Opinion: Constitutionality Challenge to the Formation of Anti- Land Grabbing Cells and Courts by the Tamil Nadu Government

Constitutionality Challenge to the Formation of Anti- Land Grabbing Cells and Courts

Recently, the Madras High Court[1] quashed the establishment of special anti-land grabbing police cells and courts to investigate and try such cases. The Government has, consequently, appealed to the Supreme Court against this judgment. However, it is to be noted that the constitution of Special Courts to try particular type of cases was quashed not because it was bad in law, but since the constitution of Special Cells is quashed, as a natural corollary, the constitution of Special Courts is also liable to be quashed, as no purpose would be served by keeping such Special Courts in existence.

The present post deals with the issue relating to the Article 14 Constitutional challenge of the Ordinance leading to the formation of Special Cells and analyse whether the judgment can sustain in the Supreme Court.

A.    Decision of the Court

The main objection that the Court had was with respect to the absence of any definition disclosing any principle or guideline, to guide the Special Cells (constituted to deal with land grabbing cases) in selecting the class of offence, cases or class of cases for investigation. The discretion, in the Court’s view, was entirely left with the Anti Land Grabbing Cells to pick and choose cases according to their choice. The Court, in other words, found that the term "land grabbing" does not pass the first step of Reasonable Classification Test, i.e., of providing an intelligentia differentia, as it is not properly defined.

It repelled the contention of the Respondents that there is no unfettered discretion since certain offences under the IPC, i.e., Section 447 (Criminal Trespass), Section 420 (Cheating), Section 506 (Criminal Intimidation), Chapter XXVII (offences against property) and XXVIII (offences relating to documents and property marks)  etc., would clearly be attracted in case of land grabbing. The Court was partly influenced by the presence of the definition of the term “land grabbing” in the A.P. Land Grabbing (Prohibition) Act, 1982, which in the present case was not present.

As a necessary corollary to this holding, the Madras High Court also held that in the absence of any specific guideline/norms/yardstick, the possibility of misuse cannot be ruled out. While recognising that validity of a statute cannot be tested solely on the ground that it is capable of getting misused, it stated that since the investigation is done by police personnel in the rank of Inspectors of Police and therefore, such a presumption cannot be drawn.

B.    Anwar Ali Judgment

The first issue in the present case related to the violation of Equal Protection of laws aspect of Article 14 where the Court had employed the classic test of reasonable classification as employed in the case of State of West Bengal v. Anwar Ali Sarkar[2] that provided for a three- step checking mechanism to justify any differential treatment to pass the rigours of Article 14. The test lays down that in order to justify any such treatment, firstly, it has to be shown that there is a classification done on some intelligent and reasonable grounds, secondly, such classification should be done with a view to achieve an object and lastly, the classification should have a nexus with the object.[3]

The Madras High Court had extensively quoted independent opinions of the judges in the case of Anwar Ali case and concluded that the decision of the Supreme Court in that case was based on the consideration that there was no yardstick or measure for grouping either of persons or of cases or of offences by which the cases could be decided which are outside the purview of the Special Act and the Act has left the matter entirely to the unregulated discretion of the provincial Government.

In that case, the State of West Bengal launched criminal prosecution against Mr. Anwar Ali Sarkar by trying him before the Special Court. The impugned legislation had stated:

“Section 5 (1): A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct.”

There were divergences in the majority opinions itself. For instance, Das, J. had found the phrase “cases” to be unconstitutional, since it gave an unfettered and completely submitted to the whims of the State of Bengal’s power to decide on individual cases, whether to send such cases for disposal in special courts or not. He was of the opinion that phrases “class of offences”, “offences” and “class of cases”, would have certain common parameters, like if offence of theft is committed more regularly, then, such cases could be dealt by the Special Courts, as a separate class based on an intelligentia basis can be found. Whereas, in individual cases, there is no such consideration, since every individual’s life is important, though there might be considerations like, the person killed maybe a politician of high ranks or murder maybe committed in such a gruesome manner so as to shock the conscience of the whole society. But that does not take away from the ultimate harm caused.

Others in the majority felt that absence of any parameter to decide which cases are to be submitted to the Special Courts, constitutes arbitrary powers to the State and consequently, violating the equal protection clause. Here, it is important to realise that the State contended that there is a rational basis or an intelligentia differentia, i.e., which was cases that needed quick disposal. As Das, J. aptly opined:

“In order to be a proper classification so as not to offend against the Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the Preamble...”[4]

In other words, the object itself cannot be the basis of classification, for absence any peculiar circumstance, each and every case requires a speedy trail. Therefore, object is separate from the basis of classification.

C.    Analysis of the Court’s Reasoning

There seems to be a potent challenge to the judgment of the High Court in the Supreme Court, since there is a rational basis for classifying the “land grabbing” cases separately from the other cases by understanding the term as a generic term and by doing so, the objection of the Court regarding the lack of any proper definition would be addressed.

It must be noted that mere absence of a proper definition is not always a basis to strike down a provision. In cases like, V.C. Shukla v. State (Delhi Administration),[5] where a challenge was put forward with regard to the constitutional validity of the Special Courts Act under Articles 14 and 21, an argument was put forward  that separate group of high offices for the purpose of expeditious criminal action to be taken by Superior Courts is unreasonable and cannot be termed as valid classification and no rational basis for separately classifying emergency offenders existed. The Hon'ble Supreme Court of India repelled the said submission and held that persons holding high public or political offices is self-explanatory and admits of no difficulty and that mere absence of definition of the expression would not vitiate the classification made by the Act and since such persons [basis of classification] are in a position to take major decisions regarding social, economic, financial aspects of life of the community and other far-reaching decisions on the home front as also regarding external affairs and if their actions are tainted by breach of trust, corruption or other extraneous considerations, they would damage the interests of the country [object of the law, therefore, is to protect the interests of the country, while nexus is the position of power held by such people].

In the present case, as stated earlier, the term “land grabbing” can be seen as a generic term (class of cases/ offences) encompassing different/ separate violations of IPC like criminal trespass, Cheating, Criminal Intimidation, offences against property, offences relating to documents and property marks. Whereas, the object can be taken as quick investigation of cases of such nature, of which as many as 1887 complaints have been received (including against members of political parties) in the last 5 years. Furthermore, the petitioner itself had admitted that there is an intention to investigate validly purchased lands (as claimed by the petitioner) made by members of political parties.[6] Even though it has been stated by the petitioner that the ruling party, under the guise of being a State, is on a witch- hunt against its oppositions, still it is the State that has officially viewed the several complaints received on land grabbing,  as cases involving powerful people abusing power to commit criminal offences and escape legal sanctions.[7] This further gives a cause/ object for quick investigation.

It is left to be seen that what the Supreme Court decides but surely an interesting reasoning would be on the cards.

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[1] R. Thamaraiselvan v. Government of Tamil Nadu and Ors., W.P. Nos. 18872, 21126, 25876, 25877, 26773, 26883, 27215, 27216, 27436, 27502, 27503, 27504, 27505 of 2011 and W.P. Nos. 8227, 8261, 10185, 10198, 10775, 25834, 26956, 26957, 28060 of 2012, 4476/2014, 24925/2013, 28413/2014, 31673/2014, 20481/2014 and W.P. (MD). No. 19726 of 2014.

[2] AIR 1952 SC 75.

[3] ibid, Das, J. at para 58.

[4] Para 22, Das, J.

[5] 1980 Supp SCC 249.

[6] Para 7, present case.

[7] Para 10.1, present case.

Undue Enrichment vis-a-vis Unjust Recovery: Article 14 Obligation

State of Punjab and Ors. v. Rafiq Masih (White Washer) and Ors.

Recently, the Supreme Court was confronted with the issue of whether employees that were in receipt of monetary benefits beyond their due, should be exempted in law, from the reimbursement of the same to the employer. An important factual scenario that is required to be noted is that the employees were no guilty of furnishing any incorrect information, which had led the concerned competent authority, to commit the mistake of making the higher payment to the employees.

The issue has its own inherent difficulty in the sense that there is a Right to Recovery of the employer as against the effect on the employee who had been in good faith, enjoying the excess amount received by him/her.

I. Precedents Involved

(i) Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2 SCC 521;

(ii) Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18;

(iii) Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417;

(iv) Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475;

(v) Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709.

II. Decision of the Court

The Court in para 8 reasoned that the right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. It held that in case, the effect of the recovery from the concerned employee would be more unfair/more wrongful/more improper/more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery.

The Court invoked Article 14 and DPSPs u/Arts 38, 39, 39A, 43 and 46 to reason that equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. Otherwise, the said action is Arbitrary and consequently violative of Article 14.

III. Instances where Right to Recovery is Unconstitutional

The Court was presented with precedents of the Supreme Court itself, where by exercising its extra- ordinary power under Article 142 to pass equitable orders in the ends of justice, it had previously ordered non- recoverability of excess amount. The Court used these judgments to lay down certain instances, where recovery will not be allowed, since such recovery would be iniquitious or have a harsh and arbitrary effect on the employee and consequently violative of Article 14:

(i) If the excess payment had been made for a long duration of time, i.e., more than 5 years, it would be iniquitous to make any recovery. (because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time);

(ii) Recovery from employees in lower rung of service, i.e., Class-III and Class-IV – sometimes denoted as Group ‘C’ and Group ‘D’. (because employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer);

(iii) Recovery of excess payments, made from employees who have retired from service, or

are close to their retirement. (because it would entail extremely harsh consequences outweighing the monetary gains by the employer as a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Also, at this stage an employee is past his youth, his needs are far in excess of what they were when he was younger and his earnings have substantially dwindled on retirement);

(iv) Where employees were entitled to wages, for the post against which they had discharged their duties, even if the concerned appellants were ineligible for the same post. But the mistake of employing on that post must be of someone else and the employee should not have contributed to that mistake; or

(v) where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.

IV. Conclusion

The Court through its reasoning, in cases where the employer is ‘State’ has termed such recovery to be violative of Article 14, but still it has allowed the doors open where the employer is a ‘private person’. In latter cases, equity still can be invoked to have the Court exercise its discretion in employee’s favor.

IVa. Law of Unjust Enrichment

The law of recovery in cases of “unjust enrichment” is based on law of restitution in cases where there is neither any consent or wrongdoing issue. Such action is based neither on contract nor on tort, hence it falls in a third category i.e. of restitution. The law is clear on this issue Lipkin Gorman v. Karpnale Limited[1] where it was held:

“The claim for money had and received is not… founded upon any wrong committed by the club against the solicitors. But it does not, in my opinion, follow that the court has carte blanche to reject the solicitors' claim simply because it thinks it unfair or unjust in the circumstances to grant recovery. The recovery of money in restitution is not, as a general rule, a matter of discretion for the court. A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle. [emphasis added] [example defence of change of position].”

The position in India seems to be a bit changed, allowing for huge scope for judicial discretion in interpreting when would the ‘recovery be unjust’, rather than simply analyzing the defences available to such restitution:

“Unjust enrichment” has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust.”[2]

This position may cause a reader to erroneously mix two different aspects, one what is unjust enrichment and second when is recovery unjust. Right to recovery flows from unjust enrichment, but such recovery may be unjust if an employee has been innocently getting such sum for say 20 years. The law is that recovery can be stopped only when one of the defences is applicable, otherwise there is a Right to have recovery. The Indian Courts have in such cases used equity principles to refuse such recovery, though the Right to Recover due to unjust enrichment is still there. In my opinion, what is not allowed is the enforcement of the Right because allowing Right to Recover from a person unjustly enriched, would be more unjust to the employee as compared to how unjust it was to the employer when he gave the excess amount to the employee.

IVb. Present Decision and its Impact.

The Court here used Article 14 and not resorted to the invocation of jurisdiction in equity which had earlier been used to do so by the precedents cited in the present case.

Therefore, the decision seems to be sound in the sense that it uses the fundamental rights of State employees against the State employer’s Right to recover, consequently avoided any scope of using equity jurisdiction, which could have the adverse effect of twisting the law of Unjust Enrichment by subjecting the private employers’ Right to the recover given under the common law, to the law of equity and consequently to vast discretion of the Courts. The decision has given a Constitutional basis to reject the claim of recovery, though under the guise of judicial discretion to check whether the recovery would be unjust.

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[1] [1991] 3 WLR 10 (House of Lords).

[2] Indian Council for Enviro Legal Action v. UOI, accessible at http://indiankanoon.org/doc/1356184/.

Towards Gender Equity: Striking Down the Bias Against Women Make- Up Artists

 Charu Khurana & Others v. Union of India &Others

Charu Khurana & Others v. Union of India & Others

 Writ Petition (Civil) No.78 of 2013

“The days of yore when women were treated as fragile, feeble, dependent and subordinate to men, should have been a matter of history, but it has not been so, as it seems.”[1]

Background of the Case

The petitioner in the present case is a trained make- up artist and hair dresser, who had sought a membership card for the same, which was refused by the respondent no. 5, i.e., the Association on the grounds that no female make- up artist has ever been issued a membership card. The respondent stated that females are given membership card for hair dressing only, whereas the job of make- up artists is reserved for males.

The present post is restricted in dealing with the gender discrimination part of the judgment, while the Court had also discussed the domicile requirement in securing the membership card.

Establishing Writ Jurisdiction over the Association

While the association was not a ‘state’ under the terms of Article 12, the Court nevertheless looked into the validity of the bye- laws of the Association which were certified by the Registrar of Trade Unions in exercise of the Statutory power under the Trade Unions Act 1926. (Read this link to gather the flaws in this reasoning of the Court and the adverse implications of it)

I. Submission of the Association Defending Non- Granting of Membership Card to Female Make- up Artists

The Association justified their stance on the ground that if the female members were given membership card for make- up artists also, then, it would become impossible for the male members to get work, as there is a human tendency to employ female make- up artists if they are available. In the association’s view they have sought to give equal opportunity by reserving the field of hair- dressing for females only, while allotting membership cards for make- up to males only.

II. Challenges Posed Against the Association’s Stance with respect to Discrimination on the Basis of Gender

(a)   There is no reasonable justification for the classification of not allowing women to be make- up artists,

(b)  Unless membership cards are issued, women would not be engaged as make-up artist and thus causing a hazard in earning their livelihood.

Consequently, it is contended on behalf of the petitioners that there is a violation of their rights under Articles 14, 15, 19 (1) (g) and 21 of the Constitution of India.

III. Relevant Provisions

Ø  Trade Union (TU) Act 1926

§  Section 21. Any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary, and may, subject as aforesaid, enjoy all the rights of a member and execute all instruments and give all acquittances necessary to be executed or given under the rules:

Ø  Bye- Laws of the Association with Registration No. 1871

§  Clause 4. Membership: Membership of the Association shall comprise of Make-up men, Costume men, and Hair Dressers who were admitted as members by the Association & who continue to be members and all those who shall be admitted hereafter under clauses 6 & 7 of the constitution of the Association including the membership in Family Relief fund, provided he/she agrees & abide by the rules & sub-rules that may form by the Association from time to time.

§  Clause 6. Admission of New Members: Any person desiring to become the member of the Association who has attained the age of majority of 18 and who possess a good moral character shall send an application in prescribed form and duly recommended by two members with its prescribed fees. A. Applicant should have been a resident of Maharashtra at least for 5 years; B. Son or Daughter of members who have completed 15 years of membership shall be eligible to be enrolled as members of the Association, provided they fulfil other conditions relating to age and domicile status of 5 years in the State of Maharashtra.

IV. Judgment Holding the Stance of the Association Wrong

IVa. For Violating the Main Statute

The Court held that the Clause 4 violates the § 21 of the TU Act on the ground that the Act does not distinguish between men and women.

IVb. For Violating the Constitutional Norms

The Court here firstly held that the Right to livelihood of the women artists is getting adversely affected since it intervenes with her capacity to earn her livelihood, consequently it is breaching Article 21 of the Constitution.

Then, by using principles of gender equity and justice as envisaged in:

(i)             International Conventions (incorporated or adopted through judicial interpretation in cases like Vishaka v. State of Rajasthan),

(ii)           directive principles of state policy (these principles have been used by the Supreme Court to interpret the Fundamental Rights) under Article 39 (a) where the state should try that men and women have an equal right to an adequate means of livelihood, and Article 38 where the State should strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life, along with Article 37 which imposes an obligation on the State to apply these principles in making laws,

(iii)          fundamental duties where a collective responsibility is imposed on the State (through interpretation by the Court) to develop a scientific temper, thereby, provide opportunities to people and not to curtail it,

the Court held that there is a violation of the constitutional mandate and consequently quashed the clause 4 of the bye- laws.

V. Analyses

Firstly, the part where the Court finds the impugned provision violative of § 21 of the main Act itself, it is submitted is completely erroneous. The Court opined that § 21 does not contemplate any difference between men and women when it states 'any person above the age of 15 yrs may become a member', therefore, the impugned provision is violative of the main Act. The problem is that § 21 itself allows for a subjecting clause, when it allows the Society to make Rules. § 21 states that 'any person above the age of 15 yrs may become a member of a Registered Society subject to any rules of the Trade Union to the contrary...'. Clearly, § 21 itself allowed for such leeway to Rule making authority.
In my opinion the Court though reached a right outcome, however, it could have struck down the provision simply on the basis of violating Article 14 and 15 of the Constitution of India, once it was comfortable in its reasoning that the associations' rules are amenable to be tested at the Threshold of Fundamental Rights. Instead of citing numerous precedents on Right to life including right to livelihood, quoting International Conventions unnecessarily, the Court could have by employing the Reasonable Classification test, reached the same conclusion, on a rather (in my opinion) better legally and logically sound reasoning.

The test of reasonable classification as employed in the case of State of West Bengal v. Anwar Ali Sarkar,[2] provides for a three- step checking mechanism to justify any differential treatment. In order to justify any such treatment, firstly, it has to be shown that there is a classification done on some intelligent and reasonable grounds, secondly, such classification should be done with a view to achieve an object and lastly, the classification should have a nexus with the object.

In the present case, the object seems to be to provide livelihood for men. But the classification between men and women on the ground that women if allowed to become make- up artists would lead to deprivation of men from such employment on account of some notion of human tendency. The very reading of the basis of this classification is enough for one to see the unreasonability involved in the stand of the Association. The job of a make- up artist does not entail that only women are suitable at it or better than men. There is no empirical data to justify this classification.

Therefore, such stance of the Association clearly falls foul of the equal protection of the law under Article 14 of the Constitution. As it can be seen, the Court could have held the Association’s conduct to be unconstitutional on this ground only (apart from holding the bye- laws to be violative of the main Act itself), rather than going into the sexual harassment of women or right to livelihood of women or fundamental duties unwarrantedly.

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[1] Deepak Mishra, J. in the present case.

[2] AIR 1952 SC 75.