SUKANYA SHANTHA v. UNION OF INDIA & ORS

Citation: Writ Petition (C) No. 1404 of 2023

Court: Allahabad High Court (Lucknow Bench)

Bench: Prison Manuals

Case summary

any constitutional challenge against such legislation in the future - In case, there is no habitual offender allowed to Mehtar/Hari/ Chandal or similar castes - This is a caste-based delegation of work based on the

Judgment text

SUPREME COURT OF INDIA Sukanya Shantha v. Union of India & Ors. Writ petition seeking directions for repeal of the offending provisions in State Prison Manuals [2024] 10 S. C. R. 493 : 2024 INSC 753 Sukanya Shantha v. Union of India & Ors. (Writ Petition (C) No. 1404 of 2023) 03 October 2024 [Dr Dhananjaya Y Chandrachud,* CJI, J. B. Pardiwala and Manoj Misra, JJ. ] Issue for Consideration Matter pertains to caste-based discrimination in the prisons in the country. Headnotes† Constitution of India - Arts.

14, 15, 17, 21, and 23 - Prisons in India - Caste-based discrimination - Writ petition seeking directions for repeal of the offending provisions in State Prison Manuals - Petitioner's case that various State Prison Manuals sanction unconstitutional practices, violative of Arts 14, 15, 17, 21, and 23; that caste-based discrimination continues to persist in the prisons with respect to division of manual labour; segregation of barracks; and provisions discriminate against prisoners belonging to denotified tribes and "habitual offenders"; that the Model Prison Manual, 2016 does not address the impugned provisions related to caste discrimination; and sought direction to the Home Departments of the States to clarify the definition of "Habitual Offenders" in their respective Prison Manuals so as to prevent its misuse against the denotified tribes in prisons: Held: Impugned provisions are unconstitutional for being violative of Arts.

14, 15, 17, 21, and 23 - In accordance with the instant judgment, all States and Union Territories to revise their Prison Manuals/Rules within the stipulated period; that Union government to make necessary changes, to address caste-based discrimination in the Model Prison Manual 2016 and the Model Prisons and Correctional Services Act 2023; that references to "habitual offenders" in the prison manuals/Model Prison Manual to be in accordance with the definition provided in the habitual offender legislation enacted by the respective State legislatures; that all other * Author 494 references or definitions of "habitual offenders" in the impugned prison manuals/rules unconstitutional; that the "caste" column and any references to caste in undertrial and/or convicts' prisoners' registers inside the prisons to be deleted; that the Police to follow the guidelines issued in Arnesh Kumar's case and Amanatullah Khan's case to ensure that members of Denotified Tribes are not subjected to arbitrary arrest; that this Court to take suo motu cognizance of the discrimination inside prisons; that all States and the Union government to file a compliance report on this judgment, on the first hearing of the suo motu petition; and that NALSA to file joint status report after compiling reports of inspection conducted by DLSAs and Board of Visitors and of SLSAs before this Court.

[Paras 161-231] Prisons - Prison Manuals - Plea that Prison Manuals cast disparate burdens on prisoners based on their caste-identity, if violative of Art. 14 - Caste, if an intelligible and rational principle of classification and has a rational nexus with the object of the classification: Held: Caste can be an intelligible principle of classification as it has been used to create protective policies for the marginalized castes - Constitution recognises caste as a proscribed ground of discrimination u/Art.

15(1), and envisions a society free from casteprejudices - However, caste cannot be a ground to discriminate against members of marginalized castes - Any use of caste as a basis for classification must withstand judicial scrutiny to ensure it does not perpetuate discrimination against the oppressed castes - While caste-based classifications are permissible under certain constitutional provisions, they are strictly regulated to ensure they serve the purpose of promoting equality and social justice - Classification of prisoners has been considered both from the point of view of security and discipline as well as reform and rehabilitation - However, there is no nexus between classifying prisoners based on caste and securing the objectives of security or reform - Limitations on inmates that are cruel, or irrelevant to rehabilitation are per se unreasonable, arbitrary and constitutionally suspect - Differentia between inmates that distinguishes on the basis of "habit", "custom", "superior mode of living", and "natural tendency to escape", is unconstitutionally vague and indeterminate - Objective of classification for labour for treatment and for conferment of entitlements such as Sukanya Shantha v.

Union of India & Ors. remissions has to be maximisation of the reformatory potential of prisons - Such classification should be based solely on the correctional needs of the individual prisoner - Thus, Rules that discriminate among individual prisoners on the basis of their caste specifically or indirectly by referring to proxies of caste identity are violative of Art. 14 on account of invalid classification and subversion of substantive equality - Constitution of India - Arts. 14, 15(1). [Paras 164-170, 196] Prisons - Prison Manuals - Plea that provisions thereunder, discriminate against marginalized castes and act to the advantage of certain castes, by assigning cleaning and sweeping work to marginalized castes, while allowing the high castes to do cooking, which is direct discrimination u/Art.

15(1): Held: Manuals/rules suffer from indirect discrimination by using broad terms which act to the disadvantage of the marginalized castes - Phrases such as "menial" jobs to be performed by castes "accustomed to perform such duties" may appear to be facially neutral, but refer to marginalized communities, given the history of systemic discrimination against them - Such indirect usages of phrases, which target the so-called 'lower castes', cannot be permitted in the constitutional framework - Phrases, carry an embedded bias that disadvantages marginalized communities by reinforcing historical patterns of labour based on caste - These provisions disproportionately harm marginalized castes, perpetuate caste-based labour divisions and reinforce social hierarchies - Manuals/rules are also based on and reinforce stereotypes against the marginalized castes as also denotified tribes - These stereotypes not only demean and stigmatize marginalized communities and denotified tribes but also serve to maintain and legitimize a social hierarchy that goes against the constitutional values of equality - Tendency to treat members of denotified tribes as habitual to crime or having bad character reinforces a stereotype, which excludes them from meaningful participation in social life - Discrimination against denotified tribes is prohibited under the ground of "caste" in Art.

15(1), as the colonial regime considered them as belonging to separate hereditary castes - Thus, the impugned provisions violative of Art. 15 - Constitution of India - Art. 15.

[Paras 171-175, 196] 496 Prisons - Prison Manuals - Plea that provisions thereunder, "practice" of untouchability, division of work on the basis of caste, is a practice of untouchability prohibited under the Constitution: Held: Prison manuals allot tasks of a barber to individuals from a certain caste, while sweeping work is allowed to Mehtar/Hari/ Chandal or similar castes - This is a caste-based delegation of work based on the perceptions of the caste system that certain castes are meant to do jobs of sweeping - Rule that a prisoner of a high caste be allowed to refuse the food cooked by other castes is a legal sanction by the State authorities to untouchability and the caste system - Provisions that "men of wandering tribes" or "criminal tribes" have a "strong natural tendency to escape" or are by "habit" accustomed to theft reflects a stereotype that has its basis in the colonial understanding of India's caste system - These stereotypes not only criminalize entire communities but also reinforce castebased prejudices - They resemble a form of untouchability, as they assign certain negative traits to specific groups based on identity, perpetuating their marginalization and exclusion - Once labelled a criminal tribe, individuals from these communities faced systematic discrimination in employment, education, and social services - Provision that "non-habitual" prisoner is "by social status" and "habit of life accustomed to superior mode of living" is another caste-based construct - It is only an injustice but also reinforced existing power structures, ensuring that marginalized groups were trapped in cycles of poverty and discrimination, unable to transcend the stigmatization they faced - Thus, impugned provisions violative of Art.

17 - Constitution of India - Art. 17. [Paras 181, 183-184, 196] Prisons - Prison Manuals - Right to overcome caste prejudices u/Art. 21 - Provisions under Prison Manuals, fostering the antiquated notions of fitness of a particular community for a certain designated job, reinforcing occupational immobility of prisoners belonging to certain castes, if violative of Art. 21: Held: Art. 21 provides for the right to overcome caste barriers as a part of the right to life of individuals from marginalized communities - Protection provided by Art. 21 can be seen as a constitutional guarantee that individuals from marginalized communities should have the freedom to break free from these traditional social restrictions - It extends beyond mere survival to Sukanya Shantha v. Union of India & Ors.

ensure that they can flourish in an environment of equality, respect, and dignity, without being subjected to caste-based discrimination which stifles their personal growth - When caste prejudices manifest in institutional settings, such as prisons, they create further restrictions on the personal development and reformation of individuals from marginalized communities - When Prison Manuals restrict the reformation of prisoners from marginalized communities, they violate their right to life - When prisoners from marginalized communities are subjected to discriminatory practices based on caste, their inherent dignity is violated - Thus, the impugned provisions violative of Art. 21 - Constitution of India - Art. 21. [Paras 185-188, 196] Prisons - Prison Manuals - Plea that provisions as regards caste-based division of labour/work, forced labour and violative of Art.

23: Held: Persons from specific communities performing honourable tasks, while those from marginalized communities are forced into undesirable work leads to unfair distribution of labour within the prison system - It perpetuates the idea that some individuals are inherently suited to low-status labour based solely on their birth, reinforcing deep-rooted caste inequalities - Imposing labour or work, which is considered impure or low-grade like cleaning latrines and sweeping work, upon members of marginalized communities amounts to forced labour u/Art. 23 - Forced to undertake the menial tasks simply because of their caste background robs prisoners of the element of choice that other prisoners enjoy and constitutes form of coercion - Art.

23 was incorporated to protect the members of oppressed castes from exploitative practices, where their labour is taken advantage of, and without any adequate return - However, prison rules, by exploiting labour of the oppressed castes, perpetuate the same injustice to guard against which Art. 23 was inserted - Assigning labour based on caste background strips individuals of their liberty to engage in meaningful work, and denies them the opportunity to rise above the constraints imposed by their social identity - Thus, impugned provisions violative of Art. 23 - Constitution of India - Art. 23.

[Paras 189, 191-196] Prisons - Prison Manuals - Plea as regards existing discrimination and continued targeting of the members of the Denotified Tribes, and classification of "habitual offender": 498 Held: Classification of "habitual offender" emerged prior to repeal of the Criminal Tribes Act - After repeal several States enacted new habitual offender laws in their jurisdictions - Most States adopted an identical definition of "habitual offenders", referring to a person who has been sentenced on conviction for at least three occasion to "a substantive term of imprisonment" for any of more of the specified offences - However, in some States, they were used to refer to members belonging to criminal tribes/denotified tribes, and applying that logic, several Prison Manuals/Rules have also referred to "habitual offender" to mean members of Denotified Tribes or wandering tribes, which cannot be accepted - Whole community ought not to have either been declared criminal tribe in the past or habitual offender in the present - Classification of "habitual offender" has been used to target members of Denotified Tribes - State governments to reconsider the usage of various habitual offender laws-whether such laws are needed in a constitutional system - In the meantime, definition of "habitual offender" in the prison manuals/rules to be in accordance with the definition provided in the habitual offender legislation enacted by the respective State legislature, subject to any constitutional challenge against such legislation in the future - In case, there is no habitual offender legislation in State, references to habitual offenders directly or indirectly, struck down as unconstitutional - Union and State governments to make necessary changes in the prison manuals in line with this judgment.

[Paras 213-219] Prisons - Prison reforms - Role of Legal Service Authorities in prisons: Held: In order to ensure that the fundamental rights of prisoners are not violated, role of legal services authorities crucial - Right to free legal aid and inspection by Legal Services Authorities including by a Board of Visitors, essential ingredient. [Paras 220, 227] Prisons - Prison Manuals - History of "Caste" in Prison Manuals - Stated. [Paras 151-160] Constitution of India - Nature of: Held : It is an emancipatory document - It provides equal citizenship to all citizens of India - Constitution is not just a legal document, but gave a dignified identity to all citizens of India - It eliminated the legality of caste-based discrimination, thereby raising the human dignity of the marginalised communities - Constitution mandates Sukanya Shantha v. Union of India & Ors.

the replacement of fundamental wrongs with fundamental rights - Through its provisions, it displaced a centuries-old caste-based hierarchical social order that did not recognize the principle of individual equality - It negated the ideals of social hierarchy - Constitution is the embodiment of the aspirations of the millions of caste-oppressed communities, which hoped for a better future in independent India - Chapter on fundamental rights places the provisions on equality, non-discrimination, equality of opportunity, affirmative action, abolition of untouchability, freedom of speech and expression, right to life, and prohibition of forced labour together - Constitution thus complements the basic principles of constitutionalism with provisions designed specifically to address India's social problems - Constitution thus stands as a testament to the fight against historical injustices and for the establishment of an egalitarian social order - It aims to prevent caste-based discrimination - It empowers the State to enact appropriate legislation or take executive measures to tackle caste-based discrimination.

[Paras 14, 15, 17, 23] Constitution of India - Art. 14 - Classification under - Constitutional standards: Held : Constitution permits classification if there is intelligible differentia and reasonable nexus with the object sought - Classification test cannot be merely applied as a mathematical formula to reach a conclusion - Challenge u/Art.

14 has to take into account the substantive content of equality which mandates fair treatment of an individual - In undertaking classification, a legislation or subordinate legislation cannot be manifestly arbitrary, courts must adjudicate whether the legislature or executive acted capriciously, irrationally and/or without adequate determining principle, or did something which is excessive and disproportionate - In applying this constitutional standard, courts must identify the "real purpose" of the statute rather than the "ostensible purpose" presented by the State - Provision can be found manifestly arbitrary even if it does not make a classification - Different constitutional standards have to be applied when testing the validity of legislation as compared to subordinate legislation. [Paras 25, 34] Constitution of India - Art.

15 - Non-Discrimination under - Interpretation: Held: Discrimination is against citizens on any of several grounds, including "caste" prohibited, because it has several 500 repercussions on human lives - Discrimination arises due to a feeling of superiority/inferiority, bias, contempt, or hatred against a person or a group - Discrimination also lowers the self-esteem of the person being discriminated against - It can lead to unfair denial of opportunities and constant violence against a set of people - Discrimination can also be done by continuously ridiculing or humiliating someone, who is on the weaker side of the social spectrum - Discrimination also includes stigmatizing the identity or existence of a marginalized social group - Certain anti-discrimination principles emerge u/Art.

15(1) - Discrimination can be either direct or indirect, or both - Facially neutral laws may have an adverse impact on certain social groups, that are marginalized - Stereotypes can further discrimination against a marginalized social group - State is under a positive obligation to prevent discrimination against a marginalized social group - Discriminatory laws based on stereotypes and causing harm or disadvantage against a social group, directly or indirectly, are not permissible under the constitutional scheme - Courts are required to examine the claims of indirect discrimination and systemic discrimination. [Paras 35, 36, 48] Constitution of India - Art. 17 - Ban on untouchability - Mandate of Art. 17: Held: Art.

17 provides that Untouchability is abolished and its practice in any form is forbidden - Constitution puts an end to the socially discriminatory practice of untouchability - Untouchability and caste discrimination led to severe social and economic disabilities and cultural and educational backwardness" of the untouchables - Enforcement of any disability arising out of Untouchability is a criminal offense as per the law - It is a provision that can be implemented both against the State and non-state actors such as the citizens - Moreover, the framers of the Constitution did not refer to any religion or community in the text of the provision - Injunction against untouchability u/Art. 17 is further strengthened by taking away the subject-matter from State domain and placing it as an exclusive legislative head to Parliament - Art.

17 enunciates that everyone is born equal - There cannot be any stigma attached to the existence, touch or presence of any person - From time to time, to implement the mandate of Art. 17, Parliament has enacted several legislations which aim to provide dignity to the affected individuals. [Paras 49-51, 54] Sukanya Shantha v. Union of India & Ors. Constitution of India - Art. 21 - Right to live with dignity under: Held: Dignity forms a part of the basic structure of the Constitution - Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence - Human dignity is a constitutional value and a constitutional goal - Human dignity is intrinsic to and inseparable from human existence - Implicit in this right u/Art. 21 is the right to protection against torture or cruel, inhuman or degrading treatment - There also exists a close relationship between dignity and the quality of life - Dignity u/Art.

21 is an integral aspect of life, which requires sustenance of one's being to the fullest - Right to dignity encapsulates the right of every individual to be treated as a self-governing entity having intrinsic value - Nation must prioritize human dignity ensuring that every person, regardless of their background or identity, is able to live with respect, equality, and freedom - Thus, human dignity forms the bedrock of social justice and a just, compassionate society - Even prisoners are entitled to the right to dignity - Jurisprudence which emerges on the rights of prisoners u/Art. 21 is that even the incarcerated have inherent dignity - They are to be treated humanely and without cruelty - Police officers and prison officials cannot take any disproportionate measures against prisoners - Prison system must be considerate of the physical and mental health of prisoners. [Paras 55-58, 67] Constitution of India - Art.

23 - Prohibition of forced labour and human trafficking under - Scope: Held: Scope of Art. 23 is wide, as it has left the term "begar" undefined, and supplemented by the phrase 'other similar forms' of forced labour - Framers of the Constitution consciously left the terms undefined so that future interpretation is not restrictive - Intellectual background of Art. 23 lies to facilitate the citizens in exercising their fundamental rights - Exploitative socio-economic practices can hinder the right to live a dignified life - Begar or bonded labour was entrenched in India's social system, against which Art. 23 makes a blow - Broad scope of Art. 23 can be invoked to challenge practices where no wages are paid, non-payment of minimum wages takes place, social security measures for workers are not adopted, rehabilitation for bonded labour does not happen, and in similar unfair practices - State shall be held accountable even in cases where the violation of Art.

23 is done by private 502 entities or individuals - Art. 23 can also be applied to situations inside prisons, if prisoners are subjected to degrading labour or other similar oppressive practices. [Paras 68, 69, 85] Constitution of India - Constitutional interpretation - Elucidated.

[Paras 6-13] Constitution of India - Future of substantive equality and institutional discrimination - Caste Discrimination - Non- eradication of the evil of caste discrimination, despite 75 years since independence: Held: There is a need for a national vision for justice and equality, which involves all citizens - Real and quick steps needed to identify the instances of existing inequalities and injustices in the society - Compassionate approach needed - Institutional approach needed where people from marginalized communities could share their pain and anguish about their future collectively - There is a need to reflect and do away with institutional practices, which discriminate against citizens from marginalized communities or treat them without empathy - Identification of systemic discrimination in all spaces by observing patterns of exclusion needed. [Paras 228, 229] Criminal Tribes Act - Scope and object - Repeal of Criminal Tribes Act - Discussed.

[Paras 97-113, 120-126] Model Prison Manual 2016 - Scope and object of: Held: Model Prison Manual 2016 was prepared "to reflect the understanding behind constitutional provisions, Supreme Court directions on prison administration - It covers a range of aspects relating to prisons, including institutional framework, custodial management, medical care, education and training of prisoners, maintenance of prisoners, emergency situations, remission, parole, premature releases and inspection of prisons, among other things - Manual of 2016 also focuses on "prison computerization, special provisions for women prisoners, after care services, rights of prisoners sentenced to death, repatriation of prisoners from abroad, and on prison correctional staff" - New chapters on legal aid and inspection of prisons also incorporated. [Para 200] Model Prison Manual 2016 - Manual of 2016 - Certain ambiguities - Elucidation: Sukanya Shantha v. Union of India & Ors.

Held: Manual 2016 suffers from several lacunae specifically as regards its classification of "habitual offenders" and caste based discrimination - Manual mandates the classification of undertrial prisoners in three categories, wherein habitual offenders are tagged along with "Gangsters, hired Assassins, dacoits, serial killers/rapists/violent robbers, drug offenders, communal fanatics and those highly prone to escapes/ previous escapees/attack on police and other dangerous offenders/including those prone to self-harm/posing threat to public order" - Habitual offenders are tagged in the same category in relation to classification of high risk offenders and for determination of the level of security for effective surveillance - Similarly, regarding the women prisoners, it has been provided that "Habitual offenders shall be separated from casual prisoners" and that "Habitual offenders, prostitutes and brothel keepers must also be confined separately" - Phrase "habitual offender" in several prison manuals refers to people from denotified or wandering tribes - Therefore, this definition cannot be left to be interpreted and applied "in accordance with the provisions of applicable law or rules" - Secondly, Manual does not explicitly prohibit physical caste-based segregation of prisoners, except in prisons for women - Third, the Manual does not prohibit division of work on the basis of caste, except in cooking - Manual 2016 should have taken into account such practices and provided specifically for their prohibition - Fourth, Manual does not refer to the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, which prohibit manual scavenging - Said Act has a binding effect even on prisons - Fifth, caste-based privileges provided to certain prisoners are not forbidden - No special treatment shall be given to any group of persons or individuals on the basis of caste in any scenario.

[Paras 201-208] Model Prisons and Correctional Services Act, 2023 - Scope and object of - Problematic provisions: Held: Model Act is a comprehensive document which covers all relevant aspects of prison management-security, safety, scientific and technological interventions, segregation of prisoners, special provision for women inmates, taking appropriate action against criminal activities of prisoners in the prison, grant of parole and furlough to prisoners, their education, vocational training and skill development, etc - It is for the respective State Governments to make use of the guidance provided in the Act of 2023 and 504 enact a suitable legislation on Prisons in their jurisdictions for bringing improvement in prison management and administration of prisoners - Model Act does not contain reference to prohibition of caste-based discrimination - Provision to that effect should be inserted in the Model Act - It should ban segregation or division of work based on caste - Definition of "Habitual Offender" u/s.

2(12) that habitual Offender means a prisoner who is committed to prison repeatedly for a crime also problematic - Phrase "committed to prison repeatedly" vague and over-broad - It can be used to declare anyone as a habitual offender, even if they have not been convicted for a crime - Model Act also provides that "habitual offenders" may be housed in a high security prison - In addition thereto the Act creates a category of "recidivist", which means "any prisoner who is convicted for a crime more than once" - "Habitual/recidivist prisoners" may be classified separately and segregated in prisons - Also, Chapter IX dealing with "Protection of Society from Criminal Activities of High-Risk Prisoners, Habitual Offenders and Hardened Criminals", seems to be over-board. [Paras 209-212] Social Protection - Scheduled Castes, Scheduled Tribes and Denotified Tribes - Prevention of discrimination and atrocities - Jurisprudence on social protection in Post- Independence India - Stated.

[Paras 127-144] Suo motu - Suo motu cognizance - Initiation of suo motu cognizance of the discrimination inside prisons on the ground of caste, gender, disability - Case to be titled as In Re: Discrimination Inside Prisons in India. [Para 231 (vi)] Case Law Cited Unni Krishnan v. State of Andhra Pradesh[1993] 1 SCR 594 : (1993) 1 SCC 645; Justice (Retd. ) K. S. Puttaswamy v. Union of India[2015] 9 SCR 99 : (2017) 10 SCC 1; KRanjitsinh v. Union of India [2024] 3 SCR 1320 : 2024 INSC 280; Common Cause v. Union of India[2018] 13 SCR 1204 : (2018) 4 SCALE 1; Shafin Jahan v. Asokan K. M. [2018] 4 SCR 955 : (2018) 16 SCC 368; Maneka Gandhi v. Union of India[1978] 2 SCR 621 : 1978 INSC 16; CPIO, Supreme Court of India v. Subhash Chandra Agarwal [2019] 16 SCR 424 : 2019 (16) SCALE 40; Kalpana Mehta v. Union of India[2018] 4 SCR 1; Navtej Singh Johar v. Union of India [2018] 7 SCR 379 : (2018) 10 SCC 1 : 2018 INSC 790; Association for Democratic Reforms v.

Union of India [2024] 2 Sukanya Shantha v. Union of India & Ors. SCR 420 : 2024 INSC 113; Kesavananda Bharati v. State of Kerala [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; State of Kerala v. N. M. Thomas[1976] 1 SCR 906 : (1976) 2 SCC 310; Indian Medical Association v. Union of India[2011] 6 SCR 599 : (2011) 6 SCALE 86; Joseph Shine v. Union of India (2019) 3 SCC 39; Indian Young Lawyers Association v. State of Kerala[2018] 9 SCR 561 : (2019) 11 SCC 1 : 2018 INSC 908; Chiranjit Lal Chowdhuri v. Union of India[1950] 1 SCR 869 : 1950 SCR 869; State of Bombay v. F. N. Balsara[1951] 1 SCR 682 : 1951 SCR 682; State of West Bengal v. Anwar Ali Sarkar[1952] 1 SCR 284 : (1952) 1 SCC 1; Ram Krishna Dalmia v. Justice S. R. Tendolkar[1959] 1 SCR 279; E. P. Royappa v. State of Tamil Nadu[1974] 2 SCR 348 : (1974) 4 SCC 3; Association for Democratic Reforms v. Union of India[2024] 2 SCR 420 : 2024 INSC 113; Shayara Bano v. Union of India[2017] 9 SCR 797 : (2017) 9 SCC 1; State of Punjab v.

Davinder Singh 2024 INSC 562; Anuj Garg v. Hotel Association of India[2007] 12 SCR 991 : (2008) 3 SCC 1; National Legal Services Authority v. Union of India[2014] 5 SCR 119 : (2014) 5 SCC 438; Rajbala v. State of Haryana[2015] 12 SCR 1106 : 2015 INSC 912; Karma Dorjee v. Union of India[2016] 9 SCR 968 : (2017) 1 SCC 799; Secretary, Ministry of Defence v. Babita Puniya [2020] 3 SCR 833 : 2020 INSC 198; Lt. Col. Nitisha v. Union of India[2021] 4 SCR 633 : (2021) 15 SCC 125; Nipun Malhotra v. Sony Pictures Films India (P) Ltd[2024] 7 SCR 246 : 2024 INSC 465; Soosai v. Union of India[1985] Supp. 3 SCR 242 : 1985 Supp SCC 590; State of Karnataka v. Appa Balu Ingale[1992] Supp. 3 SCR 284 : 1995 Supp (4) SCC 469; Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu[2015] 11 SCR 1110 : (2016) 2 SCC 725; Kaushal Kishor v. State of Uttar Pradesh[2023] 8 SCR 581 : (2023) 4 SCC 1; Janhit Abhiyan v. Union of India[2022] 14 SCR 1 : (2023) 5 SCC 1; State of M. P. v.

Ram Kishna Balothia[1995] 1 SCR 897 : (1995) 3 SCC 221; Prathvi Raj Chauhan v. Union of India[2020] 2 SCR 727 : (2020) 4 SCC 727; Safai Karamchari Andalon v. Union of India[2014] 4 SCR 197 : 2014 (11) SCC 224; Balram Singh v. Union of India[2023] 14 SCR 1083 : 2023 INSC 950; Francis Coralie Mullin v. Administrator, Union Territory of Delhi [1981] 2 SCR 516 : (1981) 1 SCC 608; Bandhua Mukti Morcha v. Union of India[1984] 2 SCR 67 : (1984) 3 SCC 161; Jeeja Ghosh v. Union of India [2016] 4 SCR 638 : (2016) 7 SCC 761; M. Nagaraj v. Union of India[2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; X2 v. State (NCT of Delhi) (2023) 9 SCC 433; Sunil Batra (I) v. Delhi Administration[1979] 1 SCR 392 : (1978) 506 4 SCC 494; Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488; Sunil Batra (II) v. Delhi Administration [1980] 2 SCR 557 : 1979 INSC 271; Charles Sobraj v. Supdt. , Central Jail[1979] 1 SCR 512 : (1978) 4 SCC 104 : 1978 INSC 149; Kishore Singh Ravinder Dev v.

State of Rajasthan[1981] 1 SCR 995 : (1981) 1 SCC 503; Sheela Barse v. State of Maharashtra[1988] 1 SCR 210 : (1987) 4 SCC 373; Nilabati Behera v. State of Orissa[1993] 2 SCR 581 : (1993) 2 SCC 746; D. K. Basu v. State of West Bengal [1996] Supp. 10 SCR 284 : (1997) 1 SCC 416; Mehmood Nayyar Azam v. State of Chhattisgarh[2012] 8 SCR 651 : (2012) 8 SCC 1; Shabnam v. Union of India [2015] 8 SCR 289 : (2015) 6 SCC 702; 'X' v. State of Maharashtra [2019] 6 SCR 1 : (2019) 7 SCC 1; People's Union for Democratic Rights v. Union of India[1983] 1 SCR 456 : (1982) 3 SCC 235; Sanjit Roy v. State of Rajasthan [1983] 2 SCR 271 : (1983) 1 SCC 525; Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir[1983] 2 SCR 473 : (1983) 2 SCC 181; Neeraja Chaudhary v. State of Madhya Pradesh (1984) 3 SCC 243; P. Sivaswamy v. State of Andhra Pradesh[1988] Supp. 2 SCR 346 : (1988) 4 SCC 466 : State of Gujarat v. Hon'ble High Court of Gujarat AIR 1998 SC 3164; Public Union for Civil Liberties v.

State of Tamil Nadu [2012] 9 SCR 579 : (2013) 1 SCC 585; Gujarat Mazdoor Sabha v. State of Gujarat[2020] 13 SCR 886 : (2020) 10 SCC 459; State of Madhya Pradesh v. Ram Krishna Balothia [1995] 1 SCR 897 : 1995 INSC 99; Murthy Match Works v. Asst Collector of Central Excise [1974] 3 SCR 121 : (1974) 4 SCC 428; Hiralal Mallick v. State of Bihar [1978] 1 SCR 301 : (1977) 4 SCC 44; Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State Of Maharashtra [2012] 8 SCR 295 : 2012 INSC 357; Mohd. Hussain v. The State (Govt. of NCT) Delhi AIR 2012 SC 750; National Campaign on Dalit Human Rights v. Union of India[2016] 9 SCR 122 : AIR 2017 SC 132; Subhash Kashinath Mahajan v. State of Maharashtra [2018] 4 SCR 877 : 2018 INSC 248; Union of India v. State of Maharashtra[2019] 12 SCR 1125 : 2019 INSC 1102; Hariram Bhambhi v. Satyanarayan[2021] 8 SCR 855 : 2021 INSC 701; Patan Jamal Vali v. State of Andhra Pradesh[2021] 3 SCR 470 : 2021 INSC 272; Ankush Maruti Shinde v.

State of Maharashtra [2019] 4 SCR 709 : 2019 INSC 305; Amanatullah Khan v. The Commissioner of Police Delhi[2024] 5 SCR 927 : 2024 INSC 383; Arnesh Kumar v. State of Bihar[2014] 8 SCR 128 : 2014 INSC 463; Mallada K. Sri Ram v. State of Telangana[2022] 3 SCR 5 : 2022 INSC 386 - referred to. Sukanya Shantha v. Union of India & Ors. Books and Periodicals Cited Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999), at pages 50, xii-xiii; Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xi; Marc Galanter, Law and Society in Modern India, Oxford University Press (1989), 2018 Reprint, p. 185; Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xii; Granville Austin, Working A Democratic Constitution: The Indian Experience, Oxford University Press (1999), p.

7; Isabel Wilkerson, Caste: The Origins of Our Discontents, Penguin Random House (2020), p. 167; Rahul Choragudi, et al, Caste Matters in Public Policy: Issues and Perspectives, Routledge (2024), Reprint, p. 2; Anurag Bhaskar, The Foresighted Ambedkar: Ideas that Shaped Indian Constitutional Discourse, Penguin (2024), pp. 68-87; Anurag Bhaskar, The Foresighted Ambedkar: Ideas That Shaped Indian Constitutional Discourse, Penguin (2024), pp. 176-191; B. Shiva Rao, Framing of India's Constitution, Vol. 5, pp. 249-257; B. R. Ambedkar, "Evidence Before the Southborough Committee", in Dr Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 256; B. R. Ambedkar, "Castes in India", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 16;B. R. Ambedkar, "Annihilation of Caste", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 54; B. R. Ambedkar, "Philosophy of Hinduism", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 3, pp. 25- 26; B. R.

Ambedkar, "Annihilation of Caste", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 86; B. R. Ambedkar, "Castes in India", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 18; B. R. Ambedkar, "Castes in India", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 14; Anastasia Pilavsky, "The 'Criminal Tribe' in India before the British", Comparative Studies in Society and History 57, no. 2 (2015): 323-54, at p. 327; Anastasia Pilavsky, "The 'Criminal Tribe' in India before the British", Comparative Studies in Society and History 57, no. 2 (2015): 323-54, at p. 326; John Lewis Gillin, Taming the Criminal: Adventures in Penology, p. 110; John Lewis Gillin, Taming the Criminal: Adventures in Penology, Macmillan Company (1931), pp. 115-16, 122; B. R. Ambedkar, "Evidence Before the Southborough Committee (1919)", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 255; "Dr. Ambedkar at the Round Table Conferences", in Dr.

Babasaheb Ambedkar: Writings and Speeches, Vol. 2, p. 504; B. R. Ambedkar, "Annihilation of Caste", in Dr. Babasaheb Ambedkar: Writings and 508 Speeches, Vol. 1, p. 47; Marc Galanter, "Law and Caste in Modern India", Asian Survey (1963), Vol. 3, No. 11, pp. 544-59, at p. 545; Marc Galanter, "Untouchability and the Law", Economic and Political Weekly (1969), Vol. 4, No. 1/2, pp. 131- 170, at p. 131; Committee on Prison Discipline to the Governor General of India in Council, 1838, page 106; David Arnold and David Hardiman (eds. ), Subaltern Studies VIII: Essays in Honour of Ranajit Guha, Oxford University Press (1994), pp. 148-187, at p. 172; Report of the Inspector of Prisons, Oudh, 1826, p. 33 as cited in David Arnold (1994), p. 172; David Arnold, "Labouring for the Raj: Convict Work Regimes in Colonial India, 1836-1939", in Christian G Vito and Alex Lichtenstein (eds), Global Convict Labour, Brill (2015), pp. 199-221, at p.

209; Secretary, India, Home (Judicial), to Chief Secretary, Madras, 8 July 1871, Madras Judicial Proceedings, no. 98, 24 October 1871] - as cited in David Arnold (2015), p. 210; Report of The Group of Officers on Prison Administration, 1987, p. 156 ("RK Kapoor Committee"); Michael Klarman, Unfinished Business: Racial Equality in American History, Oxford University Press (2007); Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart, Mariner Books, 2022, p. 248; Paulo Freire, Pedagogy of the Oppressed (translated by Myra Bergman Ramos), Penguin 2017, p. 24; Alan Paton, Cry, The Beloved Country, Vintage Books, 2002; Bell Hooks, Salvation: black people and love, Harper Perennial, 2001; pp. 214-15; Nusrat F. Jafri, This Land We Call Home: The Story of a Family, Caste, Conversions and Modern India, Penguin (2024), p. Xv - referred to. Lists of Websites ia802807. us. archive. org/11/items/dli. csl. 944/944. pdf, p. 92; Model Prison Manual 2016, p.

4, scconline. com/blog/post/2021/07/07/expanding-horizons-of- criminal-procedure-law/; B. R. Ambedkar, "States and Minorities", in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 393, List of Acts Uttar Pradesh Jail Manual, 2022; Constitution of India; Code of Criminal Procedure, 1973; Model Prison Manual for the Superintendence and Management of Prisons in India, 2003; Sukanya Shantha v. Union of India & Ors.

West Bengal Jail Code Rules, 1967; Thuggee Act (XXX of 1836); Dacoity Act (XXIV of 1843); Bonded Labour System (Abolition) Act 1976; Criminal Tribes Act 1871; Penal Code 1860; Criminal Tribes Settlement Act; Criminal Tribes Act 1911; Reformatory Schools Act, 1897; Criminal Tribes Act of 1924; Criminal Tribes Manual of Gwalior; Rewa Wandering Criminal Tribes Act, 1925; Criminal Tribes (Madras Repeal) Act, 1947; Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Prison Act 1984; Uttar Pradesh Jail Manual, 2022; West Bengal Jail Code Rules for Superintendence and Management of Jail in West Bengal, 1967; Madhya Pradesh Jail Manual, 1987; Andhra Pradesh Prison Rules, 1979; Odisha Model Jail Manual Rules for the Superintendence and Management of Jails in Odisha, 2020; Kerala Prison Rules 1958; Tamil Nadu Prison Rules, 1983; Rules for the Superintendence and Management of Jails in the Bombay State, 1954; Karnataka Prisons and Correctional Services Manual-2021; Rajasthan Prisons Rules, 2022; Prison Manual 2021 for the Superintendence and Management of the Jails in Himachal Pradesh; Madras Jail Manual, 1899; Uttar Pradesh Jail Manual, 1941; Rajasthan Prison Rules 1951; Model Prisons and Correctional Services Act, 2023; Legal Services Authorities Act, 1987; Tamil Nadu Restriction of Habitual Offenders Act, 1948 (previously Restriction of Habitual Offenders Act 1948); Madhya Bharat Vagrants, Habitual Offenders and Criminals (Restrictions and Settlement) Act, 1952; Orissa Restriction of Habitual Offenders Act, 1952; Uttar Pradesh Habitual Offenders Act, 1952; Rajasthan Habitual Offenders Act, 1953; Jammu and Kashmir Habitual Offenders (Control and Reform) Act, 1956; Bombay Habitual Offenders Act, 1959; Gujarat Habitual Offenders Act, 1959; Kerala Habitual Offenders Act, 1960; Karnataka Habitual Offenders Act, 1961; Andhra Pradesh Habitual Offenders Act, 1962; Himachal Pradesh Habitual Offenders Act, 1969; Goa, Daman and Diu Habitual Offenders Act, 1976; Tamil Nadu Habitual Offenders Act, 1948.

List of Keywords Caste-based discrimination; Prisons; State Prison Manuals; Division of manual labour; Segregation of barracks; Discrimination against prisoners belonging to denotified tribes and habitual offenders; Model Prison Manual, 2016; Discrimination in kitchens; Habitual Offenders; Denotified tribes in prisons; Model Prisons and Correctional Services Act 2023; Caste column; Caste in 510 undertrial and/or convicts' prisoners' registers; Guidelines issued in Arnesh Kumar's case and Amanatullah Khan's case; Marginalized castes; High castes; Direct discrimination; Untouchability; Caste prejudices; Caste based division of labour/work; Intelligible and rational principle of classification; Rational nexus; Rehabilitation; Segregating prisoners; Social hierarchy; Non-habitual prisoner; Occupational immobility of prisoners; Restriction on labour; Discrimination and continued targeting of members of Denotified Tribes; Classification of habitual offender; Role of Legal Service Authorities in Prisons; Right to free legal aid; Non-Discrimination u/Art.

15; Ban on untouchability in Art. 17; Right to live with dignity; Prohibition of forced labour and human trafficking; Criminal Tribes Act; Repeal of Criminal Tribes Act; Prevention of discrimination and atrocities; Jurisprudence on social protection in Post-Independence India; Manual Scavengers; Prison management; Women inmates; Habitual/recidivist prisoners; Substantive equality and institutional discrimination; Suo motu cognizance; In Re: Discrimination Inside Prisons in India. Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1404 of 2023 (Under Article 32 of The Constitution of India) Appearances for Parties Dr. S. Muralidhar, Sr. Adv. , Prasanna S. , Ms. Disha Wadekar, Ms. Apoorva Singh, M. A. Karthik, Maitreya Subramaniam, Ms. Pallak Bhagat, Advs. for the Petitioner. Ms. Aishwarya Bhati, ASG, Tapesh Kumar Singh, Sr. AAG, Mani Munjal, Ashok Panigrahi, B. K. Satija, Rajat Nair, Arvind Kumar Sharma, Pradeep Misra, Daleep Dhyani, Ms.

Aarohi Bhalla, Himanshu Chakravarty, Ms. Astha Sharma, Ms. Ripul Swati Kumari, Mahfooz Ahsan Nazki, Subhasish Mohanty, Vishnu Sharma, Ms. Madhusmita Bora, Pawan Kishore Singh, Dipankar Singh, Dr. Ravindra Chingale, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, D. L. Chidananda, Ishan Roy Chowdhury, Anuj Saxena, Durgesh Ramchandra Gupta, Anuj Ruhela, Shubham Sagar, Mrs. Payal Gaikwad, Prakash Sharma, Pratham Arora, Ms. Prerna Singh, Guntur Pramod Kumar, Keshav Singh, Sabarish Subramanian, Advs. for the Respondents. Sukanya Shantha v. Union of India & Ors. Judgment / Order of the Supreme Court Judgment Dr Dhananjaya Y Chandrachud, CJI Contents* I. The Writ Petition.............................................................. 4 II. Submissions...................................................................... 4 III. Constitutional Interpretation.............................................. 6 IV.

The Constitution of Emancipation, Equality, and Dignity.... 9 V. The Contours of Article 14................................................. 17 VI. Non-Discrimination under Article 15.................................. 23 VII. The Ban on Untouchability in Article 17............................ 33 VIII. Article 21: Of Life and Dignity........................................... 38 IX. Article 23: Prohibition of Forced Labour and Human Trafficking.......................................................................... 45 X. A History of Discrimination in the Pre-Colonial Era......... 57 XI. The Colonial Suppression of Marginalized Castes and Tribes.............................................................................. 60 i. Criminal Tribes Acts.................................................... 61 ii. Caste Discrimination in Colonial India...................... 70 iii. Repeal of Criminal Tribes Act.................................... 74 XII.

Jurisprudence on Social Protection in Post-Independence India.................................................................................. 77 XIII. Impugned Provisions........................................................ 88 XIV. Prison Manuals and the Legacy of Discrimination........... 105 XV. Model Prison Manual 2016: Whether Adequate?............ 125 XVI. Model Prisons and Correctional Services Act, 2023........ 132 XVII. The Continued Targeting of Denotified Tribes.................. 134 XVIII. The Role of Legal Service Authorities in Prisons............. 138 XIX. The Future of Substantive Equality & Institutional Discrimination.................................................................... 144 XX. Conclusion and Directions............................................... 146 * Ed. Note: Pagination as per the original Judgment. 512 I. The Writ Petition 1.

The petitioner, Sukanya Shantha, a journalist, wrote an article "From Segregation to Labour, Manu's Caste Law Governs the Indian Prison System", which was published on 10 December 2020. The article highlighted caste-based discrimination in the prisons in the country. The petitioner has sought directions for repeal of the offending provisions in State prison manuals. By an order dated 10 July 2024, judgment was reserved. We have heard a broad diversity of viewpoints from across India. Besides counsel for the petitioner and the intervenor, the Additional Solicitor General (ASG) of India appeared for the Union of India. The States of Jharkhand, Uttar Pradesh, West Bengal, Maharashtra, Orissa, Karnataka, Andhra Pradesh, and Tamil Nadu appeared through counsel. II. Submissions 2. Dr. S. Muralidhar, Senior Advocate, appearing for the petitioner highlighted the issue of caste-based discrimination in the prisons in India.

It was argued that various State prison manuals sanction blatantly unconstitutional practices, which are violative of Articles 14, 15, 17, 21, and 23 of the Constitution of India. Ms. Disha Wadekar referred to a chart of provisions from different State prison manuals/ rules to highlight various forms of discrimination in the prisons. She highlighted that caste-based discrimination continues to persist in the prisons in the country with respect to: (i) The division of manual labour; (ii) Segregation of barracks; and (iii) Provisions that discriminate against prisoners belonging to Denotified tribes and "habitual offenders". She further argued that the Model Prison Manual, 2016 does not address the impugned provisions related to caste discrimination inside prisons other than the discrimination in kitchens, and that it is not "model" when it comes to addressing caste discrimination.

In the written submissions, the petitioner's side has further submitted that the Home Departments of the Respondent States may also be directed to clarify the definition of "Habitual Offenders" in their respective prison manuals so as to prevent its misuse against the denotified tribes in prisons. 3. Ms. Aishwarya Bhati, Learned ASG, submitted a written note arguing that the Ministry of Home Affairs prepared the Model Prison Manual for the Superintendence and Management of Prisons in India, 2003 Sukanya Shantha v. Union of India & Ors. and The Model Prison Manual, 2016, and circulated it to all States and Union Territories (UTs) in May 2016 explicitly prohibiting caste and religion based discrimination practices.

She also referred to the Advisory dated 26 February 2024 issued by the Ministry of Home Affairs, through the Deputy Secretary (PR & ATC) to the Principal Secretary (Home/Jails) of all states and UTs and the DG/IG Prisons of all States and UTs to ensure that the State Prison Manual/Prison Act should not contain any discriminatory provisions. She further argued that "prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein" as a subject fall under the domain of the States under Entry 4, List II of the Seventh Schedule of the Constitution. 4. Ms. Ashtha Sharma, counsel for the State of West Bengal, stated that the discrimination on the basis of caste/creed/ religion as envisaged in the provisions of West Bengal Jail Code Rules, 1967 (Rules No.

741, 793, 860 and 1117) are not in force/ practice within the Correctional Homes of West Bengal since long, and that a proposal for deletion/ alteration/ amendment of the four Rules has been already sent to the appropriate authority. Mr. Anuj Saxena, counsel for the intervenor, has prayed for deletion of "caste" column and any references to caste in undertrial and/or convicts' prisoners' registers. III. Constitutional Interpretation 5. As we deal with the present petition, we must refer to the values of the Constitution and the interpretation we must adopt. After all, the impugned provisions of the various prison manuals, highlighted in this petition, demonstrate that the values of the Constitution are at stake. 6. The Constitution reflects the vision of its founders to give India a collective future based on the values of liberty, equality, and fraternity. The Constitution mandates a more just and inclusive society, where every citizen has the opportunity to thrive.

It envisages that the values embedded in its provisions are not just aspirations but lived realities. Any interpretation of the Constitution must be reflective of the blueprint laid down by its founders. The Constitution is - as Granville Austin put it-- a "social document" and a "modernizing force", with its provisions embodying "humanitarian sentiments". 1 1 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999), at pages 50, xii-xiii 514 7. The interpretation of the Constitution is not static. It has evolved with time to give recognition to a broader spectrum of rights to the citizens, as well as to impose additional safeguards against excesses of the State or even private entities, as the case may be. Over the last seventy-five years, the Supreme Court has recognized new rights such as the right to education,2 the right to privacy,3 and the right against the adverse impact of climate change,4 among others.

These rights, though not explicitly mentioned in the original text, have been interpreted as inherent to the broader principle of the right to life which the Constitution enshrines. The Constitution must serve as a robust framework for safeguarding the rights of citizens and maintaining the delicate balance between authority and individual freedom. 8. The Constitution recognizes the dignity and individual autonomy inherent in all citizens and their right to life and personal liberty. Liberty and autonomy advance the cause of human dignity. 5 Individual autonomy is the ability to make decisions on matters that impact one's life. 6 When individuals are granted the freedom to make choices about their own lives, they are empowered to take control of their destinies, and express their identities, in the "pursuit of happiness"7 without undue interference. This freedom fosters a sense of self-worth and respect, thereby recognizing individual dignity.

By safeguarding these principles, we ensure that the intrinsic worth of every human being is recognized and upheld. The right to life cannot be restricted except through a law which is "substantively and procedurally fair, just and reasonable". 8 9. Our interpretation of the Constitution must fill the silences in its text. The framers of the Constitution could not have anticipated every situation that might arise in the future. They also intentionally 2 Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645 3 Justice (Retd. ) K. S. Puttaswamy v. Union of India (2017) 10 SCC 1 4 K Ranjitsinh v. Union of India, 2024 INSC 280 5 Common Cause v. Union of India (2018) 4 SCALE 1 6 Justice (Retd. ) K S Puttaswamy v. Union of India (2017); Common Cause v. Union of India (2018). 7 American Declaration of Independence, original transcript available at founding-docs/declaration-transcript 8 Shafin Jahan v. Asokan K. M. (2018) 16 SCC 368 Sukanya Shantha v. Union of India & Ors.

left certain decisions to the discretion of future generations. However, the choices we make today must align with the broader constitutional framework and values. In filling the gaps, whenever they arise, our interpretation must enhance the foundational values of the Constitution such as equality, dignity, liberty, federalism and institutional accountability. Our interpretation must adhere to the postulate that "civil and political rights and socio-economic rights do not exist in a state of antagonism. " 9 Our analysis must be based on a holistic reading of the provisions of the Constitution. 10 10. The Constitution envisages that courts act as institutions which discharge the responsibility of protecting constitutionally entrenched rights. Courts are neutral institutions, whose primary function is to apply the law fairly and consistently. Transparency in processes also enhances public confidence in the system.

11 In their role as neutral institutions, courts also act as a check on the other branches of government, ensuring that their actions conform to constitutional and legal standards. 11. The Constitution mandates that laws enacted in the colonial era should align with its provisions. 12 Constitutional interpretation emphasizes the "need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state". 13 The "assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution". 14 By recognizing the injustices in the colonial and pre-colonial era, "we can certainly set the course for the future". 15 "In the transformation of society" against colonial and pre-colonial ideology, the Constitution "seeks to assure the values of a just, humane and compassionate existence to all her citizens". 16 9 Justice (Retd. ) K S Puttaswamy v.

Union of India (2017) 10 Maneka Gandhi v. Union of India, 1978 INSC 16 11 CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2019 (16) SCALE 40 12 Article 13(1) of the Indian Constitution provides: "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. " 13 Kalpana Mehta v. Union of India [2018] 4 SCR 1 14 Ibid 15 Navtej Singh Johar v. Union of India, 2018 INSC 790 [Justice Chandrachud] 16 Ibid 516 12. Criminal laws of the colonial era continue to impact the postcolonial world. As a scholar noted, "while the pre-determined and codified nature of the diverse criminal justice rules provided the moral superiority and political legitimacy to colonial rule, the Imperial power was safeguarded by their coercive content, particularly in procedural matters.

" 17 Criminal laws in modern times thus, as "the strongest expression of the State's power" must "ensure that they do not deny equality before the law and the equal protection of laws". 18 Criminal laws must not endorse colonial or pre-colonial philosophy. 13. In a post-constitutional society, "the law must take affirmative steps to achieve equal protection of law to all its citizens". 19 Any discussion on the Constitution must therefore take a conscious view of the lived realities of citizens. It requires evaluating how constitutional provisions translate into meaningful outcomes in their lives. We must discuss this aspect of the Indian Constitution further, before we examine the impugned provisions. IV. The Constitution of Emancipation, Equality, and Dignity 14. The Constitution of India is an emancipatory document. It provides equal citizenship to all citizens of India. The Constitution is not just a legal document, but in India's social structure, it is a quantum leap.

In one stroke, it gave a dignified identity to all citizens of India. On 26 January 1950, the Constitution eliminated the legality of caste-based discrimination, thereby raising the human dignity of our marginalised communities. 15. Describing the vision of the framers, constitutional historian Granville Austin stated: "India's founding fathers and mothers established in the Constitution both the nation's ideals and the institutions and processes for achieving them. The ideals were national unity and integrity and a democratic and equitable society. The new society was to be achieved through a socialeconomic revolution pursued with a democratic spirit scconline. com/blog/post/2021/07/07/expanding-horizons-of-criminal-procedure-law/ 18 Navtej Singh Johar v. Union of India, 2018 INSC 790 [Justice Chandrachud] 19 Ibid Sukanya Shantha v. Union of India & Ors. using constitutional, democratic institutions.

I later came to think of unity, social revolution, and democracy as three strands of a seamless web. The founders believed that none of these goals was to be pursued, nor could any be achieved, separately. They were mutually dependent and had to be sought together. "20 Marc Galanter noted in this regard: "Independent India embraced equality as a cardinal value against a background of elaborate, valued and clearly perceived inequalities. Her constitutional policies to offset these proceeded from an awareness of the entrenched and cumulative nature of group inequalities. "21 The Constitution mandates the replacement of fundamental wrongs with fundamental rights. 22 Through its provisions, it displaced a centuries-old caste-based hierarchical social order "that did not recognize the principle of individual equality". 23 It negated the ideals of social hierarchy.

The Constitution is the embodiment of the aspirations of the millions of caste-oppressed communities, which hoped for a better future in independent India. To summarize, the "Constitution, by its very existence, was a social revolutionary statement. "24 16. Some of the speeches in the Constituent Assembly give expression to this vision. On behalf of the Adivasi community, Jaipal Singh Munda shared the following sentiments and expectations from the Constitution: "Mr. Chairman, Sir, I rise to speak on behalf of millions of unknown hordes-yet very important-of unrecognised warriors of freedom, the original people of India who have variously been known as backward tribes, primitive tribes, criminal tribes and everything else, Sir, I am proud to be a Jungli, that is the name by which we are known in my part of the country... Sir, if there is any group of Indian people 20 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p.

xi 21 Marc Galanter, Law and Society in Modern India, Oxford University Press (1989), 2018 Reprint, p. 185 22 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xii 23 Granville Austin, Working A Democratic Constitution: The Indian Experience, Oxford University Press (1999), p. 7 24 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xii 518 that has been shabbily treated it is my people. They have been disgracefully treated, neglected for the last 6,000 years... You cannot teach democracy to the tribal people; you have to learn democratic ways from them. They are the most democratic people on earth... We want to be treated like every other Indian. "25 H. J. Khandekar, a leader from the Dalit community, raised the plight of the so-called "criminal tribes": "We have been given according to this Constitution freedom of speech and freedom of movement and so on.

But there is no freedom of movement for one crore of unfortunate people in this country. That is, the Criminal Tribes. Nothing is said about them in this Constitution. Will the Government repeal the Criminal Tribes Act and give every freedom to the Criminal Tribes? "26 Dakshayani Velayudhan, the lone Dalit woman in the Constituent Assembly, noted: "The working of the Constitution will depend upon how the people will conduct themselves in the future, not on the actual execution of the law. So I hope that in course of time there will not be such a community known as Untouchables and that our delegates abroad will not have to hang their heads in shame if somebody raises such a question in an organisation of international nature. "27 Dr Ambedkar, as Chairman of the Drafting Committee, remarked in his last address to the Constituent Assembly: "On the 26th of January 1950, we are going to enter into a life of contradictions.

In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How 25 Constituent Assembly Debates (19 December 1946) 26 Constituent Assembly Debates (21 November 1949) 27 Constituent Assembly Debates (29 November 1948) Sukanya Shantha v. Union of India & Ors. long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up. "28 The vision laid down by Dr.

Ambedkar, Jaipal Singh Munda, H. J. Khandekar, and Dakshayani Velayudhan, among others, emphasizes that there shall be no discrimination in the country. The Constitution envisions a society where there is no room for anyone to feel superior to another citizen. 17. The chapter on fundamental rights places the provisions on equality, non-discrimination, equality of opportunity, affirmative action, abolition of untouchability, freedom of speech and expression, right to life, and prohibition of forced labour together. This has been done for a special reason. The framers of the Constitution conceptualized that without the provisions on the prohibition of discrimination, abolition of untouchability, and prohibition on forced labour, the imagination of broader rights such as equality before law, freedom of speech and expression, and the right to life would remain incomplete.

The Constitution thus complements the basic principles of constitutionalism with provisions designed specifically to address India's social problems. 18. This underlying philosophy of the Constitution has been highlighted by this Court in several judgments. Chief Justice S. M. Sikri, in his opinion in Kesavananda Bharati v. State of Kerala,29 held that the objective of various provisions of the Constitution is to build "a welfare State and an egalitarian social order in our country", and "to bring about a socio-economic transformation based on principles of social justice". Referring to Part III of the Constitution, the judgment stated that the founders were "anxious that it should be a society where the citizen will enjoy the various freedoms and such rights as are the basic elements of those freedoms without which there can be no dignity of individual". 28 Constituent Assembly Debates (25 November 1949) 29 [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225 520 19.

Justice Krishna Iyer in his concurring opinion in State of Kerala v. N. M. Thomas30 called the Constitution "a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy". In Indian Medical Association v. Union of India,31 the Court held that "various aspects of social justice, and an egalitarian social order, were also inscribed, not as exceptions to the formal content of equality but as intrinsic, vital and necessary components of the basic equality code itself". 20. This Court held in Justice K. S. Puttaswamy v. Union of India32 that the "vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere". One of us (Justice DY Chandrachud) authored the plurality opinion, holding that the interpretation of the Constitution must keep evolving to facilitate justice for the citizens. 21. In Navtej Singh Johar v.

Union of India,33 the Court while dealing with the validity of a colonial provision (Section 377 of the Penal Code), held that the Constitution envisages that "every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual". 34 The Court also acknowledged that "throughout history, socio-cultural revolts, anti-discrimination assertions, movements, literature and leaders have worked at socializing people away from supremacist thought and towards an egalitarian existence. " 35 In that backdrop, the Indian Constitution "was an attempt to reverse the socializing of prejudice, discrimination, and power hegemony in a disjointed society". 36 22. The Court, in Indian Young Lawyers Association v. State of Kerala,37described the anti-caste vision of the Constitution.

One of us (Justice DY Chandrachud) wrote a concurring opinion, noting that: 30 [1976] 1 SCR 906 : (1976) 2 SCC 310 31 [2011] 6 SCR 599 : (2011) 6 SCALE 86 32 [2015] 9 SCR 99 : (2017) 10 SCC 1 33 [2018] 7 SCR 379 : 2018 INSC 790 34 Ibid [Chief Justice Dipak Misra and Justice Khanwilkar] 35 Ibid [Justice Chandrachud] 36 Ibid 37 [2018] 9 SCR 561 : (2019) 11 SCC 1 Sukanya Shantha v. Union of India & Ors. "Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles.

It is the foundational document, which in text and spirit, aims at social transformation, namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. It contains a vision of social justice and lays down a roadmap for successive governments to achieve that vision. The document sets out a moral trajectory, which citizens must pursue for the realisation of the values of liberty, equality, fraternity and justice. It is an assurance to the marginalised to be able to rise to the challenges of human existence... " The Court emphasized the need to scrutinize social practices to keep them in consonance with the egalitarian values of the Constitution: "The Constitution embodies a vision of social transformation.

It represents a break from history marked by the indignation and discrimination attached to certain identities and serves as a bridge to a vision of a just and equal citizenship. In a deeply divided society marked by intermixing identities such as religion, race, caste, sex and personal characteristics as the sites of discrimination and oppression, the Constitution marks a perception of a new social order. This social order places the dignity of every individual at the heart of its endeavours... Existing structures of social discrimination must be evaluated through the prism of constitutional morality. The effect and endeavour is to produce a society marked by compassion for every individual. " (emphasis added) 23. The Constitution thus stands as a testament to the fight against historical injustices and for the establishment of an egalitarian 522 social order. It aims to prevent caste-based discrimination.

This commitment is not limited to preventing discriminatory actions by the State alone. It extends to the actions of citizens and private entities as well. It empowers the State to enact appropriate legislation or take executive measures to tackle caste-based discrimination. At the same time, it mandates the decision-makers to take every step to end discrimination in Indian society. The pervasive influence of caste necessitates continuous efforts to ensure equality and justice for all citizens. The manifestations of caste are too numerous to exhaustively enumerate. 38 They can manifest in various forms and across different sectors of society, from education and employment to social interactions and access to resources. As has been observed: "Continued to be attributed typically to the rural hinterlands and assumed to be limited only to the discussions on reservation policy and electoral politics, caste has mutated and diversified during the past three decades.

Today, its presence is visible in urban housing, its markets and businesses, higher educational institutions, and public sector offices as well as the private sector working spaces, which were projected to be secular and privilege class over caste, and the various socio-economic and political institutions that interface with everyday lived experiences. "39 The fight against caste-based discrimination is not a battle that can be won overnight; it requires sustained effort, dedication, and the willingness to confront and challenge societal norms that perpetuate inequality. When faced with practices of caste-based discrimination, this Court must take an active stand. In entertaining the current petition, this Court is making its contribution to the ongoing struggle to dismantle caste-based discrimination. 24. Based on this constitutional philosophy, we shall now refer to constitutional provisions under which the impugned provisions have been challenged.

38 Isabel Wilkerson, Caste: The Origins of Our Discontents, Penguin Random House (2020), p. 167 39 Rahul Choragudi, et al, Caste Matters in Public Policy: Issues and Perspectives, Routledge (2024), Reprint, p. 2 Sukanya Shantha v. Union of India & Ors. V. The Contours of Article 14 25. Article 14 guarantees that the "State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. " Equality is a crucial aspect of the constitutional vision. Immediately after the adoption of the Constitution, this Court laid down the standard to test the validity of laws against Article 14. In a Constitution Bench decision in Chiranjit Lal Chowdhuri v. Union of India,40 Justice B. K. Mukherjea articulated that a classification under Article 14 "should never be arbitrary".

It was held that such classification must always "rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made". If a classification is "made without any substantial basis", it should be "regarded as invalid". The principle of classification was reiterated in a subsequent Constitution Bench decision in State of Bombay v. F. N. Balsara. 41 26. Later, a seven-judge Bench decision in State of West Bengal v. Anwar Ali Sarkar42solidified the requirement of the twin test under Article 14. Speaking for the Court, Justice S. R. Das held: "In order to pass the test, two conditions must be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.

The differentia, which is the basis of the classification, and the object of the act are distinct things, and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, 40 [1950] SCR 869 41 1951 SCR 682 42 [1952] 1 SCR 284 : (1952) 1 SCC 1 524 provided such classification is not arbitrary in the sense I have just explained.. " 27. Adding to the above principles, Justice S. R. Das, in Ram Krishna Dalmia v. Justice S. R.

Tendolkar,43 held that the classification "may be founded on different bases, namely, geographical, or according to objects or occupations or the like", but it needs to have a reasonable nexus with the object of the statute. It was held that "Article 14 condemns discrimination not only by a substantive law but also by a law of procedure". Furthermore, the Court "may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation". The Court further reiterated that: "A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination... " 28. Subsequently, in E. P.

Royappa v. State of Tamil Nadu,44 a Constitution Bench of this Court added a crucial principle of non- arbitrariness to the discourse of equality under Article 14. The Court was adjudicating the validity of an administrative order. The Court held that: "Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14... " 43 [1959] SCR 279 44 [1974] 2 SCR 348 : (1974) 4 SCC 3 Sukanya Shantha v. Union of India & Ors. 29.

The principle of non-arbitrariness and reasonableness was then emphasized in the seven-judge Bench decision in Maneka Gandhi v. Union of India. 45 It was held: "Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. " 30. To test the validity of laws, the twin test of intelligible differentia and reasonable nexus held ground. Whether the test of arbitrariness is a valid principle under Article 14 led to a conflicting set of decisions. 46 In Shayara Bano v.

Union of India,47in testing the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which validates the triple talaq, Justice R. F. Nariman endorsed the test of manifest arbitrariness. It was held: "The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/ or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. " 45 [1978] 2 SCR 621 : (1978) 1 SCC 248 46 The conflicting judgments have been summarized in Association for Democratic Reforms v.

Union of India, 2024 INSC 113 47 [2017] 9 SCR 797 : (2017) 9 SCC 1 526 31. A formalistic understanding of the classification test was then critiqued by this Court in Navtej Singh Johar v. Union of India. 48 The Court was dealing with a challenge to the constitutionality of Section 377 of the Indian Penal Act, 1860, to the extent that it criminalized consensual sexual conduct between adults. In his concurring opinion, one of us (Justice DY Chandrachud) held: "Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance.

The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values--of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in State action. As our constitutional jurisprudence has evolved towards recognising the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built.

Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavour and in every facet of human existence. " The judges declared that Section 377 is manifestly arbitrary. The doctrine of manifest arbitrariness was also adopted in the Constitution Bench decision in Joseph Shine v. Union of India. 49 48 [2018] 7 SCR 379 : (2018) 10 SCC 1 49 (2019) 3 SCC 39 Sukanya Shantha v. Union of India & Ors. 32. Referring to the decisions in Shayara Bano, Navtej Johar, and Joseph Shine, a Constitution Bench in Association for Democratic Reforms (ADR) v. Union of India50 summarized the doctrine of manifest arbitrariness in the following words: "Courts while testing the validity of a law on the ground of manifest arbitrariness have to determine if the statute is