Q1 (a) Examine analytically, in the light of the latest judgement, the constitutionality of the reservations

to economically weaker sections (EWS) given by the 103rd constitutional amendment.

The 103rd Constitutional Amendment of India, passed in 2019, introduced a 10% reservation for
Economically Weaker Sections (EWS) in educational institutions and government jobs. This provision applies
to individuals who are economically disadvantaged but do not fall under the categories of Scheduled Castes
(SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). The amendment inserted Articles 15(6) and
16(6), which allow the state to provide reservations for EWS, based on economic criteria rather than caste.
The constitutional validity of this amendment was challenged, particularly in relation to whether it violated
the right to equality under Article 14 or altered the basic structure of the Constitution. Critics argued that
the introduction of economic-based reservations for EWS could undermine the social justice framework
established through caste-based reservations and that it might violate the principles of equality, as it creates
distinctions based solely on economic status.

The Supreme Court, in its 2022 judgment in Janhit Abhiyan v. Union of India, upheld the constitutionality
of the EWS reservation. The Court ruled that the 10% EWS quota did not violate the basic structure of the
Constitution, finding that it was a legitimate step to address economic disparities. It emphasized that
economic backwardness can be a valid criterion for affirmative action, distinct from caste-based
reservations, which are aimed at addressing historical social and educational backwardness. The Court also
noted that the EWS reservation was an addition to the existing reservation framework and did not interfere
with the reservations for SCs, STs, and OBCs, which remain based on social backwardness. Furthermore, the
Court ruled that the 50% ceiling on reservations, established in the Indra Sawhney case, was not violated,
as the EWS reservation applies only to the general category and does not affect the overall percentage of
caste-based reservations.

Despite this ruling, the decision has faced criticism. Some argue that the emphasis on economic status in the
EWS provision could dilute the focus on caste-based inequality, which continues to be a major issue in India.
Critics contend that economic backwardness alone does not address the social discrimination rooted in
caste, and that the new provision might divert attention from addressing caste-based injustices.
Furthermore, concerns have been raised regarding the implementation of the EWS quota, particularly in
determining who qualifies as economically disadvantaged, as well as the potential for this system to
exacerbate existing inequalities.

In conclusion, while the Supreme Court’s judgment upholds the 103rd Constitutional Amendment and
validates the inclusion of economic criteria for reservation, it also invites broader discussions on the
effectiveness of India's reservation system in addressing both social and economic inequalities. The ruling
essentially balances the need for affirmative action to tackle economic disadvantages while preserving the
caste-based reservation system. However, the amendment’s long-term impact will depend on how
effectively it addresses both caste-based discrimination and economic disparity in India’s complex socio-
economic landscape.

Q1 (b) -Whether the provisions under article 16(4) are fundamental rights? Analyse with the help of
decided cases.

Article 16(4) of the Indian Constitution is a critical provision that ensures equality of opportunity in public
employment by allowing the State to make reservations for any backward class of citizens not adequately
represented in the services under the State. This provision is part of the fundamental rights guaranteed
under Part III of the Constitution, which underscores its importance in achieving social justice and equality.

The Supreme Court of India has consistently upheld the constitutionality of Article 16(4) through various
landmark judgments. In State of Kerala v. N.M. Thomas (1975), the Court ruled that Article 16(4) is indeed
a fundamental right and that reservations are an essential tool to ensure equality of opportunity for
underprivileged sections of society. The Court emphasized that the provision is a means to achieve
substantive equality, not just formal equality.

Another significant case is Indra Sawhney v. Union of India (1992), commonly known as the Mandal case.
This judgment reaffirmed that Article 16(4) is a fundamental right and set a 50% ceiling on reservations to
ensure that merit is not entirely compromised. The Court clarified that reservations should be based on
social and educational backwardness, not merely economic criteria. It also introduced the concept of
"creamy layer" to exclude the wealthier sections of OBCs from the benefits of reservations, ensuring that
the benefits reach the genuinely disadvantaged.

In recent developments, the Supreme Court upheld the 103rd Constitutional Amendment in Janhit
Abhiyan v. Union of India (2022). This Amendment introduced reservations for Economically Weaker
Sections (EWS) in educational institutions and public employment, based solely on economic criteria. The
Court, in a 3-2 majority, ruled that the Amendment does not violate the basic structure of the Constitution.
The majority held that the 50% ceiling limit set by the Indra Sawhney judgment is flexible and can be
breached in extraordinary situations. However, the dissenting opinion argued that excluding SC/ST/OBC
categories from EWS reservations undermines the principle of social justice and violates the basic structure
of the Constitution.

These cases collectively highlight the evolving nature of reservation policies in India and the judiciary's role
in balancing the need for social justice with principles of equality and merit. While Article 16(4) remains a
fundamental right ensuring affirmative action for backward classes, its application and interpretation
continue to adapt to the changing socio-economic landscape of the country. The Supreme Court's
judgments reflect a nuanced understanding of the complexities involved in achieving genuine equality and
social justice through reservations.

Q1 © "the principal of basic structure is a judical creation. It has no where been mentioed in the
constitution" Explain with the help of decided cases. Discuss the principal of basic structure.

The "basic structure doctrine" is indeed a judicial creation and is not explicitly mentioned in the Indian
Constitution. This doctrine emerged through judicial interpretation, with courts ruling that certain
foundational principles of the Constitution cannot be amended by Parliament, even under its powers to
amend the Constitution.

Origin and Development of the Basic Structure Doctrine

The doctrine was established by the Supreme Court of India in the landmark case Kesavananda Bharati v.
State of Kerala (1973). This case was a response to repeated amendments by Parliament aimed at
changing key provisions of the Constitution, especially regarding property rights. The court, in a 7-6
majority, held that while Parliament has wide powers to amend the Constitution under Article 368, it
cannot alter the "basic structure" or "essential features" of the Constitution.

The court did not explicitly define "basic structure" but provided examples, including:

 Supremacy of the Constitution

 Rule of law
 Secularism
 Democratic and republican nature of the Indian state
 Separation of powers
 Judicial review
 Fundamental rights

Key Cases Shaping the Basic Structure Doctrine

 1. Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965):
o In these earlier cases, the Supreme Court upheld the power of Parliament to amend any
part of the Constitution, including Fundamental Rights, under Article 368. However, these
cases predate the basic structure doctrine and reflected an earlier, less restricted view of
amendment powers.
2. Golaknath v. State of Punjab (1967):
o The Supreme Court reversed its stance, ruling that Parliament could not amend
Fundamental Rights. This decision marked the beginning of a stricter approach to
constitutional amendments and influenced the development of the basic structure doctrine.
3. Kesavananda Bharati v. State of Kerala (1973):
o This case established the basic structure doctrine, with the Supreme Court holding that
while Parliament could amend the Constitution, it could not alter its basic structure. This
judgment marked a turning point in Indian constitutional law and restricted Parliament's
powers to ensure the Constitution’s foundational principles are preserved.
4. Indira Nehru Gandhi v. Raj Narain (1975):
o The Supreme Court applied the basic structure doctrine to strike down the 39th
Amendment, which sought to exclude the election of the Prime Minister and Speaker from
judicial review. The court ruled that judicial review is part of the basic structure and cannot
be removed.
5. Minerva Mills v. Union of India (1980):
o This case reinforced the basic structure doctrine and expanded it by declaring that balance
between Fundamental Rights and Directive Principles of State Policy is a part of the basic
structure. The court struck down a part of the 42nd Amendment, ruling that unlimited
power of amendment would destroy the Constitution's essential features.
6. Waman Rao v. Union of India (1981):
o The Supreme Court clarified the retrospective application of the basic structure doctrine,
ruling that amendments made after Kesavananda Bharati (April 24, 1973) would be subject
to this doctrine.
7. S.R. Bommai v. Union of India (1994):
o The court used the doctrine to emphasize that federalism and secularism are part of the
basic structure. The ruling strengthened constitutional safeguards against arbitrary dismissal
of state governments by the central government.

Principles of the Basic Structure Doctrine

1. Judicial Review: Courts maintain the power to review amendments and legislation for compatibility
with the basic structure, ensuring the checks and balances within the Constitution.
2. Protection of Fundamental Rights: Fundamental Rights, especially those like equality and freedom
of speech, are often deemed inviolable as part of the basic structure, although some rights can be
reasonably restricted.
3. Democracy and Rule of Law: Parliamentary democracy, the rule of law, and the principle of free
and fair elections are essential to maintain the democratic foundation of the Indian state.
4. Federalism and Secularism: These principles ensure that India remains a federation of states with a
secular outlook, as emphasized in the Bommai case.
5. Separation of Powers: The judiciary, legislature, and executive operate within their respective
domains, and any attempt to alter this separation could violate the basic structure.

Significance of the Doctrine

The basic structure doctrine is critical for preserving the essence of the Constitution. It prevents the
government from undermining key principles, even with a majority in Parliament, thereby maintaining the
spirit and values enshrined in the Constitution. This doctrine ensures that India’s democratic, secular, and
federal character remains intact, regardless of political changes.

In summary, while the basic structure doctrine is not explicitly mentioned in the Constitution, it has
become an established judicial safeguard that protects the Constitution from radical amendments that
could compromise its core values and principles.

Q1 (d) If there is clash between two fundamental rights, what course should be taken by the courts?
Discuss in the light of decided cases.

When two fundamental rights come into conflict in India, the courts must carefully balance these rights to
ensure that neither is unduly compromised. The Indian Constitution provides for a set of fundamental
rights under Part III, which include rights such as freedom of speech and expression (Article 19), right to
equality (Article 14), right to life and personal liberty (Article 21), and others. However, the Constitution
also allows for reasonable restrictions on these rights in certain circumstances. When two or more
fundamental rights clash, the courts typically aim to harmonize these rights, balancing competing interests
in a way that preserves the essence of both rights, while respecting the overall constitutional framework.

Judicial Approach to Conflicting Fundamental Rights

In cases where fundamental rights collide, the courts generally follow a principle of balancing or
reconciliation rather than giving priority to one over the other. This involves understanding the context
and the underlying values behind each right, as well as interpreting constitutional provisions to ensure that
the broader aims of the Constitution—justice, liberty, equality, and fraternity—are upheld.

The Supreme Court of India has, over the years, developed a nuanced approach to resolve conflicts
between fundamental rights, considering both the scope of the rights involved and their respective
limitations under the Constitution.

Key Cases and Principles

1. Kharak Singh v. State of UP (1964)

In this case, the conflict was between the right to personal liberty (Article 21) and the right to privacy. The
Court dealt with the issue of police surveillance and whether it violated the right to personal liberty. The
Court balanced the right to privacy with the need for public security, recognizing that the right to personal
liberty must sometimes yield to the interests of public order. This case marked one of the early attempts to
harmonize competing rights, with the Court acknowledging the need for reasonable restrictions in the
interests of national security and law enforcement.

2. Maneka Gandhi v. Union of India (1978)

The Maneka Gandhi case significantly expanded the interpretation of the right to life and personal liberty
(Article 21). The case involved a clash between the right to freedom of movement (Article 19) and the
right to personal liberty (Article 21). The Court held that the right to life under Article 21 includes a
broader concept of personal liberty and cannot be restricted arbitrarily. The Court also laid down that any
law or action infringing on fundamental rights must meet the test of reasonableness. This case reinforced
the idea that even when rights conflict, there must be a fair balancing between them, and any restriction
should be justified by the principle of proportionality.
3. **Expression of Speech vs. Right to Reputation: ** Subramanian Swamy v. Union of India (2016)

The conflict in this case arose between the freedom of speech (Article 19(1)(a)) and the right to
reputation (Article 21). The petitioner argued that Section 499 of the Indian Penal Code (which
criminalized defamation) violated the freedom of speech. The Court balanced the right to freedom of
speech with the right to reputation, holding that the right to free speech is not absolute and can be
restricted in cases of defamation, as it undermines an individual’s right to dignity and reputation. The Court
emphasized that restrictions on freedom of speech could be justified if they were necessary to protect
public interest, particularly the right to reputation, which is integral to human dignity.

4. **Right to Freedom of Religion vs. Social Reform: ** Shah Bano Case (1985)

In the famous Shah Bano case, the conflict was between the right to religion (Article 25) and the right to
equality (Article 14) and the right to protection against arbitrary state action (Article 21). The case
involved a Muslim woman seeking maintenance under Section 125 of the Criminal Procedure Code, which
conflicted with personal laws governing Muslim marriage and divorce. The Supreme Court emphasized that
while freedom of religion was a fundamental right, it should not be exercised in a manner that
perpetuated social injustice or inequality. The Court called for a balancing act, asserting that religious
practices that are oppressive to women must not be allowed to override the right to equality and dignity.

5. **Right to Privacy and the Right to Information: ** Puttaswamy v. Union of India (2017)

In the Puttaswamy (Right to Privacy) case, the Supreme Court dealt with a clash between the right to
privacy and the right to information. The issue arose in the context of the Aadhaar card and whether the
government’s collection of biometric data violated an individual’s privacy. The Court ruled that the right to
privacy is a fundamental right under Article 21. However, it also acknowledged that the right to privacy is
not absolute and can be restricted for legitimate state purposes such as national security, public order, or
public welfare, provided that such restrictions are proportionate. This case reinforced the idea that rights
must be balanced against each other, considering the public interest, necessity, and proportionality of the
restrictions.

Legal Test for Balancing Conflicting Rights

The courts generally apply the proportionality test to resolve conflicts between fundamental rights. This
test involves evaluating whether the restriction on a right is:

1. Legitimate – it serves a valid public purpose or interest.

2. Necessary – there are no less restrictive means to achieve the same objective.
3. Proportional – the harm caused by the restriction should not outweigh the benefit gained from it.

This test ensures that while the courts respect the fundamental rights guaranteed under the Constitution,
they also give due weight to public interest and social welfare.

Conclusion

In cases where two fundamental rights clash, the judiciary’s role is to ensure that both rights are balanced
in a manner that does not undermine the Constitution's larger objectives. Indian courts have developed a
sophisticated approach to this, emphasizing reasonableness, proportionality, and the harmonization of
competing rights. Through landmark decisions, the courts have reaffirmed the necessity of a flexible
interpretation of fundamental rights, recognizing that while each right is vital, they must coexist with
respect to public order, social welfare, and national security. Thus, the resolution of conflicting
fundamental rights requires a nuanced approach that considers the context, values, and principles
underlying the rights in question.

Q2 (a) – “Hindu law is not lex loci” – Explain.

The phrase “Hindu law is not lex loci” means that Hindu law is not the general law of the land and does not
apply universally to all residents within a territory. Instead, Hindu law operates as a personal law, which
applies only to individuals identified as Hindus, including Jains, Buddhists, and Sikhs under Indian legal
definitions. This stands in contrast to lex loci, which would imply a set of laws binding upon all people in a
particular region, regardless of religious or community affiliation.

In India, laws governing personal matters like marriage, divorce, succession, and adoption are often based
on the religious affiliation of the individuals involved. Hindu law thus applies only to Hindus, and non-
Hindus follow different personal laws (such as Muslim personal law) or secular laws like the Special
Marriage Act. Hindu law’s scope is limited to Hindus, rather than being a universal law applicable to
everyone within India’s jurisdiction. This distinction between personal law and lex loci allows for legal
diversity, acknowledging and respecting the varied religious and cultural practices within Indian society.

Hindu Law vs. Lex Loci

As lex loci applies universally within a specific territory, it aims to provide a uniform legal system that does
not differentiate based on religion or community. For instance, contract law, criminal law, and property law
in India are generally based on lex loci principles and are applicable to all residents within the country,
irrespective of their religious background. These areas of law are meant to ensure consistency and equality
under a common legal framework.

In contrast, Hindu law is tailored to the specific customs, practices, and beliefs of the Hindu community.
This makes it inherently different from territorial laws, as it seeks to uphold religious customs and cultural
values rather than providing a uniform legal standard. As a result, Hindu law incorporates religious
elements, which are preserved to respect the diversity and autonomy of the Hindu community.

Implications of Hindu Law as Non-Lex Loci

The distinction between Hindu law as a personal law and the concept of lex loci has several implications:

1. Legal Pluralism: India maintains a pluralistic legal system, where different religious communities have
their own personal laws for personal matters. This allows each community to follow legal frameworks
that align with their traditions and cultural values.
2. Choice of Law for Interfaith Marriages: Individuals of different religions who wish to marry outside
their respective personal laws may opt for secular laws, such as the Special Marriage Act, 1954, which is
lex loci in nature and applies to all Indian citizens regardless of religious background.
3. Constitutional Framework: The Indian Constitution allows for personal laws to coexist with general
laws. Article 25 guarantees freedom of religion, which enables communities to govern personal matters
through laws aligned with their religious practices. At the same time, the Constitution allows Parliament
to create a Uniform Civil Code (UCC) that could establish lex loci in personal matters across religious
groups, though no UCC has been implemented yet.
4. Judicial Intervention and Reform: The judiciary in India occasionally interprets and modifies aspects
of personal laws, including Hindu law, to address issues of equity, justice, and constitutional rights.
However, courts are cautious in this respect, as personal laws are deeply connected to religious
identities.

Conclusion
In summary, Hindu law being “not lex loci” underscores the distinction between personal laws and universal
laws within India’s legal system. Hindu law applies specifically to Hindus and is tailored to reflect Hindu
religious and cultural practices. It does not impose itself on all residents of India, which would be the case if
it were a territorial law or lex loci. This framework helps preserve cultural diversity within India, allowing
each religious community to follow laws that respect their beliefs, while lex loci laws provide common
standards in areas not linked to personal religious identity.

Q2 (b) what is Avyavaharik debt? When debt becomes Avyavaharik ? Discuss the law regarding such debts.

Avyavaharik debt is a term in Hindu law referring to a debt that is considered immoral, illegal, or improper
in nature, and thus not binding on the family or the sons of the debtor. The term "Avyavaharik" literally
means "not lawful" or "not in accordance with accepted norms or conduct." These debts are seen as personal
liabilities of the debtor, not the joint family, and typically arise from purposes that are contrary to moral,
ethical, or legal standards.

When Does a Debt Become Avyavaharik?

A debt becomes Avyavaharik when it is taken for purposes that are deemed immoral, illegal, or improper
under Hindu law or societal norms. Examples include:

 Debts incurred from gambling, drinking, or illegal activities.

 Debts taken to finance illegal trades or immoral purposes (e.g., funding extramarital affairs).
 Loans for purposes that are selfish, unethical, or do not benefit the family (such as excessive
personal luxuries or self-indulgence).

Under Hindu law, such debts are viewed as being against the principles of righteousness (dharma), and
therefore the sons or heirs are not obligated to repay them.

Legal Principles Regarding Avyavaharik Debt

1. Personal Liability of the Debtor: Avyavaharik debts are treated as the personal liabilities of the
debtor alone, not extending to their sons or the joint family property. Sons are not obligated to pay
these debts unless they personally agreed to take responsibility for them.
2. Exceptions to the Doctrine of Pious Obligation: The doctrine of pious obligation in Hindu law
traditionally holds that sons are morally obligated to repay the father’s debts. However, this
obligation does not extend to Avyavaharik debts. For example, if a father incurs a debt for illegal or
immoral reasons, his sons cannot be forced to repay it.
3. Judicial Interpretation: Courts in India have examined the concept of Avyavaharik debt in cases
where creditors sought repayment from the joint family property. The courts have upheld that only
debts incurred for "lawful, pious, and family-benefitting purposes" can bind the family and sons. In
cases like S. M. Jakati v. S. M. Borkar and Kesar Singh v. Secretary of State, the courts clarified that
a debt arising from illegal or immoral conduct cannot obligate the sons or family to pay it.
4. Burden of Proof: In disputes over whether a debt is Avyavaharik, the burden of proof is on the
family members challenging the debt. They must demonstrate that the debt arose from immoral or
illegal purposes.
5. Prohibition of Recovery Against Family Property: If a debt is proven to be Avyavaharik, creditors
cannot recover the debt from joint family property or from assets inherited by the debtor's sons. This
protects the family estate from depletion due to the wrongful conduct of an individual member.

Conclusion

In summary, Avyavaharik debts are debts that are incurred for improper, immoral, or illegal purposes and
are not binding on the debtor's family or heirs. Hindu law treats such debts as personal liabilities of the
debtor, and the family is not legally obligated to repay them. This principle preserves the family’s financial
stability and protects it from the irresponsible or unethical actions of individual members.
Q2 ( c)- Hindu marriage is a sacrament (sanskar), whereas muslim marriage is a contract. Discuss.

Hindu Marriage as a Sacrament

Hindu marriage, known as "vivaha" in Sanskrit, is deeply rooted in religious and cultural traditions. It is
considered a sacrament (sanskar), meaning it is a sacred and lifelong union performed with religious rituals
and rites. The essence of Hindu marriage is spiritual; it is not just a union between two individuals but a
fusion of two souls and families. The ritualistic ceremonies, such as "saptapadi" (seven steps) and
"kanyadaan" (giving away of the bride), symbolize the religious and spiritual significance of the marriage.
The sanctity of the marriage is reinforced by the belief that it is an indissoluble bond, with the couple
committing to a lifelong partnership, transcending even their current life into the next.

Muslim Marriage as a Contract

In contrast, a Muslim marriage, known as "nikah," is fundamentally a civil contract. While it has religious
overtones and is conducted in the presence of witnesses, its foundation is contractual. The core elements of a
Muslim marriage include an offer (ijab), acceptance (qubul), and consideration (mahr), which is a
mandatory gift from the groom to the bride. The contractual nature allows for specific terms and conditions
to be stipulated by both parties, ensuring mutual consent and clarity of rights and responsibilities. The
flexibility of this contract is evident in the provision for "talaq" (divorce) and "khula" (divorce initiated by
the wife), which, while solemnized by religious doctrine, provide a practical framework for the dissolution
of marriage if necessary.

Comparative Analysis

The distinction between Hindu and Muslim marriages highlights the fundamental differences in their
religious and cultural underpinnings. Hindu marriage as a sacrament emphasizes the spiritual and eternal
nature of the union, whereas Muslim marriage as a contract emphasizes mutual consent and defined legal
rights and duties. This difference also manifests in the procedures for dissolution; Hindu marriage
traditionally perceives marriage as an indissoluble union, making divorce less common and more
cumbersome, while in Islam, the contractual basis of marriage provides mechanisms for an equitable and
less complex dissolution process. These divergent views reflect broader differences in the respective societal
structures and religious doctrines.

Conclusion

In essence, while Hindu marriage is seen as a sacred and spiritual bond meant to last for life and beyond,
Muslim marriage is viewed as a contractual agreement with clearly defined legal obligations and the
flexibility for dissolution if required. Both systems, though fundamentally different in their
conceptualization, aim to establish a harmonious and equitable relationship between the partners, reflecting
the diverse cultural and religious fabric of India.