THEORY OF ABROGATION

WRITE UPS:
Reservation
Citizenship Amendment Act
Uniform Civil Code
Basic Structure of Constitution
Public Interest Litigation

SUBMITTED TO: SUBMITTED BY:

Ms. Neha Rajput Parul Thakur
Internship Coordinator
 1. RESERVATION

In the Indian context, reservations encompass a policy framework of affirmative action

meticulously crafted to redress longstanding socio-economic imbalances and engender societal
inclusivity. This systemic approach was instituted to uplift historically marginalized demographics,
including Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC).
This policy strategically designates a proportion of seats in educational institutions, governmental
employment, and elected bodies exclusively for these groups. The overarching objective is to
mitigate historical disparities, ensuring equal opportunities and representation for those who have
endured systemic disadvantages. While this reservation paradigm has been pivotal in empowering
historically marginalized segments, it simultaneously engenders nuanced discussions surrounding
the tenets of meritocracy and the equitable distribution of resources.

Articles 15, 16, 17, and 46 of the Indian Constitution envision creating a society devoid of social
injustice and exploitation, emphasizing equality and the inclusion of all individuals. A landmark
legal decision influencing the discourse on the reservation is the State of Madras v. Champakam
Dorairajan, 1951 SCC 351. In this case, the Court nullified a government directive implementing
caste-based reservation in medical and engineering colleges, highlighting the evolving judicial
interpretation of the constitutional provisions to foster a just and equitable society. In 1979, the
government established the Mandal Commission, formally known as the Socially and
Educationally Backward Classes Commission, intending to identify socially and educationally
disadvantaged classes in India and propose a reservation policy for their benefit. The reservation
policies recommended by the Mandal Commission faced legal challenges, particularly in the case
of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. In this significant legal proceeding,
a nine-judge bench of the Supreme Court affirmed the 50% cap on reservations, rejected
reservations in promotions, and delineated criteria for assessing backwardness.

Moreover, the Court overturned the precedent set in Akhil Bharatiya Soshit Karamchari Sangh
(Railway) v. Union of India, (1981) 1 SCC 246, which previously held that reservations in
appointments or posts under Article 16(4) encompassed promotions. Subsequently, the Parliament
addressed this through constitutional amendments, specifically the Constitution (Seventy-
Seventh Amendment) Act, 1995, and the Constitution (Eighty-First Amendment) Act, 2000.
These amendments introduced Articles 16(4-A) (pertaining to reservations in promotions with
consequential seniority) and 16 (4-B) (encompassing the carry-forward rule). The constitutionality
of these amendments was affirmed in the legal case M. Nagaraj v. Union of India, (2006) 8 SCC
212. In 2019, the Parliament enacted the Constitution (One Hundred and Third Amendment)
Act, introducing a provision that doesn't mandate but empowers a 10% reservation for
economically weaker sections, alongside the existing reservation policies. The constitutional
validity of this amendment was affirmed by a 5-judge Constitution bench, comprising UU Lalit,
CJ, and Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela M Trivedi, and JB Pardiwala, in the
case of Janhit Abhiyan v. Union of India, 2022.

Reserved quotas for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes
(OBCs) in the context of direct recruitment on an all-India basis through open competition stand
at 15%, 7.5%, and 27%, respectively. In cases other than open competition, the reservation
percentages for SCs, STs, and OBCs are 16.66%, 7.5%, and 25.84%, respectively. Additionally,
reservation in promotion via the non-selection method applies to SCs and STs across all service
groups.
 2. CITIZENSHIP AMENDMENT ACT

The Constitutional Amendment Act of 2019, commonly known as CAA, was introduced by the
Government of India to address the longstanding issue of illegal immigrants in the country.
Essentially, the legislation permits immigrants only from three specific countries - Pakistan,
Afghanistan, and Bangladesh, and restricts eligibility to individuals practicing six specified
religions: Hindus, Sikhs, Jainism, Buddhism, Parsis, and Christianity. These individuals can be
considered Indian citizens if they entered the country on or before December 31, 2014, without
valid passports or documents.

India, as a nation, upholds secularism, signifying the absence of an official religion. However, the
CAA has drawn criticism for excluding the Islamic community, thereby raising concerns about a
violation of the principles of secularism. This amendment allows individuals from Hindu, Jain,
Buddhist, or Christian backgrounds to enter the country and obtain citizenship, while Muslims are
not afforded the same opportunity. In the case of SR Bommai v Union of India, it was underscored
that secularism is not anti-religious but rather a belief that is integral to the existence of a free and
inclusive society.

Yet another transgression of the Constitution arises as a breach of the right to equality. Article 14
ensures that every individual is entitled to equality before the law or equal protection of the law.
In the case of Ramesh Prasad v State of Bihar, it is emphasized that the objective of both the
concepts of equality before the law and equal protection before the law is to ensure impartial
justice.

While the legislation permits individuals from the specified countries and religions to be
considered for citizenship if they arrived before December 31, 2014, and did so to escape religious
persecution, the selective inclusion of only six religions and three countries, while excluding
certain Muslim communities and neighboring nations, constitutes a violation of the right to
equality.
Three criteria, namely the purpose of the law, intelligible differentia, and rational nexus, constitute
the tests for evaluating legislation. In the case of the CAA, 2019, the objective of the law appears
unequivocally arbitrary. Instances of arbitrariness can be discerned in various legal precedents,
including E.P. Royappa v Union of India and Maneka Gandhi v Union of India.

The CAA, 2019 introduces an arbitrary distinction among illegal immigrants based on their
religion. This legislation provides advantages to certain religions while excluding only one, a
discriminatory practice that lacks justification under any legal framework.
 3. UNIFORM CIVIL CODE

The concept of a Uniform Civil Code, signifying a standardized set of civil rules applicable
irrespective of one's religion, caste, gender, etc., has recently ignited a significant controversy in
India. The proposal for a Uniform Civil Code (UCC) reflects the aspirations of a modern and
progressive nation, indicating a departure from discriminatory practices based on religion, race,
caste, and gender. The UCC aims to supersede the individual personal laws rooted in the customs
of each religion, advocating for a unified set of regulations that apply to every citizen. These
regulations encompass crucial aspects such as marriage, divorce, maintenance, and succession.

The architects of the constitution, aiming for legal consistency, included Article 44 which states:
"The State shall strive to ensure a uniform civil code for all citizens throughout the territory of
India." The term "Uniform Civil Code" originates from the idea of a Civil Law Code. The
underlying purpose of the uniform civil code is to eliminate disparities arising from religious
beliefs and foster the notion of national integration. Under this code, all communities in the country
would be subject to the same standards in civil matters, rather than being governed by distinct
personal laws.

In the Shah Bano Begum v. Union of India (1985) case, the focus was on the issue of maintenance
for divorced Muslim women. The Supreme Court explicitly asserted that Muslim women are
entitled to maintenance under Section 125 of the Criminal Procedure Code, irrespective of their
law governing marriages. This case ignited a nationwide discussion on the imperative need for a
uniform civil code.

Similarly, the case of Sarla Mudgal v. Union of India underscored the necessity of a uniform civil
code. In this instance, the Supreme Court addressed the issues of bigamy and conversion to Islam
for contracting a second marriage. The court unequivocally stated that a Hindu husband cannot
solemnize a second marriage while the first marriage is still valid, even after converting to Islam.
This case emphasized the need for a uniform civil code to address matters about marriage and
personal laws.
It is crucial to acknowledge that while the courts have provided insights and recommendations
regarding the implementation of a uniform civil code, they have also acknowledged the
complexities and sensitivities involved. The courts have stressed the importance of adopting a
composed, rational, and measured approach, considering the diverse religious and social practices
in India.

Establishing a Uniform Civil Code sets the precedent for achieving genuine equality and
egalitarianism. Its implementation can lead to greater integration in India than has been witnessed
since independence. Introducing a Uniform Civil Code should not be an impulsive measure;
instead, aligning with India's secular principles could involve enacting personal laws that are
detached from religious considerations. The existence of distinct personal laws for different
communities places an unnecessary burden on the legal system, and adopting a Uniform Civil
Code would alleviate this challenge. Additionally, it would address the existing loopholes in
various personal laws. The implementation of a Uniform Civil Code is a significant stride towards
gender justice, particularly benefiting Muslim women. Many personal laws exhibit bias against
women's rights, and rectifying this imbalance is not just essential for women but also for men.
Reducing the chances for any more divide-and-rule policies, it strives to create a unified and close-
knitted nation.
 4. BASIC STRUCTURE OF CONSTITUTION

The basic structure of the Constitution refers to its foundational framework that embodies essential
principles and values. It comprises fundamental features that form the bedrock of the constitutional
edifice, ensuring its integrity and permanence. These include principles of democracy, rule of law,
separation of powers, federalism, and fundamental rights. As elucidated by the Indian judiciary,
particularly in the Kesavananda Bharati case, alterations to the Constitution cannot violate its
basic structure. This concept safeguards the essence of the Constitution, preserving its democratic
and egalitarian ideals while allowing for necessary adaptations to meet evolving societal needs.

The challenge to Parliament's authority to amend the Constitution, particularly the section
pertaining to citizens' fundamental rights, emerged as early as 1951. Article 13 (2) safeguards the
fundamental rights of citizens, explicitly prohibiting Parliament and state legislatures from
enacting laws that diminish or curtail these rights. Advocates contended that any constitutional
amendment holds the status of a law, as defined by Article 13 (2). However, in 1952 (Sankari
Prasad Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court
dismissed both arguments and affirmed Parliament's authority to amend any aspect of the
Constitution, even impacting citizens' fundamental rights. Notably, dissenting judges in the Sajjan
Singh v. Rajasthan case expressed reservations about whether the majority party in Parliament
could manipulate the fundamental rights of citizens. In 1967, a Supreme Court eleven-judge bench,
through a 6:5 majority decision in the Golaknath v. State of Punjab case, reversed its stance. Chief
Justice Subba Rao, in his majority judgment, asserted an unconventional viewpoint that Article
368, outlining constitutional amendment procedures, merely delineated the amending process and
did not grant Parliament the authority to amend the Constitution. The majority ruling introduced
the notion of implicit restrictions on Parliament's amendment powers, suggesting that certain
aspects of the Constitution, considered fundamental, necessitated more than standard procedures
for modification. During a series of amendments carried out between July 1971 and June 1972,
Parliament aimed to reclaim its previously diminished authority. These amendments reinstated
Parliament's unrestricted ability to amend any section of the Constitution, including Part III, which
pertains to fundamental rights.
The constitutional validity of numerous amendments faced a challenge before a full bench of the
Supreme Court, consisting of thirteen judges. The verdict, documented in eleven separate
judgments, includes a summary statement endorsed by nine judges outlining the key conclusions.
Granville Austin observes disparities between the summary and individual opinions. Despite this,
the majority decision acknowledged the pivotal concept of the 'basic structure' of the Constitution.
The Kesavananda Bharati case stands as a pivotal moment in the annals of Indian constitutional
law, affirming the supremacy of the Constitution and the judiciary's autonomy in safeguarding its
fundamental structure. The judgment established principles that form the cornerstone of
constitutional law in India, including the rule of law, separation of powers, and judicial
independence. It has profoundly influenced the judiciary's approach to constitutional interpretation
and delineated the bounds of Parliament's authority to amend the Constitution. In a 7-6 majority
ruling, the Supreme Court asserted that the Constitution possesses an immutable basic structure,
impervious to alteration through constitutional amendments. This decision acts as a crucial
constraint on Parliament's ability to amend the Constitution limitlessly.
 5. PUBLIC INTEREST LITIGATION

Public Interest Litigation (PIL) refers to a legal case or petition presented before a court with the
aim of protecting, preserving, or enforcing matters of public concern. Public interest pertains to
rights or interests belonging to society, a specific community class, or a group of individuals. PILs
are initiated to address issues impacting the legal rights of a community or the broader public.

These litigations are oriented toward safeguarding collective interests rather than individual
concerns and can only be filed in the Supreme Court of India or State High Courts. PILs have
evolved into a potent mechanism for upholding the legal responsibilities of the legislative and
executive branches. The primary objective of PILs is to ensure justice for all and advance the
overall welfare of the people. S.P. Gupta v. Union of India (1981), also known as the "Judges'
Transfer case," laid the foundation for PIL by recognizing the right of any member of the public
to approach the court for the enforcement of public duty.

The term 'Public Interest Litigation' (PIL) has been adapted from American legal practice, where
its purpose was to offer legal representation to marginalized groups such as the economically
disadvantaged, racial minorities, unorganized consumers, and individuals advocating for
environmental concerns. PIL lacks a specific statutory definition and is instead construed by judges
considering the broader public interest. It represents the authority granted to the public by the
courts through judicial activism, as discussed in more detail on the linked page about Judicial
Activism. Nevertheless, individuals initiating a petition must convincingly demonstrate to the
court that the filing serves the public interest and isn't merely frivolous litigation by an uninvolved
party. Public Interest Litigation encompasses a range of issues such as the welfare of neglected
children, cases of bonded labor, atrocities against women, non-payment of minimum wages,
exploitation of casual workers, food adulteration, environmental pollution, disruption of ecological
balance, and the preservation of heritage and culture.

Many cases have been filed with such intentions such as Hussainara Khatoon v. State of Bihar
(1979), highlighting the issue of undertrial prisoners and led to the release of numerous individuals
who had been languishing in jails for long periods without a fair trial; M.C. Mehta v. Union of
India (1986), known as the "Oleum Gas Leak case," dealt with the Bhopal gas tragedy and
established the principle of "absolute liability" for industries engaged in hazardous activities;
Vishaka v. State of Rajasthan (1997), addressing the issue of sexual harassment at the workplace
and laid down guidelines to prevent and deal with such incidents, recognizing the right to a safe
working environment for women.