election of sections 125 to 128; section 6 rule-making; section 7 transfers every pending section 125 and 127 application into the Act. Danial Latifi 2001, five judges: the reasonable and fair provision is for the future and is not confined to iddat, though it must be made and paid within it; so read, no violation of articles 14, 15 and 21. Polygamy: permitted by Muslim personal law, not prohibited by Indian law, and the conversion route is closed.

Test yourself

1. What did Shah Bano decide? That section 125 of the Code of Criminal Procedure is a provision of general law aimed at preventing vagrancy and destitution, applies irrespective of religion, and entitles a divorced Muslim woman unable to maintain herself to apply; and that payment of mahr does not by itself discharge the husband's liability.

2. What did the Act of 1986 do? It provided that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid within the iddat period, to maintenance for a child for two years, to mahr and to her property; it made her heirs and the State Wakf Board liable if she cannot maintain herself thereafter; and it allowed the parties jointly to elect the Code of Criminal Procedure instead. Its effect was to take her out of section 125 unless both parties agreed otherwise.

3. How did Danial Latifi construe section 3(1)(a)? As requiring the former husband to make a reasonable and fair provision for the divorced wife's whole future, which must be made and paid within the iddat period but is not limited to it, in addition to maintenance for that period. So construed the Act does not offend articles 14, 15 and 21.

4. Define iddat and mahr. Iddat is the period a Muslim woman observes after the dissolution of her marriage, generally three menstrual cycles or three lunar months, or until delivery if pregnant. Mahr or dower is the sum the husband is obliged to pay the wife under the contract of marriage.

5. Why is this sequence the paper's best case study? Because the same rule was decided by a court, reversed by a legislature and restored by a court, so it shows all three organs acting on one question in different directions, and because it is the point at which the argument about personal law, gender justice and the uniform civil code all meet.

The minority, Khehar CJI and Nazeer J. Personal law cannot be interfered with so long as it does not infringe public order, morality or health or the provisions of Part III, which is the position expressed in article 25(1). Examining the practice against the three grounds article 25(1) permits, it was impossible to conclude that talaq-e-biddat impinged on public order or health, and it had no nexus with morality; so it could not be struck down on those grounds. They would have injuncted the practice for six months while Parliament legislated.

Kurian Joseph J. What is bad in theology cannot be good in law. Talaq-e-biddat is not an essential part of the religion, and a practice that is not essential does not attract the protection of article 25.

Nariman and Lalit JJ. Talaq-e-biddat is recognised and enforced by section 2 of the Muslim Personal Law (Shariat) Application Act 1937, which makes it statutory "law" within article 13, so it is open to challenge under Part III; and a practice that permits a marital tie to be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation is manifestly arbitrary and therefore violates article 14.

Why the difference matters. Only the Nariman and Lalit route touches the general question whether personal law is subject to Part III, and even that route rests on the statute of 1937 rather than on personal law at large. A student who says that Shayara Bano decided that personal law is subject to the fundamental rights has stated the case too widely.

The statute

The Muslim Women (Protection of Rights on Marriage) Act 2019 is eight sections.

Section 1, and its third subsection matters. The Act may be called the Muslim Women (Protection of Rights on Marriage) Act 2019 and extends to the whole of India except the State of Jammu and Kashmir; and it shall be DEEMED to have come into force on 19 September 2018. It is retrospective to that date because it replaced an Ordinance promulgated then, which is why section 8 exists.

Section 2, the definitions. "Electronic form" has the meaning assigned to it in section 2(1)(r) of the Information Technology Act 2000; "Magistrate" means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure in the area where the married Muslim woman resides; and "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

Section 3. Any pronouncement of talaq by a Muslim husband upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

Section 4. Any Muslim husband who pronounces talaq as referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

Section 5. A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.

Section 6. She shall be entitled to custody of her minor children.

Section 7. The offence is cognizable if information relating to it is given by the married Muslim woman or by a person related to her by blood or marriage; it is compoundable at her instance with the Magistrate's permission; and bail may be granted only after hearing her and if the Magistrate is satisfied that there are reasonable grounds.

Section 8, repeal and savings. The Muslim Women (Protection of Rights on Marriage) Second Ordinance 2019 is repealed, and anything done or any action taken under that Ordinance is deemed to have been done or taken under the Act. Read with section 1(3), this is what makes the Act continuous with the Ordinances that preceded it, so that a pronouncement made after 19 September 2018 is within the Act even though the Act was passed in 2019.

The argument about the Act, which is what MU is asking for

For the Act. The declaration in section 3 puts the invalidity beyond doubt for every court and every Magistrate, without a woman having to litigate the constitutional point. The deterrent in section 4 addresses the practical harm, which is that a woman is thrown out of her home on a pronouncement whatever its legal effect. Sections 5 and 6 give her a maintenance and custody remedy in the same proceeding.

Against the Act. If the pronouncement is void, the marriage subsists, so the husband is being punished for an act with no legal consequence. Imprisoning him removes the source of the subsistence allowance section 5 provides for. No other community's desertion of a wife is a criminal offence, which raises an article 14 question about the Act itself. And the cognizable and non-bailable design invites misuse in a field where the parties are estranged.

The answer to the strongest objection. That the harm is social rather than legal: the woman is treated as divorced by her family and her community whatever a court would say, and the offence is directed at that consequence. Whether a criminal sanction is the right instrument for it is exactly the question MU's "uniformity and social harmony" wording invites.

A worked example

Farida's husband sends her a message in 2026 pronouncing talaq three times.

The effect on the marriage. None. Section 3 declares the pronouncement, including one in electronic form, void and illegal, and Shayara Bano had already set the practice aside. The marriage subsists.

The offence. Section 4: up to three years and a fine. Cognizable under section 7 on information given by her or by a relative by blood or marriage.

Her remedies in the same proceeding. A subsistence allowance for herself and her dependent children under section 5, and custody of her minor children under section 6.

And if they reconcile. Section 7(b): the offence is compoundable at her instance with the Magistrate's permission, which is the provision that keeps the Act from destroying the marriage it declares to subsist.

What this does NOT mean

It does not mean all forms of talaq are abolished. Talaq-e-ahsan and talaq-e-hasan are untouched by the judgment and by the Act.

It does not mean personal law is now subject to Part III generally. Two of the five judges reasoned that way and their route ran through the statute of 1937; the question remains open, as [Personal Law: What It Is, and Why India Has Several] explains.

And it does not mean the Act was necessary to make the practice void. The judgment had already done that, which is the central criticism of the Act and the point an examiner is looking for.

Quick revision

Three forms of talaq: ahsan, one pronouncement then iddat, revocable; hasan, three in successive tuhrs; biddat, three at one sitting, instantaneous and irrevocable. Shayara Bano 2017, five judges, three to two, sets biddat aside. Minority: article 25(1) permits interference only for public order, morality, health or Part III, and none is attracted; six-month injunction while Parliament legislates. Kurian Joseph J: what is bad in theology cannot be good in law; not an essential practice. Nariman and Lalit JJ: recognised by section 2 of the Shariat Act 1937, therefore statutory law under article 13, and manifestly arbitrary under article 14. Act of 2019: section 1(3), deemed in force from 19 September 2018; section 2 defines electronic form by reference to the Information Technology Act 2000, Magistrate, and talaq as talaq-e-biddat or a similar instantaneous and irrevocable form; section 3 void and illegal including electronic form; section 4 up to three years; section 5 subsistence allowance; section 6 custody; section 7 cognizable on her information, compoundable at her instance, bail after hearing her; section 8 repeals the Second Ordinance of 2019 and saves what was done under it.

Test yourself

1. Distinguish the three forms of talaq. Talaq-e-ahsan is a single pronouncement followed by abstinence during iddat and is revocable until iddat ends. Talaq-e-hasan is three pronouncements in three successive tuhrs and is revocable until the third. Talaq-e-biddat is three pronouncements at one sitting, instantaneous and irrevocable, and it is the form that was set aside.

2. State the two routes by which the majority in Shayara Bano set the practice aside. Kurian Joseph J held that what is bad in theology cannot be good in law and that the practice is not an essential part of the religion, so article 25 does not protect it. Nariman and Lalit JJ held that the practice is recognised by section 2 of the Shariat Act 1937 and is therefore statutory law within article 13, and that it is manifestly arbitrary and violates article 14.

3. What did the minority hold? That article 25(1) permits interference with personal law only on the grounds of public order, morality, health or the other provisions of Part III; that talaq-e-biddat did not impinge on public order or health and had no nexus with morality; and that the practice should therefore be injuncted for six months while Parliament legislated.

4. Give the four operative provisions of the Act of 2019. Section 3, the pronouncement including one in electronic form is void and illegal; section 4, punishment of up to three years and fine; section 5, subsistence allowance for the woman and dependent children; section 6, custody of minor children. Section 7 makes the offence cognizable on information from her or a relative, compoundable at her instance, and bailable only after hearing her.

5. State the strongest objection to the Act and the best answer to it. That if the pronouncement is void the marriage subsists, so a man is imprisoned for an act with no legal effect, and imprisonment removes the source of the very allowance section 5 provides. The answer is that the harm is social rather than legal: the woman is treated as divorced by her family and community whatever a court would say, and the offence is aimed at that consequence.

Parsi law

The Parsi Marriage and Divorce Act 1936. Marriage requires the Ashirvad ceremony performed by a priest in the presence of two Parsi witnesses; the Act was amended in 1988 to equalise the grounds of divorce and to introduce divorce by mutual consent.

The distinctive institution is the Parsi Matrimonial Court, constituted under the Act, in which matrimonial suits are tried with the aid of delegates chosen from the community, which is a form of participation by the community in the adjudication of its own family disputes.

Succession. Chapter III of Part V of the Indian Succession Act 1925 contains special rules for Parsi intestates, which were amended in 1991 to give the widow, widower and children equal shares.

Why it matters here. Both reforms were carried with the support of community bodies, which is the pattern reformers point to as the alternative to a code imposed from outside.

The Special Marriage Act 1954

What it is. A statute under which any two persons may marry, whatever their religion, without either renouncing their faith.

Section 4, the conditions. Neither party has a spouse living; neither is incapable of giving valid consent by reason of unsoundness of mind, or though capable of giving consent has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity; the male has completed twenty-one years and the female eighteen; and the parties are not within the degrees of prohibited relationship, unless a custom governing at least one of them permits it.

The notice procedure, which is the criticised part. The marriage officer publishes the notice of intended marriage for thirty days, and any person may object on the ground that it would contravene a condition in section 4. The requirement of publication has been criticised at length as exposing couples marrying across religious lines to interference by their families and by others.

Section 15 and 16. A marriage already celebrated under any other law may be registered under the Act, whereupon the parties come within it.

Section 19. A member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion is deemed to effect a severance from the family upon marrying under the Act. That is a real consequence: it removes the person from the coparcenary.

Section 21. Notwithstanding anything contained in the Indian Succession Act 1925, succession to the property of a person married under the Act, and of the issue of such a marriage, is governed by that Act.

Section 21A, inserted in 1976. Where both parties to a marriage under the Act profess the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 do not apply, so they neither sever from the joint family nor lose the application of Hindu succession law.

Why the Act is central to the uniform civil code argument. It already provides a common civil law of marriage, divorce and succession, available to everybody, and almost nobody uses it. That fact cuts both ways: it shows that a uniform code is possible, and it shows that making one available is not the same as making people want it.

A worked example

Priya, a Hindu, and Tariq, a Muslim, wish to marry without either converting.

The route. The Special Marriage Act. Notice to the marriage officer of the district where one of them has resided for at least thirty days; publication for thirty days; objections, if any, decided by the officer; then solemnisation before three witnesses.

The conditions. Section 4: no subsisting spouse; capacity to consent; twenty-one and eighteen; not within the prohibited degrees unless a custom governing one of them permits.

The consequences. Their marriage is governed by the Act for divorce, and by section 21 succession to their property and to that of their children is governed by the Indian Succession Act 1925 rather than by either party's personal law. If both had been Hindus, section 21A would have kept Hindu succession law applicable.

And if Priya belongs to an undivided family. Section 19 severs her from it, unless section 21A applies.

The problem the example exposes. The thirty-day publication is a real deterrent for exactly the couples the Act exists for, and the reform most often proposed for this statute is its removal.

What this does NOT mean

It does not mean Christian and Parsi law are unreformed. Both were substantially amended, in 2001 and in 1988 and 1991 respectively.

It does not mean the Special Marriage Act is a uniform civil code. It is optional, it covers only those who choose it, and it does not touch adoption or guardianship.

And it does not mean opting into it is costless. Section 19 severs a Hindu, Buddhist, Sikh or Jaina member from an undivided family unless both parties are of those faiths.

Quick revision

Christian law: Indian Christian Marriage Act 1872; Divorce Act 1869, amended 2001 to equalise section 10 grounds, add section 10A mutual consent and remove High Court confirmation; Indian Succession Act 1925, widow one third with lineal descendants, half without, children equal; section 118 struck down in John Vallamattom. Parsi law: Parsi Marriage and Divorce Act 1936, Ashirvad ceremony, amended 1988; Parsi Matrimonial Court with delegates; Indian Succession Act Chapter III of Part V, amended 1991 for equal shares. Special Marriage Act 1954: any two persons; section 4 conditions; thirty-day notice and publication, much criticised; sections 15 and 16 registration of an existing marriage; section 19 severance from a joint family; section 21 succession under the Indian Succession Act; section 21A, inserted 1976, disapplies 19 and 21 where both are Hindu, Buddhist, Sikh or Jaina.

Test yourself

1. What did the amendment of 2001 change in Christian divorce law? It equalised the grounds in section 10 of the Divorce Act 1869 so that a wife no longer had to prove adultery coupled with another matrimonial offence; it introduced divorce by mutual consent in section 10A after two years of separation; and it abolished the requirement that a District Court decree be confirmed by the High Court.

2. Set out the conditions in section 4 of the Special Marriage Act. Neither party has a spouse living; neither is incapable of giving valid consent by unsoundness of mind, or though capable is suffering from a mental disorder unfitting them for marriage and the procreation of children, or is subject to recurrent attacks of insanity; the male has completed twenty-one and the female eighteen years; and the parties are not within the degrees of prohibited relationship, unless a custom governing at least one of them permits.

3. What do sections 19, 21 and 21A of that Act do? Section 19 deems a member of an undivided family professing the Hindu, Buddhist, Sikh or Jaina religion to be severed from the family on marrying under the Act. Section 21 applies the Indian Succession Act 1925 to succession to the property of a person so married and of the issue of the marriage. Section 21A, inserted in 1976, disapplies both where both parties profess one of those four religions.

4. Why is the Special Marriage Act central to the uniform civil code debate? Because a common civil law of marriage, divorce and succession, open to everybody irrespective of religion, has existed since 1954 and is very little used. That shows both that a uniform code is workable and that availability is not the same as acceptance.

5. What is the most criticised feature of the Act, and why? The requirement in the notice procedure that the marriage officer publish the notice of intended marriage for thirty days and entertain objections. It exposes couples marrying across religious or caste lines to interference from families and from others, which deters precisely the marriages the Act exists to make possible.

Held. The second marriage of a Hindu husband after conversion to Islam, without his first marriage having been dissolved under law, is invalid; it is void in terms of section 494 of the Indian Penal Code, and the apostate husband is guilty of the offence. Sahai J added that no religion permits deliberate distortions, that many Islamic countries have themselves codified their personal law to prohibit or severely restrict polygamy, naming Syria and Tunisia, and that provision for a common register of marriages and for maintenance and succession would pave the way for a unified civil code.

Why it matters. It closed conversion as a route to a second marriage, and its observations on article 44 are the ones most often quoted.

Facts. Lily Thomas v. Union of India, (2000) 6 SCC 224, decided 5 April 2000 by Sethi and Saghir Ahmad JJ. A review petition and connected writ petitions were filed against Sarla Mudgal, contending that the Court had directed the enactment of a uniform civil code and had applied its ruling retrospectively. One connected matter was that of Sushmita Ghosh, married under Hindu rites in 1984, whose husband converted to Islam to take a second wife.

Held. The review and the petitions were dismissed. A Hindu husband who converts and marries again during the subsistence of his first marriage commits bigamy under section 494, since the first marriage continues and is not dissolved by his conversion. The Court clarified that Sarla Mudgal had NOT directed the Government to enact a uniform civil code, article 44 being a Directive Principle, and that the judgment declared the law as it stood rather than making new law retrospectively.

Why it matters. It fixes the limit of what a court may do about article 44: express a view, and not direct.

Facts. John Vallamattom v. Union of India, AIR 2003 SC 2902, (2003) 6 SCC 611, decided 21 July 2003 by Khare CJ with Sinha and Lakshmanan JJ. A Christian priest and another member of the community challenged section 118 of the Indian Succession Act 1925, which restricted a person having a nephew or niece or nearer relative from bequeathing property for religious or charitable uses unless the will was made twelve months before death and deposited within six months. No such restriction applied under other personal laws.

Held. Section 118 was declared unconstitutional as violating article 14: the classification had no reasonable nexus with its object. Sinha J added that although charity and compassion are preached in every religion, that does not by itself make them a religious practice within article 25. Lakshmanan J observed that Parliament had not removed the discrimination even after a High Court decision. The Court also recorded that article 44 remains unimplemented.

Why it matters. It is the third of the three judgments habitually cited on article 44, and the clearest instance of a court striking down a provision of a codified personal law for inequality.

The case for a code

Equality before the law. The same event should have the same legal consequence for every citizen.

Gender justice. Almost every rule of personal law that this paper criticises operates against women, and a common code drafted on constitutional principles would remove them at once.

National integration. The argument made in the Constituent Assembly and repeated since: a common civil law is part of a common citizenship.

Simplicity of administration. One law of marriage and succession is easier to administer, and it removes the conversion manoeuvres that Sarla Mudgal had to deal with.

The case against

Article 25 and the protection of identity. For a minority, its personal law is part of what makes it a community, and articles 25, 26, 29 and 30 exist to protect exactly that.

Uniformity is not equality. A code drafted by a legislature in which one community is the overwhelming majority is likely to be that community's law with the edges filed off, which is uniform and not equal.

Reform from within has worked. Hindu law, Christian law and Parsi law were each reformed by legislation supported by the affected community. The argument is that the same should be done for Muslim law rather than replacing it.

A secular option already exists. The Special Marriage Act 1954 has provided a common civil law of marriage, divorce and succession since 1954 and is very little used.

And the diversity is not only religious. Personal law varies by custom, by region and by tribe. Article 371A and article 371G protect Naga and Mizo customary law, and the north-eastern States were expressly excluded from the Uttarakhand Act's model in every serious draft, which shows how difficult "throughout the territory of India" really is.

The Twenty-first Law Commission, 2018

Its consultation paper on the reform of family law concluded that a uniform civil code is neither necessary nor desirable at this stage. It recommended instead that discriminatory provisions within each personal law be identified and amended, and that codification of the uncodified laws be undertaken so that their content is at least known and reviewable.

That conclusion is the single most useful thing a student can cite, because it is a considered institutional answer that is neither for nor against uniformity as such, and because it reframes the question as one of removing discrimination rather than of imposing sameness.

Uttarakhand, 2024 and 2025

The Uttarakhand Uniform Civil Code was enacted in 2024 and brought into force on 27 January 2025. It is the first uniform civil code enacted by any Indian State since independence, Goa's family law being an inheritance from the Portuguese Civil Code of 1867 rather than a modern enactment.

What it does, in outline. It provides a common law of marriage and divorce, including conditions of marriage, compulsory registration and uniform grounds of divorce; a common law of intestate succession giving equal shares to sons and daughters; a prohibition on polygamy and on practices such as halala and iddat; and a scheme for the registration of live-in relationships.

It excludes the Scheduled Tribes of the State, which is the same accommodation the objections to a national code have always demanded.

What a student should say about it. It converts an abstract argument into a testable one. Whether it produces the equality claimed for it, and whether the live-in registration provisions survive challenge under articles 19 and 21, are now questions of fact and of litigation rather than of speculation.

A worked example of the central difficulty

Suppose Parliament enacts a uniform code tomorrow, drawing its law of marriage from the Hindu Marriage Act, its law of succession from the Indian Succession Act, and its law of adoption from the Juvenile Justice Act.

Who has to change most? Not the community whose law supplied the model.

What is the answer to that? That the model was itself drafted on constitutional principles and not on the majority's tradition, which is true of the succession model and much less true of the marriage model.

And what does that tell you about the drafting problem? That the objection is not really to uniformity but to authorship, and that a code drafted by a commission from constitutional first principles, community by community, is a different proposal from a code that generalises one existing law. Almost no public argument distinguishes the two, and an answer that does will be a good one.

What this does NOT mean

It does not mean article 44 obliges Parliament to act. It is a Directive Principle, and Lily Thomas says the Court has not directed a code.

It does not mean a uniform code would be unconstitutional. Nothing in Part III forbids one; the argument against is about what a particular code would contain and how it would be made.

And it does not mean the debate is only about Muslim law. Christian law was discriminatory until 2001, Hindu succession until 2005, and tribal customary law is expressly protected. A code reaches all of them.

Quick revision

Article 44: the State shall endeavour to secure a uniform civil code throughout the territory of India; Part IV, so unenforceable under article 37. Constituent Assembly compromise. Shah Bano 1985, Sarla Mudgal 1995 and John Vallamattom 2003 all observe that article 44 is a dead letter; Lily Thomas 2000 clarifies that the Court has not directed a code. For: equality, gender justice, integration, administration. Against: articles 25, 26, 29 and 30; uniformity is not equality; reform from within has worked; the Special Marriage Act already exists; and customary and tribal diversity, protected by articles 371A and 371G. Twenty-first Law Commission 2018: a uniform civil code is neither necessary nor desirable at this stage; reform within each system and codify the uncodified. Uttarakhand Uniform Civil Code, in force 27 January 2025, excluding the Scheduled Tribes.

Test yourself

1. Quote article 44 and state its status. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It is a Directive Principle in Part IV, so by article 37 it is unenforceable by any court but is fundamental in the governance of the country and it is the duty of the State to apply it in making laws.

2. What did Lily Thomas clarify about Sarla Mudgal? That Sarla Mudgal had not directed the Government to enact a uniform civil code, article 44 being a Directive Principle, and that the judgment had declared the law as it already stood rather than making new law with retrospective effect.

3. Give three arguments for and three against a uniform civil code. For: equality before the law, gender justice within communities, and national integration. Against: the constitutional protection of religious freedom and minority identity in articles 25, 26, 29 and 30; the risk that a code would be the majority's law renamed, so that uniformity would not be equality; and the fact that a secular option already exists in the Special Marriage Act 1954 and is barely used.

4. What did the Twenty-first Law Commission recommend in 2018? That a uniform civil code is neither necessary nor desirable at this stage, and that instead the discriminatory provisions within each personal law should be identified and amended, and the uncodified personal laws codified so that their content is known and reviewable.

5. What is the significance of the Uttarakhand Act? It is the first uniform civil code enacted by an Indian State, in force from 27 January 2025, providing common rules of marriage, divorce and intestate succession, prohibiting polygamy and requiring registration of live-in relationships, while excluding the Scheduled Tribes of the State. It turns the debate from a hypothetical one into a testable one.

Held. By majority the Act was struck down as applied to the community. The power of excommunication was held to be part of the management by the denomination of its own affairs in matters of religion, and of prime significance in the religious life of every member of the group. A legislation which penalises that power, even when exercised for the purpose the Act was aimed at, could not be sustained as a measure of social welfare or social reform without eviscerating the guarantee under article 25(1) and rendering the protection illusory.

Why it matters. It is the case that shows the limit. A statute cannot be sustained under article 25(2)(b) merely because a legislature calls it welfare or reform; the Court asks whether upholding it would leave the guarantee with any content. It is the strongest single authority on the side of religious autonomy in this paper.

And it should be read against Sabarimala. In that case a majority held that an exclusionary practice was not essential and that a rule permitting it was ultra vires the reform statute, while the dissent argued the Saifuddin position: that a denomination's right under article 26 to manage its own affairs in matters of religion is not overridden by article 14. The two cases are the two ends of the same argument.

The four ways the balance is struck

One: the reform power is inside the guarantee. Article 25(2)(b) is part of article 25. Social reform is therefore not an exception carved out of religious freedom but a limit written into it from the beginning, which is why an Indian court does not treat a reform statute as prima facie suspect.

Two: only essential practices get the fullest protection. The doctrine in [The Essential Religious Practices Doctrine] is a filter, and most reform statutes survive because what they regulate is held not to be essential.

Three: article 25(1) is subject to the other provisions of Part III. So articles 14, 15, 17 and 21 reach a religious practice through the opening words of article 25(1). Article 26 is NOT expressly so subjected, which is the textual foundation of the Saifuddin and Sabarimala dissent arguments.

Four: the initiative belongs to the legislature. The clause empowers the State to make law. That is the answer to the objection that judges are reforming religions, and it is also the reason reform is slow: it requires a legislature to act.

A worked example

A State enacts three provisions: that no religious body shall exclude any person from membership on the ground of caste; that every temple shall admit all classes and sections of Hindus; and that no religious body shall excommunicate a member for marrying outside the community.

The first. Social welfare and reform in the general sense, aimed at caste exclusion, and supported additionally by article 17 and article 15(2). Likely to be upheld.

The second. The express power in article 25(2)(b), and the temple-entry legislation on which Devaru and Sabarimala were decided. Upheld, subject to the denominational question in the next chapter.

The third. This is Saifuddin. A prohibition on excommunication as such was held to strike at the denomination's management of its own affairs in matters of religion. A narrower provision, aimed at the consequences of excommunication in the enjoyment of civil rights and property rather than at the religious act itself, would stand a better chance, and that distinction is the practical lesson of the case.

What this does NOT mean

It does not mean the State may reform any religious practice it dislikes. Saifuddin sets the limit: a law cannot be sustained as reform if upholding it would render the guarantee illusory.

It does not mean the reform clause is confined to Hindus. The specific temple-entry power is; the general power to legislate for social welfare and reform is not.

And it does not mean a court may exercise the power. The clause is addressed to the State making law. What a court does is decide whether a practice is essential and whether an equality provision reaches it, which is a different route to a similar result and is the reason Sabarimala was so contested.

Quick revision

Article 25(2)(b): nothing in article 25 affects an existing law or prevents the State from making a law providing for social welfare and reform or for the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus; Explanation II extends "Hindus" to Sikhs, Jains and Buddhists. The general reform power is not confined to Hindus; the temple-entry power is. Four ways the balance is struck: the power sits inside the guarantee; only essential practices get the fullest protection; article 25(1) is subject to the rest of Part III while article 26 is not; and the initiative is legislative. Saifuddin 1962: a law penalising excommunication could not be sustained as social welfare or reform without eviscerating article 25(1) and rendering the protection illusory.

Test yourself

1. Quote article 25(2)(b) and identify the two powers it contains. That nothing in article 25 shall affect the operation of any existing law or prevent the State from making any law providing for social welfare and reform, or for the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The first power is general and applies to every community; the second is specific to Hindu institutions, with Explanation II extending it to Sikhs, Jains and Buddhists.

2. How does the Constitution maintain the balance MU asks about? By writing the reform power into the freedom-of-religion article itself; by confining the fullest protection to essential religious practices; by subjecting article 25(1) to the other provisions of Part III so that the equality articles reach a practice; and by leaving the initiative with the legislature rather than the courts.

3. What did Saifuddin decide, and why is it the limiting case? That a law penalising a denomination's power of excommunication struck at its management of its own affairs in matters of religion under article 26 and could not be sustained as social welfare or reform without eviscerating the article 25(1) guarantee. It is the limiting case because it shows that calling a statute reform does not make it valid.

4. Why is the textual difference between articles 25 and 26 important here? Because article 25(1) is expressly subject to the other provisions of Part III, so articles 14, 15 and 17 reach a practice claimed under it, whereas article 26 is subject only to public order, morality and health. That difference is the foundation of the argument for denominational autonomy in Saifuddin and in the Sabarimala dissent.

5. How would you redraft a prohibition on excommunication so that it might survive? By aiming it at the civil consequences rather than at the religious act: a provision that an excommunicated person shall not be excluded from the enjoyment of property, from the use of community facilities maintained out of public funds, or from civil rights, rather than a provision making the act of excommunication itself unlawful.

Why it matters. It is the model for reconciling a general reform provision with a specific denominational right, and the technique, giving each provision the largest operation consistent with the other, is the standard method.

The second reconciliation, and the disagreement

Facts. Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1, decided 28 September 2018 by a Bench of five. The petition sought directions to ensure the entry of women between ten and fifty to the Lord Ayyappa Temple at Sabarimala, from which they had been excluded by custom, and a declaration that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, made under section 4 of the Act of 1965, was unconstitutional. Rule 3(b) permitted the exclusion of women who by custom or usage were not allowed to enter a place of public worship.

Held, by four to one. Dipak Misra CJI, for himself and Khanwilkar J, held that the exclusionary practice is neither an essential nor an integral part of the religion, and that Rule 3(b) is ultra vires both section 3 and section 4 of the 1965 Act: section 3 is a non-obstante provision requiring every place of public worship to be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary; and the proviso to section 4(1) forbids a rule discriminating against any Hindu on the ground of belonging to a particular section or class. Chandrachud J held that Hindu women are a section or class of Hindus under section 2 of the 1965 Act, that the Act was enacted to remedy centuries of discrimination and is an emanation of article 25(2)(b), and that the social exclusion of women based on menstrual status is a form of untouchability with no place in a constitutional order.

The dissent. Indu Malhotra J held that the petitioners lacked standing; that the equality doctrine in article 14 does not override the article 25 right of every individual, denomination or sect to practise their faith in accordance with its tenets, whether or not the practice is rational or logical; that the Ayyappan worshippers had made out a plausible case for being a religious denomination protected by article 26, which was a mixed question of fact and law fit for a civil court; that the restriction does not fall within article 17; and that Rule 3(b) is saved by the proviso to section 3, which excepts temples founded for the benefit of a denomination.

Why the dissent matters as much as the majority. It applies Devaru and Saifuddin faithfully. If the temple is denominational, article 26(b) protects its own affairs in matters of religion, and Devaru itself preserved a denominational right to exclude on specified occasions. The majority avoids that route by holding the practice not essential and the worshippers not a denomination.

The four questions that decide any temple-entry case

One: is the institution a place of public worship? If not, article 25(2)(b) does not apply.

Two: is it denominational? If it is, article 26(b) is in play and Devaru's reconciliation is needed.

Three: is the practice of exclusion an essential religious practice? If it is not, the protection of articles 25 and 26 does not attach to it at all, and the case ends there. This is the step that decided Sabarimala.

Four: is the exclusion untouchability within article 17? If it is, no reconciliation arises: article 17 is absolute and subject to no exception.

Answering those four in order is the shape of a good answer, and it works for a caste exclusion and for a sex exclusion alike.

A worked example

A temple founded by a named community excludes persons of another caste from the inner sanctum on all days, and excludes everybody but its own initiates during a five-day annual festival.

Question one. It admits the general public, so it is a place of public worship.

Question two. Founded for a named community, so it is likely denominational, and article 26(b) applies.

Question three, the exclusion of another caste from the sanctum on all days. This is a caste exclusion, and article 17 answers it directly: untouchability is abolished and its practice in any form is forbidden. No reconciliation is needed, and no denominational right can save it.

Question four, the exclusion of everybody but initiates during a five-day festival. This is Devaru exactly. Provided it is confined to specified ceremonies and occasions, the denominational right survives the general throwing open, and the decree in Devaru itself set out such occasions.

The distinction to state. A permanent exclusion of a class of Hindus is invalid; a limited exclusion of everybody, initiates apart, during identified rituals may be valid. That is the whole holding of Devaru in one sentence.

What this does NOT mean

It does not mean every temple is open to everybody at all times. Devaru expressly preserved specified occasions.

It does not mean the Sabarimala decision is settled. Review petitions were referred to a larger Bench along with questions about the interplay of articles 25 and 26 and the limits of the essential practices doctrine, and the reference had not been finally answered when this chapter was written.

And it does not mean article 17 is confined to caste. Chandrachud J's opinion treats exclusion based on menstrual status as a form of untouchability, which is a reading the dissent expressly rejected. State both.

Quick revision

Article 25(2)(b), throwing open Hindu religious institutions of a public character to all classes and sections of Hindus; article 26(b), a denomination's own affairs in matters of religion; article 17, untouchability abolished, no exception. Devaru 1957: a denominational temple is also public, so both provisions apply and are reconciled by harmonious construction; open to all classes of Hindus generally, with exclusion preserved during specified ceremonies. Sabarimala 2018, four to one: the exclusion is not an essential practice; Rule 3(b) is ultra vires sections 3 and 4 of the 1965 Act; Chandrachud J adds that exclusion on menstrual status is a form of untouchability. Indu Malhotra J dissenting: standing, article 14 does not override article 25, plausible denominational status under article 26, article 17 not attracted, Rule 3(b) saved by the proviso to section 3. Four questions: public, denominational, essential, untouchability.

Test yourself

1. Why do articles 25(2)(b) and 26(b) conflict in a temple-entry case? Because a denominational temple that admits the general public is both a religious institution of a public character, which article 25(2)(b) permits a law to throw open to all classes and sections of Hindus, and a denominational institution whose own affairs in matters of religion article 26(b) protects.

2. How did Devaru reconcile them? By harmonious construction: the temple must be open to all classes and sections of Hindus generally, while the denomination's right to exclude others during certain specified religious ceremonies and occasions is preserved, those occasions being set out in the decree.

3. State the majority's two grounds in Sabarimala. That the exclusionary practice is neither an essential nor an integral part of the religion, so articles 25 and 26 do not protect it; and that Rule 3(b) of the 1965 Rules is ultra vires sections 3 and 4 of the 1965 Act, section 3 being a non-obstante provision opening every place of public worship to all classes and sections of Hindus irrespective of custom, and the proviso to section 4(1) forbidding discriminatory rules.

4. State the dissent. That the petitioners lacked standing; that article 14 does not override the article 25 right to practise a faith according to its tenets whether or not the practice is rational; that the Ayyappan worshippers had made out a plausible case for denominational status under article 26, a mixed question of fact and law for a civil court; that article 17 was not attracted; and that Rule 3(b) is saved by the proviso to section 3, which excepts temples founded for a denomination.

5. Set out the four questions that decide a temple-entry case. Is the institution a place of public worship; is it denominational; is the exclusion an essential religious practice; and is the exclusion untouchability within article 17. If the answer to the last is yes, no reconciliation arises, because article 17 admits of no exception.

Section 5, the exception. The Act shall not apply to the place of worship commonly known as the Ram Janma Bhumi-Babri Masjid situated in Ayodhya, and to any suit, appeal or other proceeding relating to it.

Section 6. Contravention of section 3 is punishable with imprisonment which may extend to three years and with fine, with provisions for abetment and for offences by companies.

Section 7. The Act has effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act.

Section 8. Power to make rules.

And section 4(3) excludes four categories from the operation of section 4, including an ancient and historical monument or an archaeological site covered by the Ancient Monuments and Archaeological Sites and Remains Act 1958, and a place of worship whose dispute has already been finally settled or acquiesced in.

What the Act is for

Facts. M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1, decided 9 November 2019 by a Bench of five. The appeals concerned the title suits about the disputed site at Ayodhya; the judgment devotes a separate Part to the Places of Worship Act.

Held, on the point this book uses. The Court set out the Act's long title, an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and recorded the commencement dates. It also rejected the submission that it should interpret religious doctrine in an absolute and extreme form and question the faith of worshippers, saying that our Court is founded on and owes its existence to a constitutional order, and that nothing would be as destructive of the values underlying article 25.

Why it matters here. The judgment treats the Act as an affirmation of the secular commitment of the Constitution and as a legislative instrument for preserving public order and equality between faiths, which is the framing an examiner is looking for.

The argument about the Act

For it. A country in which the religious character of every place of worship remains permanently open to litigation cannot be at peace. Historical wrongs, if adjudicable at all, are adjudicable without end, because every site has a history and every history has a claimant. A rule of finality removes the incentive to make a claim.

And it is not without precedent. Every legal system uses limitation, prescription and adverse possession for the same reason: at some point the law prefers settled expectations to a perfect reconstruction of the past.

Against it. It bars a remedy without inquiring whether a wrong occurred, which is a denial of access to a court and can be argued to offend article 14 and article 25. It fixes on a date, 15 August 1947, that has no significance for the wrongs alleged. And section 5 excepts the one dispute the Act was passed in the middle of, which invites the objection that a legislature that made an exception for the largest case has not really committed itself to the principle.

The answer to the last objection. That the excepted dispute was already in litigation and that Parliament chose not to interfere with a pending adjudication, which is a defensible legislative choice and is how the Ayodhya judgment describes it.

A worked example

In 2026 a suit is filed claiming that a mosque built in the sixteenth century stands on the site of a temple and seeking a declaration that the site is a temple.

Section 4(2). No suit with respect to the conversion of the religious character of a place of worship existing on 15 August 1947 lies on or after the commencement of the Act. The suit does not lie.

Unless one of the exceptions applies. If the conversion is alleged to have taken place AFTER 15 August 1947, the proviso to section 4(2) preserves the proceeding. If the site is an ancient and historical monument or an archaeological site covered by the Act of 1958, section 4(3) takes it out of section 4. If the dispute was finally settled or the conversion acquiesced in before the commencement, section 4(3) again applies. And section 5 applies to the Ayodhya site alone.

What a suit CANNOT do. It cannot ask a court to determine the religious character of the site as it stood before 1947, because section 4(1) has declared what that character is deemed to be: whatever it was on 15 August 1947.

And the drafting point students should notice. The Act bars a suit about CONVERSION of religious character. A suit about ownership, possession or management, which does not seek to change the religious character, is a different thing, and the line between the two is where the modern litigation on this Act is being fought.

What this does NOT mean

It does not mean every religious dispute is barred. Only proceedings with respect to the conversion of the religious character of a place of worship existing on 15 August 1947.

It does not mean the Act settles who owns a site. It settles what the site's religious character is deemed to be, which is a different question from title.

And it does not mean the Act is beyond challenge. Its validity has been questioned, and an answer should record that the challenge exists without asserting an outcome.

Quick revision

Places of Worship (Special Provisions) Act 1991, eight sections. Long title: to prohibit conversion of any place of worship and to provide for maintenance of the religious character of any place of worship as it existed on 15 August 1947. Section 2(c) defines place of worship. Section 3 prohibits conversion, including between sections of the same religion. Section 4(1) declares the character as on 15 August 1947 continues. Section 4(2) abates pending proceedings and bars fresh ones, with a proviso for post-1947 conversions and settled disputes. Section 4(3) excludes ancient monuments and archaeological sites under the Act of 1958 and settled or acquiesced disputes. Section 5 excepts the Ram Janma Bhumi-Babri Masjid. Section 6, up to three years and fine. Section 7, overriding effect. Sections 3, 6 and 8 in force from 18 September 1991, the rest deemed from 11 July 1991.

Test yourself

1. What is the object of the Act, in its own words? To prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and for matters connected therewith or incidental thereto.

2. State sections 3, 4(1) and 4(2). Section 3 forbids any person to convert a place of worship of any denomination or section into one of a different section of the same denomination or of a different denomination. Section 4(1) declares that the religious character of a place of worship existing on 15 August 1947 shall continue as it existed on that day. Section 4(2) abates every pending suit, appeal or proceeding with respect to such a conversion and bars any fresh one.

3. What are the exceptions? The proviso to section 4(2), for a conversion after 15 August 1947 and for a dispute already settled or a conversion acquiesced in before the commencement; section 4(3), which excludes ancient and historical monuments and archaeological sites covered by the Act of 1958 and settled disputes; and section 5, which excepts the Ram Janma Bhumi-Babri Masjid and every proceeding relating to it.

4. Give the argument for and against the Act. For: permanent litigability of religious sites makes peace impossible, and every legal system uses finality devices such as limitation and prescription for the same reason. Against: it bars a remedy without inquiring whether a wrong occurred, fixes on a date with no connection to the wrongs alleged, and excepts the very dispute it was passed during.

5. What did the Ayodhya judgment say that this book uses? It set out the Act's long title and commencement, treating the Act as an affirmation of the constitutional commitment to secularism, and it rejected the submission that the Court should interpret religious doctrine in an absolute and extreme form and question the faith of worshippers, saying that nothing would be as destructive of the values underlying article 25.

The compromise in one sentence. Hindi in the Devanagari script became the official language of the Union, English was to continue for fifteen years, and Parliament was left free to extend it. Parliament extended it, and the extension was made politically irreversible in 1967.

The architecture, so the later chapters have a frame

Articles 343 to 344: the Union. The official language, the numerals, the fifteen-year period, and the Commission and Committee that were to review it. Worked in [The Official Language of the Union].

Articles 345 to 347: the States. A State may adopt one or more languages in use in it, or Hindi; the language for communication between States and with the Union; and the President's power to recognise a language spoken by a section of the population of a State.

Articles 348 to 349: the courts and the statute book. English for the Supreme Court and the High Courts and for Bills, Acts and statutory instruments, subject to what a State may do with the President's consent. Worked in [The Language of the Courts and of the Statute Book].

Articles 350 to 350B: the citizen and the minority. Representation in any language used in the Union or the State; facilities for instruction in the mother tongue at the primary stage; and a Special Officer for Linguistic Minorities. Worked in [Constitutional Guarantees to Linguistic Minorities].

Article 351: the directive about Hindi. It is the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India, and to secure its enrichment by assimilating without interfering with its genius the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary primarily on Sanskrit and secondarily on other languages.

Read article 351 carefully, because it is more subtle than students expect. It is a duty to promote AND to enrich by assimilation, which is a direction to make Hindi a common language by taking from the others rather than by displacing them.

Articles 29 and 30 sit outside Part XVII and do most of the work. They were dealt with in [Articles 29 and 30: The Minority's Educational Rights] on the religion side; the language side is [Constitutional Guarantees to Linguistic Minorities].

The Eighth Schedule

What it is. A list of languages, originally fourteen and now twenty-two, which the Constitution recognises for the purposes of articles 344(1) and 351.

What being on it does. It entitles a language to representation on the Commission constituted under article 344(1), and it makes the language one of those from which Hindi is to draw for its enrichment under article 351. It is also used administratively: candidates in public examinations may write in a scheduled language.

What it does NOT do. It does not make a language an official language of the Union, and it does not by itself confer any right on a speaker of it.

The twenty-two. Assamese, Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Nepali, Odia, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu and Urdu. Sindhi was added in 1967; Konkani, Manipuri and Nepali in 1992; and Bodo, Dogri, Maithili and Santhali in 2003.

A worked example

A citizen of Tamil Nadu is prosecuted in a Sessions Court and wants four things: a trial he can follow, a copy of the Act he is charged under in a language he reads, a petition to the Union Government in Tamil, and his daughter taught in Tamil in a Karnataka school where the family now lives.

The trial. The language of a subordinate court is a matter for the State under article 345 and the relevant State legislation; the language of the High Court is English under article 348 unless the Governor with the President's previous consent authorises another.

The Act. Article 348(1)(b) requires the authoritative texts of Bills and Acts to be in English; article 348(3) provides that where a State legislature prescribes another language for Bills or Acts, a translation in English published under the Governor's authority is deemed to be the authoritative text.

The petition. Article 350: every person is entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.

The daughter. Article 350A: it is the endeavour of every State and local authority to provide adequate facilities for instruction in the mother tongue at the primary stage to children belonging to linguistic minority groups. And under [The Medium of Instruction], Karnataka cannot compel her to be taught in Kannada either.

Notice how many different provisions one person needed. That is why this topic is taught as an architecture rather than as a list.

What this does NOT mean

It does not mean Hindi is the national language. The Constitution uses the words "official language of the Union", and it has no provision declaring a national language at all. This is the single commonest error in this topic.

It does not mean English is a foreign language in Indian law. It is an official language of the Union under section 3 of the Official Languages Act 1963 and the language of the higher courts under article 348.

And it does not mean the settlement is finished. Article 344's machinery has largely fallen into disuse, and the arguments about the three-language formula and about the language of the courts are live.

Quick revision

Four questions: the language of the Union, of each State, of communication between them, and the position of everybody else. India's particular problem: no majority language, an administration running in a language almost nobody spoke, and a recent partition. Architecture: articles 343 to 344 the Union; 345 to 347 the States; 348 to 349 the courts and the statute book; 350 to 350B the citizen and the minority; 351 the duty to promote and enrich Hindi by assimilation. Articles 29 and 30 sit outside Part XVII and do most of the protective work. The Eighth Schedule lists twenty-two languages for articles 344(1) and 351 and confers no official status. Hindi is the official language of the Union, not a national language.

Test yourself

1. What four questions about language does a plural country have to settle, and where does the Constitution settle them? The language of the Union, articles 343 and 344; the language of each State and of communication between them, articles 345 to 347; the language of the courts and of the statute book, articles 348 and 349; and the position of those who speak another language, articles 350 to 350B with articles 29 and 30.

2. Why was the ordinary solution not available in India? Because no language is spoken by a majority of Indians, so adopting the majority language was not an option; and because the administration ran in English, which almost nobody spoke, so retaining it entrenched an elite and abandoning it disabled the government.

3. What does article 351 require? That the Union promote the spread of Hindi and develop it as a medium of expression for all the elements of the composite culture of India, securing its enrichment by assimilating, without interfering with its genius, the forms, style and expressions of Hindustani and of the other Eighth Schedule languages, and by drawing for its vocabulary primarily on Sanskrit and secondarily on other languages.

4. What does inclusion in the Eighth Schedule do, and what does it not do? It entitles the language to representation on the Commission under article 344(1) and makes it a source from which Hindi is to be enriched under article 351, and it is used administratively for public examinations. It does not make the language an official language of the Union and confers no right on its speakers by itself.

5. Is Hindi the national language of India? No. The Constitution provides that Hindi in the Devanagari script is the official language of the Union under article 343(1), and it contains no provision declaring any national language at all.

This is the problem articles 350A and 350B, and articles 29 and 30, exist for, and it is the subject of [Constitutional Guarantees to Linguistic Minorities] and [Enforcing Language Rights].

Four: sons of the soil

A linguistic identity becomes a claim on jobs and land within a State. Domicile and residence requirements for public employment, preferences in private employment and campaigns against migrants from other States are the recurring form.

The constitutional answer is in [Regionalism, and India as One Unit]: single citizenship, article 16(2)'s prohibition of discrimination on the ground of residence, and article 19(1)(d) and (e).

The one reported case about the machinery

Facts. Union of India v. Murasoli Maran, AIR 1977 SC 225, (1977) 2 SCC 416, decided 6 December 1976 by Ray CJ with Beg and Jaswant Singh JJ. Presidential Orders of 27 April 1960 and circulars under them made attendance at in-service Hindi training compulsory as part of duty for Central Government employees in the Home Ministry, the Posts and Telegraphs Department and the Railway Board, with consequences for non-attendance. The Madras High Court quashed them as inconsistent with section 3 of the Official Languages Act 1963 as amended in 1968.

Held. The appeals were allowed and the High Court's judgment set aside; the Presidential Order and the orders challenged were upheld. The training was during hours of duty and free of cost, there was no penalty for failure, and there was no treatment of unequals alike; the argument founded on section 3(4) of the Act was unsound.

Why it matters. It is the only reported case in this topic about the machinery of the official-language policy rather than about schools, and it marks the line: the Union may promote Hindi among its own employees under article 351, and may not attach a penalty to failure.

What the law does about the divisiveness

It refuses to make one language the sole official language. Section 3 of the Official Languages Act 1963 provides for English to continue, and the 1967 amendment made the continuance depend on resolutions of the legislatures of every State that has not adopted Hindi, which in practice makes it permanent. That is the single most important legal fact in this topic and it is worked in [The Official Languages Act 1963].

It gives the citizen a right to be heard in their own language. Article 350.

It directs facilities for mother-tongue instruction. Article 350A, and it creates an officer to watch over it, article 350B.

It protects a minority's script and culture and its institutions. Articles 29(1) and 30(1).

It forbids discrimination on the ground of language in admission. Article 29(2), on which The State of Bombay v. Bombay Education Society was decided, worked in [Constitutional Guarantees to Linguistic Minorities].

And it forbids discrimination on residence in public employment. Article 16(2).

The honest assessment MU asks for

The settlement worked, and that is the finding a good answer states. India did not divide over language, no State seceded, and the anti-Hindi agitations ended in a legislative assurance rather than in a constitutional crisis.

What made it work was a concession, not a principle. English was retained indefinitely, which nobody had intended and which advantaged the already educated. The compromise bought peace at the price of an inequality that the Constitution's own drafters had wanted to end.

And the machinery for the minorities is the weak part. Article 350A is an endeavour, article 350B produces reports, and neither creates an enforceable claim, which is the argument in [Enforcing Language Rights].

A worked example

A State makes its own language the sole medium of recruitment examinations for State services, the sole medium of instruction in State primary schools, and a compulsory subject in every school in the State.

The recruitment examination. A State may adopt its own official language under article 345, and conducting its own recruitment in it is within that. A speaker of another language is disadvantaged but not discriminated against on a ground article 16(2) forbids, since language is not among the grounds listed there.

The medium of instruction in primary schools. Cannot be compelled: [The Medium of Instruction] works the case, and the reasoning runs through article 19(1)(a) and article 30(1).

The compulsory subject. May be required, even of a linguistic minority's school. That is Usha Mehta v. State of Maharashtra, worked in the same chapter.

The distinction to state. A compulsory SUBJECT is permissible; a compulsory MEDIUM is not. Almost every question in this topic turns on it.

What this does NOT mean

It does not mean linguistic diversity is a problem. The Constitution treats it as a fact to be accommodated, and article 351 directs Hindi to be enriched from the other languages rather than to replace them.

It does not mean the reorganisation was a mistake. It ended a set of demands that were becoming ungovernable, and the States it created have been stable.

And it does not mean the divisiveness is spent. The three-language formula, the language of the courts and the position of Urdu and of the smaller languages are all live, and an answer that treats the topic as historical is answering the wrong question.

Quick revision

Four ways language divides: it distributes access to the State and therefore employment; reorganisation gave a language a territory and an apparatus; every linguistic State contains linguistic minorities; and sons-of-the-soil movements convert language into a claim on jobs and land. Legal answers: section 3 of the Official Languages Act 1963 with the 1967 amendment; article 350, representation in one's own language; articles 350A and 350B; articles 29(1), 29(2) and 30(1); article 16(2). Murasoli Maran 1976: compulsory in-service Hindi training upheld because it was in duty hours, free, and carried no penalty for failure. Assessment: the settlement held, at the price of retaining English, and the minority machinery is the weak part.

Test yourself

1. Why is the choice of an official language a distributive question? Because a person whose language is the official language can apply for a post, read a file, follow a trial and understand a notice, while a person whose language is not must first learn another language to do any of it. The choice allocates access to the State and therefore to public employment.

2. Name the four ways language operates divisively. By distributing access to the State; by making language a territorial and political identity through the reorganisation of States; by reproducing the problem within each linguistic State for its own minorities; and through sons-of-the-soil claims on jobs and land.

3. What did Murasoli Maran decide? That Presidential Orders and circulars requiring Central Government employees to attend in-service Hindi training as part of duty were valid, the training being in duty hours and free of cost with no penalty for failure, and that the argument based on section 3(4) of the Official Languages Act was unsound.

4. State the distinction on which most questions in this topic turn. A State may make its language a compulsory SUBJECT of study, even in a linguistic minority's school, as Usha Mehta holds; it may not compel that language as the MEDIUM of instruction, as the Karnataka cases hold.

5. Give the honest assessment of the settlement. That it worked, in that India did not divide over language and the agitations ended in a legislative assurance rather than a constitutional crisis; but that it worked by retaining English indefinitely, which advantaged the already educated, and that the machinery protecting linguistic minorities is an endeavour and a reporting officer rather than an enforceable claim.

Read clause (3) as the escape valve the framers built. They fixed a date and gave a future Parliament the power to move past it without an amendment. It is the reason the language settlement did not require a constitutional crisis to change.

Article 344: the machinery for review

Clause (1). The President shall, at the expiration of five years from the commencement of the Constitution and thereafter at the expiration of ten years from such commencement, by order constitute a Commission consisting of a Chairman and such other members representing the different languages specified in the Eighth Schedule as the President may appoint.

Clause (2), what the Commission is to recommend. The progressive use of Hindi for the official purposes of the Union; restrictions on the use of English for any or all of those purposes; the language to be used for the proceedings in the Supreme Court and the High Courts and for Bills, Acts, Ordinances, orders, rules, regulations and bye-laws; the form of numerals to be used for any one or more specified purposes; and any other matter referred by the President.

Clause (3), the constraint on the Commission. In making its recommendations the Commission shall have due regard to the industrial, cultural and scientific advancement of India, and to the just claims and the interests of persons belonging to the non-Hindi speaking areas in regard to the public services.

That clause is the constitutional statement of what this topic is about. The framers wrote the employment question into the Constitution itself.

Clause (4). A Committee of thirty members of Parliament, twenty from the House of the People and ten from the Council of States, elected by proportional representation by means of the single transferable vote, to examine the Commission's recommendations and report to the President.

Clause (6). The President may, after consideration of that report, issue directions in accordance with the whole or any part of it.

In practice the machinery has largely lapsed. A Commission was constituted in 1955 under B.G. Kher and a Committee under Gopalaswami Ayyangar reported in 1959, and no Commission has been constituted since. The Committee of Parliament on Official Language now functions under section 4 of the Act of 1963 rather than under article 344.

Articles 345 to 347: the States

Article 345. Subject to articles 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State; until it does so, English continues to be used for the official purposes within the State for which it was being used immediately before the commencement of the Constitution.

Article 346. The language for the time being authorised for use in the Union for official purposes shall be the official language for communication between one State and another and between a State and the Union; but if two or more States agree that Hindi should be the language for communication between them, that language may be used.

Article 347. On a demand being made in that behalf the President may, if satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognised by that State, direct that such language shall also be officially recognised throughout that State or any part of it for such purpose as he may specify.

Article 347 is the provision least used and most useful to know. It is the constitutional route by which a language spoken by a large minority within a State can obtain official recognition there, and it operates on a Presidential direction rather than on a State's willingness.

Article 348: the courts and the statute book

Clause (1). Until Parliament by law otherwise provides, all proceedings in the Supreme Court and in every High Court, and the authoritative texts of all Bills, Acts, Ordinances, orders, rules, regulations and bye-laws, shall be in the English language.

Clause (2). The Governor of a State may, with the previous consent of the President, authorise the use of Hindi or of any other language used for any official purposes of the State in proceedings in the High Court for that State, but not in respect of any judgment, decree or order passed or made by it.

Clause (3). Where a State legislature has prescribed a language other than English for Bills, Acts, Ordinances, orders, rules, regulations and bye-laws, a translation in English published under the Governor's authority in the Official Gazette shall be deemed to be the authoritative text.

The article is worked in full in [The Language of the Courts and of the Statute Book].

A worked example

A State legislature in 2026 adopts its regional language for all official purposes of the State and wishes its High Court to work in that language.

Adopting it for the State. Article 345 permits it, and the language must be one in use in the State, or Hindi.

Communicating with the Union. Article 346, and the first proviso to section 3(1) of the Official Languages Act: English shall be used for communication between the Union and a State that has not adopted Hindi.

Proceedings in the High Court. Article 348(2): the Governor may authorise it with the President's previous consent, but NOT for a judgment, decree or order.

Judgments in that language. Section 7 of the Official Languages Act 1963 supplies what article 348(2) withholds: the Governor may, with the President's previous consent, authorise the use of Hindi or the State's official language in addition to English for a judgment, decree or order, and an English translation is then required.

The point of the example. The Constitution and the Act have to be read together at every step, and the Act supplies exactly what the Constitution withholds. That is why the two chapters are consecutive.

What this does NOT mean

It does not mean English ceased to be usable in 1965. Article 343(3) and the Act of 1963 provided for its continuance, and section 3(5) of the Act made the continuance effectively permanent.

It does not mean a State must adopt Hindi. Article 345 lets it adopt any language in use in the State.

And it does not mean the Union's official language is a national language. The Constitution has no provision on a national language at all.

Quick revision

Article 343(1): Hindi in Devanagari, international form of numerals. 343(2): English for fifteen years, to 26 January 1965, with a Presidential power to add Hindi. 343(3): Parliament may by law provide for English after that period. Article 344(1): Commission at five and at ten years, members representing Eighth Schedule languages; 344(2) what it recommends; 344(3) due regard to the just claims and interests of the non-Hindi speaking areas in the public services; 344(4) a Committee of thirty members of Parliament, twenty and ten, by single transferable vote; 344(6) Presidential directions. Article 345: a State may adopt any language in use in it, or Hindi. Article 346: the Union's language for inter-State and State-Union communication, with a Hindi option by agreement. Article 347: Presidential recognition of a language desired by a substantial proportion of a State's population. Article 348: English for the Supreme Court, the High Courts and the statute book, with clause (2) and clause (3) exceptions.

Test yourself

1. Set out article 343 in three clauses. Clause (1), the official language of the Union is Hindi in Devanagari script and the numerals are the international form of Indian numerals. Clause (2), English continues for all official purposes for fifteen years from the commencement, with a Presidential power to authorise Hindi in addition. Clause (3), Parliament may by law provide for the use of English after that period for such purposes as it specifies.

2. What was the Commission under article 344 required to have regard to? The industrial, cultural and scientific advancement of India, and the just claims and the interests of persons belonging to the non-Hindi speaking areas in regard to the public services.

3. What does article 347 permit? That on a demand being made, the President, if satisfied that a substantial proportion of a State's population desire the use of a language spoken by them to be recognised, may direct that the language be officially recognised throughout the State or any part of it for such purpose as he specifies.

4. What is the rule for communication between a State and the Union? Article 346: the language for the time being authorised for use in the Union. Section 3(1) of the Official Languages Act adds the proviso that English shall be used for communication between the Union and a State that has not adopted Hindi as its official language.

5. Can a High Court deliver a judgment in a language other than English? Not under article 348(2), which expressly excludes judgments, decrees and orders. It can under section 7 of the Official Languages Act 1963, by which the Governor with the President's previous consent may authorise Hindi or the State's official language in addition to English for that purpose, an English translation then being required.

Subsection (4). The Central Government may by rules provide for the language or languages to be used for the official purposes of the Union, including the working of any Ministry, Department, section or office; and in making such rules due consideration shall be given to the quick and efficient disposal of official business and the interests of the general public, and the rules shall ensure that persons serving in connection with the affairs of the Union and having proficiency either in Hindi or in English may function effectively and are not placed at a disadvantage on the ground that they do not have proficiency in both languages.

Subsection (4) is the employment guarantee, and it should be quoted. A servant of the Union who knows one of the two languages must not be disadvantaged for not knowing both. That is the answer to the fear that produced the agitations.

Section 3(5), the assurance

The text. The provisions of clause (a) of sub-section (1), and the provisions of sub-sections (2), (3) and (4), shall remain in force until resolutions for the discontinuance of the use of the English language for the purposes mentioned therein have been passed by the Legislatures of all the States which have not adopted Hindi as their official language, and until after considering the resolutions aforesaid, a resolution for such discontinuance has been passed by each House of Parliament.

What that means in practice. English cannot be discontinued unless EVERY non-Hindi State's legislature passes a resolution asking for it, and then both Houses of Parliament do the same. One State's refusal is a veto.

Why it is here. Section 3 as originally enacted in 1963 said only that English "may" continue, which the non-Hindi States read as a permission that a future Parliament could withdraw. The agitations of 1965 followed. The amending Act of 1968 substituted the section and added subsections (4) and (5), converting a permission into a guarantee that no Union government can revoke alone.

The examinable point. This is the clearest instance in Indian law of a political settlement being made irreversible by a drafting device rather than by a constitutional amendment. It is worth stating as such.

The remaining sections

Section 4. A Committee on Official Language, constituted after ten years from the coming into force of section 3, on a resolution moved in either House with the previous sanction of the President and passed by both Houses. Thirty members, twenty from the House of the People and ten from the Council of States, elected by proportional representation by means of the single transferable vote. Its duty is to review the progress made in the use of Hindi for the official purposes of the Union and to report to the President, who lays the report before each House and sends it to all State Governments and may issue directions in accordance with the whole or any part of it, with the proviso that the directions shall not be inconsistent with section 3.

That proviso matters. The Committee cannot be used to do what section 3(5) forbids.

Section 5. A Hindi translation of a Central Act or Ordinance, or of any order, rule, regulation or bye-law under the Constitution or a Central Act, published under the authority of the President in the Official Gazette, is deemed to be the authoritative text in Hindi; and from the appointed day the authoritative English text of every Bill and amendment in either House must be accompanied by an authorised Hindi translation.

Section 6. Where a State legislature has prescribed a language other than Hindi for its Acts and Ordinances, a Hindi translation, in addition to the English translation required by article 348(3), may be published under the Governor's authority, and is then deemed the authoritative text in Hindi.

Section 7. From the appointed day or any day thereafter, the Governor of a State may, with the previous consent of the President, authorise the use of Hindi or the official language of the State, in addition to English, for the purposes of any judgment, decree or order passed or made by the High Court for that State; where one is so passed, an English translation is required.

Section 7 is what article 348(2) withholds. Article 348(2) allows a State's language in High Court proceedings but expressly not in a judgment; section 7 supplies the judgment.

Section 8. Power of the Central Government to make rules, under which the Official Languages Rules 1976 were made.

Section 9. Omitted. It had excluded Jammu and Kashmir from the Act's operation, and it went with the reorganisation of 2019.

A worked example

A Union Ministry writes to the Government of Tamil Nadu in Hindi alone, and disciplinary action is proposed against an officer of that Ministry who cannot read Hindi.

The letter. The first proviso to section 3(1) is mandatory: English SHALL be used for communication between the Union and a State which has not adopted Hindi. Tamil Nadu has not, so the communication was irregular.

The officer. Section 3(4) requires the rules to ensure that a person serving in connection with the affairs of the Union and having proficiency in either Hindi or English may function effectively and is not placed at a disadvantage for lacking proficiency in both.

And if the Ministry says a Parliamentary Committee recommended otherwise. Section 4(4)'s proviso: the President's directions on the Committee's report shall not be inconsistent with section 3.

The pattern. Every one of the three answers is in section 3 or in a proviso attached to it, which is why the section is the whole Act for examination purposes.

What this does NOT mean

It does not mean English is an official language of the States. Each State chooses under article 345.

It does not mean Hindi has no special position. Article 351 imposes a duty to promote it, and the Act's own machinery in sections 4, 5 and 6 exists to advance its use.

And it does not mean the Act settled everything. The three-language formula, the language of recruitment and the language of the subordinate courts are outside it.

Quick revision

Official Languages Act 1963, made under article 343(3); section 3 in force 26 January 1965; section 3 substituted by the amending Act of 1968. Section 3(1): English may continue in addition to Hindi for all official purposes of the Union and for business in Parliament. Three provisos: English SHALL be used to a non-Hindi State; Hindi to a non-Hindi State must carry an English translation; a non-Hindi State may itself use Hindi. Section 3(4): rules must ensure a servant of the Union proficient in either language is not disadvantaged for lacking both. Section 3(5): discontinuance requires resolutions of ALL non-Hindi State legislatures and then of each House of Parliament. Section 4: Committee of thirty, twenty and ten, single transferable vote; directions not inconsistent with section 3. Section 5: authoritative Hindi texts. Section 6: State Acts. Section 7: Hindi or the State language in a High Court judgment with the President's consent. Section 8: rules. Section 9: omitted.

Test yourself

1. Under which constitutional provision was the Act made, and what does its section 3(1) do? Under article 343(3). Section 3(1), as substituted in 1968, provides that notwithstanding the expiry of the fifteen-year period, English may continue to be used in addition to Hindi for all the official purposes of the Union for which it was being used, and for the transaction of business in Parliament.

2. State the three provisos to section 3(1). English shall be used for communication between the Union and a State which has not adopted Hindi; where Hindi is used between a Hindi State and a non-Hindi State it must be accompanied by an English translation; and nothing prevents a non-Hindi State from itself using Hindi with the Union or with a Hindi State or by agreement with any other State, in which case English is not obligatory.

3. Quote the effect of section 3(5) and explain why it matters. That the relevant provisions remain in force until resolutions for the discontinuance of English have been passed by the legislatures of ALL States which have not adopted Hindi, and thereafter by each House of Parliament. It matters because it gives every non-Hindi State a veto and so converts a legislative permission into a guarantee no Union government can revoke alone.

4. What does section 3(4) guarantee? That the rules made for the language of the Union's official business shall ensure that persons serving in connection with the affairs of the Union who have proficiency in either Hindi or English may function effectively and are not placed at a disadvantage on the ground that they lack proficiency in both.

5. What does section 7 supply that article 348(2) withholds? Article 348(2) allows the Governor with the President's consent to authorise Hindi or a State language in High Court proceedings but expressly not for a judgment, decree or order. Section 7 permits exactly that, with the President's previous consent and subject to an English translation being provided.

And the Union's promotion duty is drafted federally. Article 351 tells the Union to develop Hindi by ASSIMILATING the forms, style and expressions of Hindustani and of the other Eighth Schedule languages and by drawing on Sanskrit and other languages, which is a direction to build a common language out of the parts rather than to replace them.

How the structure reflects cultural diversity

The Eighth Schedule recognises twenty-two languages and has been amended four times to add more: Sindhi in 1967, Konkani, Manipuri and Nepali in 1992, and Bodo, Dogri, Maithili and Santhali in 2003. A list that grows is an admission that the recognition is of a fact rather than a grant.

Article 29(1) protects a distinct language, script OR culture, so a community with a distinct script but a shared language, or a distinct culture but a shared language, is protected.

Article 350 lets a person address the State in their own language, which treats the citizen's language rather than the government's as the starting point.

And article 347 recognises that a State's boundaries do not contain its languages. A substantial linguistic population inside a State can obtain official recognition there by Presidential direction.

The three-language formula

What it is. A policy, not a law: it originated in the National Policy on Education of 1968 and has been restated since, most recently in the National Education Policy 2020. Its normal form is that a student in a Hindi-speaking State learns Hindi, English and a modern Indian language preferably from the south; and a student in a non-Hindi State learns the regional language, Hindi and English.

Its legal status. It is executive policy, so it binds a school only through the conditions of affiliation or recognition, and it has never been enacted. That is why litigation about it is litigation about a policy decision rather than about a statute.

Its main difficulty in practice. It has been implemented asymmetrically, the southern language rarely being taught in the Hindi States, so a policy designed as an exchange has operated as a one-way requirement. That is the criticism to state, and it is a fair one.

And the case that fixes its limit. Usha Mehta v. State of Maharashtra upheld a State's power to make the regional language a compulsory subject even for a linguistic minority's schools, and it is worked in [The Medium of Instruction].

The classical languages

A separate administrative recognition, and not a constitutional one. Since 2004 the Union has conferred classical-language status on a number of languages, beginning with Tamil, on criteria of antiquity, an independent literary tradition and a body of ancient literature.

What it does. It carries funding for study and for centres of excellence. It confers no official status and no right, and it is not the Eighth Schedule.

Why it belongs in an answer. It shows the same pattern as the rest of the topic: recognition is given at the level appropriate to what is being recognised, and cultural recognition is kept separate from official status.

A worked example

A speaker of a language recognised in the Eighth Schedule but not adopted by any State asks what the Constitution does for them.

At the Union level. Their language is represented on the Commission under article 344(1) and is one of those from which Hindi is to be enriched under article 351. They may address any officer or authority of the Union in it under article 350.

At the State level. If a substantial proportion of the State's population desire it, the President may direct its official recognition there under article 347.

In education. If they are a linguistic minority in the State, article 350A requires the State to endeavour to provide facilities for primary instruction in the mother tongue, article 29(1) protects their right to conserve the language and script, and article 30(1) gives them the right to establish and administer their own institutions.

And what the Constitution does not give them. Any right that their language be an official language of any government, and any right to be taught in it beyond the primary stage.

That last line is the honest limit, and an answer that gives it is stronger than one that recites only the protections.

What this does NOT mean

It does not mean every language is equal in law. Hindi has article 351, English has section 3, the Eighth Schedule languages have article 344(1), and the rest have article 347 and articles 29 and 350.

It does not mean the three-language formula is legally binding. It is policy, and it reaches a school through recognition or affiliation.

And it does not mean the structure is free of conflict. The medium-of-instruction litigation and the arguments about the language of recruitment are the structure under strain, and they are the subject of the next chapters.

Quick revision

Four levels: the Union, Hindi and English; the State, article 345; between them, article 346 with the provisos to section 3(1) of the Act; below the State, article 347 and articles 350 to 350B. Federal features: no imposition downward or upward; a statutory veto for every non-Hindi State legislature in section 3(5); and article 351's duty to enrich Hindi by assimilating the other languages. Diversity features: an Eighth Schedule that has grown from fourteen to twenty-two, amended in 1967, 1992 and 2003; article 29(1)'s protection of language, script or culture; article 350's right to petition in one's own language; article 347's recognition of a language within a State. The three-language formula is POLICY, from 1968 and restated in 2020, and is criticised for asymmetrical implementation. Classical-language status is administrative and confers no official status.

Test yourself

1. Describe the four levels of the Indian language settlement. The Union, where Hindi is the official language and English continues under the Act; the State, which adopts its own under article 345; the relation between them, governed by article 346 and the provisos to section 3(1); and the level below the State, where article 347 permits Presidential recognition of a language and articles 350 to 350B protect the individual and the linguistic minority.

2. Give three ways the settlement is federal. No language is imposed downward, since a State's choice under article 345 is its own; none is imposed upward, since article 346 makes both meet in the Union's language; and section 3(5) of the Act gives every non-Hindi State legislature a veto over the discontinuance of English.

3. How has the Eighth Schedule reflected cultural diversity over time? It has grown from fourteen languages to twenty-two: Sindhi added in 1967, Konkani, Manipuri and Nepali in 1992, and Bodo, Dogri, Maithili and Santhali in 2003, which shows recognition following a fact rather than conferring a status.

4. What is the three-language formula and what is its legal status? A policy under which a student in a Hindi State learns Hindi, English and a modern Indian language preferably from the south, and a student in a non-Hindi State learns the regional language, Hindi and English. It is executive policy from 1968, restated in 2020, not a statute, and it reaches a school through recognition or affiliation.

5. What does the Constitution NOT give a speaker of an Eighth Schedule language? Any right that the language be an official language of any government, and any right to be educated in it beyond the primary stage. What it gives is representation on the article 344(1) Commission, enrichment of Hindi from it under article 351, the right to petition in it under article 350, possible recognition under article 347, and the protections of articles 29, 30 and 350A.

Why it matters. It is the authority that SCRIPT is a distinct protected thing, and that compulsory affiliation carries with it an obligation on the university to accommodate the institution it has affiliated.

Article 29(2): admission

The text. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Facts. The State of Bombay v. Bombay Education Society, AIR 1954 SC 561, 1955 SCR 568, decided 26 May 1954 by Das J with Mahajan CJ, Ghulam Hasan, Bhagwati and Jagannadhadas JJ. A circular of the Government of Bombay prohibited schools maintained or aided by the State and using English as the medium from admitting any pupil other than one belonging to a community whose language is English, that is, Anglo-Indians and citizens of non-Asiatic descent. Parents and school societies challenged it.

Held. The circular was unconstitutional. Denying admission to a pupil whose mother tongue is not English is a denial on the ground of language, which article 29(2) forbids in a State-maintained or aided institution. The order would also compel Anglo-Indian schools to breach their obligation under the second proviso to article 337 and so forfeit their right to the special grants. On either view it could not stand.

Why it matters. It is the first and clearest authority that article 29(2) reaches a language-based exclusion, and it is an individual citizen's right, not a group's.

And note the tension it creates with article 30(1), which is reconciled in the way set out in [Articles 29 and 30: The Minority's Educational Rights].

Article 30: establishing and administering

The three clauses are set out in the religion chapter and are not repeated. What matters for language is that article 30(1) says "all minorities, whether based on religion or LANGUAGE", so a linguistic minority holds exactly the same right as a religious one, and the same case law applies.

The unit is the STATE. T.M.A. Pai Foundation v. State of Karnataka held it, and the reasoning is specifically linguistic: India is divided into linguistic States carved out on the language of the majority in each, so a linguistic minority can only be identified in relation to a particular State; and since article 30(1) puts religious and linguistic minorities on a par, the same unit serves both.

The consequence is the one students find counter-intuitive. Marathi speakers are a linguistic minority in Karnataka and hold article 30 rights there, however large the community is nationally.

Articles 350, 350A and 350B

Article 350. Every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.

Note that it says every PERSON, not every citizen, and that the language need only be one "used in" the Union or the State, which is wider than an official language.

Article 350A, inserted by the Seventh Amendment in 1956. It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.

Two limits are on its face. It is an "endeavour", so it does not create an enforceable right to a school; and it is confined to the PRIMARY stage.

And one thing it is NOT. It is not a power to compel. In State of Karnataka v. Associated Management of Primary and Secondary Schools the Constitution Bench held expressly that article 350A cannot be read as empowering a State to compel a linguistic minority to choose its mother tongue as the only medium in a school it has established, because that would violate article 30(1). The case is worked in [The Medium of Instruction].

Article 350B, inserted by the same amendment. There shall be a Special Officer for Linguistic Minorities appointed by the President, whose duty it shall be to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution and to report to the President upon those matters at such intervals as the President may direct; the President shall cause all such reports to be laid before each House of Parliament and sent to the Governments of the States concerned.

Article 347. Presidential recognition of a language desired by a substantial proportion of a State's population, set out in [The Official Language of the Union].

The honest assessment

The educational guarantees are strong and enforceable. Articles 29(2) and 30(1) are fundamental rights, and the cases above show them being enforced against universities and State governments.

The Part XVII guarantees are weak. Article 350A is an endeavour; article 350B produces reports; article 347 depends on a Presidential direction that is rarely sought. None of them creates a claim a person can bring.

So the practical position is this. A linguistic minority that can establish its own school is well protected; one that depends on the State to provide instruction in its language is protected by an endeavour. That distributes the guarantee according to the resources of the community, which is the criticism to state and the subject of [Enforcing Language Rights].

A worked example

A Tamil-speaking family in Gujarat wants four things.

Their daughter admitted to a State-aided Gujarati-medium school. Article 29(2): she cannot be denied admission on the ground of language.

A Tamil-medium primary class in the district. Article 350A: an endeavour on the State and the local authority, and the President may direct. No enforceable right to the class.

A Tamil school of their own. Article 30(1): they are a linguistic minority in Gujarat, whatever the position in Tamil Nadu, and they may establish and administer it; article 30(2) forbids discrimination against it in the grant of aid.

To petition the Collector in Tamil. Article 350 gives the right if Tamil is a language used in the Union, which it is.

And if nothing happens about the primary class? The Special Officer under article 350B may investigate and report. That is the remedy, and it is a report.

What this does NOT mean

It does not mean article 29(1) is only for minorities. It protects any section of citizens with a distinct language, script or culture.

It does not mean article 350A gives a right to a school in one's own language. It is an endeavour, confined to the primary stage.

And it does not mean a minority school is unregulated. St. Xavier's and T.M.A. Pai apply to a linguistic minority's institution exactly as to a religious one.

Quick revision

Six provisions. Article 29(1): any section of citizens with a distinct language, SCRIPT or culture may conserve it; not confined to minorities; D.A.V. College protects the script and holds that compulsory affiliation obliges the university to accommodate. Article 29(2): no denial of admission to a State-maintained or aided institution on grounds only of language; Bombay Education Society. Article 30(1), (1A) and (2): a linguistic minority has the same rights as a religious one; the unit is the STATE, T.M.A. Pai. Article 347: Presidential recognition within a State. Article 350: every PERSON may petition in any language used in the Union or the State. Article 350A, Seventh Amendment 1956: an ENDEAVOUR to provide primary instruction in the mother tongue, with a Presidential power to direct; it is not a power to compel. Article 350B: a Special Officer who investigates and reports to the President, whose reports are laid before Parliament.

Test yourself

1. Name the six provisions and what each does. Article 29(1), conserving a distinct language, script or culture; article 29(2), no denial of admission on the ground of language; article 30, establishing and administering institutions; article 347, Presidential recognition of a language within a State; article 350, petitioning in one's own language; and articles 350A and 350B, primary instruction in the mother tongue and the Special Officer.

2. What did D.A.V. College decide, and which right did it protect? That circulars of Punjabi University making Punjabi the sole medium of instruction and examination in compulsorily affiliated colleges were ultra vires and unconstitutional, because a university that has compulsorily affiliated a college must allow it to administer itself, teach in its own medium and examine in its own SCRIPT. It protected the right to conserve a script under article 29(1) with article 30(1).

3. Why is Bombay Education Society important? Because it held that refusing admission to a State-aided English-medium school to a pupil whose mother tongue is not English is a denial on the ground of language contrary to article 29(2), which is an individual citizen's right subject to no exception.

4. State the two limits written into article 350A and the third the courts have added. It is an endeavour rather than a duty, so it creates no enforceable right; it is confined to the primary stage; and, on the Associated Management case, it cannot be read as empowering the State to compel a linguistic minority to adopt its mother tongue as the only medium.

5. Give the honest assessment of these guarantees. That the educational guarantees in articles 29(2) and 30 are fundamental rights and are enforced, while the Part XVII guarantees are an endeavour, a reporting officer and a rarely sought Presidential direction. The protection is therefore strongest for a community able to establish its own institutions and weakest for one that must depend on the State.

The sequence

Before independence. The Congress had accepted the principle of linguistic provinces from the 1920s, and its own organisational units were built on language rather than on the provinces of British India.

1948, the Dhar Commission. The Linguistic Provinces Commission, chaired by S.K. Dhar, reported against reorganisation on a purely linguistic basis, recommending administrative convenience as the primary criterion.

1949, the JVP Committee. Jawaharlal Nehru, Vallabhbhai Patel and Pattabhi Sitaramayya reported to much the same effect, that reorganisation should wait, though it accepted that a case for Andhra existed.

1952 to 1953, Andhra. Potti Sriramulu fasted for a separate Andhra State and died after fifty-eight days. Andhra State was constituted in 1953, the first State formed on a linguistic basis, and it made the general question unavoidable.

1953 to 1955, the States Reorganisation Commission. Fazl Ali as chairman with K.M. Panikkar and H.N. Kunzru; its report of 1955 recommended reorganisation broadly on a linguistic basis while rejecting the principle of one language one State.

1956, the Act. The States Reorganisation Act 1956, with the Seventh Amendment, redrew the map into fourteen States and six Union Territories and abolished the Part A, Part B and Part C classification of the original Constitution.

And afterwards. Bombay was divided into Maharashtra and Gujarat in 1960; Punjab into Punjab and Haryana in 1966; and the north-eastern States were reorganised from 1963 onwards. The process did not stop in 1956 and has not stopped: Chhattisgarh, Uttarakhand and Jharkhand in 2000, and Telangana in 2014, were not created on a linguistic basis at all.

What the reorganisation settled and what it did not

It settled the demand. A set of agitations that were becoming ungovernable ended in a legislative solution, and the States created have been stable.

It made administration comprehensible. A State whose government works in the language of most of its people can be dealt with by most of its people, which is the practical case for the whole exercise.

It did NOT dissolve linguistic minorities. Every linguistic State contains speakers of other languages, and articles 29, 30, 350A and 350B exist because reorganisation could not reach them. That is the point made in [Constitutional Guarantees to Linguistic Minorities].

It did NOT settle the borders. Belgaum, claimed by Maharashtra and held by Karnataka, has been in dispute since 1956 and is before the Supreme Court. Every linguistic boundary leaves people on the wrong side of it.

And it produced a new politics. A language acquired a State, a government, a police force and a treasury. That is a far sharper instrument than a cultural identity, and it is one of the four ways language divides, set out in [Language as a Divisive Factor].

The argument against linguistic States, which a good answer states

That it would encourage separatism. This was the Dhar Commission's and the JVP Committee's fear, and it did not materialise: no linguistic State has seceded and the demand for reorganisation has proved compatible with the Union.

That it would make the linguistic minority within each State worse off. This one did materialise, and it is why the Seventh Amendment inserted articles 350A and 350B in the same year as the reorganisation.

That administrative convenience should come first. The later States, Chhattisgarh, Uttarakhand, Jharkhand and Telangana, were created on precisely that ground, which shows that the linguistic principle was never exclusive.

A worked example

A district on the border of two States speaks the language of the neighbouring State and petitions for transfer.

The mechanism. Article 3: Parliament may by law diminish the area of one State and increase that of another and alter their boundaries.

The procedure. The President must recommend the Bill's introduction, and must refer it to the legislature of every State whose area, boundaries or name is affected, for its views within a specified period.

What the State legislatures can do about it. Express a view. They cannot block it, and Parliament may pass the Bill whatever they say.

And what the residents can do about it. Nothing directly: there is no right in the Constitution to be governed by a State of one's own language, and no referendum requirement. The remedies of a linguistic minority are articles 29, 30, 347, 350, 350A and 350B, and they operate where the person is.

What this does NOT mean

It does not mean India adopted one language one State. The States Reorganisation Commission rejected that principle expressly, and Hindi is the language of several States.

It does not mean reorganisation requires a constitutional amendment. Article 4 says in terms that such a law is not an amendment for the purposes of article 368.

And it does not mean the linguistic principle governs all reorganisation. The four States created since 2000 were not created on it.

Quick revision

Article 3: Parliament may by law form, increase, diminish, alter the boundaries of or rename a State; the proviso requires the President's recommendation and a reference to the affected State legislature for its VIEWS, which do not bind. Article 4: supplemental provisions, and such a law is not an amendment under article 368. Sequence: Congress accepted linguistic provinces from the 1920s; Dhar Commission 1948 against; JVP Committee 1949 against but conceding Andhra; Potti Sriramulu's fast and death, Andhra State 1953; States Reorganisation Commission 1955, Fazl Ali with Panikkar and Kunzru; States Reorganisation Act 1956 with the Seventh Amendment, fourteen States and six Union Territories. Later: Maharashtra and Gujarat 1960, Haryana 1966, and Chhattisgarh, Uttarakhand and Jharkhand 2000 and Telangana 2014 on non-linguistic grounds.

Test yourself

1. Under what provision were the States reorganised, and what does the proviso require? Article 3, under which Parliament may by law form a new State or alter areas, boundaries or names. The proviso requires the President's recommendation for the Bill and a reference to the legislature of every affected State for expressing its views within a specified period.

2. Do the affected State legislatures have a veto? No. The proviso requires their views to be EXPRESSED, not their consent to be obtained, and Parliament may proceed whatever they say. A State of the Indian Union has no veto over its own boundaries.

3. Why does article 4 matter? Because it provides that a law made under article 2 or article 3 may contain supplemental, incidental and consequential provisions and shall not be deemed an amendment of the Constitution for the purposes of article 368, so the whole reorganisation was carried out by ordinary legislation.

4. Give the sequence from the Dhar Commission to the Act of 1956. The Dhar Commission of 1948 reported against reorganisation on a purely linguistic basis; the JVP Committee of 1949 agreed while conceding a case for Andhra; Potti Sriramulu's fast and death led to Andhra State in 1953; the States Reorganisation Commission under Fazl Ali reported in 1955; and the States Reorganisation Act 1956, with the Seventh Amendment, redrew the map.

5. What did the reorganisation fail to settle? The position of linguistic minorities inside every new State, which is why articles 350A and 350B were inserted by the Seventh Amendment in the same year; and the borders themselves, of which the Belgaum dispute between Maharashtra and Karnataka is the longest running.

Its principal recommendations, and these are the ones MU's question is asking for.

One: reorganisation broadly on a linguistic basis, but not on the principle of one language one State. The Commission expressly rejected that formula, and Hindi remained the language of several States.

Two: four factors rather than one. The preservation and strengthening of the unity and security of India; linguistic and cultural homogeneity; financial, economic and administrative considerations; and the successful working of the national plan.

Three: abolition of the Part A, Part B and Part C classification of States that the Constitution had inherited from the princely and provincial arrangements, and their replacement by a single class of States with Union Territories separately administered.

Four: safeguards for linguistic minorities inside the new States, which produced articles 350A and 350B by the Seventh Amendment in the same year as the Act.

Five: it declined to divide Bombay. The Commission recommended a bilingual Bombay State; the agitations that followed produced Maharashtra and Gujarat four years later, in 1960.

The outcome. The States Reorganisation Act 1956 with the Seventh Amendment, producing fourteen States and six Union Territories.

The Sarkaria Commission, which MU's question names

What it actually was. The Commission on Centre-State Relations, appointed in 1983 under Justice R.S. Sarkaria, a retired judge of the Supreme Court, with B. Sivaraman and S.R. Sen. It reported in 1988.

What it was asked to do. To examine and review the working of the existing arrangements between the Union and the States in regard to powers, functions and responsibilities in all spheres, and to recommend changes within the framework of the Constitution.

Three of its recommendations, in case an examiner wants them. That article 356 be used very sparingly and only as a last resort, all alternatives having failed; that the Governor be appointed after consultation with the Chief Minister and be an eminent person from outside the State not having taken part in active politics recently; and that a permanent Inter-State Council be established under article 263, which was done in 1990.

Why it belongs in this chapter at all. Only because MU's printed question names it. A student who writes about Centre-State relations in answer to a question about the division of area on the basis of language has answered the question as printed; a student who writes about the States Reorganisation Commission has answered the question as intended. The safest answer does both, in two sentences, and then gives the substance.

How to answer MU's question

Say what the question appears to intend. Recommendations on the division of territory on the basis of language, which is the States Reorganisation Commission of 1955.

Give its recommendations. Any three of the five above.

Then note the position accurately and briefly. That the Sarkaria Commission of 1983 to 1988 was on Centre-State relations, and give one or two of its recommendations so that the question as printed is also answered.

Do not spend the answer on the discrepancy. One sentence establishes that you know; the marks are in the substance.

A worked comparison

A worked example

A speakers' group in a district on a State border petitions for the district to be transferred to the neighbouring State, where its language is the official language. What does the law require, and what do the Commissions contribute?

Step one, who decides. Parliament, under article 3. It may form a new State, increase or diminish the area of any State, or alter its boundaries or name, by ordinary law passed by a simple majority.

Step two, the two conditions. The Bill may be introduced only on the President's recommendation, and only after the President has referred it to the Legislature of every affected State for its views within a stated period.

Step three, how binding the State's view is. It is not. The President must REFER and must allow the time; the views need not be accepted, and Parliament may proceed against them. That is why reorganisation in India is a central act and not a compact between States.

Step four, whether it is a constitutional amendment. No. Article 4 provides that a law under article 3 making the consequential changes in the First and Fourth Schedules shall not be deemed an amendment for the purposes of article 368.

Step five, what the Commissions supply. Not law, but the standard. The States Reorganisation Commission's report is the reasoning Parliament has used since 1956: that language is a proper basis but not the only one, that administrative convenience, financial viability and the unity of the country count too, and that the formula of one language one State is rejected. The petition therefore has to argue more than that the language matches.

And the answer to give. The group's remedy is political, addressed to Parliament through the Union Government, tested against the SRC's criteria; there is no judicially enforceable right to be transferred, and article 3 leaves the question with the legislature.

What this does NOT mean

It does not mean MU's question is unanswerable. It means the answer has to name the right bodies and dispose of the wrong one in a sentence.

It does not mean the Sarkaria Commission is irrelevant to this paper. Centre-State relations bear on several topics, and its recommendation on article 356 belongs with the discussion of Bommai in the religion topic.

And it does not mean the Dhar and JVP reports were wrong. They were overtaken, which is not the same thing, and their central worry, that linguistic reorganisation would harm linguistic minorities within the new States, turned out to be right.

Quick revision

Dhar Commission 1948, Linguistic Provinces Commission, S.K. Dhar: against a purely linguistic basis, administrative convenience first. JVP Committee 1949, Nehru, Patel and Sitaramayya: postpone, though Andhra may be conceded. States Reorganisation Commission 1953-55, Fazl Ali with Panikkar and Kunzru: reorganise broadly on language but reject one language one State; four factors, unity and security, linguistic and cultural homogeneity, financial economic and administrative considerations, and the national plan; abolish the Part A, B and C classification; safeguards for linguistic minorities, which produced articles 350A and 350B; a bilingual Bombay, divided in 1960 anyway. Result: States Reorganisation Act 1956 and the Seventh Amendment. Sarkaria Commission 1983-88: CENTRE-STATE RELATIONS, not language; article 356 as a last resort, the Governor an eminent outsider appointed after consulting the Chief Minister, and a permanent Inter-State Council under article 263, established 1990.

Test yourself

1. Which three bodies reported on reorganisation on a linguistic basis, and what did each conclude? The Dhar Commission 1948, against a purely linguistic basis and for administrative convenience; the JVP Committee 1949, for postponement while conceding a case for Andhra; and the States Reorganisation Commission 1955, for reorganisation broadly on a linguistic basis while rejecting the principle of one language one State.

2. Give three recommendations of the States Reorganisation Commission. Reorganisation broadly on language but not on one language one State; four factors including the unity and security of India, linguistic and cultural homogeneity, financial and administrative considerations and the national plan; and the abolition of the Part A, Part B and Part C classification of States. It also recommended safeguards for linguistic minorities and a bilingual Bombay.

3. What was the Sarkaria Commission, and give two of its recommendations. The Commission on Centre-State Relations, appointed in 1983 under Justice R.S. Sarkaria and reporting in 1988. It recommended that article 356 be used very sparingly and only as a last resort, and that a permanent Inter-State Council be established under article 263, which was done in 1990.

4. How should MU's printed question be answered? By giving the recommendations of the States Reorganisation Commission, which is the body that reported on the division of area on the basis of language, and by noting in a sentence that the Sarkaria Commission was on Centre-State relations, with one or two of its recommendations, so that the question as printed is also answered.

5. Which of the earlier commissions' fears turned out to be justified? The fear that linguistic reorganisation would worsen the position of linguistic minorities inside the new States. The States Reorganisation Commission itself recommended safeguards, and the Seventh Amendment inserted articles 350A and 350B in the same year as the Act.

Held. The Court upheld the High Court and dismissed the appeals, holding in particular that a provision making Kannada the sole FIRST LANGUAGE in secondary schools violated articles 29 and 30. The Government orders of June 1989 were treated as valid so far as they went.

Why it matters. It is the first round of a litigation the Constitution Bench had to settle twenty years later, and it shows the Court distinguishing between a compulsory first language and a compulsory medium.

The settled position.

Facts. State of Karnataka v. Associated Management of Primary and Secondary Schools, (2014) 9 SCC 485, decided 6 May 2014 by a Constitution Bench of five, Lodha CJI with Patnaik, Mukhopadhaya, Dipak Misra and Kalifulla JJ. Karnataka's language policy required the mother tongue, or Kannada, to be the medium from the first to the fourth standard in all government and government-recognised schools. The High Court struck it down; five questions were referred, including what mother tongue means, whether a student, parent or citizen has a right to choose the medium at the primary stage, whether imposing the mother tongue affects articles 14, 19, 29 and 30, whether government-recognised schools include unaided ones, and whether article 350A empowers the State to compel a linguistic minority to choose its mother tongue as the medium.

Held. The appeals were dismissed. The parent or the child has the right to choose the medium of instruction at the primary stage as part of the freedom of speech and expression under article 19(1)(a), and the right is also implicit in the right to education. Government-recognised schools include both aided and unaided recognised schools. And article 350A, which requires every State to endeavour to provide adequate facilities for instruction in the mother tongue at the primary stage to children of linguistic minority groups, cannot be interpreted to empower the State to compel a linguistic minority to choose its mother tongue only as the medium in a primary school it has established, since that would violate article 30(1).

Why it matters. It settles the primary branch, and it settles it on article 19(1)(a). A student who answers this question out of articles 29, 30 and 350A alone has missed the ground of decision.

The compulsory subject, which is different

Facts. Usha Mehta v. State of Maharashtra, (2004) 6 SCC 264, decided 5 May 2004 by Rajendra Babu CJI with Lakshmanan and Mathur JJ. The Government of Maharashtra made the study of Marathi compulsory throughout the schools of the State. English-medium schools run by Gujarati linguistic minorities were in consequence required to teach four languages, Hindi, English, Marathi and Gujarati, against the accepted three-language formula, and challenged the policy as violating their rights as a linguistic minority.

Held. The petition was dismissed. The policy decision making the regional language a compulsory subject of study was not violative of the linguistic minority rights guaranteed by articles 29 and 30 or of any other provision.

Why it matters. It is the other side of the line. A compulsory SUBJECT is within a State's power; a compulsory MEDIUM is not. Every question in this topic turns on that distinction, and an answer that gives both cases together is much stronger than one that gives either alone.

The distinction, in a table

A worked example

A State provides that from standards one to four the medium in every recognised school shall be the mother tongue or the State language; that the State language shall be a compulsory subject from standard one; and that in its own universities the medium shall be the State language alone.

The medium in standards one to four. Invalid on Associated Management. The parent's and the child's right to choose the medium at the primary stage is part of article 19(1)(a), and as against a linguistic minority's own school it also offends article 30(1). It makes no difference that the school is unaided but recognised: recognised schools include unaided recognised ones.

The compulsory subject. Valid on Usha Mehta, even for a linguistic minority's school, though a school already teaching three languages may argue about the burden under the three-language formula, which is policy rather than law.

The university medium. Invalid on Mudholkar: the medium in higher education is a necessary incident of the Union's power over the co-ordination and determination of standards, now Entries 63 to 66 of List I read with Entry 25 of List III.

And if the State says article 350A obliges it. Associated Management answers that in terms: article 350A is an endeavour to provide facilities for mother-tongue instruction, not a power to compel it.

What this does NOT mean

It does not mean a State cannot promote its language. It may make it a compulsory subject, fund instruction in it, and require it for its own recruitment.

It does not mean mother-tongue instruction is a bad policy. The educational case for it is strong and the Court did not dispute it; what the Court held is that the choice belongs to the parent and the child.

And it does not mean the two branches can be run together. The higher-education answer is competence and the primary answer is fundamental rights, and an answer that mixes them will get the reasoning wrong even where it gets the result right.

Quick revision

Two branches. Higher education, Mudholkar 1962: a State university may not impose an exclusive medium, because the medium in higher education is a necessary incident of the Union's power over co-ordination and determination of standards, Entries 63 to 66 of List I; education is now Entry 25 of List III, expressly subject to those entries. Primary education, Associated Management 2014, Constitution Bench: the parent or child may choose the medium at the primary stage as part of article 19(1)(a) and as implicit in the right to education; recognised schools include unaided recognised schools; article 350A is an endeavour to provide, not a power to compel, and compelling a linguistic minority would violate article 30(1). English Medium Students Parents Association 1993: making Kannada the sole first language in secondary schools violates articles 29 and 30. Usha Mehta 2004: a compulsory SUBJECT, even for a linguistic minority's school, is valid.

Test yourself

1. On what ground was the medium question decided for higher education? Legislative competence. In Mudholkar the Court held that the medium of instruction in higher education is a necessary incident of the Union's power over the co-ordination and determination of standards under Entries 63 to 66 of List I, and so excluded from the State's power over education.

2. On what ground was it decided for primary education? On fundamental rights. In Associated Management the Constitution Bench held that the parent or the child has the right to choose the medium at the primary stage as part of the freedom of speech and expression under article 19(1)(a), and that it is also implicit in the right to education.

3. Can a State compel a linguistic minority's school to teach in the mother tongue by relying on article 350A? No. Article 350A requires a State to endeavour to PROVIDE adequate facilities for mother-tongue instruction at the primary stage; it cannot be read as a power to COMPEL, and to do so would violate article 30(1).

4. State the distinction between a compulsory medium and a compulsory subject, with a case for each. A compulsory medium is not permissible: Associated Management for primary education and Mudholkar for higher. A compulsory subject is permissible even for a linguistic minority's school: Usha Mehta.

5. Does the rule differ for aided and unaided schools? Not on the medium question at the primary stage. Associated Management held that government-recognised schools include both aided and unaided recognised schools, so the right to choose the medium operates in both. The extent of other regulation does vary with aid, on T.M.A. Pai.

The scheme of safeguards the Commissioner monitors. These are administrative rather than statutory and were agreed at Chief Ministers' conferences and through the States Reorganisation Act's own provisions. They include instruction in the mother tongue at the primary stage; publication of important government rules and notifications in a minority language where a proportion of the population speaks it; acceptance of representations in a minority language; and advance registration of linguistic preference of parents.

The three-part weakness, and it is the answer's core.

One: the reports are reports. Nothing in article 350B makes a recommendation binding, and there is no provision even requiring an action-taken memorandum of the kind section 12 of the National Commission for Minorities Act requires.

Two: the safeguards are administrative, not statutory. A scheme agreed at a conference of Chief Ministers is not a law, and a person cannot sue on it.

Three: article 350A is an endeavour. The obligation the Commissioner is monitoring is itself unenforceable, so an adverse report establishes a failure to endeavour and nothing more.

What "government agencies" covers besides the Commissioner

The State-level machinery. Most States have a department or a cell for linguistic minorities, and several have appointed their own officers.

The National Commission for Minorities. Its jurisdiction is over the six NOTIFIED religious minorities, so it does NOT cover linguistic minorities as such. That is a distinction MU's question invites and students regularly get wrong: the constitutional office for linguistic minorities is article 350B's, and the statutory Commission of 1992 is for religious minorities.

The education departments, which decide recognition, affiliation and the medium, and which are therefore the agencies whose decisions the judicial channel reviews.

And the Presidential power in article 350A itself, under which the President may issue such directions to a State as he considers necessary or proper for securing the provision of mother-tongue facilities. It is the strongest administrative instrument in Part XVII and it has been little used.

The assessment MU asks for

The judiciary has done more than the agencies, and the reason is structural. The judiciary is enforcing FUNDAMENTAL RIGHTS; the agencies are monitoring an ENDEAVOUR and an administrative scheme.

The protection is therefore distributed by capacity. A community with an institution, a trust and access to a lawyer gets the benefit of articles 29, 30 and 19(1)(a). A dispersed minority with no institution gets an annual report.

Two reforms are usually proposed, and an answer that offers them is a better answer. First, putting the safeguards on a statutory footing so that they can be sued on. Secondly, giving the Commissioner the civil-court powers of inquiry and the action-taken memorandum that the National Commission for Minorities has under sections 9(4) and 12 of its Act.

A worked example

A Bengali-speaking population in a district of Odisha finds that no primary class in its language exists, that district notifications are issued only in Odia, and that a State-aided school has refused admission to a Bengali-speaking child.

The refusal of admission. Enforceable at once. Article 29(2), on Bombay Education Society, by petition under article 226.

The absence of a primary class. Article 350A is an endeavour, so no writ lies to compel the class. The route is a representation to the Commissioner for Linguistic Minorities under article 350B, and, if the Union will act, a Presidential direction under the second half of article 350A.

The notifications. Part of the administrative scheme of safeguards, not a statutory right. A representation, and a report.

And if the community establishes its own school. Article 30(1) protects it, article 30(2) forbids discrimination against it in the grant of aid, and the State cannot compel Odia as its medium.

What the example shows. Three of the four grievances have no enforceable remedy, and the one that does is the one that fits a fundamental right. That is the finding MU's question is looking for.

What this does NOT mean

It does not mean the administrative channel is useless. The Commissioner's reports are the principal published record of how States treat linguistic minorities, and they are used in litigation and in policy.

It does not mean article 350A is meaningless. It is a constitutional direction, it supports a Presidential direction, and it colours the reading of articles 29 and 30, as Associated Management shows.

And it does not mean the courts can supply what the agencies do not. A court can stop a State compelling a medium; it cannot open a school, which is exactly the limit set out in [The Judiciary as an Engine of Social Change].

Quick revision

Two channels. Judicial: articles 29(1), 29(2), 30 and 19(1)(a), fundamental rights enforceable under articles 32 and 226; results in Bombay Education Society, D.A.V. College and Associated Management; limit, it prohibits and cannot provide. Administrative: article 350B's Special Officer, designated the Commissioner for Linguistic Minorities, headquarters at Allahabad, who investigates and reports to the President, the reports being laid before Parliament and sent to the States; plus the administrative scheme of safeguards and the Presidential direction power in article 350A. Three weaknesses: the reports bind nobody and there is no action-taken memorandum; the safeguards are administrative not statutory; and article 350A is an endeavour. The National Commission for Minorities covers the six NOTIFIED RELIGIOUS minorities, not linguistic ones.

Test yourself

1. Which provisions can a court actually enforce for a linguistic minority? Articles 29(1) and 29(2), article 30(1), (1A) and (2), and article 19(1)(a) as applied to the medium of instruction. All are fundamental rights and are enforceable under articles 32 and 226.

2. What does article 350B provide, and what are its limits? A Special Officer for Linguistic Minorities appointed by the President, whose duty is to investigate all matters relating to the constitutional safeguards for linguistic minorities and report to the President, the reports being laid before each House and sent to the State Governments. Its limits are that the reports bind nobody, that there is no requirement of an action-taken memorandum, and that the obligation being monitored, article 350A, is itself only an endeavour.

3. Does the National Commission for Minorities protect linguistic minorities? No. Its jurisdiction under the Act of 1992 is over communities notified as minorities by the Central Government, which are the six religious minorities. The constitutional office for linguistic minorities is the Special Officer under article 350B.

4. What is the strongest administrative instrument in Part XVII, and how much has it been used? The power in the second half of article 350A for the President to issue such directions to a State as he considers necessary or proper for securing facilities for mother-tongue instruction at the primary stage. It has been little used.

5. State the assessment and two reforms. That the judicial channel has produced far more because it enforces fundamental rights, while the agencies monitor an endeavour and an administrative scheme, so protection is distributed according to a community's capacity to establish institutions and to litigate. The reforms usually proposed are to put the safeguards on a statutory footing, and to give the Commissioner the civil-court powers of inquiry and the action-taken memorandum that the National Commission for Minorities has.

Note who holds the exception. A STATE cannot prescribe its own domicile requirement for its own services; only Parliament can, and it has done so sparingly under the Public Employment (Requirement as to Residence) Act 1957, which has largely lapsed. This is the single most examinable point in the chapter, and it is the answer to every sons-of-the-soil employment scheme.

Four: freedom of movement and residence. Article 19(1)(d), to move freely throughout the territory of India, and article 19(1)(e), to reside and settle in any part of it, subject to reasonable restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe under article 19(5).

Five: freedom of trade. Article 301: trade, commerce and intercourse throughout the territory of India shall be free, subject to the other provisions of Part XIII.

And article 371D as the counter-example. Special provisions for Andhra Pradesh and Telangana permit the President to provide for equitable opportunities in public employment and education for people of different parts of the State, including local cadres. It is an express constitutional exception, made because the Constitution's general rule would otherwise have forbidden it, and its existence proves the general rule.

The "India as one unit" argument

Territorially. Article 1: India, that is Bharat, shall be a Union of States. The word Union was chosen deliberately over Federation: the States derive their existence from the Constitution and, under article 3, Parliament may alter their boundaries without their consent.

In citizenship. One citizenship, so no State can define its own people.

In rights. The fundamental rights are the same everywhere, and articles 19(1)(d) and (e) make the whole territory one space for living and working.

In the economy. Article 301 makes it one market.

In the judiciary. One Supreme Court whose declared law binds every court under article 141, and one hierarchy under it.

And in emergency. Articles 352 to 360 let the Union act as one unit when it must, which is the same idea in its strongest form.

Where the unity has limits, and a good answer says so

Article 16(3)'s exception exists, and so do article 371D and the various special provisions in articles 371 to 371J.

The Fifth and Sixth Schedules restrict entry, residence and land transfer in Scheduled Areas, which is a deliberate exception protecting tribal communities and is dealt with in [Tribal India: The Fifth and Sixth Schedules].

Domicile requirements survive in education, where a State may reserve seats in its own institutions for those educated or resident in it, on grounds of an intelligible differentia rather than by an exception to article 16.

And article 371A and article 371G protect Naga and Mizo customary law from Parliament. Unity in Indian law is a rule with named exceptions, not an absolute.

A worked example

A State enacts that eighty per cent of jobs in private factories in the State, and all posts in its own services, shall be filled by persons domiciled in the State for fifteen years.

The State services. Article 16(2) forbids discrimination on residence in employment under the State, and article 16(3) reserves the power to prescribe a residence requirement to PARLIAMENT. A State's own law doing it is bad.

The private factories. Article 16 does not reach private employment. The challenge is under article 19(1)(g), the right to practise any profession or to carry on any occupation, trade or business, at the suit of the employer, and under article 14 for the arbitrariness of a fifteen-year classification. Several such statutes have been struck down or stayed on those grounds.

The fifteen years. Even where a residence requirement is permissible, its length has to be justified, and a period long enough to exclude a person who has genuinely settled looks like a proxy for place of birth, which article 15(1) forbids.

And the political point behind the example. The measure is popular precisely because it is regionalism, and the Constitution's answer is not that the demand is unreasonable but that the Union is one labour market and a State may not close it.

What this does NOT mean

It does not mean States have no distinct identity. They have their own languages under article 345, their own legislatures and their own police, and articles 371 to 371J protect particular arrangements.

It does not mean regional demands are illegitimate. A demand for a new State, for a share of river water or for central investment is a demand within the constitutional system, and article 3 exists to answer the first of them.

And it does not mean the Union is unitary. It means the Union is a federation of a particular, centralised kind, in which the unit of citizenship and of rights is the individual Indian rather than the State.

Quick revision

Regionalism: a regional identity converted into a claim on employment, resources or power against people from elsewhere in the country. Four forms: separate-State demands, sons-of-the-soil claims, river and boundary disputes, and claims of neglect. Constitutional answers: article 1, a Union of States; article 5, single citizenship; article 15(1), no discrimination on place of birth; article 16(2), none on residence or place of birth in public employment, with article 16(3) reserving the residence power to PARLIAMENT alone; article 19(1)(d) and (e), movement and residence; article 301, freedom of trade. Limits: article 16(3), article 371D and articles 371 to 371J, and the Fifth and Sixth Schedules.

Test yourself

1. Define regionalism and distinguish it from federalism. Regionalism is the assertion of a regional identity as a claim on employment, resources or political power against people from other parts of the country. Federalism is a constitutional division of governmental power between two levels. One is a political claim, the other an arrangement of authority, and regionalism can exist in a unitary State.

2. Which provisions make India one unit for a citizen? Article 1, a Union of States; article 5 and Part II, a single citizenship; article 15(1), no discrimination on place of birth; article 16(2), none on residence in public employment; articles 19(1)(d) and (e), movement and residence throughout the territory; and article 301, freedom of trade, commerce and intercourse.

3. Who may prescribe a residence requirement for public employment, and why does it matter? Only Parliament, under article 16(3). It matters because it means a State cannot lawfully prescribe its own domicile requirement for its own services, which is the answer to every sons-of-the-soil employment scheme.

4. Give two constitutional exceptions to the general rule of unity. Article 371D, permitting the President to provide for local cadres and equitable opportunities in public employment and education in Andhra Pradesh and Telangana; and the Fifth and Sixth Schedules, which restrict entry, residence and the transfer of land in Scheduled Areas in order to protect tribal communities.

5. How would you challenge a State law reserving private-sector jobs for local residents? Not under article 16, which reaches only employment under the State. Under article 19(1)(g) at the suit of the employer, whose right to carry on business is restricted, and under article 14 for the arbitrariness of the classification, particularly where the residence period is long enough to operate as a proxy for place of birth, which article 15(1) forbids.

What the Official Languages Act adds

Section 5. A Hindi translation of a Central Act or Ordinance, or of any order, rule, regulation or bye-law under the Constitution or a Central Act, published under the authority of the President in the Official Gazette, is deemed to be the authoritative text in Hindi. And from the appointed day the authoritative English text of every Bill and every amendment in either House of Parliament must be accompanied by an authorised Hindi translation.

So there are TWO authoritative texts of a Central Act. The English text under article 348(1)(b), and the Hindi text under section 5(1) where one has been published. That is a fact of Indian law students routinely do not know.

Section 6. Where a State legislature has prescribed a language other than Hindi for its Acts, a Hindi translation may be published under the Governor's authority in addition to the English translation required by article 348(3), and is then the authoritative text in Hindi.

Section 7. From the appointed day or any day thereafter, the Governor may, with the previous consent of the President, authorise the use of Hindi or the official language of the State, in addition to English, for the purposes of any JUDGMENT, decree or order passed or made by the High Court for that State; and where one is so passed or made in such a language, it must be accompanied by a translation in English issued under the authority of the High Court.

Section 7 supplies exactly what article 348(2) withholds, and the relation between the two provisions is the sharpest illustration in this paper of a statute completing a constitutional scheme.

Subordinate courts, which article 348 does not reach

Article 348 governs the Supreme Court and the High Courts. The language of a District Court, a Magistrate's court or a tribunal is not fixed by it.

It is fixed by State law. Section 272 of the Code of Criminal Procedure, now the corresponding provision of the Bharatiya Nagarik Suraksha Sanhita 2023, empowers the State Government to determine the language of each court within the State other than the High Court; and section 137 of the Code of Civil Procedure provides that the language of the subordinate courts shall continue as at present until the State Government otherwise directs.

So the practical position is a two-tier one. The trial is generally in the State's language and the appeal is in English, and the record has to be translated at the point where the two meet.

Article 349

The text. During the period of fifteen years from the commencement of the Constitution, no Bill or amendment making provision for the language to be used for any of the purposes mentioned in article 348(1) shall be introduced or moved in either House of Parliament without the previous sanction of the President, and the President shall not give his sanction unless he has taken into consideration the recommendations of the Commission constituted under article 344(1) and the report of the Committee constituted under article 344(4).

Its significance now. It is spent, the fifteen years having expired in 1965. It is included here because MU asks for "the provisions" and because it shows how carefully the framers fenced the language question about.

The argument about the language of the courts

For English. It is the language in which the whole body of Indian precedent exists; a single language for the higher judiciary keeps the law uniform across twenty-eight States; a lawyer can appear anywhere; and the Supreme Court's judgments are usable in every High Court.

Against English. A litigant cannot read the judgment in their own case; the profession is closed to those who did not learn English at school; and a law whose authoritative text is in a language almost nobody speaks is not accessible to those it binds.

Where the compromise has settled. Article 348(2) and section 7 permit a State language in proceedings and, with the President's consent, in judgments, always with an English translation. The Law Commission has considered the question more than once and has not recommended abandoning English for the higher courts.

And what has actually changed. Not the rule but the technology: authoritative and machine translations of judgments into Indian languages are now published by the Supreme Court itself, which addresses the access objection without altering article 348.

A worked example

A State legislature enacts a statute in its own language; a case under it is tried in a District Court and appealed to the High Court.

The authoritative text of the statute. Under article 348(3), the English translation published under the Governor's authority in the Official Gazette. If a Hindi translation is also published under section 6 of the Act, that is authoritative in Hindi.

The trial. In the language determined by the State Government under the Code, generally the State's language.

The appeal. Article 348(1)(a): proceedings in the High Court in English, unless the Governor has obtained the President's consent under article 348(2), in which case the State language may be used in proceedings.

The judgment. English, unless section 7 authorisation exists, in which case the State language with an English translation issued under the High Court's authority.

And an appeal to the Supreme Court. English, article 348(1)(a), with no exception at all.

What this does NOT mean

It does not mean a litigant may not be heard in their own language. They may in the subordinate courts, and in four High Courts in Hindi; and everywhere they may address a government in their own language under article 350.

It does not mean the English text is the only text. Section 5 of the Act makes a published Hindi translation of a Central Act authoritative in Hindi.

And it does not mean the position is permanent. Article 348(1) opens with the words "until Parliament by law otherwise provides".

Quick revision

Article 348(1)(a): proceedings in the Supreme Court and every High Court in English. 348(1)(b): the authoritative texts of Bills, Acts, Ordinances, orders, rules, regulations and bye-laws in English. 348(2): the Governor with the President's previous consent may authorise Hindi or a State language in High Court PROCEEDINGS, but NOT in a judgment, decree or order; used by Bihar, Uttar Pradesh, Madhya Pradesh and Rajasthan. 348(3): where a State prescribes another language, the Governor's published English translation is the authoritative text. Article 349: spent, a fifteen-year fence requiring the President's sanction and consideration of the article 344 Commission and Committee. Official Languages Act section 5, an authoritative Hindi text of Central Acts; section 6, of State Acts; section 7, Hindi or the State language in a High Court JUDGMENT with the President's consent and an English translation. Subordinate courts: State Government under the Codes, not article 348.

Test yourself

1. What does article 348(1) require? That until Parliament otherwise provides, all proceedings in the Supreme Court and in every High Court, and the authoritative texts of all Bills, Acts, Ordinances, orders, rules, regulations and bye-laws of the Union and of the States, shall be in the English language.

2. What may a Governor authorise under article 348(2), and what may he not? With the previous consent of the President, the use of Hindi or of another language used for the official purposes of the State in proceedings in the High Court for that State. He may not authorise it for any judgment, decree or order, which the proviso expressly excludes.

3. How can a High Court nevertheless deliver a judgment in Hindi? Under section 7 of the Official Languages Act 1963, by which the Governor with the President's previous consent may authorise Hindi or the State's official language in addition to English for a judgment, decree or order, an English translation issued under the High Court's authority being required.

4. How many authoritative texts can a Central Act have? Two. The English text under article 348(1)(b), and a Hindi text where a translation has been published under the authority of the President in the Official Gazette under section 5(1) of the Official Languages Act 1963.

5. What fixes the language of a District Court? Not article 348, which reaches only the Supreme Court and the High Courts, but State law: the State Government determines the language of the courts within the State other than the High Court under the criminal procedure legislation, and the language of the civil courts continues as at present until the State Government otherwise directs.

The vocabulary this topic needs

Caste. A hereditary, endogamous group, membership of which is fixed at birth and which is ranked in relation to other such groups. The two words that matter are HEREDITARY, so it cannot be joined or left, and ENDOGAMOUS, marriage within the group, which is what keeps it separate.

Varna and jati. Varna is the fourfold classical scheme, Brahmin, Kshatriya, Vaishya and Shudra, with those outside it. Jati is the actual unit of social life: several thousand local endogamous groups. Reservation and social policy operate on jati; textbooks describe varna. Confusing them produces a wrong answer about how backwardness is identified.

Untouchability. Not defined by the Constitution. Article 17 abolishes it and forbids its practice in any form. Its meaning is dealt with in [Untouchability, and the Act That Abolished It].

Tribe. A community identified by a distinct culture, language and territory, historically outside the caste order rather than at the bottom of it. That distinction matters, and it is why the Constitution's design for tribes is autonomy and for castes is integration on equal terms, which is the point made in [Tribal India: The Fifth and Sixth Schedules].

Backward class. A class of citizens which is socially and educationally backward, or, for article 16(4), socially backward and inadequately represented in the services. The accent in article 16(4) is on SOCIAL backwardness, and Indra Sawhney held that a backward class cannot be identified only and exclusively by economic criteria.

Creamy layer. The socially advanced members of a backward class who are excluded from the benefit. Worked in [Backward Classes, the Creamy Layer and the Ceiling].

The apparatus, in four groups

The equality articles. Article 14, equality before the law and the equal protection of the laws; article 15(1) and (2), no discrimination on grounds only of religion, race, caste, sex, place of birth, the second binding private persons in respect of access; article 15(4), (5) and (6), the enabling clauses; article 16(1) and (2), equality of opportunity in public employment; article 16(4), (4A), (4B) and (6), the enabling clauses.

Article 17, and article 18. Untouchability is abolished and its practice in any form is forbidden; the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Article 18 abolishes titles, which belongs here because a title is a hereditary mark of status and the framers were legislating against exactly that.

Article 46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Articles 330 to 342A. Reserved seats in the House of the People and in the State Legislative Assemblies; claims to services under article 335; the Commissions under articles 338, 338A and 338B; the Union's control over the administration of Scheduled Areas under article 339; the Backward Classes Commission under article 340; and the Presidential lists under articles 341, 342 and 342A. Worked in [The Safeguards: Seats, Services and Commissions].

The two constitutional designs

For caste: integration on equal terms. Abolish the disability, forbid the discrimination, and compensate for the historical exclusion by reservation until representation is adequate. The unit is the individual, who is to be freed from the group.

For tribe: autonomy and protection. Restrict the alienation of land, restrict entry, give the community's own institutions a say, and administer the area under the Fifth or Sixth Schedule. The unit is the community, which is to be protected as a community.

Why the difference. Because the two disadvantages are different. A Scheduled Caste is at the bottom of a social order it is inside; a Scheduled Tribe was historically outside the order and is disadvantaged by contact with it, principally through the loss of land.

And the tension the difference creates. Reservation for tribes assumes integration; the Fifth Schedule assumes separation. Indian law does both at once, which is coherent as policy and produces litigation.

A worked example

A candidate belongs to a caste that appears in the Presidential List of Scheduled Castes for Maharashtra, and moves to Karnataka.

Their status in Karnataka. The lists under article 341 are "in relation to that State or Union Territory". A person notified as a Scheduled Caste in one State is not automatically one in another, and cannot claim reservation in the second State on the strength of the first State's list.

If their caste is also in the Karnataka list. They still generally cannot claim, because migration does not carry the status: the notification operates in relation to the State in which the person was ordinarily resident when the list was made applicable to them, and the settled position is that a migrant claims in the State of origin.

If the caste is not on any list. No claim at all, because the Constitution provides no route to Scheduled Caste status except the Presidential notification and Parliament's power to amend it.

And if they converted to another religion? Paragraph 3 of the Constitution (Scheduled Castes) Order 1950 provides that no person professing a religion different from Hinduism, Sikhism or Buddhism shall be deemed a member of a Scheduled Caste. Scheduled Tribe status is not conditioned in the same way. The point is dealt with in [Conversion and the Law] and again in [The Safeguards: Seats, Services and Commissions].

What this does NOT mean

It does not mean "community" is a legal category. MU's label uses the word; the Constitution names groups, and an answer should use the Constitution's names.

It does not mean the lists are permanent. Parliament may add or remove under articles 341(2), 342(2) and 342A(2).

And it does not mean the three groups are treated alike. The creamy layer applies differently to the Scheduled Castes and Scheduled Tribes than to the backward classes; the fifty per cent rule applies to some reservations and not to the economically weaker sections; and the tribal design is different in kind.

Quick revision

Three groups plus one: Scheduled Castes, article 341; Scheduled Tribes, article 342; socially and educationally backward classes, articles 15(4), 15(5), 16(4), 340, 338B and 342A, with the 102nd Amendment 2018 and the 105th of 2021; economically weaker sections, articles 15(6) and 16(6), 103rd Amendment 2019. Article 341(2): only Parliament may vary a Presidential list. Vocabulary: caste is hereditary and endogamous; varna is the fourfold scheme and jati the operative unit; untouchability is undefined; a tribe was outside the order rather than at the bottom of it; backwardness under article 16(4) is social, not merely economic. Apparatus: articles 14 to 18; article 46; articles 330 to 342A. Two designs: integration on equal terms for caste, autonomy and protection for tribe.

Test yourself

1. How does a caste become a Scheduled Caste, and who can change the list? By a public notification of the President under article 341(1), made in respect of a State or Union Territory and, in the case of a State, after consultation with the Governor. Only Parliament may include or exclude a caste by law under article 341(2), and save by such a law the notification may not be varied by any subsequent notification.

2. Distinguish varna from jati and say why it matters. Varna is the classical fourfold scheme of Brahmin, Kshatriya, Vaishya and Shudra with those outside it; jati is the actual unit of social life, several thousand local endogamous groups. It matters because reservation and social policy operate on jati while textbooks describe varna, so an answer that identifies backwardness by varna describes something the law does not use.

3. Name the four protected categories and the provision creating each. Scheduled Castes, article 341; Scheduled Tribes, article 342; socially and educationally backward classes, articles 15(4) and (5) and 16(4) with article 342A; and economically weaker sections, articles 15(6) and 16(6).

4. Why is the constitutional design for tribes different from that for castes? Because the disadvantages differ. A Scheduled Caste is at the bottom of a social order it belongs to, so the design is integration on equal terms through prohibition and reservation. A Scheduled Tribe was historically outside that order and is disadvantaged by contact with it, principally through the loss of land, so the design is autonomy and protection through the Fifth and Sixth Schedules.

5. Can a person notified as a Scheduled Caste in one State claim that status in another? Not as of right. The lists under article 341 operate in relation to the State or Union Territory for which they are made, and migration does not carry the status; the settled position is that a migrant claims in the State of origin.

Four: access to public places and to religion. The temple-entry provision in article 25(2)(b) and the temple-entry cases are the religious half, worked in [Temple Entry]. Section 4 of the Protection of Civil Rights Act 1955, on which Appa Balu Ingale was decided, is the secular half.

Five: education and employment. Historically closed; now the subject of articles 15(4), 15(5), 16(4) and the whole of the reservation apparatus.

Six: political power. The reserved seats under articles 330 and 332, and the reservation in panchayats and municipalities under articles 243D and 243T, exist because representation did not follow from the franchise alone.

Why the law finds caste hard

Because it is enforced privately. Most of the exclusion happens in a village, a workplace or a family, and by people who will still be there after the trial, which is the enforcement limit set out in [What Law Cannot Do: The Limits of Legislating Change].

Because it is not defined. Article 17 abolishes untouchability without saying what it is, and the only reported decision squarely on the meaning is a High Court judgment of 1957, worked in the next chapter but one.

Because it survives conversion. A person who leaves the religion does not always leave the ranking, which is why the Constitution (Scheduled Castes) Order's religion condition is so contested.

Because caste is also the unit of the remedy. Reservation operates on the same groups that the system created, so the law both attacks the ranking and uses it, which is the paradox in [Protective Discrimination].

And because it adapts. The formal disabilities have gone and the endogamy, the occupational concentration and the political mobilisation have not.

The evidence a good answer uses

Do not recite incidents. MU is examining a law paper.

Do use the law's own admissions. Section 15A of the Protection of Civil Rights Act, inserted in 1976, obliges State Governments to provide legal aid, set up special courts, appoint officers and conduct periodic surveys, which is Parliament recording that the offence provisions alone had not worked. The enactment of the Atrocities Act 1989 is the same admission made again. And Safai Karamchari Andolan, decided in 2014 on a statute of 1993, is a court finding that a prohibition twenty-one years old was still being ignored.

And use the constitutional design. The presence of articles 330 to 342, of the Commissions, and of a Directive Principle devoted to the weaker sections tells you that the framers did not expect prohibition alone to be enough.

A worked example

A village has a Scheduled Caste settlement at its edge, a separate cremation ground, a tea stall that serves in separate cups, a school where the children sit at the back, and a panchayat with a reserved seat held by a Scheduled Caste member who is not consulted.

The separate cups and the stall. Article 15(2) and section 4 of the Protection of Civil Rights Act 1955; and if the exclusion is on the ground of untouchability, article 17.

The school. Article 15(1) against the State, article 29(2) if it is State-maintained or aided, and section 5 of the Act of 1955, which deals with refusal to admit to a hospital or educational institution.

The cremation ground and the settlement. Article 15(2) where the place is maintained out of State funds or dedicated to the public, and the Atrocities Act 1989 where the exclusion is enforced by an act amounting to an offence under it.

The reserved seat. Article 243D provides the seat and nothing provides the influence, which is the honest limit and the reason the reservation questions in this topic are about representation and not about power.

And what the example is really showing. Six separate legal provisions apply to one village, every one of them is in force, and the arrangement persists. That is the answer MU's "critically" is asking for.

What this does NOT mean

It does not mean caste is only a Hindu institution. Endogamous ranked groups exist among Indian Muslims, Christians and Sikhs, which is why Indra Sawhney held that occupational groups, sects and denominations among non-Hindus can be socially backward classes.

It does not mean caste has not changed. Urbanisation, education and reservation have loosened the occupational association and opened public employment, and the formal disabilities are gone.

And it does not mean the law has failed. It means the law has removed what law can remove, which is the disability, and has not removed what it cannot, which is the ranking.

Quick revision

Caste: hereditary, endogamous, ranked, historically occupational, and local, the operative unit being the jati. Six axes of division: marriage, occupation, residence, access to public places and religion, education and employment, and political power. Four constitutional responses: prohibition of discrimination, articles 15 and 16; abolition of untouchability, article 17; the Directive Principle and enabling clauses, articles 46, 15(4) and 16(4); and political and institutional safeguards, articles 330 to 342. Why the law finds it hard: privately enforced, undefined, surviving conversion, using the same units as the remedy, and adapting. The law's own admissions: section 15A of the 1955 Act, the Atrocities Act 1989, and Safai Karamchari Andolan in 2014.

Test yourself

1. Define caste with the three words that matter. A hereditary, endogamous and ranked group: membership is fixed at birth and cannot be acquired or renounced, marriage is within the group, and the groups stand in a relation of higher and lower.

2. Name the six axes along which caste divides. Marriage, through endogamy; occupation; residence; access to public places, resources and religion; education and employment; and political power.

3. Why is endogamy the most important of them for the law? Because it is the mechanism by which the boundaries are reproduced across generations, so measures touching marriage, such as the Special Marriage Act and the protection of the right to choose a partner, reach the system at its point of reproduction rather than at its symptoms.

4. Give two admissions in the law itself that prohibition has not been enough. Section 15A of the Protection of Civil Rights Act, inserted in 1976, which obliges States to provide legal aid, special courts, officers and periodic surveys; and the enactment of the Atrocities Act 1989 as a sharper replacement. The finding in Safai Karamchari Andolan in 2014 that manual scavenging continued twenty-one years after its prohibition is a third.

5. Is caste confined to Hindus? No. Endogamous ranked groups exist among Indian Muslims, Christians and Sikhs, and Indra Sawhney held expressly that occupational groups, sects and denominations among non-Hindus which are socially backward for historical reasons are backward classes for the purposes of article 16(4).

Note the difference between (a) and (b). Sub-clause (a) is unqualified: any shop, restaurant, hotel or place of public entertainment. Sub-clause (b) is qualified: the well, tank, ghat, road or place of public resort must be maintained out of State funds or dedicated to the public.

Clauses (3) to (6), the enabling clauses. Clause (3), special provision for women and children; clause (4), for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, inserted by the First Amendment 1951; clause (5), admission to educational institutions including private ones other than minority institutions, inserted by the Ninety-third Amendment 2005; clause (6), economically weaker sections, inserted by the One Hundred and Third Amendment 2019.

Article 16, clause by clause

Clause (1). There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Clause (2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Two grounds appear here that are not in article 15. DESCENT and RESIDENCE. Descent matters in a caste context because it is the mechanism of caste itself; residence is the sons-of-the-soil question dealt with in [Regionalism, and India as One Unit].

Clause (3). Parliament, and only Parliament, may prescribe a requirement as to residence for a class of employment under a State or Union Territory.

Clause (4). Nothing in the article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Clauses (4A) and (4B), inserted in 1995 and 2000, on reservation in promotion with consequential seniority and on carrying forward backlog vacancies; clause (5), offices connected with a religious or denominational institution; clause (6), economically weaker sections, 2019.

And the relationship between clause (1) and clause (4), which is the whole doctrine. In State of Kerala v. N.M. Thomas the majority held that if equality of opportunity under article 16(1) means effective material equality, then article 16(4) is NOT an exception to article 16(1) but an emphatic way of putting the extent to which equality of opportunity may be carried. Indra Sawhney adopted it: clause (4) is an instance and illustration of the classification inherent in clause (1). That case is worked in [Protective Discrimination].

Article 29(2)

The text. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Note what is absent from the list. SEX. Article 29(2) does not include sex, which is why single-sex State institutions are possible where single-caste ones are not.

And note that it has no enabling clause of its own. That is precisely why State of Madras v. Champakam Dorairajan went as it did and why the First Amendment had to insert article 15(4).

The table an examiner rewards

A worked example

A private club refuses membership on the ground of caste; a State transport corporation refuses employment on the same ground; a State-aided college refuses admission; and a village temple refuses entry.

The club. Article 15(2) reaches shops, restaurants, hotels and places of public entertainment. A members' club is arguably outside it, and the answer would then lie in the Protection of Civil Rights Act 1955 and, if the exclusion amounts to an offence under it, in the Atrocities Act 1989.

The corporation. A corporation of this kind is generally "the State" under article 12, so article 16(2) applies directly, and so does article 15(1).

The college. Article 29(2), which admits of no exception, and article 15(1) if the college is State-maintained.

The temple. Article 17 directly, since exclusion from a place of worship on the ground of caste is the paradigm case of untouchability; article 25(2)(b) validates the temple-entry legislation; and section 3 of the Protection of Civil Rights Act 1955 punishes the enforcement of religious disabilities.

What the example teaches. The constitutional prohibition does not reach every private act. The statutes exist to fill exactly that gap, which is why MU's question asks for the "statutory provisions" and why the next two chapters follow.

What this does NOT mean

It does not mean caste can never be used as a criterion. Articles 15(4), 15(5), 16(4) and the Presidential lists all use it, and Indra Sawhney held that a caste can be and often is a social class.

It does not mean article 15(1) reaches private conduct. It binds the State; article 15(2) is the horizontal provision and it is confined to the listed places.

And it does not mean the prohibition is self-executing. Article 17's second sentence contemplates a law making the enforcement of a disability an offence, and the next two chapters are those laws.

Quick revision

Article 15(1): the State, citizens, grounds ONLY, all State action. Article 15(2): everybody, access to shops, restaurants, hotels and places of public entertainment without qualification, and to wells, tanks, ghats, roads and places of public resort maintained out of State funds or dedicated to the public. Article 16(1) and (2): equality of opportunity in public employment, with descent and residence added to the grounds; article 16(3) reserves the residence power to Parliament. Article 29(2): admission to a State-maintained or aided institution; sex is NOT among its grounds and it has no enabling clause, which is why the First Amendment inserted article 15(4). N.M. Thomas: article 16(4) is not an exception to 16(1) but an emphatic statement of how far equality of opportunity may be carried.

Test yourself

1. What work does the word "only" do in article 15(1)? It confines the prohibition to a classification resting wholly on one or more of the listed grounds. A classification resting on a listed ground together with something else must be examined to see whether the listed ground is the real basis in disguise, and is neither automatically bad nor automatically saved.

2. Which of these provisions binds private persons, and why? Article 15(2), which forbids any citizen being subjected to a disability with regard to access to shops, restaurants, hotels and places of public entertainment or to the use of the listed public facilities. The framers made it horizontal because the exclusion it was aimed at was practised by private persons on private premises.

3. Which two grounds appear in article 16(2) but not in article 15(1), and why do they matter? Descent and residence. Descent matters because it is the mechanism of caste itself; residence matters because it is the sons-of-the-soil question, and article 16(3) reserves to Parliament alone the power to prescribe a residence requirement.

4. Why did article 29(2) require a constitutional amendment to be worked around? Because it admits of no exception and contains no enabling clause. In Champakam Dorairajan the Madras communal order could not be saved by the Directive Principle in article 46, so Parliament inserted article 15(4) by the First Amendment 1951.

5. What is the relationship between article 16(1) and article 16(4)? Article 16(4) is not an exception to article 16(1) but an instance and illustration of the classification inherent in it: N.M. Thomas so held and Indra Sawhney adopted it. If equality of opportunity means effective material equality, reservation is an application of that equality rather than a departure from it.

Why it matters. It is the only reported decision squarely on the meaning of a word the Constitution abolishes and never defines, and the negative form of the holding is the useful part: a boycott or an exclusion within a community, for reasons other than birth in a particular class, is not untouchability however unpleasant it is.

The Act of 1955

Its name, section 1(1). Enacted as the Untouchability (Offences) Act 1955, renamed the Protection of Civil Rights Act 1955 by the Untouchability (Offences) Amendment and Miscellaneous Provision Act 1976, which also made the offences non-compoundable and strengthened the Act considerably.

Its reach, section 1(2) and (3). It extends to the whole of India, and came into force on the date the Central Government appointed by notification. There is no State exception and no Scheduled Area exception, which matters because article 17 itself admits of none.

Section 2. Definitions, including "civil rights", which means any right accruing to a person by reason of the abolition of untouchability by article 17, and "place of public worship" and "shop", both defined widely.

The offences, sections 3 to 7.

Section 3, religious disabilities. Punishment for preventing a person on the ground of untouchability from entering a place of public worship open to other persons professing the same religion, from worshipping or offering prayers there, or from bathing in or using the waters of a sacred tank, well, spring or watercourse.

Section 4, social disabilities. Punishment for enforcing a disability on the ground of untouchability in respect of, among many others, access to a shop, public restaurant, hotel or place of public entertainment; the use of utensils kept in such a place; the practice of any profession or the carrying on of any occupation, trade or business; the use of a water source, road, burial or cremation ground, sanitary convenience, dharamshala or any other place of public resort; the use of jewellery and finery; the enjoyment of the benefits of a charitable trust; and the construction or occupation of a residential premises in any locality.

Section 5, hospitals and educational institutions. Punishment for refusing to admit a person on the ground of untouchability to a hospital, dispensary, educational institution or hostel established for the benefit of the public, or for discriminating in the treatment there given.

Section 6, goods and services. Punishment for refusing to sell goods or render services to any person on the ground of untouchability, on the same terms and conditions on which they are sold or rendered to others.

Section 7, other offences. Punishment for preventing a person from exercising a right accruing from the abolition of untouchability; for molesting, injuring, annoying, boycotting or causing any other injury on that ground; for insulting a member of a Scheduled Caste on the ground of untouchability; and for preaching untouchability or justifying it on historical, philosophical or religious grounds or on the ground of tradition of the caste system.

The machinery, sections 8 to 16. Cancellation or suspension of a licence; resumption or suspension of a Government grant; abetment; enhanced penalty on a subsequent conviction; a presumption by the court in certain cases; limitation of the jurisdiction of civil courts; offences by companies; and the offences being cognizable and triable summarily.

Section 12, the presumption, is the provision worth naming. Where an act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the court shall presume, unless the contrary is proved, that the act was committed on the ground of untouchability.

Section 15A, inserted in 1976. The State Government shall take such measures as may be necessary for ensuring that the rights arising from the abolition of untouchability are made available to and are availed of by the persons subjected to any disability; and it lists them, including adequate facilities for legal aid, the setting up of special courts, the setting up of committees at appropriate levels to assist in the implementation of the Act, the provision for a periodic survey of the working of the Act, and the identification of areas where persons are under a disability and the adoption of measures to remove it.

Section 17, and the Schedule. The enactments in the Schedule are repealed to the extent that they correspond to or are repugnant to this Act. The Schedule lists the State laws the Act displaced, among them the Travancore-Cochin Removal of Social Disabilities Act and Temple Entry (Removal of Disabilities) Act, and the Coorg Scheduled Castes (Removal of Civil and Social Disabilities) Act and Temple Entry Authorisation Act. Two things follow. Untouchability legislation began in the STATES, well before 1955; and a State law survives so far as it is not repugnant, so a State enactment on the subject is not automatically displaced.

Section 15A is the most important provision in the Act for this paper. It is Parliament, twenty-one years after enacting the offences, recording in the statute itself that the offences alone had not delivered the rights, and building machinery instead. The point is made at length in [What Law Cannot Do: The Limits of Legislating Change].

Why the Act largely failed

Because the offences are minor and summarily triable, which signals that the conduct is a petty offence rather than a constitutional wrong.

Because the complainant lives in the village. The enforcement limit, and Appa Balu Ingale is the case that shows it: a proved offence took two appeals to produce a conviction.

Because the presumption in section 12 requires the victim to be identified as a Scheduled Caste member and the act to be proved first.

And because the Act reaches "untouchability" and not violence. A person who is beaten for drawing water is the victim of an assault, and the Act's offences are about the disability rather than the injury. That gap is exactly what the Act of 1989 was enacted to close.

A worked example

A shopkeeper refuses to sell to a customer on the ground of caste and serves them in a separate cup; a temple committee refuses entry; and a landlord refuses to let a room.

The shop. Section 6, refusing to sell goods or render services on the ground of untouchability; and section 4, which covers access to a shop and the use of utensils kept there. Article 15(2) applies as well.

The temple. Section 3, religious disabilities, and article 17 directly. If the temple is denominational, the temple-entry question in [Temple Entry] arises but article 17 admits of no exception.

The room. Section 4 covers the construction or occupation of a residential premises in any locality. Article 15(2) does not, because a private letting is not one of the listed places.

The presumption. If the customer is a member of a Scheduled Caste, section 12 presumes that the act was done on the ground of untouchability unless the contrary is proved.

And the practical question. Who complains, to whom, and what happens to them afterwards. That is section 15A's subject and the reason the section exists.

What this does NOT mean

It does not mean the Act is repealed. It is in force alongside the Act of 1989, which deals with atrocities rather than disabilities.

It does not mean article 17 is confined to caste. Chandrachud J's opinion in the Sabarimala case treats social exclusion of women based on menstrual status as a form of untouchability; the dissent rejected that reading. Both are stated in [Temple Entry].

And it does not mean untouchability means what the word says. Devarajiah is express: it refers to the historical practice against certain classes by reason of birth, not to any avoidance of contact.

Quick revision

Article 17: untouchability abolished, its practice in any form forbidden, the enforcement of any disability arising out of it to be an offence punishable in accordance with law; absolute, horizontal, and undefined. Devarajiah v. B. Padmanna, Mysore HC 1957: not used in a literal or general sense; conduct within a community for reasons other than birth in a particular class is outside it. Protection of Civil Rights Act 1955, formerly the Untouchability (Offences) Act, renamed in 1976: section 2 definitions including civil rights; section 3 religious disabilities; section 4 social disabilities; section 5 hospitals and educational institutions; section 6 goods and services; section 7 other offences including preaching untouchability; section 12 the presumption where the victim is a Scheduled Caste member; section 15 cognizable and summarily triable; section 15A, inserted 1976, obliging the State to provide legal aid, special courts, committees, periodic surveys and the identification of areas.

Test yourself

1. Set out article 17 and give three things that make it unusual. Untouchability is abolished and its practice in any form is forbidden, and the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. It is subject to no limitation or exception of any kind; it binds private persons as well as the State; and the word is left undefined, being placed in inverted commas in the Constitution itself.

2. What did Devarajiah decide about the meaning of untouchability? That it is not used in a literal or general sense but refers to the practice as it developed historically against certain classes by reason of their birth in them, so that conduct relating to a person's position within his own community, and not related solely to origin in a particular class, is outside the mischief of the Act.

3. Name the five offence sections of the Act of 1955 and what each covers. Section 3, religious disabilities; section 4, social disabilities including shops, occupations, water sources, roads, burial grounds and residence; section 5, refusal of admission to hospitals and educational institutions; section 6, refusal to sell goods or render services; and section 7, other offences including obstruction, boycott, insult and the preaching or justification of untouchability.

4. What does section 12 provide, and why does it matter? That where an act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the court shall presume, unless the contrary is proved, that it was committed on the ground of untouchability. It matters because the ground of an act is otherwise almost impossible to prove.

5. Why is section 15A the most significant provision in the Act for this paper? Because it was inserted in 1976, twenty-one years after the offences, and obliges the State Government to provide legal aid, special courts, implementation committees, periodic surveys and the identification of affected areas. It is Parliament recording in the statute itself that offence provisions alone had not delivered the rights article 17 created.

Section 3(2) contains the graver forms, including giving false evidence leading to conviction for a capital offence, mischief by fire on a building ordinarily used as a place of worship or dwelling, and offences under the Penal Code punishable with imprisonment of ten years or more committed against a member of these communities on the ground of that membership.

Section 4. Punishment for neglect of duties by a public servant not being a member of a Scheduled Caste or Scheduled Tribe, with imprisonment of not less than six months extending to one year.

Section 4 is the provision the 1955 Act lacked entirely. It makes the failure of an official to perform his duty under the Act itself an offence, which is a direct answer to the enforcement problem.

Sections 5 to 9. Enhanced punishment on a subsequent conviction; application of certain provisions of the Penal Code; forfeiture of property; a presumption as to offences where the accused was acquainted with the victim or their family; and the conferment of powers on officers.

Chapter III, sections 10 to 13, externment. Removal of a person likely to commit an offence from a Scheduled Area or a tribal area; the procedure on failure to remove himself; the taking of measurements and photographs; and the penalty for non-compliance.

Chapter IV, sections 14 and 15. A Special Court and an Exclusive Special Court for the trial of offences, and a Special Public Prosecutor and Exclusive Public Prosecutor. Section 14A, inserted in 2018, provides for appeals from any judgment, sentence or order of a Special Court to the High Court, and for appeal against an order granting or refusing bail.

Chapter IVA, section 15A, inserted in 2018, the rights of victims and witnesses. A duty on the State to make arrangements for their protection, and rights to be heard, to be given a copy of the report, to reasonable, accurate and timely notice of proceedings, and to be given a fair and speedy trial, ordinarily to be completed within two months from the filing of the charge sheet.

Section 16. The State Government's power to impose a collective fine on the inhabitants of an area.

Section 17. Preventive action by the law and order machinery, including declaring an area to be atrocity prone.

Section 18. Section 438 of the Code of Criminal Procedure, anticipatory bail, shall not apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act.

Section 18A, inserted in 2018. For the purposes of the Act, preliminary enquiry shall not be required for registration of a first information report against any person; the investigating officer shall not require approval for the arrest, if necessary, of any person; and no procedure other than that provided under the Act or the Code shall apply. The section further provides that the provisions of section 438 of the Code shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any court.

Sections 19 to 23. Section 360 of the Code and the Probation of Offenders Act not to apply to a person over eighteen guilty of an offence under the Act; the Act to override other laws; the duty of Government to ensure effective implementation, including legal aid, travelling and maintenance expenses for victims and witnesses, economic and social rehabilitation, and the appointment of officers; protection of action taken in good faith; and the power to make rules, under which the Rules of 1995 were made.

The sequence of 2018 to 2020

Facts. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454, decided 20 March 2018 by Goel and Lalit JJ. The appellant, a public servant, sought quashing of proceedings under the Act, and the Court used the occasion to consider what it described as the acknowledged abuse of the law of arrest in cases under it.

Held. The Court issued prospective directions: that section 18 does not bar anticipatory bail where no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide; that the arrest of a public servant may be made only after approval of the appointing authority and of a non-public servant only after approval by the Senior Superintendent of Police, for recorded reasons to be scrutinised by the Magistrate before further detention; that a preliminary enquiry may be conducted by the Deputy Superintendent of Police to find out whether the allegations make out a case under the Act and are not frivolous or motivated; and that violation of the last two directions would be actionable by disciplinary action and by contempt.

What happened next. There were widespread protests. Parliament passed the Amendment Act of 2018, inserting section 18A, which removes the preliminary enquiry, removes the approval requirement for arrest, and provides that section 438 shall not apply notwithstanding any judgment or order of any court. It came into force on 20 August 2018, five months after the judgment.

Facts. Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727, decided 10 February 2020 by Arun Mishra, Vineet Saran and S. Ravindra Bhat JJ. The petitioners challenged section 18A.

Held. The provisions were upheld. The Court held section 18A valid, while recording that anticipatory bail is not entirely excluded in a case where no prima facie case is made out or where the complaint is found on a judicial scrutiny of the allegations to be frivolous or motivated. Bhat J added a concurring opinion on fraternity and on the acknowledgment of the otherness of each person's identity.

Why the sequence matters for this paper. A court read safeguards into a social statute on a finding of misuse; a legislature removed them within five months; and the court then upheld the removal while preserving a narrow judicial discretion. It is the sharpest available illustration of the relationship between the two branches on social legislation, and it can be used to answer MU's questions on law as an instrument of change as well as its questions on caste.

A worked example

A member of a Scheduled Caste is prevented from taking his marriage procession along a village road and is insulted in the presence of others.

The offences. Section 3(1) covers intentional insult or intimidation with intent to humiliate a member of these communities in any place within public view, and it also covers the denial of customary rights of passage and causing a person to leave their village.

Registration. Section 18A: no preliminary enquiry is required for registration of the first information report.

Arrest. Section 18A: no approval is required, and section 18 with section 18A excludes anticipatory bail, subject to the narrow judicial scrutiny preserved in Prathvi Raj Chauhan.

Trial. A Special Court under section 14, ordinarily to be completed within two months of the charge sheet under section 15A(11); appeal to the High Court under section 14A.

And relief. Section 21 obliges the Government to provide legal aid, travelling and maintenance expenses and economic and social rehabilitation, and the Rules of 1995 prescribe the scale of relief.

What this does NOT mean

It does not mean the Act of 1955 is spent. The two operate together: disabilities under the 1955 Act, atrocities under the 1989 Act.

It does not mean conviction rates are high. They are not, and the honest answer says so: the Act's design addresses registration, procedure and relief far more successfully than it addresses conviction.

And it does not mean anticipatory bail is wholly unavailable. Prathvi Raj Chauhan preserved the position that where no prima facie case is made out, or where the complaint appears frivolous or motivated on a judicial scrutiny of the allegations, the bar does not operate.

Quick revision

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, Act 33 of 1989, TWENTY-THREE sections. Section 2 definitions, atrocity meaning an offence under section 3. Section 3 the offences, six months to five years, with graver forms in section 3(2). Section 4 punishment for neglect of duties by a public servant. Sections 10 to 13 externment. Section 14 Special Courts, section 14A appeals, section 15 Special Public Prosecutors, section 15A rights of victims and witnesses with a two-month trial norm. Section 16 collective fine, section 17 preventive action. Section 18 no anticipatory bail; section 18A, 2018, no preliminary enquiry, no approval for arrest, section 438 excluded notwithstanding any judgment. Sections 19 to 23. Mahajan 2018 read in safeguards; section 18A removed them; Prathvi Raj Chauhan 2020 upheld section 18A while preserving a narrow judicial scrutiny.

Test yourself

1. Why was the Act of 1989 needed when the Act of 1955 existed? Because the 1955 Act reached disabilities, refusal of entry, service or admission, and not violence; its offences were petty and summarily triable; and prosecutions failed, which Parliament had itself recorded by inserting section 15A into it in 1976.

2. What does section 4 do, and why is it significant? It makes it an offence, punishable with six months to one year, for a public servant who is not a member of the Scheduled Castes or Scheduled Tribes to neglect his duties under the Act. It is significant because it turns the enforcement failure itself into an offence, which the Act of 1955 never did.

3. Set out the Mahajan directions. That section 18 does not bar anticipatory bail where no prima facie case is made out or the complaint is prima facie mala fide; that arrest of a public servant requires the appointing authority's approval and of a non-public servant the Senior Superintendent's, for recorded reasons scrutinised by the Magistrate; and that a preliminary enquiry may be conducted by a Deputy Superintendent to check that the allegations make out a case and are not frivolous or motivated.

4. What does section 18A provide, and when was it inserted? That no preliminary enquiry is required to register a first information report, that the investigating officer requires no approval for an arrest, that no procedure other than that in the Act or the Code applies, and that section 438 of the Code shall not apply notwithstanding any judgment, order or direction of any court. It was inserted by the Amendment Act of 2018 with effect from 20 August 2018.

5. What did Prathvi Raj Chauhan decide? That section 18A is valid, while recording that anticipatory bail is not entirely excluded in a case where no prima facie case is made out or where on a judicial scrutiny of the allegations the complaint is found to be frivolous or motivated.

And the judicial gloss. Bandhua Mukti Morcha v. Union of India is the case: a prohibition in force since 1976 with no route by which a bonded labourer could reach a court, and a Court that supplied the route by relaxing standing and appointing commissioners. The directions on identification, release and rehabilitation are what made the Act operable at all.

Manual scavenging

What it is. The manual handling, carrying, disposing of or otherwise handling of human excreta from an insanitary latrine, an open drain or pit, or a railway track, before it has decomposed. The work has been assigned to particular castes, which is why it belongs in this topic rather than in a sanitation one.

The first statute. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993, which prohibited the employment of manual scavengers and the construction of dry latrines but depended on adoption by the States and produced almost nothing.

The Act of 2013, in outline. It prohibits the construction or maintenance of an insanitary latrine and the engagement or employment of any person as a manual scavenger, and declares every such engagement or employment to be void. It prohibits a person or agency from engaging or employing anyone for hazardous cleaning of a sewer or septic tank, hazardous cleaning being cleaning without the protective gear and cleaning devices and the observance of safety precautions prescribed. It requires municipalities and panchayats to survey and identify insanitary latrines and to convert or demolish them, and to survey and identify manual scavengers. It provides for the rehabilitation of an identified manual scavenger, including a photo identity card, a cash assistance, a residential plot and financial assistance for construction, training with a stipend, and a loan at concessional rate. It creates Vigilance Committees and Monitoring Committees at district, State and Central level, and makes offences cognizable and non-bailable.

The definition that matters. The Act attaches the prohibition to the LATRINE and to the CLEANING, not merely to the employment relationship, which is why the obligation to convert insanitary latrines is central: the work cannot end while the latrines that require it stand.

The court's finding that neither worked

Facts. Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224, decided 27 March 2014 by Sathasivam CJI with Gogoi and Ramana JJ. The writ petition of 2003 complained that manual scavenging continued despite the Act of 1993, and set out the successive Government schemes: the Low Cost Sanitation for Liberation of Scavengers scheme of 1989-90 for converting dry latrines into pour-flush latrines, and the National Scheme of Liberation and Rehabilitation of Scavengers and their Dependents of March 1992 for identification, liberation and rehabilitation with alternative employment after training. A contempt petition followed in 2012.

Held. The Court recorded that manual scavenging persisted, noted the enactment of the Act of 2013, and issued directions binding on all States and Union Territories for the identification and rehabilitation of manual scavengers and the families of those who had died in sewers and septic tanks, including compensation of ten lakh rupees to the family of each person who had died in such work since 1993. The Registry was directed to communicate the order to the Chief Secretary of every State and Union Territory.

Why it matters here. A prohibition twenty-one years old was found on the facts still to be ignored, and the remedy the Court gave was a compensation and rehabilitation scheme, which is administration rather than adjudication. That is both the reach and the limit of a court in this field.

Why the two practices persist

Because the work still exists. As long as insanitary latrines and unmechanised sewers exist, somebody will be required to clean them, and the person required will be from the caste historically assigned to it.

Because the employer is often the State. Municipalities and railways have been among the largest employers of manual scavengers, so the enforcing authority and the offender are the same body.

Because the debt is a relationship, not a document. A bonded labourer usually has no written contract, so the extinguishment of the debt by statute leaves the social obligation intact.

Because there is no complainant. The labourer needs the creditor, and the scavenger needs the wage.

And because the alternative has not been supplied. Both statutes provide for rehabilitation, and the finding in Safai Karamchari Andolan is that the rehabilitation did not happen.

A worked example

A municipality engages workers to clean a septic tank without protective equipment, and two die.

The offence. The Act of 2013 prohibits engaging or employing any person for hazardous cleaning of a sewer or septic tank, hazardous cleaning being cleaning without the prescribed protective gear, devices and safety precautions. The prohibition binds the municipality as much as a private agency.

The compensation. Under the directions in Safai Karamchari Andolan, ten lakh rupees to the family of each person who has died in such work since 1993, payable by the State.

The caste dimension. If the deceased were members of a Scheduled Caste and the engagement amounts to an offence under section 3 of the Act of 1989, that Act applies as well; its section 3 covers compelling a member of these communities to do begar or other forms of forced or bonded labour.

And the structural question. The tank was unmechanised and the municipality had not surveyed or converted the insanitary latrines it was obliged to. That failure is the offence behind the offence, and it is the one nobody is prosecuted for.

What this does NOT mean

It does not mean the statutes are weak on paper. Both are strong: the debt is extinguished by statute, the engagement is void, and the offences are cognizable and non-bailable.

It does not mean the practices are confined to one community. They are not exclusively so, but the concentration is the reason they are in this topic.

And it does not mean a court can end them. Safai Karamchari Andolan shows what a court can do, which is to order identification, rehabilitation and compensation, and what it cannot, which is to build the sewers.

Quick revision

Article 23: traffic in human beings and begar and other similar forms of forced labour prohibited; contravention an offence; clause (2) permits non-discriminatory compulsory service for public purposes. Begar is labour exacted without remuneration. PUDR: less than the minimum wage is forced labour and article 23 binds private persons. Bonded Labour System (Abolition) Act 1976: the system abolished, every labourer freed, every bonded debt extinguished with no suit lying, mortgaged property restored, District Magistrates and Vigilance Committees, offences created; Bandhua Mukti Morcha supplied the route to a court. Manual scavenging: the Act of 1993 failed; the Act of 2013 prohibits insanitary latrines, the engagement of manual scavengers and hazardous cleaning of sewers and septic tanks, requires survey, conversion and identification, provides rehabilitation including a plot, cash assistance, training and a concessional loan, and creates Vigilance and Monitoring Committees. Safai Karamchari Andolan 2014: the practice continued; ten lakh rupees compensation for each death since 1993.

Test yourself

1. What does article 23 prohibit, and what did PUDR add to it? Traffic in human beings and begar and other similar forms of forced labour, any contravention being an offence. PUDR held that labour taken for less than the minimum wage is forced labour within the article, because the person works under the force of economic circumstance, and that article 23 operates against private persons as well as the State.

2. What does the Bonded Labour System (Abolition) Act 1976 do to an existing debt? It deems the obligation to repay a bonded debt to be extinguished, bars any suit or other proceeding for its recovery, deems any decree already passed to be satisfied, and provides for the restoration of property mortgaged for it.

3. Give four things the Act of 2013 requires beyond prohibition. A survey and identification of insanitary latrines and their conversion or demolition; a survey and identification of manual scavengers; rehabilitation including a photo identity card, cash assistance, a residential plot and construction assistance, training with a stipend and a concessional loan; and Vigilance and Monitoring Committees at district, State and Central level.

4. What did Safai Karamchari Andolan decide? That manual scavenging persisted despite the Act of 1993, and it issued directions binding on all States and Union Territories for identification and rehabilitation and for compensation of ten lakh rupees to the family of every person who had died in sewer or septic-tank work since 1993.

5. Give three reasons the practices persist despite prohibition. The work itself still exists while insanitary latrines and unmechanised sewers stand; the employer is often a municipality or a public body, so the enforcer and the offender are the same; and there is no complainant, because the labourer needs the creditor and the worker needs the wage. A fourth is that the rehabilitation both statutes promise has not been delivered.

It too was inserted because of a case. Indra Sawhney had held that article 16(4) does not permit reservation in promotion.

Article 16(4B), Eighty-first Amendment 2000. Unfilled vacancies of a year reserved for the Scheduled Castes and Scheduled Tribes under clause (4) or (4A) may be considered as a separate class of vacancies to be filled in any succeeding year, and shall not be considered together with the vacancies of the year in which they are filled for determining the ceiling of fifty per cent on reservation on the total number of vacancies of that year.

It answers the carry-forward problem that Indra Sawhney had addressed by holding that the fifty per cent rule applies to each year.

Article 15(5), Ninety-third Amendment 2005. Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Two things about it. It reaches PRIVATE institutions, aided or unaided, which article 15(4) did not; and it excludes minority institutions under article 30(1). Its validity was upheld in Ashoka Kumar Thakur v. Union of India, worked in [Backward Classes, the Creamy Layer and the Ceiling].

Articles 15(6) and 16(6), One Hundred and Third Amendment 2019. Special provision, including reservation of up to ten per cent, for the economically weaker sections of citizens other than the classes mentioned in articles 15(4) and 15(5) and in article 16(4). Upheld in Janhit Abhiyan v. Union of India, worked in [Reservation in Promotion, and the Ten Per Cent for the Economically Weaker].

Article 335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The proviso, added by the Eighty-second Amendment 2000, permits relaxation in qualifying marks or standards of evaluation for reservation in promotion.

The pattern, and it is the examinable point

Every major reservation provision except article 16(4) was inserted to answer a judicial decision.

What that pattern shows. Reservation in India is the product of a continuous argument between Parliament and the Supreme Court, in which each decision has been answered by an amendment and each amendment tested against the basic structure. An answer that traces the pattern is worth much more than one that lists the clauses.

And the pattern has a limit. In Kesavananda Bharati terms, an amendment may not destroy the basic structure, and M. Nagaraj, Jarnail Singh and Janhit Abhiyan are the cases in which the amendments were tested against it.

What the scheme does NOT contain

No provision makes reservation compulsory. Every clause says "nothing shall prevent the State", so there is no fundamental right to a reservation, and a State that provides none is not in breach.

No provision fixes a percentage, except article 15(6) and article 16(6), which cap the economically weaker sections at ten per cent. The fifty per cent rule is judicial, from Balaji and Indra Sawhney.

No provision defines a backward class. Article 340 provides for a Commission to investigate, and article 342A now provides for a Presidential list, but the content is left to identification.

And no provision provides for religion-based reservation. The categories are backward classes, Scheduled Castes, Scheduled Tribes and economically weaker sections, and Indra Sawhney held that occupational groups, sects and denominations among non-Hindus can be socially backward classes, which is a different thing from reserving for a religion.

A worked example

A State wishes to reserve twenty-seven per cent of posts in its services, twenty-seven per cent of seats in private unaided colleges, and to provide reservation in promotion for the Scheduled Castes.

The posts. Article 16(4). It must be satisfied that the class is backward and inadequately represented in the services, and the total reservation must respect the fifty per cent rule.

The private unaided college seats. Article 15(5), and the provision must be made BY LAW, which article 15(5) requires in terms and article 15(4) does not. Minority institutions under article 30(1) are excluded.

The promotion. Article 16(4A), and on M. Nagaraj as modified by Jarnail Singh the State must have quantifiable data on the inadequacy of representation and must consider the effect on efficiency under article 335; the backwardness requirement was held invalid in Jarnail Singh so far as the Scheduled Castes and Scheduled Tribes are concerned.

And the arithmetic. The fifty per cent ceiling applies to the reservations under articles 15(4), 15(5) and 16(4); on Janhit Abhiyan the ten per cent for the economically weaker sections sits outside it.

What this does NOT mean

It does not mean reservation is an exception to equality. N.M. Thomas and Indra Sawhney hold the opposite, and the point is the next chapter.

It does not mean the clauses are self-executing. Each requires the State to make a provision, and several require satisfaction on facts that are judicially reviewable.

And it does not mean the scheme is settled. State of Punjab v. Davinder Singh changed it in 2024, and the questions about the creamy layer for the Scheduled Castes and Scheduled Tribes are open.

Quick revision

All enabling: "nothing shall prevent the State". Article 16(4), original: a backward class of citizens not adequately represented in the services, in the opinion of the State. Article 15(4), First Amendment 1951, after Champakam Dorairajan, overriding article 29(2) as well. Article 16(4A), 1995, promotion, with consequential seniority added in 2001. Article 16(4B), 2000, backlog vacancies outside the year's ceiling. Article 15(5), 2005, private institutions aided or unaided, by law, minority institutions excluded. Articles 15(6) and 16(6), 2019, up to ten per cent for the economically weaker sections. Article 335, efficiency, with the 2000 proviso permitting relaxation. The pattern: every provision except article 16(4) answers a judicial decision.

Test yourself

1. What kind of provisions are the reservation clauses? Enabling clauses. Each says that nothing in the article shall prevent the State from making a provision, so no clause compels a reservation and there is no fundamental right to one.

2. Set out the four elements built into article 16(4). The beneficiary is a backward class of citizens; the trigger is inadequate representation in the services under the State; the satisfaction is that of the State, subject to judicial review; and the clause is enabling rather than mandatory.

3. Which judicial decision produced each of article 15(4) and article 16(4A)? Article 15(4) was inserted by the First Amendment 1951 after Champakam Dorairajan held that article 29(2) admits of no exception. Article 16(4A) was inserted by the Seventy-seventh Amendment 1995 after Indra Sawhney held that article 16(4) does not permit reservation in promotion.

4. What does article 15(5) add to article 15(4), and what does it require that article 15(4) does not? It extends special provision to admission to educational institutions including private institutions, aided or unaided, while excluding minority institutions under article 30(1). It requires the provision to be made BY LAW, which article 15(4) does not.

5. Where does the fifty per cent rule come from? Not from the text. It is judicial, stated in M.R. Balaji and settled in Indra Sawhney, and on Janhit Abhiyan it applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4) and not to the ten per cent for the economically weaker sections.

Held. By majority the rule and the orders under it were upheld and the High Court's judgment set aside. The reasoning that matters: while the accent in article 14 is on the negative duty of the State not to deny equality, the emphasis in article 16(1) is mandatory; and if equality of opportunity guaranteed by article 16(1) means effective material equality, then article 16(4) is NOT an exception to article 16(1) but only an emphatic way of putting the extent to which equality of opportunity could be carried, namely even up to the point of making reservation. Article 16(1) is part of a comprehensive scheme to ensure equality in all spheres and permits classification just as article 14 does, subject to article 16(2).

Why it matters. It is the turning point. Before Thomas, reservation was a permitted departure from equality; after it, an application of equality. Every later development, including reservation under article 16(1) itself and the sub-classification reasoning in State of Punjab v. Davinder Singh, follows from it.

And Indra Sawhney settled it. Its summary records that clause (4) of article 16 is not an exception to clause (1) but an instance and an illustration of the classification inherent in clause (1); that clause (4) is exhaustive of the subject of reservation in favour of a backward class; and that reservations may also be provided under clause (1), adjusted so as not to exceed the level of representation prescribed for backward classes.

The four requirements of a valid protective measure

One: an intelligible differentia. The group must be identifiable by a criterion that is not arbitrary. Caste may be a starting point, and Indra Sawhney held that a caste can be and often is a social class, but M.R. Balaji holds that caste cannot be the sole or predominant test.

Two: a nexus with the object. The measure must be capable of advancing the group. This is where a reservation that reaches only the best-off within the group fails, which is the creamy-layer point.

Three: proportionality in extent. The fifty per cent rule, from Balaji and Indra Sawhney, and the requirement in M. Nagaraj of quantifiable data.

Four: it must not destroy the right it qualifies. Article 335's efficiency requirement, and the basic-structure limit applied in Nagaraj and Janhit Abhiyan.

The objections, and the answers

That it is discrimination whatever it is called. The answer is that discrimination means treating like cases differently without justification, and the whole point of the doctrine is that the cases are not alike.

That it penalises an individual who did nothing. This is the strongest objection and the honest answer is that it does. The reply is that the seat or post is a public resource being allocated across a society rather than a prize in a private contest, which is the distinction drawn in [Social Justice].

That it entrenches the categories it uses. Real, and it is why the creamy layer, the fifty per cent rule and the periodic review of lists exist.

That it lowers standards. Article 335 requires efficiency to be considered, and Ashoka Kumar Thakur directed that cut-off marks for the Other Backward Classes be set not more than ten marks out of a hundred below the general category. Indra Sawhney recorded that the rule of reservation cannot be called anti-meritarian, while accepting that there are services and posts to which it may not be advisable to apply it.

And that it should be economic rather than social. Indra Sawhney held that a backward class cannot be identified only and exclusively by economic criteria; Janhit Abhiyan then upheld a reservation structured singularly on economic criteria as a SEPARATE category, which is a reconciliation rather than a contradiction: economic criteria may not define a backward class, and may define a different class.

A worked example

A State exempts members of the Scheduled Castes from a departmental test for two years and a candidate challenges it under article 16(1).

On the exception theory. Article 16(4) permits reservation of posts; an exemption from a test is not a reservation of posts; therefore there is no permission and the measure fails.

On the Thomas theory. Article 16(1) itself permits classification with an intelligible differentia and a rational nexus. The group is identifiable, the object is to bring it into the service, and a temporary exemption is capable of advancing that object. The measure stands, and article 16(4) is not needed at all.

Which is exactly what happened. N.M. Thomas is that case, and the difference between the two answers is the difference the doctrine makes.

And the limits the second theory carries. The measure must be temporary or reviewable, must not destroy efficiency under article 335, and must not exceed the ceiling.

What this does NOT mean

It does not mean any special provision is valid. The four requirements apply, and Balaji, Indra Sawhney and Nagaraj are cases in which measures failed them.

It does not mean reservation and protective discrimination are the same thing. Reservation is one form of it; exemptions, relaxations, concessions, scholarships and reserved seats in legislatures are others.

And it does not mean the doctrine settles how much. It settles that differential treatment is permissible in principle, and every argument about extent is fought out afterwards.

Quick revision

Protective discrimination: differential treatment of a disadvantaged group to bring it to real equality. Justified under article 14's classification doctrine, intelligible differentia plus rational nexus with the object, the object being written into article 46. Equality among unequals is inequality. The exception theory: article 16(4) as a narrow exception to article 16(1). N.M. Thomas 1975: article 16(4) is not an exception but an emphatic statement of how far equality of opportunity may be carried; article 16(1) permits classification as article 14 does. Indra Sawhney 1992 adopted it: an instance and illustration of the classification inherent in clause (1), and reservation is possible under clause (1) itself. Four requirements: intelligible differentia, nexus, proportionality including the fifty per cent rule and quantifiable data, and not destroying the right it qualifies.

Test yourself

1. State the justification for protective discrimination under article 14. That article 14 permits classification resting on an intelligible differentia with a rational nexus to the object; that treating unequals alike is itself a denial of equality; and that the object is written into article 46, the promotion of the educational and economic interests of the weaker sections and their protection from social injustice.

2. What was the exception theory, and what followed from it? That article 16(4) is an exception to the rule of equality of opportunity in article 16(1). Two consequences followed: an exception is strictly construed, so the scope of reservation was read down; and no reservation was possible outside article 16(4), since that clause was the only permission.

3. What did N.M. Thomas hold, and why is it the turning point? That if equality of opportunity under article 16(1) means effective material equality, article 16(4) is not an exception but an emphatic way of putting how far that equality may be carried, even to the point of reservation; and that article 16(1) permits classification as article 14 does. It is the turning point because reservation ceased to be a departure from equality and became an application of it.

4. Name the four requirements of a valid protective measure. An intelligible differentia identifying the group; a rational nexus with the object of advancing it; proportionality in extent, including the fifty per cent rule and quantifiable data; and that it must not destroy the right it qualifies, which brings in article 335 and the basic-structure limit.

5. Are Indra Sawhney and Janhit Abhiyan inconsistent on economic criteria? No. Indra Sawhney held that a BACKWARD CLASS cannot be identified only and exclusively by economic criteria. Janhit Abhiyan upheld a reservation for a SEPARATE category, the economically weaker sections, defined by economic criteria and expressly excluding the classes already covered. The two propositions are about different categories.

Held. The order was struck down. The Committee had treated caste as almost the sole basis of social backwardness, and a classification resting on that test is inconsistent with article 15(4); a reservation of sixty-eight per cent was a fraud on the constitutional power; and special provision under article 15(4) should be less than fifty per cent.

Why it matters. It is the source of both the caste-is-not-enough rule and the fifty per cent rule, and Indra Sawhney restated both.

The creamy layer

What it is. The socially advanced members of a backward class, who are excluded from the benefit so that it reaches those for whom it was intended.

Where it comes from. Indra Sawhney's summary states it in four words: "Creamy layer can be, and must be, excluded."

How it is identified. By criteria the Government prescribes, which in the Central scheme turn on the parents' constitutional or service position, income and agricultural holding, with the income limit revised from time to time. The criteria are about SOCIAL advancement evidenced by position and income, not about wealth alone.

Where it applies. To the Other Backward Classes, without doubt, and Ashoka Kumar Thakur carried it into education under article 15(5). Its application to the Scheduled Castes and Scheduled Tribes has been the most contested question in this area: M. Nagaraj applied a creamy-layer style requirement in the context of promotion, Jarnail Singh left the creamy-layer principle standing while striking down the requirement of quantifiable data on backwardness, and in State of Punjab v. Davinder Singh several judges said that identifying a creamy layer among the Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative.

Why it is the strongest answer to the critics. The commonest objection to reservation is that its benefit is captured by the best-off within the beneficiary group. The creamy layer is the law's own answer to that objection, and an answer that gives it is answering the criticism rather than dodging it.

The ceiling

The rule. Indra Sawhney: reservations contemplated by article 16(4) should not exceed fifty per cent. While fifty per cent shall be the rule, extraordinary situations inherent in the great diversity of the country may justify relaxation for populations out of the mainstream of national life, and in doing so extreme caution is to be exercised and a special case made out. The rule applies to EACH YEAR and cannot be related to the total strength of the class, category, service or cadre.

Its two qualifications. The extraordinary-situation exception, used to justify the very high reservations in some north-eastern States; and article 16(4B), inserted in 2000, which takes carried-forward backlog vacancies out of the year's computation.

And its third, which is recent. Janhit Abhiyan held that the fifty per cent ceiling is not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4), so the ten per cent for the economically weaker sections sits outside it.

Sub-classification

Indra Sawhney permitted it among backward classes. There is no constitutional bar to classifying the backward classes of citizens into backward and more backward categories.

E.V. Chinnaiah forbade it among the Scheduled Castes. The castes in the Presidential List under article 341 form a homogeneous group which a State may not re-group, only Parliament being able to alter the List under article 341(2).

And State of Punjab v. Davinder Singh reversed that in 2024. A Bench of seven held that E.V. Chinnaiah was wrongly decided, that sub-classification is a facet of equality under article 14 rather than a departure from it, that the Scheduled Castes are not homogeneous for every purpose, and that a State may sub-classify on quantifiable and demonstrable data on inadequacy of representation, subject to the limits on micro-classification and to judicial review.

An answer written from E.V. Chinnaiah alone is now wrong on the law, and saying so is worth marks.

Ashoka Kumar Thakur and higher education

Facts. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, decided 10 April 2008 by Balakrishnan CJI with four others. The Ninety-third Amendment inserting article 15(5) and the Central Educational Institutions (Reservation in Admission) Act 2006, providing twenty-seven per cent for the Other Backward Classes, were challenged; reservation for the Scheduled Castes and Scheduled Tribes was not opposed.

Held. The Amendment and the Act were upheld so far as they related to State-maintained and aided institutions, and the twenty-seven per cent reservation was sustained SUBJECT TO the exclusion of the creamy layer. The Court directed that to maintain standards of excellence the cut-off marks for the Other Backward Classes be set not more than ten marks out of a hundred below the general category, and emphasised that reservation must not lead to reverse discrimination.

Why it matters. It carries the creamy layer from employment into education and it supplies the only numerical direction on standards in this area.

A worked example

A State identifies a community as backward on a survey showing low literacy, low landholding and low representation in its services, reserves thirty per cent for it, and applies no income limit.

Identification. Permissible: caste may be the starting point, and the survey uses social, educational and economic indicators rather than caste alone, which is what Balaji requires.

The thirty per cent. Depends on the total. Fifty per cent is the ceiling for reservations under articles 15(4), 15(5) and 16(4), applied to each year's vacancies; add the existing Scheduled Caste and Scheduled Tribe reservations and the arithmetic decides.

No income limit. Bad. Indra Sawhney requires the creamy layer to be excluded, and Ashoka Kumar Thakur applies the requirement to admissions as well.

And if the State wishes to give a first preference within the community to its most disadvantaged section? Permissible among backward classes on Indra Sawhney, and now permissible among the Scheduled Castes as well on State of Punjab v. Davinder Singh, provided it rests on quantifiable and demonstrable data.

What this does NOT mean

It does not mean caste cannot be used. It means caste alone cannot be the test. Indra Sawhney is express that a caste can be and often is a social class.

It does not mean fifty per cent is absolute. Indra Sawhney allows an extraordinary-situation exception with extreme caution, article 16(4B) removes backlog vacancies from the computation, and Janhit Abhiyan confines the rule to the caste-based reservations.

And it does not mean the creamy layer applies identically everywhere. Its application to the Scheduled Castes and Scheduled Tribes has moved through Nagaraj, Jarnail Singh and Davinder Singh and is not finally settled.

Quick revision

Identification: article 15(4) socially AND educationally backward; article 16(4) backward class not adequately represented, accent on social backwardness and wider than 15(4). Article 340 Commissions: Kalelkar 1953, Mandal 1979 reporting 1980 with eleven indicators weighted three, two and one. Article 342A, 2018, with the 2021 clarification preserving State lists. Balaji 1962: caste not the sole test; sixty-eight per cent a fraud on the power; below fifty per cent. Indra Sawhney 1992: a caste can be a social class; not economic criteria alone; creamy layer can be and must be excluded; backward and more backward permitted; fifty per cent, applied each year, with an extraordinary-situation exception. Ashoka Kumar Thakur 2008: article 15(5) and twenty-seven per cent upheld subject to the creamy layer; cut-off not more than ten marks below. E.V. Chinnaiah 2004 forbade sub-classification of Scheduled Castes; Davinder Singh 2024 overruled it.

Test yourself

1. How is a backward class identified? Not by the Constitution, which does not define it. By a Commission under article 340 or by the State's own survey, using social, educational and economic indicators. A caste may be the starting point and may itself be a social class, but caste cannot be the sole or predominant test, and economic criteria alone cannot identify a backward class.

2. State the creamy layer rule and where it applies. That the socially advanced members of a backward class can and must be excluded from the benefit. It applies without doubt to the Other Backward Classes in employment, and Ashoka Kumar Thakur applied it to admissions under article 15(5). Its application to the Scheduled Castes and Scheduled Tribes has moved through Nagaraj, Jarnail Singh and Davinder Singh and is not finally settled.

3. State the fifty per cent rule with its qualifications. Reservations under article 16(4) should not exceed fifty per cent, the rule applying to each year rather than to the total strength of a cadre. It may be relaxed in extraordinary situations for populations out of the mainstream, with extreme caution and a special case made out; article 16(4B) removes carried-forward backlog vacancies from the year's computation; and Janhit Abhiyan holds that the ceiling applies only to the reservations under articles 15(4), 15(5) and 16(4).

4. What is the position on sub-classification? Indra Sawhney permitted classifying backward classes into backward and more backward. E.V. Chinnaiah forbade it among the Scheduled Castes, treating the Presidential List as homogeneous. State of Punjab v. Davinder Singh in 2024 overruled Chinnaiah, holding sub-classification a facet of article 14 equality, permissible on quantifiable and demonstrable data and subject to judicial review.

5. What numerical direction did Ashoka Kumar Thakur give? That to maintain standards of excellence, the cut-off marks for the Other Backward Classes should be set not more than ten marks out of a hundred below those of the general category.

Why it matters. It is the framework, and the three controlling factors are the examinable core.

Facts. Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396, decided 26 September 2018 by a Constitution Bench of five. The Court was asked to reconsider Nagaraj. The Attorney General argued that inclusion in the Presidential Lists under articles 341 and 342 presumes backwardness, so requiring data on it again is wrong, and that Indra Sawhney had not applied the creamy layer to these communities.

Held. Nagaraj was not referred to a larger Bench, but its requirement that the State collect quantifiable data showing the BACKWARDNESS of the Scheduled Castes and Scheduled Tribes was held contrary to the nine-judge Bench in Indra Sawhney and invalid to that extent, because those communities are presumed backward by their inclusion in the Lists, which only Parliament can alter under articles 341 and 342. The rest of Nagaraj, including inadequacy of representation and efficiency, and the application of the creamy-layer principle, was left standing.

The present position, in one line. Two conditions, inadequacy of representation and efficiency, plus the ceiling and the creamy-layer principle. An answer that gives Nagaraj's three conditions without Jarnail Singh states the law as it was for twelve years and not as it is.

The ten per cent for the economically weaker sections

The amendment. The Constitution (One Hundred and Third Amendment) Act 2019, in force from 14 January 2019, inserted clause (6) in article 15 and clause (6) in article 16. They permit special provision, including reservation of up to ten per cent, for the economically weaker sections of citizens OTHER THAN the classes mentioned in articles 15(4), 15(5) and 16(4). Article 15(6) also reaches admission to educational institutions including private ones, aided or unaided, other than minority institutions under article 30(1).

The three challenges. That reservation on economic criteria alone is impermissible, because Indra Sawhney held that a backward class cannot be identified only by economic criteria. That excluding the existing beneficiary classes offends the Equality Code. And that the ten per cent breaches the fifty per cent ceiling.

Facts. Janhit Abhiyan v. Union of India, (2023) 5 SCC 1, decided 7 November 2022 by a Constitution Bench of five: Lalit CJI, Maheshwari, Bhat, Trivedi and Pardiwala JJ.

Held, by three to two, upholding the Amendment. Reservation is an instrument of affirmative action for an all-inclusive march towards an egalitarian society, and is an instrument not only for the inclusion of socially and educationally backward classes but for the inclusion of any class or section so disadvantaged as to answer the description of a weaker section; reservation structured singularly on economic criteria therefore does not violate any essential feature or damage the basic structure. Exclusion of the classes covered by articles 15(4), 15(5) and 16(4) is in the nature of balancing the requirements of non-discrimination and compensatory discrimination, and does not violate the Equality Code or damage the basic structure. And reservation of up to ten per cent in addition to the existing reservations does not breach any essential feature, because the fifty per cent ceiling is itself not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4).

The dissent. Lalit CJI and Bhat J held sections 2 and 3 of the Amendment unconstitutional and void as violating the basic structure.

Why it matters. Three separate propositions, each examinable: economic criteria alone may found a reservation for a separate category; the exclusion of the existing beneficiaries is valid; and the fifty per cent ceiling does not reach this reservation.

Reconciling Indra Sawhney with Janhit Abhiyan

They are not inconsistent, and saying why is the mark of a good answer.

Indra Sawhney held that a BACKWARD CLASS within article 16(4) cannot be identified only and exclusively by economic criteria, and struck down the ten per cent for other economically backward sections in the 1991 Memorandum, which had been made without any constitutional amendment.

Janhit Abhiyan upheld a reservation for a DIFFERENT category, created by a constitutional amendment, expressly excluding the classes covered by articles 15(4), 15(5) and 16(4).

So the propositions are about different things. Economic criteria cannot define a backward class; they may define an economically weaker section, once the Constitution has been amended to create the category.

And the dissent's objection is exactly that this is a distinction without a difference, which is why the dissent belongs in the answer.

A worked example

A State provides reservation in promotion for the Scheduled Castes in its services, and a ten per cent quota for the economically weaker sections in its medical colleges, taking the total reservation to sixty per cent.

The promotion. Article 16(4A). It needs quantifiable data on inadequacy of representation and on the effect on efficiency under article 335, but not on backwardness after Jarnail Singh. Consequential seniority is available because the words were added in 2001.

The ten per cent. Articles 15(6) and 16(6), and by Janhit Abhiyan it is outside the fifty per cent ceiling, so the total of sixty per cent is not by itself fatal.

The arithmetic. Fifty per cent is the ceiling for the reservations under articles 15(4), 15(5) and 16(4). If those alone exceed fifty, the excess must be justified as an extraordinary situation on Indra Sawhney's exception, and the burden is heavy.

And the backlog. Article 16(4B) takes carried-forward unfilled reserved vacancies out of the fifty per cent computation for the year in which they are filled.

What this does NOT mean

It does not mean reservation in promotion is automatic. Article 16(4A) is enabling and the Nagaraj conditions as modified must be satisfied before the power is exercised.

It does not mean the fifty per cent rule is gone. It applies to the caste-based reservations, and Janhit Abhiyan holds only that it does not reach the economically weaker sections.

And it does not mean the questions are closed. The creamy layer for the Scheduled Castes and Scheduled Tribes, raised again in Davinder Singh, is open.

Quick revision

Promotion: Indra Sawhney barred it; article 16(4A) 1995 with consequential seniority added in 2001; article 16(4B) 2000 on backlog; proviso to article 335, 2000, permitting relaxation. Nagaraj 2006: amendments valid as enabling; three conditions, backwardness, inadequacy of representation, efficiency; ceiling, creamy layer and sub-classification limits continue. Jarnail Singh 2018: the BACKWARDNESS condition invalid, the Presidential Lists presuming backwardness; the other two stand. Economically weaker sections: 103rd Amendment 2019, articles 15(6) and 16(6), up to ten per cent, excluding the classes under 15(4), 15(5) and 16(4), reaching private institutions but not minority ones. Janhit Abhiyan 2022, three to two: economic criteria alone valid; exclusion of the existing classes valid; the fifty per cent ceiling not inflexible and confined to the reservations under 15(4), 15(5) and 16(4). Lalit CJI and Bhat J dissenting.

Test yourself

1. What were the three Nagaraj conditions, and what happened to them? Quantifiable data showing the backwardness of the class, the inadequacy of its representation in the service, and consistency with the maintenance of efficiency of administration under article 335. Jarnail Singh held the backwardness requirement invalid as contrary to Indra Sawhney, the Presidential Lists presuming backwardness; the other two remain.

2. Which amendments made reservation in promotion possible? The Seventy-seventh Amendment 1995 inserting article 16(4A); the Eighty-fifth Amendment 2001 adding consequential seniority to it with retrospective effect; the Eighty-first Amendment 2000 inserting article 16(4B) on backlog vacancies; and the Eighty-second Amendment 2000 adding the proviso to article 335.

3. What do articles 15(6) and 16(6) permit, and whom do they exclude? Special provision, including reservation of up to ten per cent, for the economically weaker sections of citizens, article 15(6) extending to admission to private institutions aided or unaided. They expressly exclude the classes mentioned in articles 15(4), 15(5) and 16(4), and article 15(6) excludes minority institutions under article 30(1).

4. State the three holdings of the majority in Janhit Abhiyan. That reservation structured singularly on economic criteria does not damage the basic structure; that excluding the classes already covered by articles 15(4), 15(5) and 16(4) balances non-discrimination against compensatory discrimination and does not damage it either; and that ten per cent in addition does not breach the ceiling, because the fifty per cent limit is not inflexible and applies only to the reservations envisaged by those clauses.

5. Are Indra Sawhney and Janhit Abhiyan inconsistent? No. Indra Sawhney held that a backward class within article 16(4) cannot be identified only by economic criteria, and struck down a ten per cent quota created without any constitutional amendment. Janhit Abhiyan upheld a reservation for a different category, created by constitutional amendment and expressly excluding the existing beneficiary classes. The dissent's position is that this is a distinction without a difference.

The three consequences of choosing substantive equality

One: reservation is not a departure from equality. That is the whole of [Protective Discrimination], and it is why an answer that describes reservation as an exception is stating a position Indian law abandoned in 1975.

Two: identical treatment can itself be unconstitutional. A rule that applies the same qualifying standard to a person who has had schooling and to one who has not is formally equal and substantively unequal, and the relaxations permitted by the proviso to article 335 exist because of that.

Three: indirect discrimination becomes visible. A neutral rule that has a disproportionate effect on a protected group is a substantive-equality problem, and Indian law has increasingly recognised it, most clearly in the service and employment cases.

Sub-classification as substantive equality

Facts. State of Punjab v. Davinder Singh, 2024 INSC 562, decided 1 August 2024 by a Bench of seven. The Court reconsidered E.V. Chinnaiah, which had held that the Scheduled Castes in the Presidential List are a homogeneous group that a State may not sub-classify.

Held. By a majority, that E.V. Chinnaiah was wrongly decided and that sub-classification within the Scheduled Castes is permissible. The reasoning is the point for this chapter: sub-classification is a FACET of equality under article 14 rather than a departure from it; the Scheduled Castes are not a homogeneous class for every purpose; and a State may sub-classify on quantifiable and demonstrable data on inadequacy of representation, subject to the limits on micro-classification and to judicial review. Several judges, including Gavai J and Satish Chandra Sharma J, added that the identification of a creamy layer among the Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative if substantive equality among them is to be realised.

Why it belongs here rather than only in the reservation chapters. It is the doctrine of substantive equality applied INSIDE a beneficiary group. If treating unequals alike is inequality, that is as true of two Scheduled Castes with very different positions as it is of a Scheduled Caste and a forward caste. The judgment says so in terms.

The objections to the substantive conception

That it has no stopping point. If the test is whether outcomes are equal, any allocation can be justified, and the fifty per cent rule, the creamy layer and article 335 exist precisely as stopping points.

That it converts a right of the individual into a claim of a group. Real, and the answer is that article 15(4) and article 16(4) speak of CLASSES for exactly that reason, while articles 14, 15(1) and 16(1) continue to protect the individual.

That it is unmeasurable. Which is why Nagaraj required quantifiable data and why Davinder Singh repeated the requirement.

And that it entrenches the categories. Which is why the lists are revisable, the creamy layer exists, and the reservation clauses are enabling rather than permanent.

A worked example

Two candidates take a State service examination. A is from a family of teachers and attended a city school; B is the first person in her family to complete school and belongs to a Scheduled Caste. A scores two marks higher.

Formal equality. The same paper, the same marking, the same cut-off. A is admitted, B is not, and the rule has treated them identically.

Substantive equality. The examination measured the outcome of eighteen years of unequal preparation. Treating those eighteen years as irrelevant is what makes the identical rule unequal in effect.

What the Constitution does about it. Article 16(4) permits a reservation for B's class if it is inadequately represented; article 335's proviso permits relaxation in qualifying marks for promotion; and article 46 supplies the object.

And what the Constitution does NOT do. It does not require the State to admit B. Every clause is enabling, and the choice belongs to the State subject to judicial review.

Then change one fact. Suppose B's father is a senior civil servant. The creamy layer now excludes her, and the reason is substantive rather than formal: the disadvantage the provision exists to correct is not present in her case.

What this does NOT mean

It does not mean formal equality is abandoned. Articles 14, 15(1), 15(2), 16(1), 16(2) and 29(2) are formal-equality provisions and they are fully enforceable.

It does not mean outcomes must be equalised. The Indian conception is equality of real opportunity rather than of result, which is why the trigger in article 16(4) is inadequate REPRESENTATION rather than a target share.

And it does not mean the two conceptions are always opposed. Most of the time an identical rule produces a substantively equal result, and the doctrine only does work where it does not.

Quick revision

Formal equality: identical treatment, satisfied by the absence of express discrimination, takes starting positions as given. Substantive equality: looks at effect, asks whether unequally placed persons are left equal. The Constitution chose the second: equality of STATUS as well as opportunity in the Preamble; article 14's classification doctrine; the enabling clauses in articles 15 and 16; article 46; and N.M. Thomas, effective MATERIAL equality. Three consequences: reservation is not an exception; identical treatment can itself be unconstitutional; indirect discrimination becomes visible. Davinder Singh 2024: sub-classification is a facet of article 14 equality, permissible on quantifiable data, and the creamy layer within the Scheduled Castes ought to become a constitutional imperative. Objections: no stopping point, group over individual, unmeasurable, entrenching.

Test yourself

1. Distinguish formal from substantive equality. Formal equality requires that a rule apply identically to all within it and is satisfied by the absence of express discrimination, taking starting positions as given. Substantive equality looks at the effect of the rule in the society where it operates and asks whether persons beginning from unequal positions are left equal by it.

2. Give four textual indications that the Constitution chose the substantive conception. Equality of status as well as of opportunity in the Preamble; the classification doctrine under article 14; the enabling clauses in articles 15(4), 15(5), 15(6), 16(4), 16(4A) and 16(6); and article 46's direction to promote with special care the interests of the weaker sections.

3. What does N.M. Thomas contribute to this chapter? The doctrinal statement of the substantive conception: that if equality of opportunity under article 16(1) means effective material equality, article 16(4) is not an exception but an emphatic way of putting how far that equality may be carried, even to the point of reservation.

4. How does Davinder Singh apply substantive equality inside a beneficiary group? By holding that sub-classification of the Scheduled Castes is a facet of equality under article 14 rather than a departure from it, since the Scheduled Castes are not homogeneous for every purpose, and that a State may sub-classify on quantifiable and demonstrable data subject to the limits on micro-classification and to judicial review.

5. What are the constitutional stopping points on substantive equality? The fifty per cent ceiling from Balaji and Indra Sawhney; the creamy layer; article 335's requirement of efficiency of administration with its proviso; the requirement of quantifiable data from Nagaraj and Davinder Singh; and the basic-structure limit applied in Nagaraj and Janhit Abhiyan.

And the local level. Articles 243D and 243T reserve seats in panchayats and municipalities for the Scheduled Castes, the Scheduled Tribes and women, and reserve offices of chairperson. Those are Parts IX and IXA rather than Part XVI, and they are worked in [Democratic Decentralisation and Local Self-Government].

Article 335: claims to services

The text. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

The proviso, Eighty-second Amendment 2000. Nothing shall prevent the State from making any provision in favour of the members of those communities for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts.

How the article works in practice. It is not a source of the reservation power; article 16(4) is. Article 335 is a CONDITION on its exercise, and it is one of the surviving Nagaraj requirements after Jarnail Singh.

The three Commissions

Article 338, the National Commission for Scheduled Castes. A Chairperson, a Vice-Chairperson and three other Members appointed by the President. Its duties are to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under the Constitution or any law or order, and to evaluate their working; to inquire into specific complaints; to participate and advise on the planning process of socio-economic development and to evaluate the progress of development; to present reports to the President annually and at such other times as it thinks fit; to make recommendations as to the measures to be taken by the Union or a State; and to discharge such other functions as the President may specify.

Its powers. While investigating a matter or inquiring into a complaint it has all the powers of a civil court trying a suit, including summoning and enforcing attendance, examining on oath, requiring discovery and production of documents, receiving affidavit evidence, requisitioning public records and issuing commissions.

The provision that distinguishes it from the statutory Commissions. Article 338(9): the Union AND EVERY STATE GOVERNMENT shall CONSULT the Commission on all major policy matters affecting the Scheduled Castes.

Compare the statutory Commissions exactly, because the difference is narrower than it is usually stated. Section 16 of the National Commission for Women Act 1990 does require the CENTRAL Government to consult that Commission on all major policy matters affecting women, so it is not the case that no statutory Commission is consulted; what it lacks is the duty on the STATES, and the constitutional footing that puts the duty beyond repeal by ordinary legislation. The National Commission for Minorities Act 1992 contains no consultation provision at all. That is the accurate comparison, and it is the ground of the demand for constitutional status.

Article 338A, the National Commission for Scheduled Tribes, inserted by the Eighty-ninth Amendment 2003 by splitting the earlier joint Commission. Its provisions mirror article 338.

Article 338B, the National Commission for Backward Classes, inserted by the One Hundred and Second Amendment 2018, again in mirror terms, giving constitutional status to a body that had existed under the National Commission for Backward Classes Act 1993.

And the reports. In each case the President causes the reports to be laid before each House of Parliament, along with a memorandum explaining the action taken or proposed on the recommendations and the reasons for the non-acceptance of any of them.

The Presidential lists

Article 341. The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor, by public notification specify the castes, races or tribes, or parts of or groups within them, which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory. Parliament may by law include or exclude, and save by such a law a notification shall not be varied by any subsequent notification.

Article 342. The same for Scheduled Tribes.

Article 342A, 2018 and 2021. The President may specify the socially and educationally backward classes for the purposes of the Central Government; Parliament may include or exclude by law; and clause (3), inserted in 2021, preserves the power of every State and Union Territory to prepare and maintain its own list.

Article 340. The President may appoint a Commission to investigate the conditions of socially and educationally backward classes, the difficulties under which they labour, and what should be done to remove them. The Kalelkar Commission of 1953 and the Mandal Commission of 1979 were appointed under it.

Article 339. The Union's control over the administration of Scheduled Areas and the welfare of Scheduled Tribes: a Commission on the administration of the Scheduled Areas, and the power of the Union to give directions to a State as to the drawing up and execution of schemes essential for the welfare of the Scheduled Tribes in the State.

The religion condition on Scheduled Caste status

Paragraph 3 of the Constitution (Scheduled Castes) Order 1950. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.

Its history. As made in 1950 the Order was confined to Hindus; Sikhs were added in 1956 and Buddhists in 1990.

The consequence. A Scheduled Caste person who converts to Christianity or Islam ceases to be a member of a Scheduled Caste for constitutional purposes, and loses reservation. Scheduled Tribe status under article 342 carries no equivalent condition.

And the argument about it, which is live: that the condition treats the same social disadvantage differently according to religion, and that it makes a benefit conditional on the exercise of the freedom of religion under article 25. A Commission was appointed in 2022 to examine the question, and the matter is before the Supreme Court. State the position and the argument, and do not state an outcome.

A worked example

A State Government proposes to change the rules for admission to its medical colleges in a way that affects Scheduled Caste candidates.

Consultation. Article 338(9): the State Government shall consult the National Commission for Scheduled Castes on all major policy matters affecting the Scheduled Castes. A failure to consult is a real ground of challenge.

Investigation. If the change operates to their detriment, the Commission may investigate and inquire under article 338(5), with civil-court powers under article 338(8).

Report. The Commission reports to the Governor in the case of a State matter, and the report is laid before the State legislature with a memorandum on action taken.

And the limit. The Commission recommends; the State decides; and the memorandum records the refusal. The remedy that binds is a writ petition on the merits of the change.

What this does NOT mean

It does not mean the safeguards are reservations. Reserved seats are a safeguard; article 335 is a condition; the Commissions are institutions; the lists are definitions. The reservation power itself is in articles 15 and 16.

It does not mean the reserved seats are permanent. Article 334 fixes a period, extended by amendment, and article 334A postpones the women's reservation until a delimitation exercise.

And it does not mean the Commissions can order anything. They investigate, inquire, advise and report, and article 338(9)'s consultation requirement is their sharpest power.

Quick revision

Articles 330 and 332: reserved seats for the Scheduled Castes and Scheduled Tribes in the House of the People and the State Assemblies, in proportion to population. Articles 330A and 332A, 106th Amendment 2023: one-third for women, including within the reserved seats; article 334A postpones it to a delimitation after the first census following the Amendment, for twenty-five years. Article 331 and 333, Anglo-Indian nomination, lapsed on 25 January 2020. Article 334, the period, extended by the 104th Amendment 2019 to 25 January 2030. Article 335, claims to services consistently with efficiency, with the 2000 proviso permitting relaxation for promotion. Articles 338, 338A and 338B, the three Commissions, with civil-court powers and, in article 338(9), a duty on the Union and the States to CONSULT on major policy. Article 339, Union control over Scheduled Areas. Article 340, Backward Classes Commissions, Kalelkar 1953 and Mandal 1979. Articles 341, 342 and 342A, the Presidential lists, variable only by Parliament. Paragraph 3 of the 1950 Order conditions Scheduled Caste status on professing Hinduism, Sikhism or Buddhism.

Test yourself

1. Which articles reserve seats in the legislatures, and on what basis is the number fixed? Articles 330 and 332 for the Scheduled Castes and Scheduled Tribes in the House of the People and in the State Legislative Assemblies. The number bears as nearly as may be the same proportion to the total seats allotted to the State as the community's population bears to the total population of the State.

2. What does article 335 do, and what did the Eighty-second Amendment add? It requires the claims of the Scheduled Castes and Scheduled Tribes to be taken into consideration, consistently with the maintenance of efficiency of administration, in appointments to services and posts. The Eighty-second Amendment 2000 added a proviso permitting relaxation in qualifying marks or lowering of standards of evaluation for reservation in promotion.

3. Name the three Commissions and the provision that makes them stronger than the statutory ones. The National Commissions for the Scheduled Castes, article 338; for the Scheduled Tribes, article 338A, inserted in 2003; and for Backward Classes, article 338B, inserted in 2018. Article 338(9), and its counterparts, require the Union and every State Government to CONSULT the Commission on all major policy matters affecting the community, a duty that does not attach to the statutory Commissions for Minorities or for Women.

4. Who may alter a Presidential list of Scheduled Castes? Only Parliament, by law, under article 341(2). Save by such a law, a notification issued under article 341(1) may not be varied by any subsequent notification.

5. What is the religion condition on Scheduled Caste status, and why is it contested? Paragraph 3 of the Constitution (Scheduled Castes) Order 1950 provides that no person professing a religion other than Hinduism, Sikhism or Buddhism shall be deemed a member of a Scheduled Caste. It is contested because it treats the same social disadvantage differently according to religion and makes a benefit conditional on the exercise of the article 25 freedom; Scheduled Tribe status carries no such condition.

Held. The appeal was dismissed. The Court called the conduct shameful, shocking and outrageous, and deserving of harsh punishment.

And what the judgment is cited for. The passages on the position of the tribes: that they are probably the descendants of the original inhabitants of India; that the injustice done to them is a shameful chapter in the country's history; that they were slaughtered, degraded, deprived of their lands and pushed into the forests and hills; that they are today the most marginalised of all the disadvantaged groups, with high rates of illiteracy, disease and early mortality; that articles 15(4), 16(4), 16(4A) and 46 exist for their upliftment; and that the mentality of the country towards them must change. The Court expressly adopted the account of their plight given in Samatha v. State of Andhra Pradesh.

Use it carefully. The historical and anthropological passages are obiter and parts of them rest on sources the Court itself described loosely. Cite the judgment for the Court's characterisation of the injustice and of the constitutional duty, which is what it decides to say, and not as an authority on prehistory.

The Fifth Schedule

Where it applies. Article 244(1): to the administration and control of the Scheduled Areas and the Scheduled Tribes in any State other than Assam, Meghalaya, Tripura and Mizoram. In practice that is ten States, among them Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan.

Who declares an area Scheduled. Paragraph 6: the President, by order. The President may also increase a Scheduled Area after consulting the Governor, may direct that any part shall cease to be one, and may rescind and make a fresh order.

The Governor's report, paragraph 3. The Governor of each State having Scheduled Areas shall report annually, or whenever required, to the President on their administration, and the executive power of the Union extends to giving directions to the State on that administration.

The Tribes Advisory Council, paragraph 4. Every State with Scheduled Areas shall have one, of not more than twenty members, of whom as nearly as may be three fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly. Its duty is to ADVISE on such matters relating to the welfare and advancement of the Scheduled Tribes as the Governor refers to it.

The Governor's two great powers, paragraph 5.

First, disapplication. The Governor may by public notification direct that any particular Act of Parliament or of the State Legislature shall not apply to a Scheduled Area, or shall apply subject to exceptions and modifications, and may give the direction retrospective effect.

Second, regulation. The Governor may make regulations for the peace and good government of a Scheduled Area, and in particular may prohibit or restrict the transfer of land by or among members of the Scheduled Tribes, regulate the allotment of land to them, and regulate money lending to them. In making such a regulation the Governor may repeal or amend an Act of Parliament or of the State Legislature.

Its two conditions. A regulation has no effect until assented to by the President, and it may not be made without consulting the Tribes Advisory Council where one exists.

The weakness of the scheme, stated plainly. Everything in Part B of the Fifth Schedule is a power of the GOVERNOR. The Council advises and does not decide; the tribes are consulted and do not govern; and a Governor who does not act leaves the Schedule inert. The Land Transfer Regulations that Samatha enforced are the exercise of paragraph 5(2)(a) by the Governor of Andhra Pradesh.

The Sixth Schedule

Where it applies. Article 244(2): to the tribal areas in Assam, Meghalaya, Tripura and Mizoram, listed in the table appended to paragraph 20.

What it creates, paragraphs 1 and 2. Each listed tribal area is an autonomous district; the Governor may divide a district inhabited by different Scheduled Tribes into autonomous regions. There is a District Council for each autonomous district of not more than thirty members, of whom not more than four are nominated by the Governor and the rest elected on adult suffrage, and a Regional Council for each autonomous region. Each is a body corporate.

What the Councils may LEGISLATE about, paragraph 3. The allotment, occupation, use or setting apart of land other than reserved forest; the management of any forest that is not a reserved forest; the use of a canal or watercourse for agriculture; the regulation of jhum or other shifting cultivation; the establishment of village or town committees and their powers; village or town administration including village police, public health and sanitation; the appointment or succession of Chiefs or Headmen; inheritance of property; marriage and divorce; and social customs. Such laws are submitted to the Governor and have no effect until assented to.

What they may ADJUDICATE, paragraph 4. A Council may constitute village councils or courts to try suits and cases between parties all of whom belong to Scheduled Tribes within the area, to the exclusion of any court in the State, and shall exercise appellate powers over them, no court other than the High Court and the Supreme Court having jurisdiction.

What they may administer. Primary schools, dispensaries, markets, ferries, fisheries, roads and waterways under paragraph 6; land revenue and specified taxes under paragraph 8; licences for the extraction of minerals with a share of the royalty under paragraph 9; money lending and trading by non-tribals under paragraph 10.

And disapplication again, paragraphs 12, 12A, 12AA and 12B. Acts of Parliament and of the State Legislature apply to the autonomous districts only as those paragraphs provide, with the Governor and in some cases the District Council able to except or modify. Paragraph 12A also settles repugnancy in Meghalaya in favour of the State law.

The Sixth Schedule in one sentence. It is self-government; the Fifth Schedule is protection administered by somebody else.

The rest of the constitutional scheme

Article 275, first proviso. Grants-in-aid charged on the Consolidated Fund of India to meet the cost of schemes of development undertaken by a State with the approval of the Government of India for promoting the welfare of the Scheduled Tribes, or for raising the level of administration of the Scheduled Areas to that of the rest of the State. The second proviso funds the Sixth Schedule areas of Assam.

Article 244A. Parliament may by law form an autonomous State within Assam comprising the tribal areas, with a Legislature or a Council of Ministers or both. It has never been used.

Article 339. A Commission on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes, which the President may appoint at any time and shall appoint at the expiration of ten years; and the power of the Union to direct a State as to the drawing up and execution of schemes essential for the welfare of the Scheduled Tribes.

Article 338A. The National Commission for Scheduled Tribes, inserted in 2003, with the duties, the civil-court powers and the consultation requirement described in [The Safeguards: Seats, Services and Commissions].

Articles 342 and 342A. The Presidential list of Scheduled Tribes, and, since 2018, of socially and educationally backward classes, variable only by Parliament.

And article 46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes.

A worked example

A State Government proposes to lease land in a Scheduled Area to a company for a cement plant. The land is government land. The gram sabha objects.

Is the transfer permissible? The Governor's Land Transfer Regulation under paragraph 5(2)(a) prohibits transfer to a non-tribal, and after Samatha the word "person" in such a Regulation includes the Government, so the lease is void in a State with a Regulation in those terms.

Does the Fifth Schedule itself forbid it? No. The Schedule EMPOWERS the Governor to prohibit; the prohibition is in the Regulation. Where no such Regulation exists the answer is different, and that is the practical weakness of the design.

What if the same land were in Meghalaya? Then the Sixth Schedule applies, the allotment and use of land other than reserved forest is a subject on which the District Council makes law under paragraph 3(1)(a), and the question is decided by the Council rather than for it.

And what does the gram sabha's objection add? Under section 4(i) of PESA the gram sabha must be consulted before acquisition of land in a Scheduled Area, and under the Forest Rights Act the gram sabha is the authority to determine forest rights. That is the next chapter.

What this does NOT mean

It does not mean the Fifth Schedule areas are outside the Constitution. Fundamental rights apply in full; so do Parliament's laws, unless the Governor has disapplied them; and the High Courts and the Supreme Court have their ordinary jurisdiction.

It does not mean the Sixth Schedule Councils are sovereign. Their laws require the Governor's assent, their subjects are enumerated, and Parliament's power over them survives in the terms paragraph 12 allows.

It does not mean tribes are excluded from reservation. Articles 15(4), 16(4), 330 and 332 apply to the Scheduled Tribes exactly as they apply to the Scheduled Castes; the Schedules are additional, not alternative.

And it does not mean the two Schedules are alternatives for the same area. Article 244 divides the country between them, and no area is under both.

Quick revision

Article 244(1) and the Fifth Schedule: Scheduled Areas in ten States. Governor's annual report to the President, paragraph 3; Tribes Advisory Council of not more than twenty, three fourths Scheduled Tribe legislators, ADVISORY, paragraph 4; Governor may disapply an Act of Parliament or of the State Legislature, and may make regulations prohibiting transfer of land to non-tribals, regulating allotment and regulating money lending, with the President's assent and after consulting the Council, paragraph 5; President declares Scheduled Areas, paragraph 6. Article 244(2) and the Sixth Schedule: Assam, Meghalaya, Tripura and Mizoram. Autonomous district and regional councils, up to thirty members, four nominated, paragraphs 1 and 2; power to make LAWS on land, non-reserved forest, jhum, village administration, Chiefs and Headmen, inheritance, marriage and divorce and social custom, subject to the Governor's assent, paragraph 3; village courts and appellate powers, paragraph 4; schools, markets, ferries and fisheries, paragraph 6; land revenue and taxes, paragraph 8; mineral licences and royalty share, paragraph 9; money lending and trading by non-tribals, paragraph 10.

The supporting articles: 244A, an autonomous State in Assam, unused; 275 first proviso, grants for tribal welfare and for raising the level of administration in Scheduled Areas; 339, Union directions and a Commission; 338A, the National Commission; 342 and 342A, the lists. Kailas 2011 for the historical injustice and the constitutional duty.

Test yourself

1. Which Schedule applies where, and under what article? The Fifth Schedule under article 244(1) to the Scheduled Areas and Scheduled Tribes of every State except Assam, Meghalaya, Tripura and Mizoram; the Sixth Schedule under article 244(2) to the tribal areas of those four States.

2. State the Governor's two principal powers under Part B of the Fifth Schedule and the conditions on them. Under paragraph 5(1) the Governor may direct by public notification that an Act of Parliament or of the State Legislature shall not apply to a Scheduled Area or shall apply with exceptions and modifications, with retrospective effect if desired. Under paragraph 5(2) the Governor may make regulations for the peace and good government of the area, in particular prohibiting or restricting transfer of land by or among Scheduled Tribes, regulating allotment of land to them and regulating money lending, and may in doing so repeal or amend an Act. A regulation has no effect until assented to by the President and may not be made without consulting the Tribes Advisory Council where one exists.

3. Name six subjects on which a Sixth Schedule District Council may make law. Any six of: allotment, occupation or use of land other than reserved forest; management of a forest that is not a reserved forest; use of canals or watercourses for agriculture; regulation of jhum or shifting cultivation; village or town committees and their powers; village or town administration including village police and public health; appointment or succession of Chiefs or Headmen; inheritance of property; marriage and divorce; and social customs.

4. What is the central structural difference between the two Schedules? The Fifth Schedule vests protective powers in the Governor and gives the tribes an advisory body; the Sixth Schedule vests legislative, judicial, executive and financial powers in elected Councils of the tribal areas themselves. Protection administered by another, against self-government.

5. What is Kailas v. State of Maharashtra cited for in this chapter? For the Supreme Court's account of the historical injustice to the tribal people, of their present marginalisation, and of the constitutional duty under articles 15(4), 16(4), 16(4A) and 46; and, adopting Samatha, for the description of their plight. It is authority for the Court's characterisation, not for prehistory.

Section 3. The provisions of Part IX relating to panchayats are extended to the Scheduled Areas subject to the exceptions and modifications in section 4.

Section 4, the important one. Notwithstanding Part IX, the Legislature of a State shall not make any law under that Part which is inconsistent with the following features.

On custom, clause (a). A State law on panchayats shall be in consonance with customary law, social and religious practices and traditional management practices of community resources.

On what a village is, clause (b). A village shall ordinarily consist of a habitation or group of habitations or a hamlet comprising a community and managing its affairs in accordance with traditions and customs. That is a definition drawn from the community rather than from the revenue map.

On the gram sabha, clauses (c) to (f). Every village shall have a gram sabha of the persons on the electoral roll; every gram sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution; every gram sabha shall approve plans, programmes and projects for social and economic development before they are taken up, and shall identify beneficiaries under poverty alleviation programmes; and every village panchayat must obtain from the gram sabha a certification that funds have been utilised.

On reservation, clauses (g) and (h). Reservation of seats in a Scheduled Area panchayat shall be in proportion to population, but the reservation for the Scheduled Tribes shall not be LESS THAN ONE HALF, and all the offices of Chairperson at all levels shall be reserved for the Scheduled Tribes. The State may nominate unrepresented Scheduled Tribes to the intermediate and district panchayats, up to one tenth of the elected members.

On land, clause (i). The gram sabha or the panchayat at the appropriate level shall be CONSULTED before the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects.

On minerals, clauses (k) and (l). The recommendation of the gram sabha or the panchayat at the appropriate level shall be MANDATORY prior to the grant of a prospecting licence or mining lease for minor minerals, and prior to the grant of a concession for their exploitation by auction.

On powers, clause (m). The State Legislature shall specifically endow the gram sabha and the panchayats with the power to prohibit or regulate intoxicants; the OWNERSHIP of minor forest produce; the power to prevent alienation of land in a Scheduled Area and to restore land unlawfully alienated from a Scheduled Tribe; the power to manage village markets; control over money lending to Scheduled Tribes; control over institutions and functionaries in all social sectors; and control over local plans and resources including tribal sub-plans.

On hierarchy, clauses (n) and (o). State law must contain safeguards so that a higher panchayat does not assume the powers of a lower one or of the gram sabha, and the State Legislature shall endeavour to follow the pattern of the Sixth Schedule when designing district-level arrangements.

The gap between clause (i) and clause (k). Consultation for land acquisition; a MANDATORY recommendation for minor minerals. The stronger word is used for the smaller subject, and that asymmetry is the standard criticism of PESA.

Samatha: the Regulation binds the Government

Facts. Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, decided 11 July 1997 by Ramaswamy J with Saghir Ahmad and Pattanaik JJ. The Government of Andhra Pradesh granted mining leases over government land in a Scheduled Area to non-tribals. The Andhra Pradesh Scheduled Areas Land Transfer Regulation, made by the Governor under paragraph 5(2) of the Fifth Schedule, prohibited the transfer of land in a Scheduled Area to a non-tribal. The question was whether the word "person" in section 3 of the Regulation included the GOVERNMENT.

Held. It does. A lease of land in a Scheduled Area to a non-tribal, including a lease of government land, violates section 3 of the Regulation and is void. The Court also held that a mining lease in a forest area for a non-forest purpose, or its renewal, without the prior approval of the Central Government violates section 2 of the Forest (Conservation) Act 1980, and it prohibited mining operations in Scheduled Areas except in accordance with those requirements.

Why it matters. Before Samatha the Fifth Schedule restrained private purchasers; after it, it restrains the State. The judgment turned paragraph 5(2)(a) from a consumer protection for tribals into a limit on government policy, and it is the case a student cites for the proposition that the Fifth Schedule has teeth.

Its limits. It construes a REGULATION, so it is at its strongest in a State that has one in the same terms; and the Court itself left room for the State to work through State-owned undertakings and cooperatives of tribals.

The Forest Rights Act 2006

What its preamble says it is for. To recognise and vest forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in forests for generations but whose rights could not be recorded, and to redress the HISTORICAL INJUSTICE done to them by the forest laws of the colonial and independent periods.

Section 3(1), the thirteen rights. To hold and live in forest land under individual or common occupation for habitation or self-cultivation; community rights such as nistar; the ownership of, access to, and right to collect, use and dispose of MINOR FOREST PRODUCE traditionally collected; other community rights such as fish, grazing and traditional seasonal access for nomadic and pastoralist communities; habitat rights for primitive tribal groups and pre-agricultural communities; rights over disputed lands; conversion of pattas, leases and grants into titles; settlement and conversion of forest villages and unsurveyed villages into revenue villages; the right to protect, regenerate, conserve or manage any community forest resource traditionally protected; rights recognised under State law or the law of an Autonomous District Council or customary law; access to biodiversity and community intellectual property in traditional knowledge; any other traditional right, excluding hunting; and in situ rehabilitation, including alternative land, where they were illegally evicted before 13 December 2005.

Section 3(2). Forest land may be diverted for thirteen listed village facilities, among them schools, dispensaries, anganwadis, fair price shops, drinking water, minor irrigation, roads and community centres, but only if the land is less than one hectare in each case and the clearance is RECOMMENDED BY THE GRAM SABHA.

Section 4. The Central Government hereby recognises and vests those rights in forest dwelling Scheduled Tribes and in other traditional forest dwellers. Section 4(3) sets the cut-off: occupation of the forest land before 13 December 2005. Section 4(4) makes the right heritable but NOT alienable or transferable, and requires registration jointly in the names of both spouses. Section 4(2) permits modification or resettlement in critical wildlife habitats only when six conditions are all satisfied, and the fifth of them is the free informed consent of the gram sabhas IN WRITING.

Section 5. The holders of forest rights, the gram sabha and the village level institutions are empowered to protect wildlife, forest and biodiversity, to protect catchments and water sources, to preserve the habitat from destructive practices, and to enforce the gram sabha's decisions regulating access to community forest resources.

Section 6. The gram sabha is the authority to INITIATE the process: it receives claims, consolidates and verifies them, prepares a map of each recommended claim, and passes a resolution which goes to the Sub-Divisional Level Committee. An aggrieved person may petition that Committee within sixty days, and then the District Level Committee within sixty days, whose decision on the record of forest rights is FINAL AND BINDING. A State Level Monitoring Committee monitors. Each committee is made of Revenue, Forest and Tribal Affairs officers and three panchayat members, of whom two must be Scheduled Tribe members and at least one a woman.

Two things students get wrong. The Act is not confined to Scheduled Tribes: "other traditional forest dwellers" are covered, on proof of three generations of primary residence. And it is not confined to Scheduled Areas: it applies on all forest lands anywhere in India.

Niyamgiri: the gram sabha decides

Facts. Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476, decided 18 April 2013 by Aftab Alam, Radhakrishnan and Gogoi JJ. The Corporation challenged the Ministry's refusal of forest clearance for bauxite mining on the Niyamgiri hills in Kalahandi and Rayagada. The State had certified compliance and said there was no habitation on the plateau top. The Dongria Kondh and Kutia Kondh claimed individual, community and religious rights over the hills under the Forest Rights Act, the hill Niyam Raja being their deity.

Held. Whether the communities held religious and cultural rights over the hills, and whether the mining would affect them, was for the GRAM SABHAS to decide. The Court directed the gram sabhas of Kalahandi and Rayagada to consider the claims, the State Government to facilitate the process, and the Ministry to take its final decision on the strength of what the gram sabhas resolved.

What happened next. Twelve gram sabhas were held in 2013 and all twelve rejected the proposal, and the clearance was refused. That is the only Indian example of a village assembly stopping a project of that size, and it is worth naming in an answer.

Why it matters. It converts the gram sabha from a body that is consulted into a body that DECIDES, at least on the question whether a community right exists and would be affected. Read together with section 4(2)(e), it is the strongest statement of free, prior and informed consent in Indian law.

And its limit. The Court did not hold that a gram sabha may veto a project as a matter of policy. It held that the question of RIGHTS is for the gram sabha, and the Ministry's decision follows from the answer.

Why the two statutes underperform

Because the State writes the rules. PESA binds the State LEGISLATURE not to make an inconsistent law, and most States passed conforming laws late, thinly, or by amending existing panchayat Acts rather than by rewriting them. Subordinate rules were slower still.

Because "consultation" is not consent. Section 4(i) requires the gram sabha to be consulted before acquisition, and a consultation that is recorded and ignored complies with the section.

Because the claims process is administrative. Under section 6 the gram sabha only INITIATES; the Sub-Divisional and District Level Committees, made mostly of officers, decide, and the District Committee's decision is final and binding. Community forest rights in particular have been recognised far more slowly than individual ones.

Because evidence is hard for the people who need it most. A claimant must show occupation before 13 December 2005, and a shifting cultivator whose field was never surveyed is the person least able to prove it.

And because the money is on the other side. Minor minerals need a mandatory recommendation; major minerals, which is where the value is, do not.

A worked example

A State proposes an iron ore mine on 900 hectares in a Scheduled Area. Forty households of a Scheduled Tribe cultivate part of it; the rest is recorded as reserved forest from which the village takes tendu leaves and bamboo.

Step one, the Land Transfer Regulation. If the State's Governor has made one under paragraph 5(2)(a) of the Fifth Schedule, then after Samatha the Government may not transfer that land to a non-tribal lessee.

Step two, PESA. Section 4(i) requires the gram sabha to be consulted before the acquisition and before any resettlement. Iron ore is a MAJOR mineral, so the mandatory recommendation in clauses (k) and (l) does not apply, and a bare consultation satisfies the section.

Step three, the Forest Rights Act. The forty households have a section 3(1)(a) right to hold and live on the land they cultivate; the village has a section 3(1)(c) right of ownership over the tendu and bamboo as minor forest produce and probably a section 3(1)(i) right to manage the community forest resource. Section 4(3) requires occupation before 13 December 2005; section 4(4) makes the right heritable but not transferable.

Step four, who decides. Under section 6 the gram sabha initiates the determination and resolves; the Sub-Divisional Committee prepares the record; the District Committee decides finally. Under Niyamgiri the existence and extent of the community's rights, and whether the project affects them, are for the gram sabha, and the clearance authority acts on that answer.

Step five, the practical result. If the rights are recognised first, the project needs their extinguishment or the community's agreement. If the clearance is given before the claims are settled, the community is litigating from the wrong side of a fait accompli, and that sequencing is the whole of the dispute in most of these cases.

What this does NOT mean

It does not mean a gram sabha can stop any project. Niyamgiri answers a question about rights; it does not create a general veto.

It does not mean the Forest Rights Act gives ownership of the forest. Section 4(4) makes the right heritable and expressly NOT alienable or transferable, and section 5 loads the holder with duties of protection.

It does not mean PESA overrides State law generally. It constrains the State Legislature when it legislates on panchayats in the Scheduled Areas, and nothing more.

And it does not mean recognition and compensation are the same thing. Recognition under the 2006 Act establishes that the land was always theirs; compensation under an acquisition law prices its loss. A student who treats the second as an answer to the first has conceded the argument.

Quick revision

PESA 1996: section 3 extends Part IX to the Scheduled Areas; section 4 lists the features no State panchayat law may contradict. Consonance with customary law (a); the village defined by community (b); gram sabha competent to safeguard traditions, customs, cultural identity, community resources and customary dispute resolution (d); approval of development plans and identification of beneficiaries (e); ST reservation not less than one half and all chairperson posts reserved (g); CONSULTATION before acquisition and before resettlement (i); MANDATORY recommendation before a minor mineral prospecting licence or mining lease (k) and before a concession by auction (l); ownership of minor forest produce, power to prevent alienation and restore alienated tribal land, control over money lending and over social sector institutions (m).

Forest Rights Act 2006: preamble, redressing HISTORICAL INJUSTICE. Section 3(1), thirteen rights including habitation, nistar, ownership of minor forest produce, habitat rights of primitive tribal groups, conversion of forest villages, and management of community forest resource; section 3(2), diversion for thirteen village facilities under one hectare on the gram sabha's recommendation; section 4, recognition and vesting, cut-off 13 December 2005, heritable but not alienable, joint registration in both spouses' names, critical wildlife habitat resettlement only with the gram sabhas' free informed consent in writing; section 5, duties of holders and the gram sabha; section 6, gram sabha initiates, Sub-Divisional Committee records, District Committee finally decides, sixty-day appeals. Samatha 1997: "person" in a Fifth Schedule Land Transfer Regulation includes the Government. Niyamgiri 2013: the gram sabhas decide whether religious and cultural rights exist and are affected; all twelve rejected the mine.

Test yourself

1. What does section 4(i) of PESA require, and why is it criticised? That the gram sabha or the panchayat at the appropriate level be consulted before land in a Scheduled Area is acquired for a development project and before affected persons are resettled. It is criticised because consultation is not consent: a consultation that is recorded and then ignored complies with the section, whereas clauses (k) and (l) use the stronger word "mandatory recommendation" for the smaller subject of minor minerals.

2. State four of the rights recognised by section 3(1) of the Forest Rights Act. Any four of: the right to hold and live in forest land for habitation or self-cultivation; community rights such as nistar; ownership of and the right to collect, use and dispose of minor forest produce; grazing and traditional seasonal access rights; habitat rights for primitive tribal groups; conversion of forest villages into revenue villages; the right to protect, regenerate, conserve or manage a community forest resource; and in situ rehabilitation where illegally evicted before 13 December 2005.

3. What was decided in Samatha, and what turns on the word "person"? That the word "person" in section 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation includes the Government, so that a mining lease of government land in a Scheduled Area to a non-tribal is void. It turns the Fifth Schedule from a restraint on private purchasers into a restraint on the State itself.

4. Who finally decides a forest rights claim, and what is the gram sabha's role? The District Level Committee decides finally and bindingly under section 6(6). The gram sabha INITIATES: it receives, consolidates and verifies claims, prepares a map of each recommended claim and passes a resolution, which the Sub-Divisional Level Committee examines before forwarding the record.

5. What did the Supreme Court leave to the gram sabhas in the Niyamgiri case, and what did they resolve? Whether the Dongria Kondh and Kutia Kondh held religious and cultural rights over the Niyamgiri hills and whether the proposed bauxite mining would affect them, the Ministry then deciding on that footing. Twelve gram sabhas were held in 2013 and all twelve rejected the proposal, and the clearance was refused.

The organisation. An All India Coordination Committee of Communist Revolutionaries was formed in 1968, and on 22 April 1969 the Communist Party of India (Marxist-Leninist) was founded, announced at a mass rally in Calcutta on 1 May.

The line, and its cost. Charu Majumdar's line of the annihilation of class enemies, individual killings of landlords, moneylenders and policemen as the method of building a peasant army, split the movement from the beginning: Kanu Sanyal and others opposed it. It also gave the State a straightforward criminal-law answer.

Srikakulam. The rising spread to the Girijan tribal tracts of Srikakulam district in Andhra Pradesh between 1968 and 1970, which is where the movement first became predominantly ADIVASI rather than peasant, and where it has stayed.

The suppression. Between 1970 and 1972 the movement was broken in West Bengal and Andhra Pradesh. Charu Majumdar was arrested on 16 July 1972 and died in police custody in Calcutta on 28 July 1972. The CPI(ML) fractured into a large number of groups, some of which abandoned armed struggle and entered electoral politics.

The second phase

The People's War Group. The CPI(ML) People's War was founded on 22 April 1980 in Andhra Pradesh under Kondapalli Seetharamaiah. It built its base in Telangana and in the Dandakaranya forests across the Andhra, Maharashtra, Madhya Pradesh and later Chhattisgarh borders, and it worked through mass organisations of agricultural labourers, tribals and students before it was proscribed.

The Maoist Communist Centre. Originating in a group formed in 1969 in Bengal and known as Dakshin Desh, the Maoist Communist Centre of India built its strength in central Bihar and later Jharkhand, in the caste-and-land conflicts of the Gangetic plain rather than in the forests.

The merger. On 21 September 2004 the two merged to form the Communist Party of India (Maoist), with an armed wing, the People's Liberation Guerrilla Army, and a stated strategy of protracted people's war from the countryside.

The ban. The CPI (Maoist) and its front organisations are listed as a terrorist organisation in the First Schedule to the Unlawful Activities (Prevention) Act 1967, membership of and support for which are offences under sections 38 and 39 of that Act.

The State's characterisation. In 2006 the Prime Minister described Left Wing Extremism as the single biggest internal security challenge ever faced by the country, a phrase repeated in official documents since and the standard opening of an examination answer.

The magnitude

MU asks for it directly, so give figures with their source and their year rather than a round number of your own.

As quoted by the Supreme Court in 2011. In Nandini Sundar v. State of Chhattisgarh the Court quoted a scholarly account recording the Ministry of Home Affairs' estimate that some 120 to 160 of the country's 607 districts were affected, and that the movement had spread over nearly a quarter of Indian territory.

As stated by the Union in the same case. The Security Related Expenditure scheme, under which the Union reimburses States for security expenditure, then covered 83 districts in nine States.

The geography. The affected belt, often called the Red Corridor, runs through the forested and mineral-bearing districts of Chhattisgarh, Jharkhand, Odisha, Bihar, Telangana, Andhra Pradesh, Maharashtra, Madhya Pradesh and West Bengal. Its worst-affected district in the years of the litigation was Dantewada in the Bastar region of Chhattisgarh.

The direction of travel. The Ministry of Home Affairs revises the list of affected districts periodically and has reduced it substantially over the last decade, with violence and geographical spread both falling from the peak years around 2009 and 2010. Cite the trend, name the Ministry, and give the year of any figure you use.

Why a law paper studies an insurgency

Because it is the standing measure of the failure of legal social transformation. Every instrument this course has studied so far, land reform, tenancy legislation, the Fifth Schedule, PESA, the Forest Rights Act, was meant to reach exactly these districts, and the insurgency is what grew where they did not.

Because the State's own expert body said so. The Planning Commission's Expert Group on Development Challenges in Extremist Affected Areas reported in April 2008 that the development paradigm pursued since independence had aggravated discontent among the marginalised, and warned that treating the resulting movements as a simple disruption of law and order was little more than a rationale for suppressing them.

Because the Supreme Court adopted that reading. Nandini Sundar quoted the Expert Group at length and held that policies of rapid exploitation of resources without equitable distribution eviscerate the promise of article 14 and the dignity assured by article 21.

And because the State's methods have themselves been held unconstitutional. The same judgment struck down the appointment of tribal youth as Special Police Officers for counter-insurgency, which is worked in [Internal Security, Social Justice and Development].

A worked example

MU sets: "Critically examine the magnitude of Naxalite movement in certain parts of India." Ten marks, and the word to build the answer around is MAGNITUDE.

Open with the definition and the name. The Naxalite or Left Wing Extremist movement, named after Naxalbari in Darjeeling district, where a sharecroppers' rising was suppressed by police firing in May 1967.

Then the geographical measure. The affected belt runs through the forested and mineral-bearing districts of Chhattisgarh, Jharkhand, Odisha, Bihar, Telangana, Andhra Pradesh, Maharashtra, Madhya Pradesh and West Bengal. Cite the figures the Supreme Court recorded in Nandini Sundar v. State of Chhattisgarh in 2011: an estimate of the Ministry of Home Affairs that some 120 to 160 of 607 districts were affected, spread over nearly a quarter of Indian territory, and the Union's own statement that its Security Related Expenditure scheme then covered 83 districts in nine States.

Then the organisational measure. One proscribed party since the merger of 21 September 2004, the Communist Party of India (Maoist), with an armed wing, listed in the First Schedule to the Unlawful Activities (Prevention) Act 1967.

Then the official characterisation. The Prime Minister's description in 2006 of Left Wing Extremism as the single biggest internal security challenge the country had faced.

Then the trend, which is where the "critically" is earned. The Ministry of Home Affairs revises the list of affected districts and has reduced it substantially over the last decade, with violence falling from the peak around 2009 and 2010. An answer that gives the 2011 figures as the present position is wrong, and an answer that gives the reduction without its source is unusable.

And close on the point of the paper. That magnitude on this subject is measured in districts and casualties, but the constitutional measure is different: it is the number of districts in which land reform, PESA and the Forest Rights Act have not been delivered, which is the subject of the next chapter.

What this does NOT mean

It does not mean the movement is a single organisation. Dozens of groups have used the name; several CPI(ML) descendants contest elections and are lawful parties; and only the CPI (Maoist) and its fronts are proscribed.

It does not mean the affected districts are tribal by definition. The Bihar and Jharkhand base was built in caste-and-land conflict, and the Andhra base began in the plains.

It does not mean the account of causes justifies the violence. The Expert Group and the Supreme Court both explain the conditions and neither excuses the killings; an answer that reads as an endorsement fails on the "critical appraisal" MU actually asks for.

And it does not mean the movement is over. The trend is downward on the official figures; the conditions that produced it are the subject of the next chapter.

Quick revision

Naxalbari, Siliguri subdivision, Darjeeling district, West Bengal, May 1967: sharecroppers' rising over land, police firing at Bengaijote on 25 May, eleven villagers killed, under a United Front government in which the CPI(M) held Home. Leaders Charu Majumdar, Kanu Sanyal, Jangal Santhal. Historic Eight Documents; AICCCR 1968; CPI(ML) founded 22 April 1969; the annihilation line, opposed within the movement; Srikakulam 1968 to 1970, where the movement became adivasi; suppression by 1972; Charu Majumdar arrested 16 July 1972, died in custody 28 July 1972; fragmentation.

Second phase: CPI(ML) People's War, 22 April 1980, Andhra Pradesh, Kondapalli Seetharamaiah, base in Telangana and Dandakaranya; Maoist Communist Centre from Dakshin Desh of 1969, base in central Bihar and Jharkhand; merger 21 September 2004 into the CPI (Maoist) with the People's Liberation Guerrilla Army; proscribed under the Unlawful Activities (Prevention) Act 1967. Magnitude, as recorded by the Supreme Court in Nandini Sundar 2011: an MHA estimate of 120 to 160 of 607 districts, nearly a quarter of Indian territory, and 83 districts in nine States under the Security Related Expenditure scheme; worst affected, Dantewada in Bastar. Official counts have fallen substantially since.

Test yourself

1. Where and when did the movement begin, and what was the immediate grievance? At Naxalbari in the Siliguri subdivision of Darjeeling district, West Bengal, in May 1967. Sharecroppers, largely Santhal and Rajbanshi, whose tenancy rights had never been recorded and who were being evicted, began forcibly harvesting and occupying land; a police inspector was killed on 24 May and police firing at Bengaijote on 25 May killed eleven villagers.

2. What political circumstance gave the rising its ideological force? West Bengal was governed by a United Front ministry in which the CPI(M) held the Home portfolio, so the firing was ordered by a government of the parliamentary Left. That was the evidence its leaders used for the claim that the parliamentary road could not deliver land to the tiller.

3. Trace the organisational line from 1967 to 2004. The Naxalbari rising, 1967; the All India Coordination Committee of Communist Revolutionaries, 1968; the CPI (Marxist-Leninist), founded 22 April 1969; fragmentation after Charu Majumdar's death in custody in July 1972; the CPI(ML) People's War in Andhra Pradesh from 22 April 1980 and the Maoist Communist Centre in Bihar; and their merger on 21 September 2004 into the Communist Party of India (Maoist).

4. What figures did the Supreme Court record about the magnitude of the movement, and in which case? In Nandini Sundar v. State of Chhattisgarh, 2011, it quoted the Ministry of Home Affairs' estimate that some 120 to 160 of 607 districts were affected and that the movement had spread over nearly a quarter of Indian territory, and recorded the Union's statement that the Security Related Expenditure scheme covered 83 districts in nine States.

5. Why is an insurgency a subject for a paper on law and social transformation? Because it is where the legal instruments of transformation failed. Land reform, tenancy law, the Fifth Schedule, PESA and the Forest Rights Act were all directed at these districts, and the Planning Commission's Expert Group in 2008 and the Supreme Court in 2011 both held that the development paradigm applied there had aggravated the discontent and that treating the result as a mere law and order problem would breed more of it.

How the Court read it. In Nandini Sundar the Court observed that a Government report understates in staid prose, so that an expert body of the Planning Commission using the words "rapacious" and "sub-human" was revealing the degree of human suffering being visited on vast sections of the citizenry, and that facets essential to human dignity had been systematically denied by the developmental paradigm the State had unleashed.

Cause one: the tenancy that was never recorded

The promise. After independence every State legislated on tenancy: the sharecropper was to be recorded, given a fixed and fair share, protected from eviction and in many States given a right to purchase.

The failure. Recording depended on a revenue administration that had no incentive to record, and a tenant who asked to be recorded was evicted before the entry was made. Ceiling laws were evaded by benami transfers and by the exemptions written into the statutes themselves.

Why it is the FIRST cause. Naxalbari was a sharecroppers' rising, and the demand there was the enforcement of a right the statute already gave. The movement began where the law had already promised what it did not deliver.

And the constitutional twist. The Ninth Schedule was created in 1951 to protect precisely these agrarian statutes from challenge, which is worked in [The Preamble: The Charter of Transformation] and [The Directive Principles and the Welfare State]. The Constitution was amended to save land reform, and the land reform was still not carried out.

Cause two: the forest law that made a resident an encroacher

The colonial statutes. The Indian Forest Acts of 1865 and 1878 and the consolidating Act of 1927 empowered the State to constitute reserved and protected forests. Where a settlement of rights was made at all, it was made against people who had no documents, in a language they did not read, before an officer of the department that wanted the forest.

The consequence. A community that had cultivated and gathered in a forest for generations found itself, by operation of law, in unauthorised occupation of State property. Its cultivation became encroachment, its gathering became theft, and its relationship with the State became a relationship with the forest guard.

The independent period did not undo it. The Forest (Conservation) Act 1980 added a central clearance requirement without settling anyone's rights, and eviction drives followed.

What Parliament finally admitted. The preamble to the Forest Rights Act 2006 says it in the statute book: that the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers were NOT ADEQUATELY RECOGNISED, and that the Act is passed to redress the HISTORICAL INJUSTICE done to them. Section 3(1) then lists the thirteen rights and section 4 vests them. A Parliament that legislates in those words has conceded the cause.

Cause three: displacement without rehabilitation

The instrument. The Land Acquisition Act 1894, in force for a hundred and nineteen years. It permitted acquisition for a public purpose, paid compensation to the person recorded as owner, and said nothing at all about rehabilitation or resettlement.

Who fell outside it. The sharecropper with no record, the shifting cultivator with no survey number, the landless labourer whose work went with the land, and the community whose grazing ground or sacred grove had no owner. Compensation for the recorded owner is no remedy for any of them.

Where the projects were. Dams, mines, steel plants and thermal stations went where the water, coal, iron and bauxite are, which is the tribal belt. Tribal people have been displaced at many times their share of the population, and a large proportion were never resettled at all.

What changed in 2013, and how late. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 replaced the 1894 Act. It requires a social impact assessment, requires the consent of a stated proportion of affected families for public-private partnership and private projects, defines an affected family to include those dependent on the land rather than only its owner, and makes rehabilitation and resettlement an entitlement rather than a policy. For the Scheduled Areas it requires that acquisition be a last resort and that the gram sabha, panchayats or autonomous district councils give prior consent.

The point for an answer. Every one of those requirements is an admission that the previous law was the problem, and the movement had been running for forty-six years by the time Parliament made it.

Cause four: the terms of trade

Minor forest produce. Tendu leaf, bamboo, mahua, sal seed and lac are the cash income of a forest household. They were routinely bought at administered or monopoly prices, or through contractors, at a fraction of what they fetched downstream.

What the law now says. Section 3(1)(c) of the Forest Rights Act gives the OWNERSHIP of minor forest produce to the holder of the right, and section 4(m)(ii) of PESA requires the State to endow the gram sabha and panchayats specifically with that ownership. Both are directions about who captures the value, and both were resisted in practice.

Money lending. Paragraph 5(2)(c) of the Fifth Schedule lets the Governor regulate money lending to Scheduled Tribes, and section 4(m)(v) of PESA requires the gram sabha to be given control over it. Debt bondage in these districts is the subject of [Manual Scavenging and Bonded Labour], and it is the mechanism by which land passes without any transfer being recorded.

Land alienation. Where a Land Transfer Regulation exists, the transfer to a non-tribal is void; but a void transfer that nobody challenges is a completed dispossession, and restoration proceedings under the State Acts have a poor record.

Cause five: the State that is absent, and the part of it that is present

Absent. School, health centre, road, bank, ration shop and the courts. Article 21A's guarantee, worked in [The Right to Education], reaches these districts last.

Present. The forest guard, the police station, the contractor and the revenue officer, that is, the four faces of the State that take rather than give.

The consequence for legitimacy. Where the only visible State is the enforcing one, the argument that the State is an instrument of the dominant sections is not an abstraction but a description of the week.

And where the movement fills the gap. Insurgent organisations set the tendu leaf wage, ran their own courts and took a share of the contractor's bill. That substitution, rather than the ideology, is what secured a base.

Cause six: the laws that exist and are not implemented

The Fifth Schedule. Its powers are the Governor's, and the Tribes Advisory Council only advises. A Schedule whose operation depends on a discretionary power is inert unless it is used.

PESA. Section 4 binds the State Legislature not to pass an inconsistent law. Most States conformed late and minimally, and subordinate rules came later still. Section 4(i) requires only CONSULTATION before land in a Scheduled Area is acquired, so a consultation recorded and ignored is compliance.

The Forest Rights Act. The gram sabha under section 6 only initiates; the Sub-Divisional and District Level Committees, made mostly of officers, decide, and the District Committee's decision is final. Community forest rights, the ones that matter most for a village economy, have been recognised far more slowly than individual ones, and section 4(3)'s cut-off of 13 December 2005 falls hardest on the claimant who was never surveyed.

The pattern. In each case Parliament or the Constitution created a right, and the administration retained the decision. That gap between the enacted right and the administered outcome is the single most examinable idea in this chapter, and it is the theme of [What Law Cannot Do: The Limits of Legislating Change].

Cause seven: liberalisation and the new mineral economy

What changed after 1991. Mineral extraction opened to private and foreign investment, and States competed to sign memoranda for steel, aluminium and power projects in exactly the districts under discussion.

What the Supreme Court said about it. In Nandini Sundar the Court held that policies of rapid exploitation of resources by the private sector, without credible commitments to equitable distribution of benefits and costs and to environmental sustainability, are necessarily violative of principles fundamental to governance, and that on a large scale they eviscerate the promise of equality before the law under article 14 and the dignity of life assured by article 21. It added that the collusion of the extractive industry with agents of the State destroys the moral authority of the State itself.

Why that sentence matters for a law answer. It converts a political criticism into a constitutional holding, and it is the strongest single authority a student can cite on this question.

The argument to handle: poverty alone is not the cause

The objection. India has poorer districts than some of the affected ones and no insurgency in them, so poverty cannot be the explanation.

The answer, in three parts. First, the variable is not poverty but DISPOSSESSION: the loss of a resource that was being used, by a legal process, without consent or replacement. Second, it is dispossession together with the absence of any working remedy, so that the courts, the collector and the police are all on the other side. Third, it is the presence of a resource worth taking, which is why the belt tracks the minerals and the forests.

And the corollary for the next chapter. If dispossession without remedy is the cause, then the cure is a remedy, which is why the Expert Group and the Court both say that treating the matter as a law and order problem breeds more of it.

A worked example

A district in the Bastar region. A village of forty households cultivates upland fields and sells tendu leaf. A mining lease is granted over 900 hectares including the fields and the leaf forest.

Was any law broken? Possibly none. The fields were never recorded, so the households are encroachers on State forest. The lease was granted by the State. Compensation is payable to recorded owners, of whom there are none.

What each protective statute should have done. The Fifth Schedule regulation should have voided a transfer to a non-tribal; Samatha holds it binds the Government too. PESA section 4(i) required consultation before acquisition. The Forest Rights Act sections 3 and 4 gave the households a right to hold the land they cultivate and gave the village ownership of the tendu leaf, and section 6 required the gram sabha to initiate their determination.

Why they did not. Because the claims had not been settled before the lease was granted, and once the clearance is issued the village is arguing from the wrong side of an accomplished fact.

What the village's options then are. A writ petition, which requires a lawyer and takes years; a complaint to the National Commission for Scheduled Tribes, which recommends; a protest, met as public order; or the organisation that is already in the forest and offers to stop the truck this week.

That last sentence IS the answer to MU's question. The movement recruits at the exact point where the legal remedy runs out.

What this does NOT mean

It does not mean the causes justify the violence. Explaining the conditions is not endorsing the killings, and MU asks for a critical appraisal.

It does not mean the movement speaks for the tribes. Tribal people have been the principal victims of the violence on both sides, which is the fact Nandini Sundar turns on.

It does not mean law is useless here. The Forest Rights Act and PESA are real instruments and Niyamgiri shows what they can do; the criticism is of implementation, not of enactment.

And it does not mean development is the villain. The Expert Group criticises a development paradigm imposed without consent and without distribution, not development.

Quick revision

Expert Group to the Planning Commission, Development Challenges in Extremist Affected Areas, April 2008, quoted in Nandini Sundar 2011: the development paradigm aggravated discontent; it was imposed; benefits cornered by dominant sections; displacement and a sub-human existence; for tribes, destruction of social organisation, cultural identity and resource base; rapacious exploitation by contractors, middlemen and traders; treating unrest as a law and order problem is a rationale for suppression; what surprises is not the unrest but the failure to draw the right conclusions.

Seven causes. One, tenancy law that promised the sharecropper a record and never made it, which is what Naxalbari was about. Two, the forest laws of 1865, 1878 and 1927 that made residents encroachers, admitted in the preamble to the Forest Rights Act 2006 as a HISTORICAL INJUSTICE. Three, displacement under the Land Acquisition Act 1894, compensation only to the recorded owner and no rehabilitation, replaced only in 2013. Four, the terms of trade: minor forest produce, money lending and land alienation, addressed by FRA section 3(1)(c) and PESA section 4(m). Five, an absent State and a present enforcement apparatus. Six, protective laws whose decisions stayed with officers: the Fifth Schedule's Governor, PESA's consultation, the FRA's District Level Committee. Seven, post-1991 mineral extraction, on which Nandini Sundar holds that exploitation without equitable distribution eviscerates articles 14 and 21. The variable is dispossession without remedy, not poverty.

Test yourself

1. Quote the Expert Group's central finding about the development paradigm. That the paradigm pursued since independence aggravated the prevailing discontent among the marginalised, was imposed on these communities and caused irreparable damage, that its benefits were disproportionately cornered by the dominant sections at the expense of the poor who bore most of the costs, and that in the case of the tribes it destroyed their social organisation, cultural identity and resource base.

2. How did forest law turn a resident into an encroacher? The Indian Forest Acts of 1865, 1878 and 1927 allowed the State to constitute reserved and protected forests, with any settlement of rights conducted against people who had no documents before an officer of the department that wanted the forest. Cultivation became encroachment and gathering became theft, by operation of law and without anybody moving.

3. What did the Land Acquisition Act 1894 fail to provide, and who fell outside it? Any rehabilitation or resettlement. It compensated only the person recorded as owner, so the unrecorded sharecropper, the shifting cultivator with no survey number, the landless labourer and the community holding a grazing ground or sacred grove received nothing.

4. State the constitutional holding in Nandini Sundar on resource exploitation. That policies of rapid exploitation of resources by the private sector, without credible commitments to the equitable distribution of benefits and costs and to environmental sustainability, are necessarily violative of principles fundamental to governance, and on a large scale eviscerate the equality promised by article 14 and the dignity of life assured by article 21; and that the collusion of the extractive industry with agents of the State destroys the moral authority of the State.

5. Answer the objection that poverty cannot be the cause because poorer districts have no insurgency. The variable is not poverty but dispossession: the loss by legal process, without consent or replacement, of a resource being used; combined with the absence of a working remedy, so that the collector, the police and the courts are all on the other side; and with the presence of a resource worth taking, which is why the affected belt tracks the forests and the minerals.

And the limit the Court imposed. In Nandini Sundar the appointment of barely trained tribal youth as Special Police Officers for counter-insurgency was held unconstitutional under articles 14 and 21, the Union was ordered to stop funding their recruitment for that purpose, firearms were ordered recalled, and the State was ordered to prevent the operation of any group, including Salwa Judum and the Koya Commandos, that takes the law into private hands. Security that arms a militia is not a cure; it is a second insurgency.

Development

Roads. The Road Requirement Plan for the affected districts and the later Road Connectivity Project for Left Wing Extremism Affected Areas, both administered through the Ministry of Road Transport and Highways and the Ministry of Rural Development.

Communications. The mobile tower project for the affected districts, executed in phases, on the reasoning that a district with no telephone signal has no functioning administration either.

Education. Eklavya Model Residential Schools under the Ministry of Tribal Affairs, and the expansion of schooling in the affected blocks.

Skills and employment. The Ministry of Rural Development's skill development scheme for youth of the affected districts, known as ROSHNI, alongside the general rural livelihood missions.

Financial inclusion. Bank branches, post office accounts, ATMs and banking correspondents in blocks that had none, so that wages and entitlements do not have to pass through a contractor.

Governance. The Aspirational Districts Programme of NITI Aayog, from 2018, which measures a set of districts, many of them affected, against health, education, agriculture, infrastructure and financial inclusion indicators.

The caution to state. Every one of these is delivered by the same administration whose absence was the grievance, and roads and towers are also a security asset. A student should note the ambiguity rather than list the schemes as a settled answer.

Rights and entitlements

The two statutes. PESA 1996 and the Forest Rights Act 2006, described in [Land, Forest and the Gram Sabha's Consent]. Implemented properly, they are the cure that goes to the cause, because they restore the resource rather than compensate for its loss.

Minor forest produce. The Ministry of Tribal Affairs' mechanism for marketing minor forest produce through a minimum support price and development of the value chain, from 2013, with procurement agencies and later the Van Dhan Vikas Kendras for local value addition. It is the direct answer to the terms-of-trade cause.

Land restoration. Restoration proceedings under the State Scheduled Areas Land Transfer Regulations, which after Samatha bind the Government too.

Rehabilitation on displacement. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, with its consent requirement, its social impact assessment, its definition of an affected family that includes those dependent on the land, and its requirement of prior consent of the gram sabha or panchayats in the Scheduled Areas.

Why this prong is the important one. It is the only prong that changes the facts on which the movement recruits. The other three manage the consequence.

Surrender and rehabilitation

What the policies provide. Every affected State has a surrender-and-rehabilitation policy, and the Union supports them through the Security Related Expenditure scheme. The usual contents are an immediate grant, a monthly stipend during a stipulated period, vocational training, housing or land, an incentive for surrendered weapons, and in some States assistance with employment.

The reintegration problem. A person who surrenders is a target for the organisation left behind and is often distrusted by the village. Protection is part of the package, and Nandini Sundar ordered the State of Chhattisgarh to provide it to former Special Police Officers for exactly that reason.

The design criticism. Where the incentives are weighted to weapons surrendered and intelligence given, the policy operates as a counter-insurgency instrument rather than as reintegration, and where the grant is paid and nothing follows, the person is back where they started with a record.

Restorative justice, which MU asked about in 2025

What restorative justice is. A response to wrongdoing that asks who was harmed, what they need, and whose obligation it is to repair, rather than asking only which rule was broken and what punishment follows. It works through inclusive processes in which those affected, including the community, participate in deciding the reparation.

Why the question is a fair one here. Because the harm in these districts runs in two directions and over a long period: violence by the insurgency, violence by the State's forces and militias, and, before both, a dispossession that the Forest Rights Act itself calls a HISTORICAL INJUSTICE. A purely punitive frame can address only the first.

What a restorative model would contain.

Acknowledgment. A statement by the State that the dispossession happened and was wrong. Parliament has already made it, in the preamble to the 2006 Act; the value of an acknowledgment is that it converts a demand into an admitted claim.

Restitution before compensation. Recognition of forest and land rights under sections 3 and 4 of the 2006 Act, and restoration of alienated land, in preference to a payment for its loss.