Preamble to the Constitution of India

1. Introduction
The Preamble to the Constitution of India records the aims and aspirations of the people of India which
have been translated into the various provisions of the Constitution. A Preamble means the introduction to
the statute. The objectives before the Constituent Assembly were to Constitute India into a “sovereign
democratic republic” and to secure its citizens “justice liberty, equality and fraternity”. The ultimate aim of
the makers of the Constitution was to have a welfare state and an egalitarian society projecting the aims and
aspirations of the people of India who sacrificed everything for the attainment of country’s freedom. It is
worthwhile to note that the preamble was adopted by the Constituent Assembly after the Draft Constitution
had been approved. The basic idea behind it was the preamble should be in conformity with the provisions
of the constitution and express in a few words the philosophy of the constitution. It may be recalled that
after the transfer of power, the constituent Assembly became sovereign, which is reflected in the use of
words “give to ourselves this constitution” in the preamble. It also implied that the preamble emanated
from the people of India and sovereignty lies with them.
Chief Jusitce Subba Rao in Golak Nath v. State of Punjab[i] had held that “The preamble to an Act sets out
the main objectives which the legislation is intended to achieve”.
Unlike the Constitution of Australia, Canada or U.S.A., the constitution of India has an elaborate preamble.
The purpose of the preamble is to clarify who has made the constitution, what is its source, what is the
ultimate sanction behind it, what is the nature of the polity which is sought to be established by the
constitution.
2. History of the Preamble
The Preamble to Indian constitution is based on “Objective Resolution” of Nehru. Jawaharlal Nehru
introduced an objective resolution on December 13, 1947 and it was adopted by Constituent assembly on 22
January 1947. The drafting committee of the assembly in formulating the Preamble in the light of
“Objective Resolution” felt that the Preamble should be restricted to defining the essential features of the
new state and its basic socio-political objectives and that the other matters dealt with Resolution could be
more appropriately provided for in the substantive parts of the Constitution. The committee adopted the
expression ‘Sovereign Democratic Republic’ in place of ‘Sovereign Independent Republic’ as used in the
“Objective Resolution,” for it thought the independence was implied in the word Sovereign. The committee
added the word Fraternity which was not present in the Objective Resolution. “The committee felt that the
need for fraternal concord and goodwill in India was never greater than now and that this particular aim of
the new Constitution should be emphasized by special mention in the Preamble.”[ii] In other respect the
committee tried to embody in the Preamble “the spirit and, as far as possible, the language of “Objective
Resolution.”
3. Meaning and Concept
The term ‘Preamble’ means the introduction to a statute. It is the introductory part of the constitution. A
preamble may also be used to introduce a particular section or group of sections.[iii] According to
Chambers Twentieth Century Dictionary, a preamble means preface, introduction, especially that of an act
of Parliament, giving its reasons and purpose – a prelude. [iv]
Black’s Law Dictionary states that the preamble means a clause at the beginning or a statute explanatory
of the reasons for its enactment and the objectives sought to be accomplished. Generally, a Preamble is a
declaration made by the legislature of the reasons for the passage of the statute and is helpful in the
interpretation of any ambiguities within the statute to which it is prefixed. [v]
The Constitution opens with a Preamble. Initially, the Preamble was drafted by Sh. B. N. Rau in his
memorandum of May 30, 1947 and was later reproduced in the Draft of October 7, 1947. In the context of
the deliberations by the Constituent Assembly, the Preamble was reformulated. The Committee claimed
that they had tried to embody in it the spirit, and as far as possible, the language of the Objectives
Resolution.[vi] Constitutions all over the world generally have a preamble. The form, content and length of
the preamble differ from constitution to constitution. Irrespective of these differences the preamble
generally sets the ideas and goals which the makers of the constitution intend to achieve through that
constitution.
 Object, Purpose and Scope of the Preamble
The Preamble does not grant any power but it gives a direction and purpose to the Constitution. It outlines
the objectives of the whole Constitution. The Preamble contains the fundamentals of the constitution. The
preamble to an Act sets out the main objectives which the legislation is intended to achieve.
The proper function of preamble is to explain and recite certain facts which are necessary to be explained
and recited, before the enactment contained in an act of Parliament could be understood. A preamble may
be used for other reasons, such as, to limit the scope of certain expressions or to explain facts or introduce
definitions. It usually states, or professes to state, the general object and meaning of the legislature in
passing the measure. Hence it may be legitimately consulted for the purpose of solving an ambiguity or
fixing the connotation of words which may possibly have more meaning, or determining of the Act,
whenever the enacting part in any of these respect is prone to doubt. In a nutshell, a court may look into the
object and policy of the Act as recited in the Preamble when a doubt arises in its mind as to whether the
narrower or the more liberal interpretation ought to be placed on the language which is capable of bearing
both meanings. In A.K Gopalan v. State of Madras[vii], it was contended that the preamble to our
constitution which seeks to give India a ‘democratic’ constitution should be the guiding start in its
interpretation and hence any law made under Article 21 should be held as void if it offends the principles of
natural justice, for otherwise the so-called “fundamental” rights to life and personal liberty would have no
protection. The majority on the bench of the Supreme Court rejected this contention holding that ‘law’ in
article 21 refers to positive or state made law and not natural justice, and that this meaning of the language
of article 21 could not be modified with reference to the preamble. In Berubari Union case[viii]the Supreme
Court held that the preamble had never been regarded as the source of any substantive power conferred on
the government or on any of its departments. The court further explained that “what is true about the
powers is equally true about the prohibitions and limitations”. It, therefore, observed that the preamble
had limited application. The court laid down that the preamble would not be resorted to if the language of
the enactment contained in the constitution was clear. However, “if the terms used in any of the articles in
the constitution are ambiguous or capable of two meanings, in interpreting them some assistance may be
sought in the objectives enshrined in the Preamble.” In State of Rajasthan v. Basant Nahata [ix] it was held
that a preamble with an ordinary Statute is to be resorted only when the language is itself capable of more
than one meaning and not when something is not capable of being given a precise meaning as in case of
public policy.
In Kesavananda Bharati[x] case the Supreme Court attached much importance to the preamble. In this
case, the main question before the Supreme Court related to the scope of amending power of the Union
Parliament under Article 368 of the Constitution of India. The Supreme Court traced the history of the
drafting and ultimate adoption of the Preamble. Chief Justice Sikri observed,
“No authority has been referred before us to establish the propositions that what is true about the powers
is equally true about the prohibitions and limitations. Even from the Preamble limitations have been
derived in some cases. It seems to me that the preamble of our Constitution is of extreme importance and
the constitution should be read and interpreted in the light of the grand and noble vision expressed in the
preamble.”
A majority of the full bench held that the objectives specified in the preamble contain the basic structure of
our constitution, which cannot be amended in exercise of the power under Article 368 of the constitution. It
was further held that being a part of the constitution, the preamble was not outside the reach of the
amending power of the Parliament under article 368. It was in the exercise of this amending power that the
constitution (42nd amendment) Act 1976 amended the preamble inserting therein, the terms socialist,
secular and integrity.
In the 1995 case of Union Government v. LIC of India also the Supreme Court has once again held that the
Preamble is an integral part of the Constitution.
The Preamble serves the following purposes:
a) It indicates the source from which the Constitution comes, viz., the people of India.
b) It contains the enacting clause which brings into force, the Constitution which makes it an act of the
people, for the people and by the people.
c) It declares the rights and freedoms which the people of India intended to provide to all citizens and the
basic type of government and polity which was to be established. [xi]
 Preamble: Whether a part of the Constitution?
It has been highly a matter of arguments and discussions in past that whether Preamble should be treated
as a part of constitution or not. The vexed question whether the Preamble is a part of the Constitution or
not was dealt with in two leading cases on the subject:
1. Beruberi Case
2. Kesavananda Bharati case
Berubari[xii] case was the Presidential Reference “under Article 143(1) of the Constitution of India on the
implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of Enclaves
which came up for consideration by a bench consisting of eight judges headed by the Chief Justice B.P.
Singh. Justice Gajendragadkar delivered the unanimous opinion of the Court. The court ruled out that the
Preamble to the Constitution, containing the declaration made by the people of India in exercise of their
sovereign will, no doubt it is “a key to open the mind of the makers” which may show the general purposes
for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of
the Constitution.
Kesavananda Bharati[xiii] case has created history. For the first time, a bench of 13 judges assembled and
sat in its original jurisdiction hearing the writ petition. Thirteen judges placed on record 11 separate
opinions. To the extent necessary for the purpose of the Preamble, it can be safely concluded that the
majority in Kesavananda Bharati case leans in favor of holding,
(i) That the Preamble to the Constitution of India is a part of the Constitution;
(ii) That the Preamble is not a source of power or a source of limitations or prohibitions;
(iii) The Preamble has a significant role to play in the interpretation of statutes and also in the
interpretation of provisions of the Constitution.
Kesavanada Bharati case is a milestone and also a turning point in the constitutional history of India. D.G.
Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article
368. It can be concluded that Preamble is introductory part of our Constitution. Preamble is based on the
Objective Resolution of Nehru. Preamble tells about the nature of state and objects that India has to
achieve. There was a controversial issue whether Preamble was part of Indian Constitution there were
number of judicial interpretation but finally Kesavanada Bharati case it was held that the Preamble is a part
of the Constitution
 Amendment to the Preamble
The issue that whether the preamble to the constitution of India can be amended or not was raised before
the Supreme Court in the famous case of Kesavananda Bharati v. State of Kerala, 1973[xiv]. The Supreme
Court has held that Preamble is the part of the constitution and it can be amended but, Parliament cannot
amend the basic features of the preamble. The court observed, “The edifice of our constitution is based
upon the basic element in the Preamble. If any of these elements are removed the structure will not survive
and it will not be the same constitution and will not be able to maintain its identity.”[xv]
The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976 whereby the
words Socialist, Secular and Integrity were added to the preamble by the 42nd amendment Act, 1976, to
ensure the economic justice and elimination of inequality in income and standard of life. Secularism implies
equality of all religions and religious tolerance and does not identity any state religion. The word integrity
ensures one of the major aims and objectives of the preamble ensuring the fraternity and unity of the state.
4. Contents of the Preamble
Preamble is part of our constitution. The contents of Preamble play an important role in interpretation of
our constitution. The Preamble declares:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
 “We, the People of India”
The preamble begins with the words “We the people of India…” thus clearly indicating the source of all
authority of the constitution. At the dawn of independence, we were 350 million (approximately). This
figure constituted 1/6th of the humanity. The words “We, the people of India” declares in umabmiguios
terms that the Constitution has been adopted, enacted and given to themselves by the people of India. It
emphasizes the sovereignty of the people and the fact that all powers of government flow from the people. It
is the people of India on whose authority the Constitution rests. The preamble surmises that it is the people
of India who are the authors of the constitution. Although the constitution was not directly voted upon by
the people of the country as it was practically impossible for four hundred million people to take part in the
voting, it is clear from the Preamble that the framers of the constitution has been promulgated in the name
of the people, attached importance to the sovereignty of the people and the constitution. The constitution is
not based on the mandate of several states which constitute the units of the Union. In this sense also, the
constitution is one, given by the people of the country to themselves. Jawahar Lal Nehru in the constituent
assembly stated that the word ‘People’ indicated that the constitution was not created by the States, nor by
the people of the several States but by the people of India in their aggregate capacity. By analogy, even the
Constitution of U.S.A., in spite of the fact that it was actually born out of the agreement between the
number of independent states, professes to be established by the people of the United States, and not by the
federating states in their sovereign capacities.
The words “we the people of India” echo in the opening words in the preamble to the constitutions of the
United States and of Ireland. It is emphasized that the constitution is founded on the authority of the
people, in whom is vested the ultimate sovereignty. The Supreme Court in Union of India v.
Madangopal[xvi], referred to these words in the preamble while recognizing the power of the Indian
legislatures, to enact laws with retrospective operation beyond the commencement of the constitution itself.
The court observed that “our constitution as appears from the preamble derives its authority from the
people of India”.
‘We, the people if India’, means in other words, ‘we, the citizens of India’, whether voters or non- voters.
The terms- ‘people of India’ and ‘citizens’ are synonyms terms. Both the words describe the political body
which lays the basis of sovereignty and which hold the power and conduct of the government through their
representatives; they are what we familiarly call the ‘sovereign people’ and every citizen is one of this people
and they are a constituent member of this sovereignty.
Constitutional expert D.D. Basu has stated that though the constitution of India has been made by men who
cannot be said to be fully representatives of the nation and it has been ratified by a direct vote of the people,
the Constitution of India, like that of the United States professes that is has been founded on the consent
and acquiescence of the people.[xvii] The preamble says that the people of India enacted and adopted the
constitution, after “having solemnly resolved…” It explains that the founding fathers had given a serious
thought to the provisions of the Constitution. They had performed a sacred duty and exercised full wisdom
and political knowledge on their part. They had no axe to grind beyond “securing a good and workable
constitution”. [xviii]
 Sovereign
According to preamble, the constitution of India has been pursuance of the solemn resolution of the people
of India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well defined objects set
forth in the preamble. Sovereignty denotes supreme and ultimate power. It may be real or normal, legal or
political, individual or pluralistic. In monarchial orders, sovereignty was vested in the person of monarchs.
But, in republican form of governments, which mostly prevail in the contemporary world, sovereignty is
shifted to the elected representatives of the people. According to D.D Basu, the word ‘sovereign’ is taken
from article 5 of the constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and
uncontrolled within its own sphere’. In the words of Cooley, “A state is sovereign when there resides
within itself supreme and absolute power, acknowledging no superior”. Sovereignty, in short, means the
independent authority of a state. It has two aspects- external and internal. External sovereignty or
sovereignty in international law means the independence of a state of the will of other states, in her conduct
with other states in the comity of nations. Sovereign in its relation between states and among states signifies
independence. The external sovereignty of India means that it can acquire foreign territory and also cede
any part of the Indian territory, subject to limitations(if any) imposed by the constitution. On the other
hand, internal sovereignty refers to the relationship between the states and the individuals within its
territory. Internal sovereignty relates to internal and domestic affairs, and is divided into four organs,
namely, the executive, the legislature, the judiciary and the administrative. Though India became a
sovereign country on 26th January, 1950, having equal status with the other members of the international
community, she decided to remain in the Commonwealth of Nations. Pandit Nehru declared that India will
continue – “her full membership of the Commonwealth of Nations and her acceptance of the King as the
symbol of the free association of the independent nations and as such the Head of the Commonwealth”. Her
membership of the Commonwealth of Nations and that of the United Nations Organization do not affect her
sovereignty to any extent. It is merely a voluntary association of India and it is open to India to cut off this
association at her will, and that it has no constitutional significance.
 Socialist
The constitutional commitment to the goal of socio-economic justice, as envisaged by the original preamble
by the constitution of India has been fortified by the constitution (42nd Amendment) Act, 1976. The term
‘socialist’ literally means a political-economic system which advocates state’s ownership of the means of
production, distribution and exchange.[xix]Concise Oxford Dictionary defines ‘socialism’ as a political and
economic theory of a social organisation which advocates that the means of production, distribution and
exchange should be owned or regulated by the community as whole.” Professor M.C Jain Kagzi while noting
that socialism has interspersed in the provision of the constitution remarks that preambular reference was
intended ushering in a socio-economic revolution.
The term ‘socialist’ has not been defined in the constitution. Professor M.P Jain observes that the term ‘does
not however envisage doctrinaire socialism in the sense of insistence on state ownership as a matter of
policy’. It does not mean total exclusion of private enterprise and complete state ownership of material
resources of the nation. D.D. Basu regards that Supreme Court has gone a step further toward social justice.
P.M Bakshi understands socialism in the context of social justice.[xx] A broad spectrum of Indian jurists
and authors admit the relevance of socialism in India. Swarn singh, the chief architect of the
42nd amendment Act, 1976 explained that by the word ‘socialism’ nothing more was meant than what was
explained at the Awadi session of Congress, which is short aimed at a ‘mixed economy’. Mrs. Indira Gandhi,
the then Prime Minister, further explained that the term ‘socialist’ was used simply to indicate that the goal
of the state in India was to secure a ‘better life for the people’ or ‘equality of opportunity’. She said that
socialism like democracy was interpretable differently in different countries. She, thus, made it clear that
India had her own concept of socialism and all she wanted was a better life for the people. That the framers
wished to go socialist was never in doubt. Our first Prime Minister and a member of the Constituent
Assembly Pt. Jawaharlal Nehru exclaimed “I stand for socialism and I hope, India will stand for Socialism
and that India will go towards the constitution of a socialist state, and I do believe that the whole world will
go that way.” [xxi]
In Excel Wear v. Union of India[xxii], the Supreme Court observed that “the addition of the word socialist
might enable the courts to lean more in favour of nationalization and state ownership of the industry. But,
so long as private ownership of industries is recognized and governs an overwhelming large proportion of
our economic structure, the principle of socialism and social justice cannot be pushed to such an extent so
as to ignore completely or to a very large extent, the interest of another section of the public, namely, the
private owners of the undertaking.”
In D.S Nakara v. Union of India[xxiii], the court observed that, “the basic framework of socialism is to
provide a decent standard of life to the working people and especially provide security from cradle to
grave.” The principle aim of socialist State, the Supreme Court held, was to eliminate inequality in income
and status and standard of life.
In Air India Statutory Corporation v. United Labour Union[xxiv], the Supreme Court elaborated the
concept of “socialism” and stated that the word socialism was expressly brought in the constitution to
establish an egalitarian social order through rule of law as its basic structure.
In Samatha v. State of Andhra Pradesh[xxv]the Supreme Court observed that the word Socialist used in
the Preamble must be read from the goals, Article 14,15,16,17,21,23,38,39,46 and all other cognate Articles
sought to establish, i.e. to reduce inequalities in income and status and to provide equality of opportunities
and facilities.
 Secular
In Webster’s Dictionary the word ‘secular’ has been described as a ‘view of life’, or of any particular matter
based on premise that religious considerations should be ignored or purposefully excluded or as a system of
social ethics based upon doctrine that ethical standards and conduct be determined exclusively without
reference to religion. It is the rational approach to life and it refuses to give plea for religion. For the first
time, by the 42nd amendment of the constitution in 1976, the term-‘secular’ was inserted into the Preamble
but without a definition of the term. Secular is derived from the Latin word speculum, which means an
indefinite period of time. Before the mid-nineteenth century, the word ‘secular’ was occasionally used with
contempt. Although the term secular was not included anywhere in the constitution, as it was originally
adopted on November 26, 1949, the founding fathers of the constitution were clear in their mind as to what
they meant by secularism. The word secular has no Indian origin. It traces its origin from West in context of
Christian religion. Unlike in the West, in India secularism was never born out of the conflict between the
church or the temple and the State. It was rooted in India’s own past history and culture. It is based on the
desire of the founding fathers to be just and fair to all communities irrespective of their number. The term
secular inserted by the Constitution (42nd Amendment) Act, 1976, explains that the state does not recognize
any religion as a state religion and that it treats all religions equally, and with equal respect, without, in any
manner, interfering with their individual rights of religion, faith or worship. It does not mean that it is an
irreligious or atheistic state. Nor, it means that India is an anti-religious state. It neither promotes nor
practices any particular religion, nor it interferes with any religious practice. The constitution ensures equal
freedom to all religions.
The Supreme Court in St. Xavier’s College v. State of Gujarat[xxvi], explained “secularism is neither anti-
God nor pro-God, it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters
of the state and ensures that no one shall be discriminated against on the grounds of religion”. That, every
person is free to mould or regulate his relations with his God in any manner. He is free to go to God or to
heaven in his own ways. And, that worshipping God is left to be dictated by his own conscience.
In S.R Bommai v. Union of India[xxvii], a nine judge bench of the apex court observed that the concept of
“Secularism” was very much embedded in our constitutional philosophy. What was implicit earlier had
been made explicit by the constitution (42nd amendment) in 1976.
In Aruna Roy v. Union of India[xxviii], the Supreme Court has said that secularism has a positive meaning
that is developing, understanding and respect towards different religions. The real meaning of secularism in
the language of Gandhi is “sarva dharma samabhav” meaning equal treatment and respect for all religions,
but we misunderstood the meaning of secularism as negation of all religions”. article 28 does not ban a study
of religious. The whole emphasis of Art, 28 is "against imparting religious instruction" .There is no prohibition
on ' Study of religious philosophy and culture, particularly for having value based social life in a society which is
degenerating for power, post or property'.
Recently in I.R Coelho v. State of Tamil Nadu[xxix] it has been held that secularism is a matter of
conclusion to be drawn from various Articles conferring Fundamental Rights. “If the secular character is
not to be found in Part III”, the Court ruled, “it cannot be found anywhere else in the Constitution, because
every fundamental right in Part III stands either for a principle or a matter of detail”.
In Valsamma Paul v. Cochin University[xxx], the apex court emphasised that inter-caste marriages and
adoption were two important social institutions through which “secularism” would find its fruitful and solid
base for an egalitarian social order under the Constitution of India. “Secularism,” the court said, was a
bridge between religions in a multi-religious society to cross over the barriers of their diversity. In the
positive sense it was the cornerstone of an egalitarian and forward looking society which our constitution
endeavored to establish.
 Democratic
The term Democracy is derived from Greek words ‘demos’ which means ‘people’ and ‘kratos’ which means
‘authority’. It thus means government by the people. Democracy may properly be defined as that form of
government in the administration of which the mass of adult popolutaion has some direct or indirect share.
The Supreme Court in Mohan Lal v. District Magistrate, Rai Bareilly[xxxi], observed: “[D]emocracy is a
concept, a political philosophy, an ideal practised by many nations culturally advanced and politically
mature by resorting to governance by representatives of the people elected directly or indirectly”. The basic
principle of democracy in a society governed by the rule of Law is not only to respect the will of the
majority, but also to prevent dictatorship of the majority”.
Democracy may be a direct or indirect democracy. In a direct democracy every people exercise the power of
the government. The people as a whole not only carry on the government, but can even change the
constitution by their direct vote. In an indirect democracy, the people elect their representatives who carry
on the administration of the government directly. It is also known as representative democracy. In India,
constitution provides for a Parliamentary Representative Democracy. The apex court in Union of India v.
Association for Democratic Reforms[xxxii], observed: “A successful democracy posits an ‘aware’ citizenry”.
“Democracy cannot survive”, the court said, without free and fair elections, without free and fairly informed
voters.” This states that free and fair elections are the most important features of democracy. Thus
democracy implies that all three powers of the government i.e. the executive, the legislature and the
judiciary should be separate, yet mutually independent. Democracy is also a way of life and it must
maintain human dignity, equality and rule of law.
Thus, the sovereign Constitutional state established by the framers could only be Ramrajya and people’s
democracy. Only in the democratic state the sovereignty would be vested in the people and the Nation. In
reaffirmation to the democratic principle, the Constitution was adopted, enacted and adopted by the
Constituent Assembly in the name of, and for “We, the People of India.” [xxxiii]
 Republic
A republic means a state in which the supreme power rests in the people and their elected representatives
or officers, as opposed to one governed by the king or a similar ruler. The word ‘republic’ is derived from res
publica, meaning public property or commonwealth. According to Montesquieu, “a republican government
is that in which a body, or only a part of people, is possessed of the supreme power”. The term ‘republic’ is
used in distinction to monarchy. A republic means a form of government in which the head of the state is an
elected person and not a heredity monarch like the king or the queen in Great Britain. Under such a system,
the political sovereignty is vested in the people and the head of the state is the person elected by the people
for a fixed term. In a wider sense, the word ‘republic’ denotes a government where no one holds the public
power as a proprietary right, but all power is exercised for the common good-where inhabitants are the
subjects and free citizens at the same time. The constitution of India envisions
the Indian government as a ‘republican form of government’, in which, the ultimate power resides in the
body of the people exercised via universal adult suffrage. The president of India who is the executive head of
the state is elected by the people (though indirectly) who holds office for a term of five years. All citizens are
equal in the eyes of law, there is no privileged class and all public offices are open for all the citizens without
any distinction on basis of race, caste, sex or creed.
In a republic, the state sovereignty is vested in, and held by the people, and the political power is exercised
popularly as an expression of the people’s sovereign command, grace or pleasure. The Constitution is
adopted and given to themselves by the People. The Constitution of India has been adopted enacted and
given “To ourselves by “We, the People”.
 Justice
The preamble of the constitution of India professes to secure to all its citizens political, economic and social
justice. Social justice means the abolition of all sorts of inequities which may result from the inequalities of
wealth, opportunity, status, race, religion, caste, title and the like. To achieve this ideal of social justice, the
constitution lays down the directives for the state in Part IV of the constitution.
In Air India Statutory Corporation v. United labour Union[xxxiv], the Supreme Court observed that the
aim of social justice was to attain substantial degree of social, economic and political equality which was the
legitimate expectation and constitutional goal. It was held that social justice was dynamic device to mitigate
the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to
the level of equality, to live a life with dignity of person.
The expression ‘economic justice’ means justice from the stand pint of economic force. In short, it means
equal pay for equal work, that every person should get his just dues for his labour irrespective of his caste,
sex or social status.
Political justice means the absence of any unreasonable or arbitrary distinction among men in political
matters. The constitution has adopted the system of universal adult suffrage, to secure political justice.
The expression ‘justice’ is the harmonious reconcilement of individual conduct with the general welfare of
the society. An act or conduct of a person is said to be just if it promotes the general well-being of the
community. Therefore, the attainment of the common good as distinguished from the good of individuals is
the essence of justice. Justice is considered to be the primary goal of a welfare state and its very existence
rests on the parameters of justice.
 Liberty
The preamble of constitution of India professes to secure liberty of belief, thought, expression, faith and
worship which are essential to the development of the individuals and the nation. Liberty or freedom
signifies absence of external impediments of motion. It implies absence of restraint. Liberty is power of
doing what is allowed by law. Aristotle stated that in democracy, liberty is supposed, for it is commonly held
that no man is free in any other government. Liberty is a concept of multiple strands. No universally
accepted definition of liberty exists, although statesmen and judges, among others, have attempted to give
an all-comprising definition of the same. Liberty in the preamble of constitution of India does not mean
mere absence of restraint of domination. It is a positive concept of the, ‘right to liberty of thought,
expression, belief, faith and worship’. Acharya J.B Kriplani observed that ‘liberty of thought, expression,
belief, faith and worship’ all these freedoms can be only be guaranteed on the basis of non-violence.
Democracy is closely connected with the concept of liberty. Therefore, certain minimal rights are to be
enjoyed by every person in a community for free and civilized existence in the civil society. In an ordered
society, the liberty of no individual can be absolute or unfettered. It must be subject to social control, in
order to protect the collective interests of the aggregate of the individuals who constitute that society. For
example, for prevention and investigation of crimes and the prosecution of criminals. In order, to sustain
democracy, liberty is not to degenerate into license. This has been highlighted by Justice Ramaswamy in his
dissenting opinion in Kartar Singh’s Case.[xxxv]
Liberty is the most cherished possession of a man. Liberty is the right of doing an act which the law permits.
Constitution has recognized the existence of rights in every man. “Liberty is confined and controlled by law,
whether common law or statute. It is a regulated freedom. It is not an abstract or absolute freedom. The
safeguards of liberty lie in the good sense of the people and in the system of representative and responsible
government, which has been evolved. Liberty is itself the gift of law and may by the law forfeited
abridged”[xxxvi]
It was held in Meyer v. Nebraska, “Liberty denotes not merely freedom from bodily restraint but also the
right of the individual to contract, engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to dictates of his
own conscience, and generally to enjoy those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men.”[xxxvii]
According to John Salmond, “the sphere of my legal liberty is that sphere of activity within which the law is
contend to leave me alone”The constitutional law of the country has fully guaranteed liberty through its
mechanisms, judiciary and established rules of justiciability.
 Equality
Guaranteeing of certain rights to each individual is meaningless unless all equality is banished from the
social structure, and each individual is assured of equality status and opportunity for the development of
what is best in him. Rights carry no meaning, if they cannot be enjoyed equally by all members of the
community. One of the main tasks of the constitution makers was to ensure equality of status and
opportunity for all and to provide basis for ultimately establishing an egalitarian society. They proceeded to
achieve these objectives by incorporating a set of fundamental principles into the constitution.
D.D. Basu has observed that it is the same equality of status and opportunity that the constitution of India
professes to offer to the citizens by the preamble.[xxxviii] Equality of status and opportunity is secured to
the people of India by abolishing all distinctions and discriminations by the state between citizen and
citizen on the ground of religion, race, caste sex and by throwing open ‘public places’, by abolishing
untouchablity and titles, by securing equality for opportunity in the matters relating to employment or
matters relating to employment or appointment to any office under the state. It is exactly this equality of
status and opportunity that our constitution professes to offer to the citizens by the preamble. The principle
of equality of law means not the same law should apply to everyone, but that a law should deal alike with all
in one class; that these should be equality of treatment under equal circumstances. It means “that should
not be treated unlike and unlikes should not be treated alike. Likes should be treated alike.”[xxxix]Equality
is one of the magnificent cornerstones of Indian democracy.[xl] An equality status permeates the basic
structure of the constitution.[xli]
 Fraternity
Fraternity means the spirit of brotherhood, a feeling that all people are children of the same soil, the same
motherland. The term was added to the preamble by a drafting committee of the constituent assembly, “as
the committee felt the need for fraternal concord and the goodwill in India was never greater than by
then in this particular aim of the new constitution should be emphasised by special mention in the
preamble”. The drafting committee has taken notice of the diversities of India based on race, religions,
languages and cultures. Fraternity is the cementing factor of the inherent diversities. Fraternity means
brotherhood, the promotion of which is absolutely essential for a country which is composed of many race
and religions. Brotherhood is a particular kind of relationship which links all human beings, irrespective of
gender and generation. A democratic system will function in a healthy manner only if there is a spirit of
brotherhood, oneness among the people of the land. Fraternity is not possible unless the dignity of each
individual is preserved and mutually respected. The longing for forming company paves the way for
fraternity. Peaceful co-existence, live and let live others, mutual understanding, feeling for inter-se
cooperation, attitude of adjustment, sacrifice, to be useful to others, enjoyment of common weal, solidarity
for defence of all and other good human qualities develop fraternity- are the promotion for the concept of
fraternity. The expression ‘to promote among them all’ preceding the word ‘fraternity’ is significant in this
respect. ‘Among them all’ promotes, more particularly the word ‘all’-not only among under privileged
classes but also among the entire people of India. ‘Do hereby adopt, enact’ etc. has been borrowed from the
last line the preamble of the Irish constitution. In the words of the Supreme Court- fraternity means a sense
of common brotherhood of all Indians. In a country like ours with so many disruptive forces of regionalism,
communalism and linguism, it is necessary to emphasis and re-emphasise that the unity and integrity of
India can be preserved only by a spirit of brotherhood. India has one citizenship and every citizen should
feel that he is Indian first irrespective of other basis.[xlii]
Dignity of the Individual
Dignity of the individuals is to be maintained for the promotion of fraternity. Therefore, the preamble of the
constitution of India assures the dignity of each and every individual. This dignity is assured by securing to
each individual equal fundamental rights and at the same time, by laying down a number of directives for
the state to direct its policies towards, inter alia, securing to all citizens, men and women equally, the right
to an adequate means of livelihood, just and humane conditions of work, a decent standard of life. The
constitution of India seeks to achieve ‘dignity of individual’ by guaranteeing equal fundamental rights to
each individual, so that he can enforce minimal rights, if invaded by anybody in the court of law. Dignity of
individual in a nation is the dignity of the nation itself. The preamble of constitution of India recognizes and
ensures enforcement of Fundamental Right necessary for existence, full development of personality,
dignified lives such as equality and freedom of the Indians. It is to be noted that our Supreme Court has
read the preamble with article 21 to come to the conclusion that the right to dignity is a fundamental right.

6. Interpretation Value of the Preamble

The Preamble of Indian Constitution reflects the basic structure and the spirit of the Constitution. It is
regarded that the preamble serves as a channelizing tool for the interpretation of the constitution as a
whole. The preamble acts as the preface of the constitution of India and lays down the philosophical ideas.
It represents the entire constitution in its written words.
The Preamble declares four aims in the governance of India-
 Justice- social, economic and political;
 Liberty of thoughts, expression, belief, faith and worship;
 Equality of status and opportunity;
 And Fraternity assuring the dignity of the individual and the unity and integrity of the nation.
 Preamble as Projector of ‘Desired Established State’
The Preamble proclaims the solemn resolution of the people of India to constitute India into a ‘Sovereign
socialist secular democratic republic’. The Preamble was adopted with the constitution in the constituent
assembly. It came into effect in 1950 along with the constitution. The original draft of the constitution
opened with the words ‘Sovereign Democratic Republic’ in the first line. The words ‘Socialist and Secular’
were inserted by the 42nd amendment in 1976. The same amendment contributed to the changes of the
words unity of the nation into unity and integrity of the nation. The significance of the preamble of Indian
constitution lies in the ‘We the People’. These words emphasizes that the ultimately the powers are vested in
the hands of the people of India.
According to the preamble of the constitution of India, the word Sovereign occupies a vital role in the
country. It means supreme or independent and embodies India is internally and externally sovereign and is
free from the control of any foreign power. The word Socialist also has enormous significance as it implies
economic and social equality. The word was added by the 42nd Amendment Act 1976 during the
emergency. The preamble also guarantees secularism. The word Secularism was also inserted into the
preamble by the 42nd amendment act 1976. Secularism implies equality of all religions and religious
tolerance and does not identify any state religion. The preamble of Indian Constitution also puts forth the
words Democratic and Republic. India follows a Democratic form of government. The people of India elect
their government at all levels such as Union, State and local by a system of universal adult franchise. India
is also a Republic, in a country where the head of the state is elected directly or indirectly, for a fixed tenure.
The president of India is the titular head of the state. Thus, the preamble plays a pivotal role.
 Preamble as Interpreter of Legislation and statutes:
The Constitution of India starts with a preamble which contains the spirit of the constitution. Every
legislation framed is in conformity with the spirit of the preamble and thus the constitutionality and objects
of the statutes are tested. It contains the recitals showing the reason for enactment of any legislation and
prevents the legislation to fall in the arms of ambiguity.
In Kashi Prasad v. State of U.P[xliv]the court held that even though the preamble cannot be used to defeat
the provisions of the legislation itself, but it can be used as a vital source in making the interpretation of the
legislation.
 As provider of Authority to the Indian Constitution:
The preamble to the constitution of India begins with ‘We the People of India’, thus conferring that the
authority of the constitution lies in the people of India, who have themselves led to the enactment of
constitution for their own governance.
The provision of the constitution of India cannot be overridden by the Preamble.
In Re Berubari[xlv], the Supreme Court held that the Preamble was not a part of the constitution and
therefore it could not be regarded as a source of any substantive power.
In Kesavananda Bharati’s[xlvi] case, the Supreme Court rejected the above view and held the preamble to
be a part of the constitution. The constitution must be read in the light of the preamble. The preamble could
be used for the amendment power of the parliament under Article 368 but basic elements cannot be
amended. The 42nd Amendment has inserted the words “Secularism, Socialism and Integrity” in the
preamble.
 General rules of interpretation of the constitution:
1. If the words are clear and unambiguous, they must be given full effect.
2. The constitution must be read as a whole.
3. Principles of Harmonious construction must be applied.
4. The constitution must be interpreted in a broad and liberal sense.
5. The court has to infer the spirit of the constitution from the language.
6. Internal and External aids may be used while interpreting.
7. The Constitution prevails over other statutes.

7. Conclusion
To conclude, it will not be wrong to say that the spirit or the ideology behind the Constitution is sufficiently
crystallized in the preamble. It is also right to state that preamble is the basic part of any document and it is
but obvious to our constitution because it is the supreme law of our country. The preamble declares that the
people of India adopted, enacted and gave to themselves the constitution on 26th November, 1949 but the
date of commencement of the constitution was fixed to 26 January, 1950. Article 394 provides that Articles
5, 6, 7, 8, 9, 60, 324, 367, 379 and 394 came into force on the adoption of the constitution on
26th November, 1949. The rest of the provisions of the constitution came into force on 26 th January, 1950
and this day is referred to as the commencement of the constitution. The preamble is of considerable legal
significance in so far as embodies an enacting clause. It cannot be resorted to as the basic in construing the
various provisions of the constitution, which are couched in plain language.
The Preamble highlights some of the fundamental values and guiding principles on which the constitution
is based. It is a guiding light having interpretational value. It plays a pivotal role in case of ambiguity. The
Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas and expression
it is a unique one. It embodies the spirit of the constitution to build up an independent nation which will
ensure the triumph of justice, liberty, equality and fraternity.

Union and its Territories : As provided under article 1 – 4 of the Indian Constitution
Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC No parliamentary legislation
is required to acquire a foreign territory. It is the inherent attribute of a sovereign
State to acquire new territories. Article 1(3)( c), therefore, in including the
acquired territory as a part of the Indian territory, merely states a factual situation
and does not confer a power on the Parliament to acquire a foreign territory.The
constitution of India does not guarantee the territorial integrity of any state of the
union

In N. Masthan Sahib v. Chief Commr., Pondicherry[6] , the apex court held that the
expression ‘acquired’ [article. 1 (3)(c)] should be taken to be a reference to
‘acquisition’ as understood in public international law. If there was any public
notification, assertion or declaration by which the government of India had declared or
treated a territory as part and parcel of India, the courts would be bound to recognize
an ‘acquisition’ as having taken place, with the consequence that the territory would
be part of the territory of the union within art. 1 (3) (c). A statement by the
government of India that it did not consider a particular area to have been acquired by
it is binding on the court. It does not matter how the Acquisition has been brought
about.

THE CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 1966- This Act adds two explanations to
Article 3, incorporating the decision of the Supreme Court in the Ram Kishore Sen v.
Union of India[13]. This case had clarified that the term ‘State’ in Article 3 includes
a ‘Union Territory’.[14]
Explanation 1 to article. 3 – The term “state” in clauses (a) to (e) of article. 3
include a “union territory”. But the term “state” used in proviso to article. 3 does
not include a union territory (the reason being that the union territories are under
the administration of the president himself).
Explanation 2 to article. 3 – The power conferred on parliament by clause (a) of
article. 3, to form a new state, include the power to form a new union territory also.

Part 3 of the Constitution known as the Magna Carta of India

Dr Ambedkar described Them as most criticized part of the constitution.
Maneka Gandhi v. Union of India, AIR 1978 S.C. 597, dealing with the importance of
fundamental rights, Justice Bhagwati observed, “These Fundamental rights represent the
basic values cherished by the people of this country since the Vedic times and they are
calculated to protect the dignity of the individual and create conditions in which
every human being can develop his personality to the fullest extent. They weave a
‘pattern of guarantee’ on the basic structure of the human rights, and impose negative
obligations on the State not to encroach on the individual liberty in its various
dimensions.”

Moti Lal v. State of Uttar Pradesh, AIR 1951 The object behind inclusion of them in the
Constitution is to establish ‘a government of law and not of man’. The object is to
establish rule of law. The object is not merely to provide security and equality of
citizenship of the people living in this land and thereby helping the process of nation
building, but also and not less important to provide certain standards of conduct,
citizenship, justice and fair play.

In Prem Shankar v. Delhi Administration AIR 1980 SC, Krishna Iyer, J., said that in
interpreting the Constitutional and statutory provisions the Court must not forget the
core principle found in Article 5 of UDHR, 1948. Homage to human rights which calls for
prisons, prison staff and prisoners reform, his Lordship Declared.

In M. Nagraj v. Union of India, AIR 2007 SC the Supreme Court speaking about the
importance of the fundamental rights- the fundamental rights are not the gifts from the
State to citizens. Part III does not confers fundamental rights but confirm their
existence and give them protection. Individuals possess basic human rights
independently of any Constitution by reason of basic fact that they are human race.
These rights are important as they possess intrinsic values. Its purpose is to withdraw
certain subjects from the area of political controversy to place them beyond the reach
of majorities and officials and to establish them as legal principles to be applied by
the Courts.

NEW JUDICIAL TRENDS IN INTERPRETING PROVISIONS OF PART III:

Widest Interpretation of provisions of Part III- in Maneka Gandhi Case[7], the Supreme
Court has held that the provisions of Part III should be given widest possible
interpretation. Delivering the judgement, Bhagwati, J., said, “The correct way of
interpreting the provisions of Part III is that attempt of the court should be to
expand the reach and ambit of the fundamental rights rather than to attenuate their
meaning and content”.J Bhagvati said that the role of SC should be to interpret these
rights in the widest possible manner and it should not attenuate these rights by being
confined to their narrow definition. All these rights are not mutually exclusive and
form an integrated theme of the constitution. In Gopalan’s case[8], the Court had taken
the view that each Article dealt with separate rights and there was no relation with
each other. In other words, they were mutually exclusive. This view has been held to be
wrong in Maneka Gandhi’s case[9] where the Court has taken the view that they are
mutually exclusive but form a single scheme in the Constitution that is they are all
parts of an integrated scheme in the Constitution.
Absoluteness of Fundamental Rights reasonable restriction
SC in A K Gopalan v State of Madras 1950 has also held that Fundamental Rights are not
absolute.The constitution allows reasonable restrictions to be placed on these
rights.“Your freedom ends where my freedom starts” is a well-known saying. The
constitution gives you the right to propagate your religion. But does that mean you
should force me to hear religious activities over the loudspeaker? The constitution
gives you the freedom of speech and expression. But does that mean you can publish and
sell pornography freely in open market?

PUCL vs Union of India 2004 the court normally would respect the legislative policy
behind a valid legislation which imposes reasonable restriction in the interest of the
state.

Supreme Court is the guardian of the fundamental rights.

Waiver Of Fundamental Rights Under Indian Constitution

Behram v state of Maharashtra 1955 SC Generally the question came up for the first
time in the case the majority opinion in this case was that the fundamental rights were
not kept in the constitution merely for individual benefits. These rights were put up
as a matter of public policy and therefore doctrine of waiver cannot be applied in the
case of fundamental rights. A citizen cannot invite discrimination by telling the state
‘you can discriminate’ or get convicted by waiving the protection given to him under
article 20 and 21.
Bashesharnath v. I.T commissioner 1959 SC A more detail discussion of doctrine of waive
in the case of fundamental rights was done in the case a case in which a reference
against the petitioner was made to the income tax investigation commission under
section 5(1) of the Taxation of income(investigation commission) act. After the
commission had decided upon the amount to be treated as concealed income, the
petitioner agreed for a settlement and agreed to pay rupees three lacks as tax and
penalty in monthly installments. In 1955 the Supreme Court declared section 5(1) of the
act ultravires article 14 of the constitution. The petitioner now filed an appeal
before the Supreme Court and the investigation commission challenging the settlement.
The respondents pleaded that he while agreeing for the settlement had waived his
fundamental rights. The Supreme Court on a majority basis held that the settlement was
invalid and gave several views in support to this argument and the views laid down by
the learned judges were
 1. Article 14 cannot be waived for it is an admonition to the sate as a matter of
public policy with a view to implement its object of ensuring equality. No person
can therefore, by an act or conduct relieve the state of the solemn obligation
imposed on it by the constitution.
2. A view, somewhat broader than the first was that none of the fundamental rights
can be waived by a person. The fundamental rights are mandatory on the state and
no citizen can by his act or conduct relieve the state of the solemn obligation
imposed on it.
3. The constitution makes no distinction between the fundamental rights enacted for
the benefit of an individual and those who enacted in public interest or on
grounds of public policy.
4. A large majority of the people in India are economically poor, educationally
backward and politically not yet conscious of their rights. Individually or even
collectively, they cannot be pitted against the state and therefore it is the
duty of the judiciary to protect their rights against themselves.

The Bombay high court, in the decision of Yousuf Ali Abdulla Fazalbhai v. M S kashekar
1982 SC , held that the state cannot arrogate to itself a right to commit breach of the
fundamental rights of any person by reasoning to principles of waiver or estoppels or
other similar principles.

Olga Tellis v Bombay municipal corporation 1986 SC, a case in which in a writ
proceeding in the high court, the pavement dwellers gave an undertaking that they would
not claim any fundamental right to put up huts on pavements or public roads and they
would not obstruct the demolition of the huts after a certain date. Later when the huts
were sought to be demolished after the specified date, the pavement dwellers put up the
plea that they were protected by article 21. The government contended that they could
not raise any such plea in view of their previous undertaking. The Supreme Court
overruled the objection of the government saying that fundamental rights could not be
waived. There can be no estoppels against the constitution which is the paramount law
of the land. The constitution has conferred fundamental rights not only to benefit
individuals but to secure the larger interests of the community. The court observed
that “no individual can barter away the freedom conferred on him by the constitution".

Nar Singh Pal v. Union of India 2000 SC An advance opinion was given by the apex court
in a recent decision The court held that “fundamental rights cannot be bartered away.
They cannot be compromised nor there do any estoppel against the exercise of
fundamental right available under the constitution".
In this case a telecom labourer(casual) had worked continuously for 10 years and had
thus acquired the temporary status. He was prosecuted for a criminal offence but was
ultimately acquitted. In the mean time he was terminated from service. He questioned
the order of termination but accepted retrenchment benefit. The supreme court told that
his service could not be terminated without a departmental enquiry and without giving
him a hearing. Acceptance of retrenchment benefits by him did not mean that he had
surrendered all his constitutional rights. Accordingly the order of termination was
quashed by the supreme court and he was reinstated in service.

What is State – ARTICLE 12

1. The Government and Parliament of India-Government mean any department or
institution of department; Parliament shall consist of the President, the House
of People and Council of State.
2. The Government and Legislature of each State.-State Legislatures of each State
consist of the Governor, Legislative Council, and Legislative Assembly or any of
them.
 All Local Authorities- Ajit Singh v. State of Punjab, AIR 1967 SC
 according to sub-section (31) of Section 3 of the General Clauses Act, 1897
“Local Authority” shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the
Government within the control or management of a municipal or local fund.
 According to Entry 5 of the List II of 7th Schedule ‘ local government’ includes
municipal corporation, improvement trust, district boards, mining settlement
authorities and other local authorities for the purpose of local self-government
or village administration. Village panchayat is also included within the meaning
of the term local authority.
  In Mohammad Yasin v. Town Area Committee AIR 1952 SC, the Supreme Court held
 that the Bye-laws of a Municipal Committee charging a prescribed fee on the
wholesale dealer was an order by the State Authority contravened Article 19(1)
(g). These bye-laws in effect and in substance have brought about a total
stoppage of the wholesale dealers’ business in the commercial sense.
 The Supreme Court has ruled that to be characterized as a ‘local authority’ the
authority concerned must have separate legal existence as a corporate body, it
must not be a mere government agency but must be legally an independent entity;
 it must function in a defined area and must ordinarily, wholly or partly,
directly or indirectly, be elected by the inhabitants of the area.
 It must also enjoy a certain degree of autonomy either complete or partial, must
be entrusted by statute with such governmental functions and duties as are
usually entrusted to locally like health and education, water and sewerage, town
planning and development roads, markets, transportation, social welfare services,
etc.
 Finally, such body must have the power to raise funds for furtherance of its
activities and fulfilment of its objectives by levying taxes, rates, charges or
fees.
 In Union of India v/s R.C.Jain , to be a local authority, an authority must
fulfill the following tests-
 ( i ) Separate legal existence.
 (ii) Function in a defined area.
 (iii) Has power to raise funds.
 (iv) Enjoys autonomy.
 (v) Entrusted by a statute with functions which are usually entrusted to
municipalities.


3. Other Authorities within the territory of India or under the control of

Government of India. The first two categories included the legislative and executive
wings of the Union and State in all their possible varieties. They are quite specific
and self-explanatory.

Principle of Ejusdem Generis:

In University of Madras v/s Santa Bai, the Madras High Court evolved the principle of
ejusdem generis i.e. of the like nature. So construed it could only mean authorities
exercising governmental or sovereign functions. It cannot include persons, natural or
juristic. Such as, a university unless it is ‘maintained by the State’.
In Ujjam Bai v/s Union of India ,the Supreme Court rejected the principle of ejusdem
generis.The Court rejected this restrictive interpretation of the expression ‘other
authorities’ given by the Madras High Court and held that the ejusdem generis rule
could not be resorted to the in interpreting this expression. In Article 12 the bodies
specifically named are the Government of Union and the States, the Legislature of the
Union and States and local authorities. There is no common genus running through these
named bodies nor can these bodies so placed in one single category on any rational
basis.
In Rajasthan State Electricity Board v/s Mohan Lal, it was held that to be State, it is
not necessary that the authority must be performing governmental or sovereign functions
.It should-
(i) Be created by the Constitution of India;
(ii) Have power to make laws;
The court emphasized that it is not material that some of the power conferred on the
concerned authority are of commercial nature. This is because under Art. 298 the
government is empowered to carry on any trade or commerce. Thus, the court observed “
The circumstances that the Board under the Electricity Supply Act is required to carry
on some activities of the nature of trade or commerce does not, therefore give any
indication that the ‘Board” must be excluded from the scope of the word ‘State’ is used
in Article 12.
Sukhdev Singh V. Bhagatram[8], The Supreme Court, following the test laid down in
Electricity Board Rajasthan’s Case by 4:1 majority has stated that the three statutory
bodies viz., LIC, ONGC & FCI were held to be ‘authorities’ and thus fall within the
term ‘State’ in Article 12. These corporations were created by the statutes, had the
statutory power to make binding rules & regulations and were subject to the pervasive
governmental control. These corporations do have independent personalities in the eyes
of law, but that does not mean that “they are not subject to the control of the
government or they are not instrumentalities of the government. The employees of these
statutory bodies have a statutory status and they are entitled to declaration of being
in employment when their dismissal or removal is in contravention of statutory
provisions. The employees are entitled to claim protection of Articles 14 and 16
against the corporations. Mathew, J., in a separate but concurring judgement, held that
the Public Corporations is a new type of institution which sprang from the new social
and economic functions of the government, and instead of classifying it into old legal
category, it should be adopted to the changing time and conditions. The State being an
abstract entity, could undertake trade or business as envisaged under Article 298
through an agency, instrumentality or juristic person. He preferred a broader test that
if the functions of the Corporation are of public importance and closely related to
governmental functions it should be treated an agency or instrumentality of government
and hence a ‘State’ within the ambit of Article 12 of the Constitution.
In R.D. Shetty v/s International Airport Authority, The approach in Sukhdev Singh case,
was reiterated with approval in this case. The Court laid down five tests to be other
authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.
Bhagwati, J., speaking for the Court, pointed out the corporations acting as
instrumentality or agency of government would obviously be subject to the same
limitation in the field of constitutional or administrative as the government itself,
though in the eye of the law they would be distinct and independent legal entities. If
the government acting through its officers is subject to certain constitutional and
public law limitations, it must follow a fortiori, that government acting through the
instrumentality or agency of corporations should equally be subject to the same
limitations.
Bhagwati, J., discussed in detail various factors relevant for determining whether a
body is an instrumentality or agency of the state. These factors as they were finally
summarized by him in -
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a
juristic person is State is not how it has been brought but why it has been brought. In
Ajay Hasia, the question was whether the Regional Engineering College of Srinagar was
“State” within the meaning of Article 12. The College had been established, and its
administration was carried on, by a Society that was registered under the J&K Societies
Act. Consequently, the first argument of the Society was that it had not been set up by
the government under a statute, and so could not come within the meaning of Article 12.
Unsurprisingly, following R.D. Shetty, the Court rejected this contention. It cited
R.D. Shetty copiously, and declared itself to be following its decision. The impact,
however, was rather different.
1. if the entire share capital of the corporation is held by the government, it
would go a long way towards indicating that the corporation is an instrumentality
or authority of the government.
2. Where the financial assistance of the state is so much as to meet almost entire
expenditure of the corporation it would afford some indication of the corporation
being impregnated with government character.
3. Whether the corporation enjoys monopoly status which is state conferred or state
protected.
4. Existence of deep and pervasive state control may afford an indication of that
the corporation is a state agency or instrumentality.
5. If the functions of the corporation are of public importance and closely related
to government functions it would be relevant factor in classifying a corporation
as an instrumentality or agency of government.
6. If a department of the government is transferred to corporation it would be a
strong factor supporting the inference of the corporation being an
instrumentality or agency of government.
This line of approach to the meaning of other authorities has been finally confirmed in
Som Prakash Rekhi V. Union of India[(1981) 1 SCC 449; AIR 1981 SC 212. In Som Prakash
these factors are laid down in SCC p. 471 and in AIR at 225. It may be noted that
Krishna Iyer, J., who wrote Som Prakash opinion, was common to both the cases and since
the decision in both the cases were pronounced on the same day it is natural, that
Krishna Iyer, J., fully knew what was being said by his brother Bhagwati, J., in Ajay
Hasia.]. Applying the criteria laid down in the International Airport Authority case,
the Supreme Court reached the conclusion that there is enough material to hold that the
Bharat Petroleum Corporation registered as a company under the Companies Act, is State
within the enlarged meaning of Art. 12. Consequent upon takeover of Burmah Shell under
the Burmah Shell (Acquisition of Undetakings in India) Act, 1976, the right, title and
interest of the company stood transferred and vested in the Government of India.
Thereafter, the Central Government took necessary steps for vesting the undertaking in
the BPC Ltd. which became the statutory successor of the petitioner employer. Krishna
Iyer, J., speaking for himself and Chinnapa Reddy. J., Pathak, J. concurring, observed
that the various provisions of the Act of 1976 have transformed the corporation into an
instrumentality of the Central Government with a strong statutory flavour super-added
are clear indicia of power to make it an ‘authority’. Although registered as a company
under the Companies Act, the BPC is clearly a creature of the statute, a limb of
government, an agency of the State and is recognized and clothed with rights and duties
by the Statute.

Chandra Mohan Khanna v. NCERT[29], NCERT, has been held to be outside the scope of
Article 12. NCERT is a society registered under Societies Registration Act. It is
largely an autonomous body; its activities are not wholly related to governmental
functions; governmental control is confined mostly to ensuring that its funds are
properly utilized; its funding is not entirely from government sources.

However, the triumph of the legal test was completed in 2002, in the case of Pradeep
Kumar Biswas vs Indian Institute of Chemical Biology, a judgment delivered by a seven-
judge bench. The factual matrix of the case is complex: briefly, it involved the
reconsideration of Sabhajit Tewari’s case, in which a Constitution bench had held that
the Council of Scientific and Industrial Research was not “State” within the meaning of
Article 12.The court ruled that there is no hard and fast rule that registered
societies having link with the government are always state. In Pradeep Biswas v. Indian
Institute of Chemical Biology, (2002) 5 SCC 111, Seven Judges Bench of Supreme Court
held:

(a). Test formulated in Ajay Hasia is not rigid in principle that needs to be complied
with in all cases without exception.
(b). All cases are to be determined in the light of their specific cumulative facts, to
see, financial, functional and administrative domination coupled with the government
control. Control should not be perfunctory, but should be deep and pervasive.

Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC”also followed the Pradeep Kumar
Biswas decision and ruled that the BCCI is not a state. The case was decided by a
majority of 3 to 2. It was held that, functions or duties of a public nature performed
by a body not prohibited by law does not make the body “State” for the purposes of
Article 12. It was held that BCCI is not a State within the purport of Article 12.
Very briefly, for a few decades, the Court fluctuated between a ‘functional test’
(i.e., looking to the functions a body is performing in order to determine whether it
could be equated to ‘State’ under Article 12, and therefore subject to fundamental
rights claims), and a ‘legal’ test (i.e., whether the legal form of the body can be
equated with that of the State). In Pradeep Kumar Biswas, and then in Zee Telefilms,
the Court finally – and decisively – adopted the legal test, holding that a body fell
within Article 12 only if it was “functionally, financially or administratively” under
the control of the State.

Board of Control for Cricket in India v. Cricket Association of Bihar,

(2015) 3 SCC 251
From paragraph 20 to 29, Thakur CJI recounted the judicial history of Article 12, with
its culmination in Zee Telefilms. In paragraph 30, he explained why, in his view, the
BCCI was performing a ‘public function’. The reasons can be broadly summarised as
follows:

 The BCCI had complete control over the game of cricket in India (including
control over the careers of players)
 The BCCI’s activities were of considerable financial scope (infrastructure,
expenditure on coaches, pension schemes, selling broadcast and telecast
rights)
 The BCCI was exercising these functions with the “tacit concurrence” of the
government, which had chosen not pass any law diluting the BCCI’s monopoly.

For this reasons, Thakur CJI held that the BCCI would be subject to “the standards
generally applicable to judicial review of State action.” Later in the judgment, he
noted that the setting up of the Probe Committee “was issued in exercise of appellate
powers vested in this Court in proceedings under Article 226 of the Constitution” –
thus linking the Court’s actions to the public function test, via Article 226.

Court held that private bodies performing public functions are directly subject to Part
III of the Constitution. It treated the BCCI’s internal regulations as a statute, and
then applied Article 14 to it. This would seem to mark a return of the functional test
through the back door, with the rider that since private bodies performing public
functions are (technically) not ‘State’, you cannot go straight to the Supreme Court
under Article 32, but must first go to the High Court under Article 226.
This approach saw its culmination in the Zee Telefilms Case – which, as a matter of
fact, was about the Article 12 status of the BCCI (!). After holding that the BCCI was
not State under Article 12, on an application of the control test, the Court then went
on to observe that ““it cannot be denied that the Board does discharge some duties like
the selection of an Indian cricket team, controlling the activities of the players and
others involved in the game of cricket. These activities can be said to be akin to
public duties or State functions and if there is any violation of any constitutional or
statutory obligation or rights of other citizens, the aggrieved party may not have a
relief by way of a petition under Article 32. But that does not mean that the violator
of such right would go scot-free merely because it or he is not a State. Under the
Indian jurisprudence there is always a just remedy for violation of a right of a
citizen. Though the remedy under Article 32 is not available, an aggrieved party can
always seek a remedy under the ordinary course of law or by way of a writ petition
under Article 226 of the Constitution which is much wider than Article 32.”

IS JUDICIARY INCLUDED IN THE WORD ‘STATE’?

In Naresh v. State of Maharashtra[32], it was held that even if a court is thee State a
writ under Art. 32 cannot be issued to a High Court of competent jurisdiction against
its judicial orders, because such orders cannot be said to violate the fundamental
rights. What the judicial decisions purports to do is to decide the controversy between
the parties and nothing more. The court said that the ‘judiciary’ while exercising its
rule-making power under Art. 145 would be covered by the expression ‘State’ within the
meaning of Art. 12, but while performing its judicial functions, it is not so included.
In Rupa Ashok Hurra v. Ashok Hurra[33], the apex court has re-affirmed and ruled that
no judicial proceeding could be said to violate any of the fundamental rights. It was
said to be settled position of law that the superior courts of justice did not fall
within the ambit of ‘State’ or ‘other authorities’ under Art. 12.
In A. R. Antulay v. R.S. Nayak[34], it was held that the court could not pass an order
or issue a direction which would be violative of the fundamental rights, thus, it can
be said that the expression ‘state’ includes judiciary also.
It is submitted that the judiciary, though not expressly mentioned in Art. 12, it
should be included so, since the courts are set up by statute and exercise power
conferred by law. It is so suggested that discrimination may be brought about… even
(by) judiciary. The courts, like any other organ of the state, are limited by the
mandatory provisions of the Constitution.
Recent cases
1. Madhya Pradesh Cooperative Dairy Federation Limited v. Rajnesh Kumar Jamindar &
Ors., (2009) 15 SCC 221: Federation in the present case was a ‘federal society’
registered under the Madhya Pradesh Cooperative Societies Act, 1960. Federation
undertook the work of not just research and training but also monitoring of other
such societies established under it, as an Apex Body. Guidelines issued by the
Federation were binding on the societies established under it. The Court held
that, the Federation carries out not only commercial activities, but also works
for achieving- better economic development and public health; it caters to the
spirit of Article 47. It was concluded by the court that, by virtue of the
operations carried out by the Federation, it can be termed as an agency or
instrumentality of the State.
2. Dalco Engineering (P) Ltd. v. Satish Prabhakar, (2010) 4 SCC 378: It was held
that, the terminology, “corporation established by or under a Central, Provincial
or State Act”, as has been used in several enactments intends to convey a
standard meaning. This terminology makes reference to “statutory corporations”
as contrasted from “non-statutory companies”.
Article 13
Effect on existing laws :- Article 13(1) is prospective in nature that is, they operate
from the date of the commencement of the Constitution and not retrospectively. All pre-
constitution or existing laws shall be void only if they are inconsistent with the
fundamental rights enshrined in Part III of the Constitution.
In Keshwa Madhava Menon v. State of Bombay, AIR 1951 SC
· Petitioner was prosecuted under a press law for publishing a pamphlet
without permission. While prosecution was ongoing constitution was commenced
and he challenged the act as unconstitutional. Issues arose
o Whether sections 15(1) And 18(1) read with the definitions contained in
sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act,
1931, were inconsistent with article 19(1)(a)read with clause (2) of
that article?
o And assuming that they were inconsistent, whether the proceedings
commenced under section 18(1) of that Act before the commencement of the
Constitution could nevertheless be proceeded with?
· Since constitutional rights came from date of commencement of
constitution the question of the inconsistency of the existing laws with those
rights must necessarily arise on and from the date those rights came into
being. It must follow, therefore, that article 13(1) can have no retrospective
effect but is wholly prospective in its operation.
· Also Article 13(1) does not make such laws void ab initio for all
purposes but to extent of inconsistency with fundamental rights. The voidness
of the existing law is limited to the future exercise of the fundamental
rights.
· The Court held that every statute is prima facie prospective unless it
is expressly or by necessary implication made retrospective.
· J. Fazl Ali (Dissenting)

Article 13 is the key provision as it makes fundamental rights justiciable. It confers

a power, and imposes an obligation, on the courts to declare a law void if it is
inconsistent with a fundamental right. This is a power of great consequence for the
courts. The Supreme Court figuratively characterized this role of the courts as that of
a 'sentinel on the qui vive\7

The courts do not declare a statute unconstitutional lightly, generally leaning towards
the constitutionality of a statute on the premise that a legislature understands the
needs of the people.

To adjudicate whether a statute is inconsistent with a fundamental right, the Supreme

Court has expounded several formulae and, speaking generally, the particular formula
which may promote the validity of the statute in question, may be adopted by the court
in the specific situation. One such formula is that a law cannot be challenged under a
fundamental right unless the law is directly in respect of the fundamental right
concerned. Thus, a law can be attacked under article 19(l)(a) (freedom of speech), if
it directly abridges the freedom of speech; but if it touches the article only
incidentally or indirectly, it cannot be challenged under this article. Naresh v State of
Maharashtra AIR 1967 SC 1. Also see Ram Singh v
State of Delhi AIR 1951 SC

The test of 'real effect and impact'

Another test applied in some cases, very much like the above test, is that of 'pith and
substance'. It involves determining what is the 'pith and substance' of the law in
question and which fundamental right does it affect. State of Bombay v RMDC AIR 1957 SC 699. Also
Dwarkadas v
Sholapur Mills AIR 1954 S In some cases, the test of 'real effect and impact' of the impugned
legislation on the fundamental right in question has been applied. In re the Kerala Education Bill
AIR 1958 SC 956; Express
Newspapers v India AIR 1958 SC 578; R.C. Cooper v Union of India AIR
1970 SC 564; Sakal Papers v Union of India AIR 1962 SC 305 Clearly, the Supreme Court keeps a number
of options open to itself. This gives to the judicial review some flexibility and
elasticity and to the courts a good deal of manoeuvrability in discharging their
function of judicial review.

(A) Doctrine of Severability It is not the whole Act which would be held invalid by
being inconsistent with Part III of the Constitution but only such provisions of it
which are violative of the fundamental rights, provided that the part which violates
the fundamental rights is separable from that which does not isolate them. But if the
valid portion is so closely mixed up with invalid portion that it cannot be separated
without leaving an incomplete or more or less mingled remainder the court will declare
the entire Act void. This process is known as doctrine of severability or separability.
In Pannalal Binjraj v Union of India, (1957) SCR ,it was held that Art. 13 has
retrospective effect. Under the Indian Constitution, Clauses (1) and (2) of Art. 13
provide for the application of the above doctrine. Both the clauses deal with the
contravention of fundamental rights as contained in the Part III.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, A.I.R.
1950 S.C. 27 and held that the preventive detention minus section 14 was valid as the
omission of the Section 14 from the Act will not change the nature and object of the
Act and therefore the rest of the Act will remain valid and effective However, the court has
no jurisdiction to redraft the legislation. The court cannot sever one single provision which covers valid as
well as invalid subjects in order to save some portion of it.
The doctrine was applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the
Act remained valid while the invalid portion of it was declared invalid because it was
severable from the rest of the Act.
In State of Bombay v. F.N. Balsara, A.I.R. 1951 S.C. 318 it was held that the
provisions of the Bombay Prohibition Act, 1949 which were declared as void did not
effect the validity of the entire Act and therefore there was no necessity for
declaring the entire statute as invalid. Eight Provisions of Bombay Prohibition Act
were held to be unconstitutional.

The doctrine of severability has been elaborately considered by the Supreme Court in
R.M.D.C. v. Union of India, AIR 1957 S.C.Section 2(d) of Prize Competition Act which
was wide enough to prohibit gambling as well as game of skills. The power of the court
to strike out invalid provisions of an Act must not be exercised beyond the necessity
of the case and the following rules regarding the question of severability has been
laid down:
(1) The intention of the legislature is the determining factor in determining whether
the valid part of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot
be separated from the another, then the invalidity of a portion must result in the
invalidity of the Act in its entirety. On the other hand, if they are so distinct and
separate that after striking out what is invalid what remains is itself a complete code
independent of the rest, then it will be upheld notwithstanding that the rest had
become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those
which are invalid if they form part of a single scheme which is intended to be
operative as a whole, then also the invalidity of a part will result in the failure of
the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not
form part of a Scheme but what is left after omitting the invalid portion is so thin
and truncated as to be in substance different from what it was when it emerged out of
legislature, then also it will be rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend
on whether provisions are enacted in same section or different section, it is not the
form but the substance of the matter that is material and that has to be ascertained on
an examination of the Act as a whole and of the setting of the relevant provisions
therein.
(6) If after the invalid portion is expunged from the Statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it
must be struck down as void as otherwise it will amount to judicial legislation.
(7) In determining the legislative intent on the question of severability, it will be
legitimate to take into account the history of legislation, its object, the title and
preamble of it.
Minerva Mills Ltd v. Union of India AIR 1980 SC 1789The supreme court struck down
sections 4 and 55 of the constitution (42nd Amendment) act 1976 as ultra vires i.e
beyond the amending power of the parliament. These two sectionswere declared void and
severed from the act so as to make the remaining part of the act constitutionally
valid.

(B) Doctrine of Eclipse. - The Doctrine of Eclipse is based on the principle that a law
which violates fundamental rights, is not nullity or void ab initio but becomes, only
unenforceable i.e. remains in a moribund condition. "It is overshadowed by the
fundamental rights and remains dormant, but it is not dead." Such laws are not wiped
out entirely from the statute book. They exist for all post transactions and for the
enforcement of the rights acquired and liabilities incurred before the commencement of
the Constitution. It is only against the citizens that they remain in a dormant or
moribund condition but they remain in operation as against non-citizens who are not
entitled to fundamental rights.

For solving such a problem, Supreme Court formulated the doctrine of eclipse in
Bhikhaji v. State of M.P., AIR 1955 S.C. 781. In this case the provisions of C.P. and
Berar Motor Vehicles (Amendment) Act 1948 authorised the State Government to take up
the entire motor transport business in the Province to the exclusion of motor transport
operators. This provision though valid when enacted, but became void on the
commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the
Constitution. However, in 1951 Clause (6) of Article 19 was amended by the
Constitution's (1st Amendment Act) so as to authorise the Government to monopolise any
business. The Supreme Court held that the effect of the amendment was to remove the
shadow and to make the impugned Act free from blemish or infirmity. It became
enforceable against citizens as well as non-citizens after the constitutional
impediment was removed. This law was eclipsed for the time being by the fundamental
rights. As soon as the eclipse is removed, the law begins to operate from the date of
such removal.
The Supreme Court of India in its earlier decisions had applied the doctrine of
eclipse only to pre-constitutional laws but later on in the case of the state of
Gujarat vs. Shri Ambika Mills (1974). It stated that the doctrine can be extended to
the post constitutional laws as well.
State of Gujarat v. Shri Ambika Mills (1974)

though the doctrine of eclipse was not an issue, the Court through its decision made it
clear that the doctrine applied to both pre‐constitutional as well as
post‐constitutional laws. Mathew J observed that ‘…any statement that a law which takes
away or abridges fundamental rights conferred under Part III is still born or null or
void requires qualification in certain situations. Although the general rule is that a
statute declared unconstitutional is void at all times and that its invalidity must be
recognized and acknowledged for all purposes and is no law and nullity, this neither
universal nor absolutely true, and there are many exceptions to it.’ It is submitted
that the view which holds that ‘void’ under Art. 13(2) can only be void against persons
whose fundamenta l rights are taken away or abridged by law, seems reasonable and
convincing. The law might be ‘still born’ so far as the persons, entities or
denominations whose fundamenta l rights are taken away or abridged but there is no
reason why the law should be void or still born as against those who have no such
rightsxlvi. Mathew J in Ambica Mills makes a valid point when he reasonsxlvii: …[T]he
real reason why it (pre‐constitutional law) remains operative as against non‐citizens is
that it is void only to the extent of its inconsistency with the rights conferred under
Art. 19 and that its voidness is, therefore, confined to citizens, as, ex hypothesi,
the law became inconsistent with their fundamental rights alone. If that be so, we see
no reason why a post‐constitutional law which takes away or abridges the rights
conferred by Art. 19 should not be operative in regard to the non‐citizens as it void
only to the extent of the contravention of the rights conferred on citizens, namely,
those under Art.

Dulare lodh versus additional district judge Kanpur 1984 SC the supreme court applied
the doctrine of eclipse to post constitutional law even against citizen. by virtue of
the Amendment Act 1976 adding 3 which was lying dormant and could not be executed
became executable. A void statute can be revived by Constitutional Amendment by virtue
of article 31b such curing of defect took place with retrospective operation from the
date on which the acts were put on the statute book
Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, R. C. Cooper v. Union of
India - a Corporation is not a citizen for the purposes of Article 19 and has,
therefore, no fundamental right under that article
The real question, therefore, is, even if a law takes away or abridges the fundamental
right of citizens under Article 19(1)(f), whether it would be void and therefore non-
est as respects non-citizens
Keshava Madhava Menon v. State of Bombay (1951) - This decision takes the view that the
word 'void' in Article 13(1) would not have the effect of wiping out pre- Constitution
laws from the statute book, that they will continue to be operative so far as
noncitizens are concerned, notwithstanding the fact that they are inconsistent with the
fundamental rights of citizens and therefore become void under Article 13(1).
Deep Chand v. State of U.P [1959] - a post- Constitution law is void from its inception
but that a pre-Constitution law having been validly enacted would continue in force so
far as non-citizens are concerned after the Constitution came into force. This is so
because prior to commencement of constitution legislature had competence to pass such
act but after commencement of constitution legislature does not has the competence to
pass unconstitutional laws.
Mahendra Lal Jain v. State of U.P. [1963] - that it arises from the inherent difference
between Article 13(1) and Article 13(2) arising from the fact that one is dealing with
pre-Constitution laws, and the other is dealing with post- Constitution laws, with the
result that in one case the laws being not still-born the doctrine of eclipse will
apply while in the other case the law being still-born there will be no scope for the
application of the doctrine of eclipse
Therefore, the real reason why such law remains operative as against non-citizens is
that it is void only to the extent of its inconsistency with the rights conferred under
Article 19 and that its voidness is, therefore, confined to citizens, as, ex hypothesi,
the law became inconsistent with their fundamental rights alone.
Article 13(2) uses the expression 'void', it can only mean, void as against persons
whose fundamental rights are taken away or abridged by a law. The law might be 'still-
born' so far as the persons, entities or denominations whose fundamental rights are
taken away or abridged, but there is no reason why the law should be void or 'still-
born' as against those who have no fundamental rights.

The extension to the post-constitutional law was stated in the case of Dulare Lodh vs
ADJ Kanpur.
(C) Doctrine of Waiver. - Can a person waive his fundamental right ? A reference to the
doctrine of waiver was first made in
Behram v. State of Bombay, AIR 1955 S.C. 123. While discussing the question of legal
effect of a statute being declared unconstitutional, Justice Venkatarama Aiyer gave the
opinion that a law, unconstitutional by reason of its repugnancy to a fundamental right
which is enacted for the benefit of individuals and not for the benefit of the general
public, is not a nullity but merely enforceable and such an unconstitutionality could
be waived, in which case the law becomes unenforceable for that individual e.g. the
right guaranteed under Article 19(1)(f) is for the benefit of the owners of property
and when a law is found to infringe that provisions, it is open to any person whose
right has been infringed to waive it, and when there is a waiver there is no legal
impediment to the enforcement of the law.

The question of waiver directly arose in Bashesher Nath v. Income Tax Commissioner, AIR
1959 S.C. 149. The petitioner whose case was referred to the Income Tax Investigation
Commissioner under Section 5(1) of the Act, was found to have concealed large amount of
income. He thereupon agreed at a settlement in 1954 to pay Rs. 3 lacs in monthly
installments by way of arrears of tax and penalty. In 1955, the Supreme Court in other
cases declared Section 5(1) ultra vires Article 14. The petitioner thereupon challenged
the settlement between him and the Commissioner. The main question that arose for
consideration was whether or not, the assessee had waived his fundamental right under
Article 14 by entering into the settlement. In this case the Supreme Court held "A
large majority of our people are economically poor, educationally backward and
politically not conscious of their rights. Individually or even collectively, they
cannot be pitted against the State Organisations and institutions, nor can they meet
them on equal terms. In such circumstances it is the duty of the court to protect their
rights against themselves." In the end, the court upheld unanimously that the
petitioner could not waive his rights under Article 14 of the Constitution.

it does not include constitutional amendments under Art. 368.

In Shankri Prasad v Union of Indiaxxv, Supreme Court adopted a literal interpretation
of the constitution, and observed that an amendme nt under Art. 368 was enacted in the
exercise of its constituent power while the term law used under Art. 13 referred to the
exercise of ordinary legislative power conferred on the Parliament by provisions of the
Constitution other than Art. 368. Therefore, it was held that Art. 13(2) does not
affect the amendments made under Art. 368.

In Sajjan Singh v State of Rajasthan,xxvi the same question that was raised in Shankri
Prasad was again raised before the Court, and the majority reiterated the conclusion of
Shankri Prasad.
However, in L.C. Golaknath v State of Punjabxxvii the majority (6:5) held that an
amendment made under Art. 368 is a law, and is subject to Art. 13. Thus, the earlier
two cases, Shankri Prasad and Sajjan Singh, were overruled. The Constitution (Twenty
Fourth Amendment) Act, 1971 inserted the Clause (4) which provided that ‘Nothing in
this Art. shall apply to any amendment of this Constitution made under Art. 368.’

The Supreme Court in Kesavananda Bharati v State of Kerala upheld the Constitutionality
of the above amendment. Therefore it is settled that ‘law’ under Art. 13 excludes an
amendment of the Constitution made under Art. 368.

RIGHT TO EQUALITY UNDER ARTICLE 14

EQUALITY BEFORE LAW
Its origin is from America. And somehow it's negative concept. It aims at implying the
absence of any special privilege by reason of birth, sex, religion etc in favor of
individuals and the equal subject of all the classes to the ordinary law
“Thus, the right to equality in the Constitution of India is not merely a negative
right not to be discriminated against but also a positive right to be treated as an
equal. Under the later aspect of the right, which is the essence and core of the right
to equality, the State is under the obligation to take necessary steps so that every
individual is given equal respect and concern which he is entitled to as a human
being.”
In Sri Srinivasa Theatre v. Govt. of Tamil Nadu (1992) 2 SC, the Supreme Court
explained that the two expressions equality before law and equal protection of law do
not mean the same thing even if there may be much in common between them. Equality
before law is a dynamic concept having many facets. One facet is that there shall be no
privileged person or class and that none shall be above law. Another facet is the
obligation upon the State to bring about, through the machinery of law, a more equal
society or, equality before the law can be predicated meaningfully only in equal
society.

Chiranjit Lal Chawdhary v. Union of India, AIR 1951 SC 51 Article 14 uses the term ‘any
person’, natural or artificial, whether he is a citizen or alien, is entitled to the
protection under the provision.

EQUAL PROTECTION OF LAW

Its origin is from British. And some how it is a positive concept. it aims at equality
of treatment in equal circumstances. It means whether someone is P.M. or President he
should be deal with same law as normal being deals with

In State of West Bengal v. Anwar Ali Sarkar[9], the Court rightly observed that the
second expression is the corollary of the first and it is difficult to imagine a
situation in which the violation of equal protection of laws will not be the violation
of the equality before the law. Thus, in substance the two expressions mean one and the
same thing.
In Re Special Courts Bill, 1978[10], Chandrachud, J., observed: “The underlying
principle of the guarantee of Art. 14 was that all persons similarly circumstanced
should be treated alike both in privileges conferred and liabilities imposed.”

EXCEPTION TO THE RULE OF EQUALITY- Under Art. 359, when the proclamation of emergency
is in operation, the enforcement of Art. 14 may be suspended during that period. Art.
361 provides that president and governors shall not be answerable to any Court for the
exercise and performance of the powers and duties of office. They also enjoy immunity
from criminal and civil proceedings until certain conditions are fulfilled.
Members of Parliament and of State Legislature are not liable in respect of anything
done or said within the House (Arts. 105 and 194). Foreign Diplomats are immune from
the jurisdiction of Courts. Art. 31 C forms an exception by excluding some laws [for
implementing any of the directive principles specified in Art. 39(b) or (c)] from the
purview of Art. 14.

RULE OF LAW
The guarantee of equality before the law is an aspect of what Dicey calls the Rule OF
Law in England. It means that no man is above the law and that every person whatever be
his rank or condition is subject to the jurisdiction of ordinary courts.
Rule of law require that no person shall be subjected to harsh, uncivilized or
discriminatory treatment even when the object is the securing of the paramount
exigencies of law and order.
Professor Dicey gave three meanings of the Rule Of Law
1. Absence of arbitrary power or supremacy of the law
It means the absolute supremacy of law as opposed to the arbitrary power of the
Government. In other words-a man may be punished for a breach of law,but he can't be
punished for anything else.
2. Equality before law
It means subjection of all classes to the ordinary law of land administered by ordinary
law courts. This means that no one is above law all are equal in eyes of law
3. Absence of individual liberty
There are various constitution that provide individual liberty but not provide method
It means that the source of the right of individuals is not the written constitution.
U.K. don’t have provision for individual liberty.
Rubinder Singh v. Union of India, AIR 1983 SC Rule of law requires that no person shall
be subjected to harsh, uncivilized or discriminatory treatment even when the object is
the securing of the paramount exigencies of law and order.
Rule Of Law In India
1. Supremacy of Law:
The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be
made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land. It implies that a man may
be punished for a breach of law but cannot be punished for anything else.
2. Equality before Law:-
The Second meaning of the Rule of Law is that no man is above law. Every man whatever
be his rank or condition is subject to the ordinary law of the realm and amenable to
the jurisdiction of the ordinary tribunals. Everybody under Article 14 is equal before
law and have equal protection.
3. Individual Liberty

lot of individual liberty is mention like fundamental right in Article 21- protection
of life and personal liberty, article 19- Right to freedom etc. and courts are their to
protect individual liberty.
The first and second aspect apply to Indian system but the third aspect of the diceys
rule of law does not apply to Indian system as the source of right of individuals is
the constitution of india. The constitution is the supreme law of the land and all laws
passed by the legislature must be consistent with provisions of the constitution
Raghubir Singh v. State of Haryana, AIR 1980 SC The rule of law imposes a duty upon the
state to take special measure to prevent and punish brutality by police methodology.

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC The Rule of Law embodied in Article 14
is the ‘basic feature’ of the Indian Constitution and hence it cannot be destroyed even
by an amendment of the Constitution under Article 368 of the Constitution.

Exception To Rule OF Law

The above rule of equality is however not an absolute rule and there are number
exception to it
‘Equality of Law’ does not mean the power of the private citizens are the same as the
power of the public officials. Thus a police officer has the power to arrest you while
no other private person has this power. This is not violation of rule of law. But rule
of law does require that these powers should be clearly defined by law and that abuse
of authority by public officers must be punished by ordinary courts.
The rule of law does not prevent certain class of persons being subject to special
rules. Thus members of armed forces are controlled by military rules. Similarly
medical practitioners are controlled by medical council of India
Certain members of society are governed by special rules in their profession i.e.
lawyers, doctors, nurses, members of armed forces and police. Such classes of people
are treated differently from ordinary citizens.
Article 14 Permits Classification But Prohibits Class Legislation

PUBBIRI V. S. GOVINDA MUDALIAR AND ORS.Madras High Court 1959

The equal protection of laws guaranteed by Article 14 does not mean that all laws must
be general in character. It does not mean that the same laws should apply to all
persons. It does not attainment or circumstances in the same position. The varying
needs of different classes of persons often requires separate treatment. From the vary
nature of society there should be different laws in different places and the legitimate
controls the policy and enacts laws in the best interest of the safety and security of
the state. In fact identical treatment in unequal circumstances would amount to
inequality. So a reasonable classification is only not permitted but is necessary if
society is to progress.

The State Of West Bengal vs Anwar Ali Sarkar 1952

Thus what Article 14 forbids is class-legislation but it does not forbid reasonable
classification. The classification however must not be “arbitrary ,artificial or
evasive” but must be based on some real and substantial bearing a just and reasonable
relation to the object sought to be achieved by the legislation. Article 14 applies
where equals are treated differently without any reasonable basis. But where equals and
unequals are treated differently, Article 14 does not apply. Class legislation is that
which makes an improper discrimination by conferring particular privileges upon a class
of persons arbitrarily selected from a large number of persons all of whom stand in
the same relation to the privilege granted that between whom and the persons not so
favored no reasonable distinction or substantial difference can be found justifying the
inclusion of one and the exclusion of the other from such privilege.

Re Special Courts Bill , 1978 AIR 1979 SC 478

By the process of classification, the State had the power of determining who should be
regarded as a class for purposes of legislation and in relation to a law enacted on a
particular subject. Classification meant segregation in classes which had a systematic
relation, usually found in common properties and characteristics. It postulated a
rational basis and did not mean herding together of certain persons and classes
arbitrarily.

State of A.P. v. N.R. Reddi (2001) 7 SCC 708

Class legislation is that which makes an improper discrimination by conferring
particular privileges upon a class of persons arbitrarily selected. And no reasonable
distinction can be found justifying the inclusion of one and exclusion of other from
such privilege. While Art. 14 forbids class legislation, it permits reasonable
classifications of persons, objects and transactions by the legislature for the purpose
of achieving specific ends. In other words, what Art. 14 prohibits is class legislation
and not classification for the purpose of legislation.

Test Of Reasonable Classification

The State Of West Bengal vs Anwar Ali Sarkar 1952
- While Article 14 forbids class legislation it does not forbid reasonable
classification of persons, objects, and transactions by the legislature for the purpose
of achieving specific ends. But classification must not be “arbitrary ,artificial or
evasive”. It must always rest upon some real upon some real and substantial distinction
bearing a just and reasonable relation to the object sought to be achieved by the
legislation. Classification to be reasonable must fulfil the following two conditions

Firstly the classification must be founded on the intelligible differentia which

distinguishes persons or thing that are grouped together from others left out of the
group

Secondly the 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
two distinct things. What is necessary is that there must be nexus between the basis
of classification and the object of the act which makes the classification. It is only
when there is no reasonable basis for a classification that legislation making such
classification may be declared discriminatory. Thus the legislature may fix the age at
which persons shall be deemed competent to contract between themselves but no one will
claim that competency. No contract can be made to depend upon the stature or colour of
the hair. Such a classification will be arbitrary.

The true meaning and scope of Article 14 have been explained in a number of cases by
the supreme court. In view of this the propositions laid down in Ramkrishna Dalmia v
Justice Tendolkar AIR 1958 case still hold good governing a valid classification and
are as follows.

1.A law may be constitutional even though it relates to a single individual if on

account of some special circumstances or reasons applicable to him and not applicable
to others, that single individual may be treated as a class by itself
2. There is always presumption in favour of the constitutionality of a statute and the
burden is upon him who attacks it to show that there has been a clear transgression of
constitutional principles.
3.The presumption may be rebutted in certain cases by showing that on the fact of the
statue, there is no classification and no difference peculiar to any individual or
class and not applicable to any other individual or class, and yet the law hits only a
particular individual or class
4. It must be assumed that Legislature correctly understand and appreciates the need
of its own people that its law are directed to problem made manifest by experience and
that its discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of report, the history of the times
and may assume every state of facts which can be conceived existing at the time of the
legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its
restriction to those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a
legislature are to be presumed, if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the court on which the
classification may reasonable be regarded as based, the presumption of
constitutionality cannot be carried to extent always that there must be some
undisclosed and unknown reason for subjecting certain individuals or corporation to be
hostile or discriminating legislation
8.The classification may be made on different bases e.g. geographical or according to
object or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or
logically complete.Mathematical nicety and perfect equality are not required.
Equality before the law does not require mathematical equality of all persons in all
circumstances. Equal treatment does not mean identical treatment. Similarly not
identity of treatment is enough.
10. There can be discrimination both in the substantive as well as the procedural law.
Article 14 applies to both.
If the classification satisfies the test laid down in the above propositions, the law
will be declared constitutional. The question whether a classification is reasonable
and proper and not must however, be judged more on common sense than on legal
subtitles.

In Re Special Courts Bill[19], the Supreme Court has however warned against over-
emphasis on classification. The Court has explained that ‘the doctrine of
classification is only a subsidiary rule evolved by the courts to give practical
content to the doctrine of equality, over-emphasis on the doctrine of classification or
anxious or sustained attempt to discover some basis for classification may gradually
and imperceptibly erode the profound potency of the glorious content of equity
enshrined in Art. 14 of the Constitution. The over-emphasis of classification would
inevitably result in substitution of the doctrine of classification for the doctrine of
equality.
If there are two laws covering a situation, one more drastic than the other, there is
the danger of discrimination if the Administration has a discretion to apply any of
these laws in a given case. Of the two persons placed in similar situation, one may be
dealt with under the drastic law and the other under the softer law. To minimize any
chance of such discrimination, the court insist that the drastic law should lay down
some rational and reasonable principle or policy to regulate administrative discretion
as to its application. If the drastic law fails to do so, then it will be void under
Art. 14.

A single individual may constitute a class

Statute based on a reasonable classification does not become invalid merely because the
class to which it applies consists of only one person. A single body or institute may
form a class. A legislation specifically directed to a named person or body would be
valid if, on account of some special circumstances, or reasons applicable to that
person, and not applicable to others, the single persons could be treated as a class by
himself. The Act may however be bad if there are no special circumstances
differentiating the person concerned from the rest, or if other having the same
attributes are not covered by the Act.
In Chiranjit Lal Chawdhary V. Union of India[26], the petitioner approached the Supreme
Court for the protection against the enforcement of a Central Act, the Sholapur
Spinning and Weaving Co. (Emergency Provisions) Act, 1950. The petitioner was an
ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. On Account of
mismanagement and neglect of the affairs of the Company a situation had arisen that
brought about the closing down of the mill. The action of the company prejudicially
affected the production of an essential commodity, apart from causing serious
unemployment amongst certain sections of the community. The Central Government
thereupon issued an Ordinance which was later replaced by the above-mentioned Act. By
this Act the management and administration of the assets of the Company were placed
under the control of the directors appointed by the government. As regards the
shareholders, the Act declared that they could neither appoint a new director not could
they take proceedings for the winding up of the Company. The contention of the
petitioner was that the impugned Act infringed the rule of equal protection of the laws
embodied in Article 14 because a single company and its shareholders were being
subjected to disabilities vis-à-vis other companies and held the legislation valid.
In Ameerunnisa Case,[27] a dispute between two rival parties regarding succession to
the estate of a deceased Nawab was pending and after several vicissitudes for which the
Nizam himself or his legal advisers were primarily responsible, a report was prepared
by the legal advisers of the State in a particular way which, contrary to the opinion
given by an earlier special commission, negatived the claim of one party, i.e. of two
ladies and their children. To give effect to the report, the Nizam, who at that time
exercised the powers of the Hyderabad Legislature, passed an Act, the Wali-ud-Dowla
Succession Act, 1950. By this Act the claim of the two ladies was dismissed and the
property adjudged to the other party. Obviously the effect of the Act was that the two
ladies and their children were deprived of the right to enforce their claim in a court
of law in accordance with the Mohammadan Law. They, in fact, were discriminated against
the rest of the community in respect of a valuable right which the law secures to all,
namely, the right of free access to the court. The discrimination made against the two
ladies could only be valid if there were some reasonable ground for the differentiation
made by the law. Two reasons were put in justification of the classification or
differentiation made by the Act. First, that there was an adverse report against them
by the Sate legal advisers and, second, that the dispute was of a long standing. The
Supreme Court held that neither of these grounds could serve as a reasonable basis for
the differentiation made by the law. As regards the first, the dispute regarding
succession to the estate of the Nawab was a legal dispute, and without determination of
the points in issue by a properly constituted tribunal of law, a legislation based upon
the reports of a non-judicial authority and made applicable to specific individuals,
who were deprived thereby of valuable rights, which were enjoyed by all other persons
occupying the same position, did plainly come within the constitutional inhibition of
Article 14. If the legislature makes the report of the legal adviser as the ground on
which it deprives one specific person of his rights to have his say in a court of law,
that law would be arbitrary and unreasonable. The second ground put in support of the
classification was also rejected. The Court pointed out that the continuance of a
dispute even for a long period of time between two sets of rival claimants to the
property of a private person is not a circumstance of such an unusual nature as would
invest a case with special or exceptional features and made it a class by itself
justifying its differentiation from all other cases for succession disputes. Thus there
was nothing to distinguish the dispute between the parties under the Wali-ud-Dowla Act
which is not found in any other dispute between private parties.
In Ram Prasad V. State of Bihar[28], the two appellants had obtained a settlement of
land in Bihar which at that time was under the management of the Court of Wards on
behalf of the disqualified proprietress. The lands were settled at the prevailing rate
or rent but the salami or premium was fixed at the half of the usual rate as a
concession to the appellants who happened to be distant relations of the proprietress.
For some reasons there was an agitation amongst the tenants of the locality against the
lease held by the appellants. The matter was brought to the notice of the Congress
Working Committee which found the settlement illegal and against the public interest.
The lessees, therefore, were asked to vacate the land which they refused. Thereupon the
Bihar State Legislature passed the impugned Act. The Act terminated the contract of
lease and directed the lessees to quit the land immediately. The lessees contended the
Act was unconstitutional because it denied o them the equal protection of laws. The
Supreme Court accepted the appellants’ contention and held the Act ultra vires the
Bihar Legislature because it appeared that there were numerous persons occupying the
same position as the Alternatively, the dispute being between private parties, it was a
matter for determination by duly constituted courts in accordance with the normal
procedure. But what the legislature had done was to single out the two individuals and
denied them the right which every Indian Citizen possesses to have his rights
adjudicated in accordance with the laws. The reasons given for the extraordinary
procedure were indeed remarkable for ‘their disturbing implications’. It was said that
the agitation amongst the tenancy of the locality and opposition on the part of persons
living in the locality against the appellants’ possession of the land had led to the
breach of peace and institution of criminal cases. This could not be a rational basis
to discriminate against the two named individuals. When on the face of a statute there
is no classification at all and no attempt has been made to select any individual or
group with reference to any differentiating attribute peculiar to that individual or
group and not possessed by other, this presumption is of little or no assistance.
These and some other cases seems to establish that except in Charanjit Lal case, the
singling out of the individuals has never been seen with favour, particularly when such
singling out has been done for the purpose of hostile discrimination. As a matter of
course single person laws are prima facie violative of Article 14 because they do not
make a classification on the basis of some general or particular characteristics which
may be found in any individual or class of individuals now or in future; rather they
make one individual their target excluding every possibility of bringing any other
person within their reach even if that other person also depicts those characteristics.

Special court and procedural inequality

In State of West Bengal V. Anwar Ali Sarkar[22], was involved a Bengal law permitting
setting up of special courts for the ‘speedier trial’ of such ‘offence’, or ‘classes of
offences’ or ‘cases’, or ‘classes of cases’, as the State Government might direct by a
general or special order. These courts were to follow a procedure less advantageous to
the accused in defending himself than the procedure followed by the ordinary criminal
courts.
The Act was held invalid as it made no reasonable classification, laid down “no
yardstick or measure for the grouping either of persons or of cases or of offences” so
as to distinguish them from others outside the purviews of the Act. The government had
the power to pick out a case of a person and hand it over to the special tribunal while
leaving the case of another person similarly situated to be tried by the ordinary
criminal courts. It gave ‘uncontrolled authority’ to the executive ‘to discriminate’.
The necessity of ‘speedier trial’ was held to be too vague, uncertain and indefinite
criterion to form the basis of a valid and reasonable classification.

On the other hand, in Kathi Ranining Rawat V. Saurashtra[23], a provision practically

similar to the one involved in the Anwar Ali Case, was held valid because the Court
found that a policy was stated in the preamble to the Act, and that the government was
expected to select such offences, classes of offences and classes of cases for trial in
special courts as were calculated to affect public safety, maintenance of public order,
etc.

Northern India Caterers V. State of Punjab[20]. To evict a person from unauthorized

occupation of public premises, a Punjab Act provided for a Summary procedure. The
collector had two choices; he could either himself order eviction under the special
law, or could file an ordinary suit in a court for eviction under the general law. The
Punjab law was declared void under Art. 14 because being a drastic law it laid down no
policy to guide the collector’s choice as to which law to follow in what cases; the
matter was left to his unguided discretion and so there could be discrimination within
the same class inter se, viz., unauthorized occupants of public premises.
In Maganlal Chhagganlal V. Greater Municipality[21], the validity of certain provisions
of Bombay Municipal Corporation Act, which conferred powers on the authorities to
initiate special eviction proceedings against unauthorized occupants of Corporation and
government premises was challenged. Following the N.I. Caterers case, it was argued
that the availability of two procedures, one under the CPC and other under the two Acts
of which the former was onerous and harsher than the latter, the former was hit by
Article 14 in the absence of any guidelines as to which procedure might be adopted. The
majority did not agree with the N.I. Caterers case.
Analysing the whole line of cases on the subject (Anwar Ali Sarkar & Kathi Ranining
Rawat) he drew distinction between the statutes which themselves make a classification
and those which authorize the executive to make the classification.

(i) While in the first case the statute will be invalid if it fails to satisfy the
requirements of Article 14 (reasonable classification), in the second case the statute
is valid so as it provides guidance to the executive about the exercise of its
discretion in making the classification.Anwar Ali Sarkar
(ii)Such guidance need not be provided expressly and specifically in the provisions of
the statute; it may be gathered either from the preamble and other surrounding
circumstances and facts which necessitated the enactment of the statute or from the
general object or policy or the statute gathered from other operative provisions
applicable to analogous or of the statue gathered from other operative provisions
applicable to analogous or comparable situations. Kathi Ranining Rawat.
If such guidance is missing then only the statute will be invalid. Otherwise only the
act of classification by the executive will be examined. In that case, if the
classification fails to satisfy the requirements of Article 14 it will be ultra vires
not only the Constitution but also the statute under which it is undertaken.
The Court observed that it was inevitable that when a special procedure is prescribed
for a defined class of persons, such as occupiers of municipal or government premises,
discretion which is guided and controlled by the underlying policy and purpose of the
legislation has necessarily to be vested in the administrative authority to select
occupiers of municipal or government premises for bringing them within the operation of
the special procedure.

Comparing the above two cases (Anwar Ali Sarkar & Kathi Ranining Rawat), it would
appear that the main difference in the terms of the statutes, which resulted in
different judicial verdicts as to their validity, was that the preamble in the
Saurashtra Act was more elaborately worded than that to the Bengal Act. While the term
‘speedier trial’ used in the Bengal Act to set up special courts was held to be
indefinite, the words ‘public safety, etc.’ in the preamble to the Saurashtra Act were
held to be more definite and as giving a guiding principle to control administrative
discretion.In essence, therefore the difference would appear to be more of a drafting
nature than of substance.

New concept of equality; Arbitrariness or Unreasonableness

For some times, a new orientation is being given to Art. 14. As has been explained
E.P.Royappa v/s State of Tamilnadu (AIR 1974 SC 555) S.C.the Supreme Court has changed
the traditional concept of equality which was based on reasonable classification and
has laid down a new concept of equality. Bhagwati J. delivering the judgment on behalf
of himself Chandrachud and Krishna Iyer JJ , propounded the new concept of equality in
the following words:.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 Art. 14, and if it affects any
matter relating to public employment, it is also violative of Art. 16.
State Policy : The sweep of Article 14 covers all state action .Non arbitrariness and
fairness are the two immobile and unalterable cornerstone of a legal behaviour
baseline. Every action even a change of policy in any relam of state activity has to be
informed fair and non arbitrary

In Maneka Gandhi v Union of India (AIR 1978 SC 597) Bhagwati J again quoted with
approval the new concept of equality propounded by him in the E.P.Royappa case. He
said

“…Equality is a dynamic concept with many aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire limits. 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.”

“ Art. 14 is founding faith of the Constitution. It should not subject to narrow

approach. No attempt should be made to truncate its scope and meaning as this would
violate its activist magnitude.”

In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others (1979
AIR(SC) case Bhagwati J reiterated the same principle in the following words :

“ it must … therefore, now be taken to be well settled that what Article 14 strikes
at is arbitrariness because an action that is arbitrary , must necessarily involve
negation of equality. The doctrine of classification which is involved by the Court
 is not paraphrase of Article 14 nor is it the objective and end of that Article. It
is merely a judicial formula for determining whether the legislative or executive
action in question is arbitrary and therefore constituting denial of equality. If the
classification is not reasonable and does not satisfy the two conditions referred to
above, the impugned legislation or executive action would plainly be arbitrary and
the guarantee of equality under Article 14 would be breached”

Bhagwati, J., in Bachan Singh V. State of Punjab AIR 1980 SC , Rule of law which
permeates the entire fabric of the Indian Constitution excludes arbitrariness.
“Whenever we find arbitrariness or unreasonableness there is denial of rule of law”.
Art. 14 enacts primarily a guarantee against arbitrariness and inhibits state action,
whether legislative or executive, which suffers from the vice of arbitrariness. “Every
state action must be non-arbitrary and reasonable. Otherwise, the court would strike it
down as invalid.”
This new dimension of Art. 14 transcends the classificatory principle. Art. 14 is no
longer to be equated with the principle of classification. It is primarily a guarantee
against arbitrariness in state action and the doctrine of classification has been
evolved only as a subsidiary rule for testing whether a particular state action is
arbitrary or not. It a law is arbitrary or irrational it would fall foul of Art.
14.Thus, according to this doctrine the content and reach of Article 14 cannot be
determined on the basis of the doctrine of classification. Prior to this decision, the
view was that Article 14 forbids discrimination and not classification provided the
classification fulfilled the two tests: (1) that it was based intelligible differentia,
and (2) the differentia has a rational nexus with the object which the law seeks to
achieve. This was merely a negative aspect of Article 14. But according to the new
doctrine, the doctrine of classification “is merely a judicial formula for determining
whether the legislative or the executive action is arbitrary and, therefore,
constitutes a denial of equality”. Article 14 has rightly activist magnitude and it
embodies a guarantee against arbitrariness. The conclusion is that if the action of
State is arbitrary it cannot be justified even on the basis of doctrine of
classification. Where an act is arbitrary, it is implicit in it that it is unequal and
therefore violative of Article 14. Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment. It is attracted where equals are
treated differently without any reasonable basis.
The basic postulate of the rule of law is that “justice should not only be done but it
must also be seen to be done”. If there is any reasonable ground, on which a lawyer
believes that his matter may not be heard by a particular Judge, it is appropriate for
that judge to exclude him from the bench hearing that matter. This step is required to
be taken by the learned Judge not because he is likely to give to a reasonable
apprehension in the mind of the litigants that the mind of the learned judge may be
sub-consciously has been influenced by some extraneous factor in making the decision,
particularly if it happens to be in favour of the opposite party.

In Air India V. Nargesh Meerza[25], a regulation made by Air India International, a

statutory corporation, providing for termination of service of an air hostess on her
first pregnancy has been held to be arbitrary and abhorrent to the notions of a
civilized society. The regulation also fixed the normal age of retirement of air
hostess at 35 years but authorized the managing directors to extend the same to 45
years at his option subject to other conditions being satisfied. The regulation was
held bad as it armed the managing director with uncanalized and unguided discretion to
extend the age of retirement of any air hostess. No guidelines, principles or norms
were laid down subject to which the power was to be exercised. Nor was there any
procedural safeguards available to an air hostess who was denied extension.

Mithu v. State of Punjab[10] the Court struck down Section 303 of IPC (which states
that if a person under life imprisonment in jail commit murder he must be awarded
sentence of death but under section 302 if a person commits murder he may be awarded
either sentence of death or life imprisonment) as unconstitutional on the ground that
the classification between persons who commit murders whilst under the sentence of
imprisonment and those who commit murders whilst they were not under the sentence of
life imprisonment for the purpose of making death mandatory in the case of former class
and optional in the latter class was not based on any rational principle.
concept of ‘unreasonableness
Cases
D.S. Nakara v/s Union of India AIR 1983 SC
The Government issued an office memorandum announcing a liberalized pension scheme for
retired government servants but made it applicable to those who had retired after 31
March 1979. The supreme court held that the fixing of the cut off date to be
discriminatory as violating Article 14. The devision of pensioners into two classes on
the basis of the date of retirement was not based on any rational principle because a
difference of two days in the matter of retiremnt could hav a traumatic effect on the
pensioner. Such a classification held to be arbitrary and unprincipled as there was no
acceptable or persuasive reason in its favour. The said classification had no rational
nexus with the object sought to achieved. In that case Desai J. who spoke for the
majority assimilated both the doctrine viz the doctrine of arbitrariness and the
doctrine of classification. Re-stating the concept of equality and the test to be
applied in order to satisfy the requirement of Article 14 “ Reasonable Classification
and arbitrariness are conflicting doctrines. If an action is arbitrary, it is void even
though it satisfies the criteria of reasonable classification.”

In Suneel Jatley v State of Haryana 1984 the reservation of 25 seats for admission
to M.B.B.S and B.D.S. course for students who were educated from classes I to VIII in
common rural schools was held to be violative of Article 14 and invalid as the
classification between the rural educated and urban educated students for this
purpose was wholly arbitrary and irrational having no nexus to the object sought to
be achieved of providing extra facilities to students coming from rural schools to
enter medical college. The same Government prescribes standards of education,
equipment, grants and facilities including the qualification of the staff for being
employed in urban and rural schools imparting instructions from first to eight
standard. Thus, all the students of classes IX to XII, those coming from rural school
and those from urban are similarly placed yet they are artificially divided by a
reference to a part even wholly unrelated to the object sought to be achieved and
hence the reservation based on such classification was held to be constitutionally
invalid.

In Nishu Maghu v State of J.K.[24] the court held that the classification made on
the basis of regional imbalance was vague in absence of identification of areas
suffering from such imbalance and accordingly selection of candidates for admission
to MBBS course from this category was arbitrary and violative of Article 14 of the
Constitution and hence invalid. The order creating this category did not identify the
area which suffer from imbalance nor did it supply any guidelines for the selection
by Committee But as regards selection of candidates on the basis of “social castes”
the Court held that classification was valid as it was based on nature and occupation
and not on ‘caste’ and does not offend Article 14 or Article 15.

In Ajay Hasia v Khalid Mujib[25] the Regional Engineering College made admissions of
candidates on the basis of oral interview after a written test. The test of oral
interview was challenged on the ground that it was arbitrary and unreasonable because
high percentage of marks were allocated for oral test and candidates were interviewed
only 2 or 3 minutes. The Court struck down the rule prescribing high percentage of
marks for oral test i.e allocation of one third of total marks of oral interview was
plainly arbitrary and unreasonable and violative of Article 14 of the Constitution.
It said that the oral interview test cannot be regarded a very satisfactory test for
assessing and evaluating the capacity and caliber of candidates as it is subjective
and based on first impression and its result is influenced by many uncertain factors
and it is capable of abuse. It cannot be the exclusive test. It should be resorted to
only as an additional or supplementary test and must be conducted by persons of high
integrity, caliber and qualification. The Court suggested that the interview be tape-
recorded in order to judge whether it was conducted in an arbitrary manner. In the
instance case a large number of a candidates were admitted on the basis of high marks
obtained in interview although they had obtained low marks at the written test but
the court declined to quash the admission in view of a lapse of 18 months when the
students had almost completed three semesters. A mere suspicion that some candidates
had obtained high marks in interview but very low marks in written test did not
establish mala fide on the part of the selectors.

Although the court said that an oral interview test is undoubtedly not a very
satisfactory test for assessing and evaluating the capacity and caliber of the
candidates because it is subjective and is likely to be abused, but held that in the
absence of better test for measuring characteristics and tracts the oral interview
test must be regarded as rational or relevant. An oral interview test cannot be
relied upon as an exclusive test, but it may be used as an additional or
supplementary test. Accordingly, the Court held that allocation of 33⅓ percent of the
total marks for oral interview infected the admission procedure with arbitrariness.
It was observed that allocation of more than 15 per cent marks to interview will be
arbitrary and unreasonable. The Court, however, did not set aside the previous
selections. In Arti Sapru v J & K[26] the Supreme Court has held that the allocation
of 30 percent marks for the viva-voce for admission to the medical college was
excessive. But in Lila Dhar v Rajasthan [27] where 25 percent of the marks were
allotted for interview for the selection of munsifs in the Rajasthan Judicial Service
it was held that the selection was not illegal.

In D.V. Bakshi v Union of India[28] the Supreme Court has held that the test was
evolved in the case of Ajay Husia and Ashok Kumar Yadav v State of Haryana [29]cannot
be applied in every case and particularly in selection of professionals. The test
which may be valid for competitive examinations or admission to educational
institutions may not hold good where it concerns selection for appointments in public
services. No fixed limit can be laid down and much would depend on the nature of
performance expected by a candidate. In the present case the petitioners questioned
the constitutional validity of Regulations 8 & 9 of the Customs House Agents
Licensing Regulations 1984 made under Section 146 of the Customs Act 1962 which
provides the securing of at least 50 marks out of 100 for the oral test on the ground
that it gives arbitrary powers to the authorities to pick and choose the candidate.
Their contention was based on the ratio of the decision in Ajai Hasia and Ashok
Kumar Yadav cases wherein the Court had struck down the rule prescribing high
percentage of marks for oral test as violative of Article 14 of the Constitution .
In Lila Dhar v Rajasthan the court had clarified that this test may be valid for
admission to medical college but not for entry into public services. The distinction
is between competitive examinations or admission to educational institutions and
selection for higher posts is clear. In the case of educational institutions the
distinction has relevance for the reasons that the candidates are young and their
personality has yet to develop and therefore greater weigh has to be given to their
performance at the written examination rather than at the oral examination. The
above rule cannot be applied to matters of grant of licence as a custom house agent
where the duties, responsibilities and functions are very special demanding not only
a higher degree of probity and integrity but also intellectual skills adaptability,
judgment and capacity to take prompt decisions in conformity with the law, rules and
regulations. Therefore, in case of selection of professionals higher marks for oral
test can be allotted.

In D.V. Bakshi v Union of India[30] the petitioners challenged the validity of rule
allotting 100 marks with 50 pass marks for oral test on the ground that it gives
arbitrary powers to the authorities to pick and choose the candidates. The Court
distinguished the Ajai Hasia’s case with the present case and held that allotment of
maximum marks for oral test is not arbitrary particularly in case of selections of
professionals. The test which may be valid for competitive examinations or admissions
to educational institutions may not hold good where it concerns selection for
appointment in public services. The test laid down in Ajai Hasia’s case cannot apply
in the matter of grant of licence as a Custom House Agent. No hard and fast rule can
be laid down in this behalf as much would depend on the nature of performance
expected for the responsibility to be handled by a candidate after his selection.
The duties, responsibilities and functions of a Custom House Agent are very special,
demanding not only a high degree of probity and integrity but also intellectual
skills, adaptability, judgment and capacity to take prompt decisions in conformity
with the law, rules and regulations. Thus, there is justification for an oral test
prescribing 100 marks with 50 per cent as passing marks in selecting such persons.

In Pradeep Jain v Union of India[33] a judgment of far-reaching importance, the

Supreme Court held that the wholesale reservation ( all seats) of seats in the MBBS
and BDS courses made by State Government of Karnataka, Uttar Pradesh and Union
Territory of Delhi on the basis of “domicile” or residence within the State or on the
basis of institutional preference for students who have passed the qualifying
examination excluding all students not satisfying the residence requirement,
regardless of merit, was unconstitutional and as being violative of Article 14 of the
Constitution. Delivering the majority judgment Bhagwati J held that admission in
these courses, such as MBBS MS, MD etc should be made primarily on the basis of merit
and not on the basis of residential requirement or institutional preference. The
equality of opportunity for employment cannot be made dependent upon where a citizen
resides. The object of any valid scheme for admission must be to select the best
candidates for admission to medical college. Any departure made from this rule must
be justified on the touchstone of Article 14. Merit cannot be measured in terms of
marks alone, but human sympathies are equally important. The heart is as such a
factor as the head in assessing the social value of a member of the medical
profession. Merit consists of a high degree of intelligence coupled with a keen and
incisive mind. Sound knowledge of the basic subjects and infinite capacity for hard
work and also calls for a sense of social commitment and dedication to the cause of
the poor. The departure from the rule of merit-based selection can be justified only
on the grounds of regions claims of backwardness and State need to provide medical
service to the people. But what should be the quantum of reservation based on
residential requirement? This in a particular case the Court held, would depend upon
the social and economic factors in the context of educational opportunities but in no
case it should exceed more than 70 per cent for MBBS. The Indian Medical Council was
directed to review after every three years this outer limit of 70 per cent and also
whether it needed to be reduced. As regards admission to MS MD and like courses the
Court held that it should not based on residential requirement at all. There the
excellence cannot be compromised by any other considerations because that would be
detrimental to the interest of the nation. However, having regard to the broader
considerations of equality of an opportunity the Court directed that a maximum limit
of 50 per cent of seats might be reserved on the basis of institutional preference
for admission to the post-graduate course i.e in the same medical college or
university. This outer limit of 50 per cent will also be subject to review on the
lower side by the Medical Council. But in regard to admission to the post-graduate
courses, the Court said there should be no reservation at all on the basis of
institutional preference and admissions should be granted purely on merit and on All
India basis.

This is a decision of far-reaching importance. It is to be welcomed. It lays down law

which will govern all future admissions to the Medical Colleges of the nation. In the
Institutions of higher learning where specialized knowledge is required reservation
of seats on the basis of residential or institutional preference is highly
objectionable. Bhagwati J , highly nationalist judgment would certainly help foster
national unity in the sphere of higher education which is one of the desired goals of
our Constitution.

In Y. Srinivasa Rao v J Veeriah[34] it has been held that Government’s policy to give
preference to less educated persons over more educated persons in granting licence
for running fair price shop was arbitrary and liable to be set aside. In this case
the appellant who was an unemployed graduate with experience of the running fair
price shop was not appointed as fair shop dealer whereas matriculate person was given
dealership in view of the government policy of giving preference to less educated
persons. The Court held that the policy of the Government to prefer an uneducated
person over an educated person amounts to allowing premium on ignorance, incompetence
and consequently inefficiency, and therefore unconstitutional.

In Indian Council of Legal Aid & Advice v Bar Council of India[35] the validity of
new Rule 9, added by the Bar Council of India in Bar Council Rules which barred the
entry of persons who have completed the age of 45 years on the date of application
for enrolment as an advocate was challenged as discriminatory and unreasonable and
violative of Article 14 of the Constitution and also Section 24 of the Advocates
Act, 1961. On behalf of the Bar Council of India, it was argued that the rules were
intended to maintain the dignity and purity of the profession by keeping out those
who retire from various Government and quasi-Government and other institutions since
they on being enrolled as advocates use their past contacts to canvass for cases and
thereby bringing the profession into disrepute and also pollute the minds of young
fresh entrants to the profession. The Supreme Court held that the rule is
unreasonable and arbitrary. There is no material to show that the persons mentioned
above indulge in undesirable activities of the type mentioned after entering the
profession. Secondly, while the rule debars the group of persons who have crossed
the age of 45 years, it allows another group who were enrolled but later taken some
jobs and kept their sanads in abeyance to revive their sanads even after they have
completed 45 years of age. The choice of the age of 45 years is made after they have
completed 45 years of age. The choice of the age of 45 years is made keeping only a
certain group in mind ignoring the vast majority of other persons who were in
government and other jobs is violative of the rule of equality and is struck down as
being ultra vires of Article 14 of the Constitution. The new Rule 9 is also ultra
vires of Sections 24 and 49 of the Advocates Act, which empowers the Bar Council to
make rules prescribing conditions for right to practice as an advocate, and not to
make rules debarring persons of 45 years of age from enrolment as an advocate. The
 rule made by the Bar Council applies only to post enrolment stage and not to pre-
enrolment stage.
No judicial review of Economic Policy of Government

The Supreme Court has consistently taken the view that there can be no judicial
review of economic policy of the government unless there is violation of the
Constitution or any Act. The Court has thus imposed self restraint on its judicial
power.
In BalCo Employees Union (regd) v Union of India [37] this matter came up for the
consideration of the Court. In that case, the employees had challenged the decision of
the Central Government to disinvest majority of shares of Bharat Aluminium Co Ltd
(BALCO) to private party, which is a public sector undertaking. The Government had
taken decision to disinvest majority of shares of BALCO after detailed discussions and
had complied with all procedural requirements. The workmen contended that they had been
adversely affected by the decision of the Government of India to disinvest 51% of
shares in BALCO in favour of a private party and also contended that by reason of
disinvestment the workers have lost their right and protection under Arts.14 and 16 of
the Constitution and this has an adverse civil consequence and, therefore, they had
right to be heard before and during the process of disinvestments. The Attorney General
contended that there can be no judicial review of the economic policy of the
Government. A five judge Constitution Bench of the Court unanimously held that the
process of disinvestment is a policy decision involving complex economic factors and
the courts have consistently refrained from interfering with economic decision as it
has been recognized that economic expediencies lack adjudicative disposition unless the
economic decision based on economic expediencies is shown to be so violative of the
constitutional or legal limits of power or so abhorrent to reason. The petitioners have
failed to prove that the decision to disinvest in BALCO is any way capricious,
arbitrary, illegal or uninformed. Even though the workmen have interest in the manner
in which the company is conducting its business in as much as its policy decision may
have an impact or workers’ rights, nonetheless.

Article 14 - Legitimate Expectation

The doctrine of legitimate expectation has been described in the following words: "A
person may have a legitimate expectation of being treated in a certain way by an
administrative authority even though he has no legal right in private law to receive
such treatment. The expectation may arise either from a representation or promise made
by the authority, including an implied representation, or from consistent past
practice.
In India, the Courts have gradually recognized that while administering the affairs of
the State, the Government and its departments are expected to honour the policy
statements and treat the citizens without any discrimination. The theory of legitimate
expectation first found its mention in Navjyoti Coop. Group Housing Society vs. Union
of India[40]. In that case the right of a housing society for right to priority in the
matter of registration was recognized in the following words :

"...In the aforesaid facts, the Group Housing Societies were entitled to `legitimate
expectation' of following consistent past practice in the matter of allotment, even
though they may not have any legal right in private law to receive such treatment. The
existence of `legitimate expectation' may have a number of different consequences and
one of such consequences is that the authority ought not to act to defeat the
`legitimate expectation'without some overriding reason of public policy to justify its
doing so. In a case of `legitimate expectation' if the authority proposes to defeat a
person's `legitimate expectation' it should afford him an opportunity to make
representations in the matter.”

The principle of substantive legitimate expectation has been accepted by the Courts in
India
Arbitrary action –State liable to pay compensation to a citizen
In a land mark judgment in Lucknow Development Authority v M.K.Gupta[50] the Supreme
Court has held that if loss or injury is caused to a citizen by arbitrary actions of
State employees, the State is liable to pay compensation to him. Public Authorities
who are entrusted with statutory function cannot act negligently. Under our
Constitution Sovereignty is vested in the people. Every limb of the constitutional
machinery is obliged to be people oriented. No functionary in exercise of statutory
power can claim immunity, except to the extent protected by the statute itself. In
this case the respondent had applied for registration for allotment of a flat
 constructed by Lucknow Development Authorities. A flat was allotted to him on April
26, 1988 and he deposited the entire money on July 29, 1988, but the possession of
the flat was not given to him because the construction work was not complete. He
filed a complaint before the District Forum. The State Commission directed the
appellant on February 15, 1990 to handover possession of the flat after completing
the work and if it was not possible refund the cost of construction. The appellant
instead of complying with the order, filed an appeal in the National Commission which
was dismissed. The Commission held that the action of the appellant amounted to
harassment, mental torture and agony of the respondent and therefore directed the
appellant to pay ` 10,000 as compensation. The appellant filed an appeal in the
Supreme Court against the order of the national Commission. The Supreme Court upheld
the decision of the Commission and dismissed the appeal.

Rules of Natural Justice implicit in Article 14

In a judgment of far reaching importance in Central Inland Water Transport Corpn Ltd
v Brojo Nath[51] the Supreme Court has held that Service Rules empowering the
Government Corporation to terminate Service of permanent employees without giving
reasons on three months’ notice or pay in lieu of notice period is violative of
Article 14 being unconscionable, arbitrary, unreasonable and against public policy as
it wholly ignores the audi alteram partem rule (i.e hear the parties). The service
rule confers an absolute, arbitrary and unguided power upon the corporation to
terminate the services of its employees without giving any reasons. This decision
will go a long way in protecting lakhs of employees of public corporations working
under contract of service from arbitrary termination of their services without
assigning any reasons.

Guidelines to prevent sexual harassment of working woman

In a landmark judgment in Vishaka v State of Rajasthan [73] the Supreme Court has
laid down exhaustive guidelines to prevent sexual harassment of working women in
places of their work until a Legislation is enacted for this purpose. The petition
was filed by a social worker by way of public interest litigation for the enforcement
of rights of working women under Articles 14, 19 and 21 of the Constitution and in
finding suitable methods for realisation of the true concept of ‘gender equality’.
Gender equality includes protection from sexual harassment and right to work with
dignity, which is universally recognized basic human right. International
conventions and norms are of great importance in the formulation of the guidelines to
achieve this purpose. The Court has laid down the following guidelines:
1) All employers or persons incharge of work place in the public and private
sector, should take appropriate steps to prevent sexual harassment without prejudice to
the generality of his obligation he should take the following steps :-
a) Express prohibition of sexual harassment, which include physical contact and
advances, a demand or request for sexual favours, sexually coloured remarks, showing
pornographic or any other unwelcome physical, verbal or non-verbal conduct of sexual
nature should be noticed, published and circulated in appropriate ways.
b) The rule and regulation of government and public sector bodies relating to
conduct and discipline should include rules prohibiting sexual harassment and provide
for appropriate penalties against the offender.
c) As regard to private employees, the above prohibitions should be included in the
Standing Order under the Indian Employment (Standing Orders) Act 1946
d) Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment towards women
at work place and no employee women should have reasonable ground to believe that she
is disadvantaged in connection with her employment.
2) Where such conduct amounts to specific offences, under the Indian Penal Code or
under any other law, the employer shall initiate appropriate action in accordance with
law making a complaint with appropriate authority.
3) The victim of sexual harassment should have option to seek transfer of the
perpetrator or their own transfer.

Equal pay for Equal work

In Randhir Singh v Union of India[74] the Supreme Court has held that although the
principle of ‘equal pay for equal work’ is not expressly declared by our Constitution
to be a fundamental right, but it is certainly a constitutional goal under Articles
 14,16 and 39(c) of the Constitution. This right can, therefore be enforced in cases
of unequal scales of pay based on irrational classification.

Article 15. : – Prohibition of discrimination on grounds of religion, race, caste, sex

or place of birth. :-
Article 15(1) -
The Supreme Court in Nain Sukh Das v. State of U.P.[2], invalidated an Act of the State
Legislature which provided for elections on the basis of separate electorates for
members of different religious communities.

In D.P. Joshi v. State of Madhya Bharat, AIR 1955 S.C., a rule of medical colleges
provided that all students who are bona fide residents of Madhya Bharat, no capitation
fee should be charged but for non-resident students, capitation fee should be retained.
The validity of this rule was challenged on the ground that it contravened Articles 14
and 15 (1) of the Constitution. It was held that the rule was not open to attack as
infringing Article 15 (1). The ground for exemption from payment of capitation fee is
bona fide residence in the State.

Residence and place of birth are two distinct conceptions with different connotations
both in law and fact. Article 15 (1) prohibits discrimination on the ground of place of
birth but not on the ground of residence.

It has been held in P. Raghunandha Rao v. State of Orissa AIR 1955 Orissa, the
requirement of a test in the regional languages for State employment does not
contravene Article 15, as a test in the regional language for State employment does not
contravene Article 15, as the test is compulsory for all persons seeking employment.

in NALSA vs Union of India, the Supreme Court has accepted that “sex” under Article
15(1) of the Constitution is as much a matter of personal identification, as it is a
matter of biology. It was also pointed out that the argument bypasses the rights of
transgender individuals.

Supreme Court in Air India vs Nargesh Mirza, held that pregnancy-based discrimination
was hit by Article 15(1).

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in
Article 15 included “sexual orientation” as a prohibited ground of discrimination.

Article 15 (2) applies to States as well as private actions while Article 15(1) refers
to the obligation of the States only.
Even before the commencement of the Constitution in Laksmidhar Mishra v. Rangalal[4],
the Privy Council held that there cannot be a dedication only to a limited section of
the public like the inhabitants of a village, though such a right can be claimed on the
basis of custom.
In the case of State of Kar. vs Appa Balu Ingle 1993, SC upheld the conviction for
preventing a lower caste person from filling water from a bore well.

Article 15 (3) State to make special provisions for women and children.
In the case of Muller vs Oregon 1908, even US SC acknowledged the fact that due to
their physical structure and maternal functions, women are at a disadvantage compared
to men. But for a society to grow and prosper, its women must be protected and
uplifted.

in the case of Yusuf Abdul Aziz vs State of Bombay AIR 1954, SC held that section 497
of IPC that punishes only a man for adultery and not the woman is valid.

Revathi v. Union of India

In this case it was held that clause (1) to (3) of Article 15, read together would
imply state can discriminate in favour of women against men, but cannot discriminate in
favour of men against women.
Vijay lakshmi. V. p u
In this provision for reservation of posts of principal and teachers for women in
colleges for girls was upheld as not violative of articles 14,15 and 16.

State of Andhra Pradesh v/s Vijay Kumar AIR 1995 SC 1648 S.C. Ruled The posts can be
reserved for women under Article 15 (3) as it is much wider in scope. Making special
provision for women in respect of employment is integral part of Art. 15 (3) and its
not violation of Art. 16 (2).the state may fix a quota for appointment of women in
government service. Also a rule saying that all other things being equal, preference
would be given to women to the extent of 30% of the posts was held valid with reference
to article 15(3).

Union of India v/s Parmanand Singh AIR 1999 SC

S. Renuka v/s State of A.P. AIR 2002 SC “No reservation can be made exclusively for
women. There could not be 100% reservation for women when the rules do not provide for
the same.”

Article 15 (4)

Champakam Dorairajan vs State of Madras AIR 1951. In this case, SC held that
reservation of seats in educational institutions based on caste is unconstitutional.
To counter this issue, art 15(4) was added by the first amendment to the constitution.
It allows the state to make special provisions for socially and economically backward
classes and SCs and STs. However, these provisions have to be made with art 335 in
mind, which says that such provisions should not adversely affect the quality of
administration.under art 340, it allows the president to set up a commission to
investigate into the condition of people in states and then classify them as backward
as required.

The following are leading cases that have, from time to time, changed the course of
reservations in India.

1. Balaji vs State of Mysore AIR 1963

In this case the validity of a Mysore Government Order reserving 68 per cent of the
seats in the engineering and medical colleges and other technical institutions in
favour of backward classes including the Scheduled Castes and Scheduled Tribes was
challenged. , SC held the following: “A special provision contemplated the Article
15(4) like reservation of posts and appointments contemplated by Article 16(4) must be
within reasonable limits. In this matter again, we are reluctant to say definitely what
would be provision should be less than 50 per cent; how much less than 50 per cent
would depend upon the relevant prevailing circumstances in each case.”
Reservation of 68 per cent of seats in that case was found by the Court plainly
inconsistent with Article 15(4).
 reservation cannot be more than 50%.
 the classification of backward and more backward is invalid.
 caste cannot be the only criteria because art 15(4) talks about class and class
is not synonymous with caste. So other factors such as poverty should also be
considered.
 the Court equated the “social and educational backwardness” to that of the
“Schedule Castes and Schedule Tribes”. The Court observed: “It was realized that
in the Indian society there were other classes of citizens who were equally, or
may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and
it was thought that some special provision ought to be made even for them.”

 Secondly, poverty alone cannot be the test of backwardness in India because by

and large people are poor and, therefore, large sections of population would fall
under the backward category and thus the whole object of reservation would be
frustrated.

 Thirdly, backwardness should be comparable, though not exactly similar, to the

scheduled Castes and Scheduled Tribes.

 Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot

be the sole or even the dominant criterion. If classification for social
backwardness were to be based solely on caste, then the caste system would be
perpetuated in the Indian society. Also this test would break down in relation to
those sections of society which do not recognize caste in the conventional sense
as known to the Hindu Society.
  Fifthly, poverty, occupations, place of habitation, all contribute to
backwardness and such factors cannot be ignored.

 Sixthly, backwardness may be defined without any reference to caste. As the

Supreme Court has emphasized, Art. 15(4) “does not speak of castes, but only
speaks of classes”, and that ‘caste’ and ‘class’ are not synonymous. Therefore,
exclusion of caste to ascertain backwardness does not vitiate classification if
it satisfies other tests.
2. Devadason vs Union of India AIR 1964
In the case SC held the "carry forward rule" as unconstitutional. This rule meant that
posts that could not be filled due to lack of candidates in backward classes would be
filled by regular candidates but the same number of additional posts would be reserved
in the next year. This caused the amount of reservation to go above 50%. SC held that
power of art 16(4) could not be used to deny equality of opportunity for non-backward
people.

3.In the State of U.P. V. Pradeep Tandon (1975) SC,

in admission to medical colleges in U.P. in favour of candidates from- (a) rural areas,
(b) hill areas and (c) Uttrakhand area was challenged. The classification was based on
geographical or territorial considerations because in government's view the candidates
from these areas constituted socially and educationally backward classes of citizens.
The Court held that the accent under Article 15(4) was on classes of citizens and the
Constitution did not enable the State to bring socially and educationally backward
areas within the protection of Article 15(4). It was emphasized that the backwardness
contemplated under Article 15(4) was both social and educational and the socially and
educationally backward classes of citizens were groups other than the groups based on
castes. The traditional unchanging conditions of citizens could contribute to social
and educational backwardness. The place of habitation and its environment could be a
determining factor in judging the social and educational backwardness. The Court upheld
reservations for persons from hill and Uttrakhand areas. It was found that the absence
of means of communication, technical processes and educational facilities kept the poor
and illiterate people in the remote and sparsely populated areas backward. However,
reservation of seats for rural areas was invalidated because the division of the people
on the ground that the people in the rural areas were poor and those in the urban areas
were not, was not supported by the facts. Further, the rural population was
heterogeneous and not all of them were educationally backward.

3. State of Kerela vs N M Thomas AIR 1976

State of Kerala had given 2 yrs relaxation to SC/STs in passing certain test for
promotion. SC held that such a relaxation is valid. It held that the relaxation does
not cause reduction in the efficiency because such people will have to pass the test
anyway. It further held that special provisions for SC/STs could be made even under
16(1) and not only under 16 (4). This is because the classification has a reasonable
nexus with objective, which is the upliftment of backward classes.
4. A B S K Sangh (Rly) vs Union of India AIR 1981
Building upon the case of N M Thomas, SC upheld that reservation could be done even
without 16(4) because art 16(1) has to be read in light of art 14, which permits
classification based on intelligible differentia and a justifiable nexus with the
objective.
It further held that "carry forward rule" is valid if the reservation does not become
excessive. It held that exact mathematical calculation of 50% is not required in
solving human problems but reservation should not be excessive. In this particular
situation, 64.4% was not considered excessive. 50% limit was not a strict limit but
only a guideline.
In A. Peeriakaruppan, etc. v. State of Tamil Nadu [10]
The Supreme Court observed that “A caste has always been recognised as a class. If the
members of an entire caste or community at a given time are socially, economically and
educationally backward that caste on that account be treated as a backward class. This
is not because they are members of that caste or community but because they form a
class.”

Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr.[a
person belonging to the backward class but family income exceeding Rs. 10000, was
denied the benefit of reservation as it was held that caste could not be treated as the
sole or dominant test for the purpose and poverty too had too be taken into account. It
was held that neither poverty nor caste can be sole factors for determining
backwardness. Caste and poverty are both relevant factors for determination of
backwardness.”Finally it was decided in this case that neither caste nor poverty can be
the sole factor but both of them are relevant factors for determination of
backwardness.

In Jagdish Negi v. State of Uttar Pradesh, it was made clear that no class of citizens
can be perpetually treated as socially and educationally backward and the State is
entitled to review the situation from time to time.

5. State of MP vs Nivedita Jain AIR 1981

In this case, SC held that complete relaxation of qualifying marks for SC/STs for
admission in medical colleges is valid.

6. Indra Sawhney vs Union of India AIR 1993

The following points were held in this case:
 classification of backward and more backward is valid.
 reservation cannot exceed 50%.
 only economic criteria is not valid.
 creamy layer must be excluded.
 reservation if promotion is invalid. - This was nullified by 77th amendment which
added clause 15 (4). This clause permits reservation in promotions with
consequential seniority.
 16(4) is not an exception but only an instance of classification. Reservation can
done without 16(4) as well, under the doctrine of reasonable classification.
 Any new parameters on reservation can be added only after consulting the supreme
court.
Conclusion
Upon examining the philosophy behind art 14, in can said that art 15 does not go
against the principle of equality. Art 15 gives specific examples on which
discrimination is prohibited and it also list specific cases where a positive
discrimination may be done to achieve social equality and social justice.

Article 15 (5)
The Supreme Court delivered an unanimous judgement by 7 judges on August 12, 2005 in
the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.declaring that the State
can't impose its reservation policy on minority and non-minority unaided private
colleges, including professional colleges. All political parties without exception were
unhappy with the Supreme Court's recent judgement in the P.A. Inamdar case and there
was a consensus among all political parties for amending the Constitution to impose the
State's reservation policies on the private unaided colleges too.The 93rd Constitution
Amendment Act, termed by Minister of Human Resource Development, Arjun Singh as only a
piece of "enabling legislation", may have opened Pandora's box by amending Article 15
of the constitution to provide for reservations for OBCs in all "educational
institutions" including private, whether aided or unaided, excepting minority
educational institutions.
ashok kumar thakur vs union of india 2008

Summary Of Findings
1A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)?
Yes, it must. The 93rd amendment would be ultra vires and invalid if the creamy layer
is not excluded. See paras 22, 25, 27, 30, 34, 35, 43, 44.

1B. What are the parameters for creamy layer exclusion?

For a valid method of creamy layer exclusion, the Government may use its post-Sawhney I
criteria as a template. (See: Office Memorandum dated 8-9-1993, para 2(c)/Column 3). I
urge the Government to periodically revise the O.M. So that changing circumstances can
be taken into consideration while keeping our constitutional goal in view. I further
urge the Government to exclude the children of former and present Members of the
Parliament and Members of Legislative Assemblies and the said O.M. be amended
accordingly.See paras 55-57.

1C. Is creamy layer exclusion applicable to SC/ST?

In Indra Sawhney-I, creamy layer exclusion was only in regard to OBC. Justice Reddy
speaking for the majority at para 792 stated that "this discussion is confined to Other
Backward Classes only and has no relevance in the case of Scheduled Tribes and
Scheduled Castes". Similarly, in the instant case, the entire discussion was confined
only to Other Backward Classes. Therefore, I express no opinion with regard to the
applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled
Tribes. See para 34.

2. Can the Fundamental Right under Article 21A be accomplished without great emphasis
on primary education?
No, it cannot. An inversion in priorities between higher and primary/secondary
education would make compliance with Article 21A extremely difficult. It is not
suggested that higher education needs no encouragement or that higher education should
not receive more funds, but there has to be much greater emphasis on primary education.
Our priorities have to be changed. Nothing is really more important than to ensure
total compliance of Article 21A. Total compliance means good quality education is
imparted and all children aged six to fourteen regularly attend schools. I urge the
Government to implement the following: The current patchwork of laws on compulsory
education is insufficient. Monetary fines do not go far enough to ensure that Article
21A is implemented. The Central Government should enact legislation that: (a) provides
low-income parents/guardians with financial incentives such that they may afford to
send their children to schools; (b) criminally penalizes those who receive financial
incentives and despite such payment send their children to work; (c) penalizes
employers who preclude children from attending schools; (d) the penalty should include
imprisonment; the aforementioned Bill would serve as an example. The State is obligated
under Article 21A to implement free and compulsory education in toto. (e) until we have
accomplished for children from six to fourteen years the object of free and compulsory
education, the Government should continue to increase the education budget and make
earnest efforts to ensure that children go to schools and receive quality education;
(f) The Parliament should fix a deadline by which time free and compulsory education
will have reached every child. This must be done within six months, as the right to
free and compulsory education is perhaps the most important of all the fundamental
rights. For without education, it becomes extremely difficult to exercise other
fundamental rights.See paras 126-131.

3. Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing
reservation on unaided institutions?
Yes, it does. Imposing reservation on unaided institutions violates the Basic Structure
by stripping citizens of their fundamental right under Article 19(1)(g) to carry on an
occupation. T.M.A. Pai and Inamdar affirmed that the establishment and running of an
educational institution falls under the right to an occupation. The right to select
students on the basis of merit is an essential feature of the right to establish and
run an unaided institution. Reservation is an unreasonable restriction that infringes
this right by destroying the autonomy and essence of an unaided institution. The effect
of the 93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structure
altered. To restore the Basic Structure, I sever the 93rd Amendment's reference to
"unaided" institutions. See paras 132-182.

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless
society, in violation of Secularism.
Sawhney I compels me to conclude that use of caste is valid. It is said that if
reservation in education is to stay, it should adhere to a basic tenet of Secularism:
it should not take caste into account. As long as caste is a criterion, we will never
achieve a casteless society. Exclusively economic criteria should be used. I urge the
Government that for a period of ten years caste and other factors such as
occupation/income/property holdings or similar measures of economic power may be taken
into consideration and thereafter only economic criteria should prevail; otherwise we
would not be able to achieve our constitutional goal of casteless and classless
India.See paras 194, 195, 231, 248, 251.

5. Are Articles 15(4)and15(5) mutually contradictory, such that15(5)is

unconstitutional?
I am able to read them harmoniously.See paras 252-256.

6. Does Article 15(5)'s exemption of minority institutions from the purview of

reservation violate Article 14 of the Constitution?
Given the inherent tension between Articles 29(2) and 30(1), I find that the overriding
constitutional goal of realizing a casteless/classless society should serve as a tie-
breaker. We will take a step in the wrong direction if minority institutions (even
those that are aided) are subject to reservation. See paras 268-269.

7) Are the standards of review laid down by the U.S. Supreme Court applicable to our
review of affirmative action under Art 15(5) and similar provisions?
The principles enunciated by the American Supreme Court, such as, "Suspect Legislation"
"Narrow Tailoring" "Strict Scrutiny" and "Compelling State necessity" are not strictly
applicable for challenging the impugned legislation. Cases decided by other countries
are not binding but do have great persuasive value. Let the path to our constitutional
goals be enlightened by experience, learning, knowledge and wisdom from any quarter. In
the words of Rigveda, let noble thoughts come to us from every side.See para 183.

8) With respect to OBC identification, was the Reservation Act's delegation of power to
the Union Government excessive?
It is not an excessive delegation. With respect to this issue, I agree with the
reasoning of the Chief Justice in his judgment.

9) Is the impugned legislation invalid as it fails to set a time-limit for caste-based

reservation?
It is not invalid because it fails to set a time-limit. See para 272.

10) At what point is a student no longer Educationally Backward and thus no longer
eligible for special provisions under 15(5)?
Once a candidate graduates from a university, the said candidate is educationally
forward and is ineligible for special benefits under Article 15(5) of the Constitution
for post graduate and any further studies thereafter. See para 273.

11. Would it be reasonable to balance OBC reservation with societal interests by

instituting OBC cut-off marks that are slightly lower than that of the general
category?
It is reasonable to balance reservation with other societal interests. To maintain
standards of excellence, cut off marks for OBCs should be set not more than 10 marks
out of 100 below that of the general category.See paras 274-278.

Gulshan Prakash & Ors vs State Of Haryana & Ors , 2009 SC

The apex court passed the judgement while dismissing the appeal of a medical student
Gulshan Prakash and others challenging the denial of reservation benefits to SC/STs in
post graduate courses MD/MS/PG Diploma and MDS offered by Maharshi Dayanand University,
Rohtak, Haryana for Academic Session 2007-2008.
A three judge bench of Chief Justice K G Balakrishnan, Justice P Sathasivam and Justice
J M Panchal said though a preferential treatment can be given to the candidates
belonging to the reserved and underprivleged communities, yet, there is no
Constitutional obligation for the Government to fulfil the same.

"Article 15(4) is an enabling provision and the State Government is the best judge to
grant reservation for SC/ST/Backward Class categories at Post-Graduate level in
admission and the decision of the State of Haryana not to make any provision for
reservation at the Post-Graduate level suffers no infirmity."
 “Protective
Discrimination”
Protective discrimination is the policy of granting special privileges to the
downtrodden and the underprivileged sections of society, most commonly women. These are
affirmative action programs, most visible in both the United States and India, where
there has been a history of racial and caste discrimination. The practice is most
prominent in India, where it has been enshrined in the constitution and
institutionalized.

The need to discriminate positively in favour of the socially underprivileged was felt
for the first time during the nationalist movement. It was Mahatma Gandhi, himself a
devout Hindu and a staunch believer in the caste system, who was the first leader to
realise the importance of the subject and to invoke the conscience of the upper castes
to this age-old social malady of relegating whole communities to the degrading position
of “untouchables”. He also understood the political logic of inducting this large body
of people into the political mainstream in order to make the freedom movement more
broad based. By renaming these untouchables as “Harijans” (people of God) he tried to
give this policy a religious sanction so as not to disturb the traditional
sensitivities of the caste Hindus more than was really necessary.

The Constitution of independent India which largely followed the pattern of the
Government of India Act, 1935, made provisions for positive discrimination in favour of
the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted about 23% of
the divided India’s population. Besides reserving parliamentary seats for them they
were given advantages in terms of admission to schools and colleges, jobs in the public
sector, various pecuniary benefits for their overall development, and so on. The
constitution indeed guaranteed the fundamental right of equality of all citizens before
the law but it also categorically laid down that nothing in the constitution “shall
prevent the State from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Schedules Castes and the
Scheduled Tribes”.

Some of the constitutional provisions which aimed at positive discrimination are:

# Article 17: Abolition of “untouchability” and making its practice in any form a
punishable offence.
# Article 46: Promotion of educational and economic interests.
# Article 16 and 335: Preferential treatment in matters of employment in public
services.
# 330 and 332: Reservation of seats in the Lok Sabha and State Assemblies.

Later, the job-related positive discrimination was extended to government-supported

autonomous bodies. A 1974 Government order laid down that all such bodies which
employed more than 20 people, and where 50% of the recurring expenditure was met out of
grants-in-aid from the Central Government, and which received annual grants-in-aid of
at least Rs.200,000 should invariably provide for reservation of SCs and STs in posts
and services. The general rule which exempted the scientific and technical posts from
the purview of positive discrimination was applicable to the autonomous bodies too.

As reiterated by SC in M G Badappanavar versus State of Karnataka AIR 2001 SC 260 at

page 264, Equality is the basic feature of the Constitution of India and any treatment
of equals unequally or of unequals as equal will be violation of basic structure of the
Constitution of India.
A.P.Public Service Commission vs Baloji Badhavath & Ors on 8 April, 2009
The Constitution of India lays down provisions both for protective discrimination as also affirmative
action. Reservation of posts for the disadvantaged class of people as also seats in educational
institutions are provided for by reason of Articles 15 and 16 of the Constitution of India. Reservation
made for the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes would,
however, is subject to Article 335 of the Constitution of India. Concededly, no citizen of India can claim
reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of
India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued.
[See C.A. Rajendran v. Union of India & Others, (1968) 1 SCR 721 at 731-733, Indra Sawhney and
Others v. Union of India and Others [1992 Supp (3) SCC 217, para 165 to 169, 428 to 432, 741 and 742,
Ajit Singh and Others (II) v. State of Punjab and Others (1999) 7 SCC 209, para 32 to 39, State of
Punjab and Others v. Manjit Singh and Others (2003) 11 SC

Equality of Opportunity Article

16(1)

 There shall be equality of opportunity for all citizens

 in matters of employment or appointment to any office under State

Union Public Service Commission vs Girish Jayanti Lal Vaghela 2006 SC
Article 16 which finds place in Part III of the Constitution relating to fundamental
rights provides that there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State. The main object
of Article 16 is to create a constitutional right to equality of opportunity and
employment in public offices. The words "employment" or "appointment" cover not merely
the initial appointment but also other attributes of service like promotion and age of
superannuation etc.

Article 16(2)

 No citizen shall be discriminated against in employment or office under State on

grounds only of
 Religion

 Race

 Caste

 Sex

 Descent

 Place of birth

 Place of residence
DR. PRADEEP JAIN ETC. Vs. UNION OF INDIA AND ORS. 1984 SC BHAGWATI, P.N.

“We may point out at this stage that though Article 15 (2) clauses (1) and (2) bars
discrimination on grounds not only of religion, race, caste or sex but also of place of
birth, Article 16 (2) goes further and provides that no citizen shall on grounds only
of religion, race, caste, sex, descent, place of birth, residence or any of them be
ineligible for or discriminated against in state employment. So far as employment under
the state, or any local or other authority is concerned, no citizen can be given
preference nor can any discrimination be practised against him on the ground only of
residence. It would thus appear that residential requirement would be unconstitutional
as a condition of eligibility for employment or appointment to an office under the
State and having regard to the expansive meaning given to the word `State' in Ramana
Dayaram Shetty v. International Airport Authority of India & Ors., it is obvious that
this constitutional prohibition would also cover an office under any local or other
authority within the State or any corporation, such as a public sector corporation
which is an instrumentality or agency of the State. But Article 16 (3) provides an
exception to this rule by laying down that Parliament may make a law "prescribing, in
regard to a class or classes of employment or appointment to an office under the
government of, or any local or other authority, in a state or union territory, any
requirement as to residence within that state or union territory prior to such
employment." or appointment Parliament alone is given the right to enact an exception
to the ban on discrimination based on residence and that too only with respect to
positions within the employment of a State Government. But even so, without any
parliamentary enactment permitting them to do so, many of the State Governments have
been pursuing policies of localism since long and these policies are now quite wide
spread. Parliament has in fact exercised little control over these policies States. The
only action which Parliament has taken under Article 16 (3) giving it the right to set
residence requirements has been the enactment of the Public Employment (Requirement as
to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the
States and enacting exceptions only in the case of the special instances of Andhra
Pradesh, Manipur, Tripura and Himchal Pradesh. There is therefore at present no
parliamentary enactment permitting preferential policies based on residence requirement
except in the case of Andhra Pradesh, Manipur Tripura and Himachal Pradesh where the
Central Government has been given the right to issue directions setting residence
requirements in the subordinate services. Yet, in the face of Article 16 (2), some of
the States are adopting `sons of the soil' policies prescribing reservation or
preference based on domicile or residence requirement for employment or appointment to
an office under the government of a State or any local or other authority or public
sector corporation or any other corporation which is an instrumentality or agency of
the State. Prima facie this would seem to be constitutionally impermissible though we
do not wish to express any definite opinion upon it, since it does not directly arise
for consideration in these writ petitions and civil appeal.
But, it is clear that so far as admissions to an educational institution such as a
medical college are concerned, Article 16(2) has no application, If, therefore, there
is any residence requirement for admission to a medical college in a State, it cannot
be condemned as unconstitutional on ground of violation of Article 15 clauses (1) and
(2). Nor can Article 16(2)be invoked for invalidating such residence requirement
because these clauses prohibits discrimination on ground of place of birth and not on
ground of residence and, as pointed out by this Court in D.P. Joshi v. State of Madhya
Bharat, residence and place of birth are "two distinct conceptions with different
connotations both in law and in fact". The only provision of the Constitution on the
touch-stone of which such residence requirement can be required to be tested is Article
14”

Naina Saini v. State of Uttarakhand, AIR 2010 Uttarakhand a Single Judge of the
Uttarakhand High Court has revisited the law relating to domicile of a person to
declare that there is no separate domicile for each State and there is only one
domicile for the entire country.

A judgment in 2014 in the case of Vishal Goyal and others v. State of Karnataka and
others, candidates for admission to post graduate courses in medical and dental
colleges in Karnataka challenged the state government’s requirement that only
candidates of “Karnataka origin” were eligible to apply for these courses through the
state quota. The Supreme Court declared these domiciliary requirements in state
government medical and dental colleges as well as in the state quota in private medical
and dental colleges to be ultra vires of Article 14 of the constitution. The court
relied on its opinion in Dr. Pradeep Jain and others V. Union of India(1984) 3 SCC 654.
Where the court held that, “when it came to institutions of higher education,
consideration other than excellence, such as residential status of the candidate, would
violate article 14 of the constitution, in addition to this it compromises on the
quality and being detrimental to the interests of the nation.
Article 16(3)

 Parliament may by law

 Make residence within a State/UT a condition for employment or appointment to an

office under govt of that State/UT

In “Kailash Chandra Sharma versus the State of Rajasthan and others”,2002 sc the
Supreme Court observed that residence within a district or rural areas of that
district should not be a valid basis for classification for the purpose of public
 employment. Residence be it within a state, region, district, or lesser area
within a district can not be a ground to accord preferential treatment or
reservation, as provided under Article 16(3).

Article 16(4)

 This Article does not prevent the State

 from making a provision for reservation of appointment
 in favour of a backward class of citizens
 which is not adequately represented in services under State

Whether Art.16 (4) an exception toArt.16 (1)?

Supreme Court on Article 16(4) in Indra Sawhney v. Union of India [1992] 6:3
Issue 1

Whether clause (4) of Article 16 is an exception to clause (1)?

Decision

Clause (4) of Article 16 is not an exception to clause (1). It is an instance

and an illustration of the classification inherent in clause (1).
Issue 2

Whether Article 16(4) is exhaustive of the concept of reservations in favour of

backward classes?
Decision

Article 16(4) is exhaustive of the subject of reservation in favour of backward

class of citizens, as explained in this judgment.
Issue 3

Whether Article 16(4) is exhaustive of the very concept of reservations? Whether

clause (1) of Article 16 does not permit any reservations?
Decision

Reservations can also be provided under clause (1) of Article 16. It is not
confined to extending of preferences, concessions or exemptions alone. These
reservations, if any, made under clause (1) have to be so adjusted and
implemented as not to exceed the level of representation prescribed for
‘backward class of citizens’ – as explained in this Judgment.
Issue 4

Meaning of the expression “backward class of citizens” in Article 16(4).

Answer
A caste can be and quite often is a social class in India. If it is backward
socially, it would be a backward class for the purposes of Article 16(4). Among
non- Hindus, there are several occupational groups, sects and denominations,
which for historical reasons, are socially backward. They too represent backward
social collectivities for the purposes of Article 16(4).
Issue 5

‘Means-test’ and ‘creamy layer’?

Answer

‘Creamy layer’ can be, and must be excluded.

 Issue 6

To what extent can the reservation be made? Whether the 50% rule enunciated in
Balaji a binding rule or only a rule of caution or rule of prudence?

Decision

The reservations contemplated in clause (4) of Article 16 should not exceed

50%. While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the great
diversity of this country and the people.
Issue 7

Whether clause (4) of Article 16 provides reservation only in the matter

of initial appointments/direct recruitment or does it contemplate and
provide for reservations being made in the matter of promotion as well?
Decision

Article 16(4) does not permit provision for reservations in the matter of
promotion. This rule shall, however, have only prospective operation and shall
not affect the promotions already made.
Issue 8

Desirability of a Permanent Statutory Body to Examine Complaints of Over-

inclusion/ Under-inclusion
Decision
The Government of India and the State Governments have the power to, and ought
to, create a permanent mechanism – in the nature of a Commission – for
examining requests of inclusion and complaints of over-inclusion or non-
inclusion in the list of OBCs and to advise the Government, which advice shall
ordinarily be binding upon the Government.

Public interest demands concern for quality and prohibits waiver or abandonment of quality. In Janki
Prasad v. State of Jammu & Kashmir, the Supreme Court observed that the setting of absurdly low
minimal scores made it a "travesty of selection".
Criticism of Mandal Case
The majority judgement in the Mandal case has been criticized by many persons including the eminent lawyer N.A.
Palkhivala. He supports the view of the minority (Thommen, Kuldip Singh, and Shahi J.) as stating the correct law.
The minority proceeded on the footing that casteism is anathema to the Constitution and caste can never be the basis
of reservation. The Government had not accepted the Report of the Backward Class Commission headed by Kala
Kalekar because it was not prepared to list the caste as backward. The majority struck down provision for additional
reservation of 10% for other economically backward communities. It held that caste backwardness is relevant while
holding that economic backwardness is not. The decision allows the State to prescribe reservations for the majority of
the population. It was no parallel in the world. All our social reformers Swami Dayanand, Swami Vivekanand,
Narayan Guru, Mahatma Gandhi, Dr. Hedgewar and Dr. Ambedkar regarded caste as the bane of and curse on society.
In earlier judgements the Supreme Court had refused to treat caste as class. By this decision caste has been revitalized
and the nation has been cleaved into two—forward and backward. This is against the call of the Preamble—unity and
integrity and opposed to the basic structure of the Constitution.
National Commission and Ram Nandan Committee
In pursuance of the directions of the Supreme Court in Mandal Case the Parliament enacted the National Commission
for Backward Classes Act, 1993. Its function is to examine requests for inclusion of any class of citizens as a
backward class and hear complaints of over-inclusion and under-inclusion of any backward class. The Union
government also appointed a committee under the chairmanship of Justice Ram Nandan to identify the cream layer.
The Committee submitted its report in 1993. The report was accepted by the government.

Subversion of Mandal Rule (Post Mandal Development)

The States have not accepted the Mandal Judgment and there have been numerous attempts to nullify the restraints
imposed by the Court (apart from the 2 Constitution Amendments described above). Tamil Nadu enacted the Tamil
Nadu Reservations. etc. Act, 1994 authorising it to make reservations up to 69%. By the Constitution (76th
Amendment) Act this Act has been placed in 9th Schedule to protect it from attack. Following Tamil Nadu, Karnataka
sought to introduce a Bill to provide 80% reservations. It was later deferred.
 In I.R. Coelho (Dead) by LRS. Vs. State of Tamil Nadu, the Hon'ble Court held as infra: '' This is our
answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v. State of
Tamil Nadu [(1999) 7 SCC 580].(v) If the validity of any Ninth Schedule law has already been upheld
by this Court, it would not be open to challenge such law again on the principles declared by this
judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in
the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the
ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14,
Article 19 and the principles underlying thereunder.(vi) Action taken and transactions finalized as a
result of the impugned Acts shall not be open to challenge.''

State of Tamilnadu was advised by the Supreme court of India to follow 50% limit.; It is also pertinent to
note that State of Tamilnadu Reservations were put under 9th Schedule of the constitution of India.

1). Non following of creamy layer rule

The Creamy layer rule excluding the affluent and well placed members of a caste was made ineffective by several
States. In Ashok Kumar case the Supreme Court quashed the economic criteria laid down by Bihar and U.P. Kerala
followed the footsteps of Bihar and created a farcical criteria which would circumvent the requirement of excluding
the creamy layer. The Court was forced to observe that the discriminatory law made by Kerala was in virtual defiance
of the Rule of law and an indefensible breach of equality principle which is the basic structure of the Constitution. The
Court stated that non-exclusion of creamy layer or inclusion of forward castes in the list of backward classes is totally
illegal. It warned that the illegality attacking the root of the Constitution cannot be allowed to be perpetual even by a
Constitutional Amendment.
Thus within a decade of allowing caste-based reservation the Supreme Court is finding that it has left the door open
for a flood of constitutional violations of the guarantee of equality.

Creamy Layer Rule Does Not Apply To Scs & Sts

The issue of excluding the creamy layer among SCs and STs have not arisen much for consideration. That issue was already settled in
1992 by a larger bench of nine judges (Indra Sawhney v. Union of India — the `Mandal case,') and also in 2004 by a co-ordinate bench
of five judges (E.V. Chinnaiah v. State of Andhra Pradesh and Others[13]) by holding that the concept of creamy layer had no
application to SCs and STs. The October 19, 2006 judgment in the M. Nagaraj v. Union of India[14] case by five judges could not and,
in fact, does not derogate from these earlier pronouncements.

Indira Sawhney Vs. Union of India. AIR 2000 SC 498, This case involved the following facts: State of Kerala
did not comply with the guidelines given by the Supreme Court. Hence the case The guidelines were declared in
Indra Sawhney I
Issues involved: Law declared by the Supreme Court regarding ‘creamy layer’
It was held that: The person to be treated as scheduled caste. The decision of the
Tribunal upheld.

'' it was clearly held that the doctrine of principles of reservations have to be applied having regard to the
vacancy position as existing in the entire area, the only exception being the cases,which would be falling
under Article 16(4)'' .
Ashoka Kumar Thakur vs. Union of India: (Writ Petition (civil) 265 of 2006;DATE OF
JUDGMENT: 10/04/2008)

 SUMMARY OF FINDINGS

1A. Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act)?

Yes, it must. The 93rd amendment would be ultra vires and invalid if the creamy layer is not
excluded. See paras 22, 25, 27, 30, 34, 35, 43, 44.

1B. What are the parameters for creamy layer exclusion?

For a valid method of creamy layer exclusion, the Government may use its post-Sawhney I criteria as
a template. (See: Office Memorandum dated 8-9-1993, para 2(c)/Column 3). I urge the Government
to periodically revise the O.M. So that changing circumstances can be taken into consideration while
keeping our constitutional goal in view. I further urge the Government to exclude the children of
former and present Members of the Parliament and Members of Legislative Assemblies and the said
O.M. be amended accordingly.See paras 55-57.

1C. Is creamy layer exclusion applicable to SC/ST?

In Indra Sawhney-I, creamy layer exclusion was only in regard to OBC. Justice Reddy speaking for
the majority at para 792 stated that "this discussion is confined to Other Backward Classes only and
has no relevance in the case of Scheduled Tribes and Scheduled Castes". Similarly, in the instant
case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no
opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and
Scheduled Tribes. See para 34.

2. Can the Fundamental Right under Article 21A be accomplished without great emphasis on
primary education?

No, it cannot. An inversion in priorities between higher and primary/secondary education would
make compliance with Article 21A extremely difficult. It is not suggested that higher education
needs no encouragement or that higher education should not receive more funds, but there has to be
much greater emphasis on primary education. Our priorities have to be changed. Nothing is really
more important than to ensure total compliance of Article 21A. Total compliance means good quality
education is imparted and all children aged six to fourteen regularly attend schools. I urge the
Government to implement the following: The current patchwork of laws on compulsory education is
insufficient. Monetary fines do not go far enough to ensure that Article 21A is implemented. The
Central Government should enact legislation that: (a) provides low-income parents/guardians with
financial incentives such that they may afford to send their children to schools; (b) criminally
penalizes those who receive financial incentives and despite such payment send their children to
work; (c) penalizes employers who preclude children from attending schools; (d) the penalty should
include imprisonment; the aforementioned Bill would serve as an example. The State is obligated
under Article 21A to implement free and compulsory education in toto. (e) until we have
accomplished for children from six to fourteen years the object of free and compulsory education, the
Government should continue to increase the education budget and make earnest efforts to ensure that
children go to schools and receive quality education; (f) The Parliament should fix a deadline by
which time free and compulsory education will have reached every child. This must be done within
six months, as the right to free and compulsory education is perhaps the most important of all the
fundamental rights. For without education, it becomes extremely difficult to exercise other
fundamental rights.See paras 126-131.

3. Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation
on unaided institutions?
 Yes, it does. Imposing reservation on unaided institutions violates the Basic Structure by stripping
citizens of their fundamental right under Article 19(1)(g) to carry on an occupation. T.M.A. Pai and
Inamdar affirmed that the establishment and running of an educational institution falls under the right
to an occupation. The right to select students on the basis of merit is an essential feature of the right
to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes
this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd
Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered. To restore the
Basic Structure, I sever the 93rd Amendment's reference to "unaided" institutions. See paras 132-
182.

4. Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in
violation of Secularism.

Sawhney I compels me to conclude that use of caste is valid. It is said that if reservation in education
is to stay, it should adhere to a basic tenet of Secularism: it should not take caste into account. As
long as caste is a criterion, we will never achieve a casteless society. Exclusively economic criteria
should be used. I urge the Government that for a period of ten years caste and other factors such as
occupation/income/property holdings or similar measures of economic power may be taken into
consideration and thereafter only economic criteria should prevail; otherwise we would not be able to
achieve our constitutional goal of casteless and classless India.See paras 194, 195, 231, 248, 251.

5. Are Articles 15(4)and15(5) mutually contradictory,such that15(5)is unconstitutional?

I am able to read them harmoniously.See paras 252-256.

6. Does Article 15(5)'s exemption of minority institutions from the purview of reservation violate
Article 14 of the Constitution?

Given the inherent tension between Articles 29(2) and 30(1), I find that the overriding constitutional
goal of realizing a casteless/classless society should serve as a tie-breaker. We will take a step in the
wrong direction if minority institutions (even those that are aided) are subject to reservation. See
paras 268-269.

7) Are the standards of review laid down by the U.S. Supreme Court applicable to our review of
affirmative action under Art 15(5) and similar provisions?

The principles enunciated by the American Supreme Court, such as, "Suspect Legislation" "Narrow
Tailoring" "Strict Scrutiny" and "Compelling State necessity" are not strictly applicable for
challenging the impugned legislation. Cases decided by other countries are not binding but do have
great persuasive value. Let the path to our constitutional goals be enlightened by experience,
learning, knowledge and wisdom from any quarter. In the words of Rigveda, let noble thoughts come
to us from every side.See para 183.

8) With respect to OBC identification, was the Reservation Act's delegation of power to the Union
Government excessive?

It is not an excessive delegation. With respect to this issue, I agree with the reasoning of the Chief
Justice in his judgment.

9) Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?

It is not invalid because it fails to set a time-limit. See para 272.

10) At what point is a student no longer Educationally Backward and thus no longer eligible for
special provisions under 15(5)?
 Once a candidate graduates from a university, the said candidate is educationally forward and is
ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any
further studies thereafter. See para 273.

11. Would it be reasonable to balance OBC reservation with societal interests by instituting OBC
cut-off marks that are slightly lower than that of the general category?

It is reasonable to balance reservation with other societal interests. To maintain standards of

excellence, cut off marks for OBCs should be set not more than 10 marks out of 100 below that of
the general category.See paras 274-278.

Article 16(4A)

 This Article does not prevent the State

 from making a provision for reservation in matters of promotion

 with consequential seniority in favour of SCs and STs
 which are not adequately represented in services under State

Note:

 Clause (4A) was inserted by the 77th Amendment Act in 1995

 It was further amended by the 85th Amendment Act in 2001
Thus, by amending the Constitution, the Parliament has removed the base as interpreted
by Supreme Court in Indira Sawhney that the appointment does not include
promotion. Article 16(4A) thus revives the interpretation put on Article 16. Rule of
reservation can apply not only to initial recruitments but also to promotions. But no
promotion can be made in promotion posts for the OBC’s.

The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a
manner that a balance is struck in the matter of appointments by creating reasonable
opportunities for the reserved classes as well as for the other members of the society.

Article 16(4B)

 This Article does not prevent the State

 from considering any reserved unfilled vacancies of a year

 as separate class of vacancies for subsequent years
 Such vacancies are not to be considered

 for determining ceiling of 50% reservation for those subsequent

years

Note:

Clause (4B) was inserted by the 81st Amendment Act in 2000] The Constitution (Eighty-
First Amendment) Act, 2000 has added Article 16(4B) to the Constitution. The Amendment
envisages that the unfilled reserved vacancies are to be carried forward to the
subsequent years and these vacancies are to be treated as distinct and separate from
the current vacancies during any year. The rule of 50% reservation laid down by the
Supreme Court is to be applied only to normal vacancies. This means that the unfilled
reserved vacancies can be carried forward from year to year without any limit, and are
to be filled separately from the normal vacancies. This Amendment also modifies the
proposition laid down by the Supreme Court in Indira Sawhney.

82nd amendment added a proviso to Article 335

Article 335: This article provides that “the claims of the members of the SCs and STs
shall be taken into consideration, consistently with the maintenance of efficiency of
administration in the making of appointments in services and posts in connection with
the affairs of the Union or of a State”.

Landmark case law on Articles 16(4A) and 16(4B):

M. Nagraj v. Union of India [2006 SC]

Supreme Court on Articles 16(4A) and 16(4B) in M. Nagraj v. Union of India

[2006]

The constitutional amendments by which Articles 16(4-A) and 16(4-B) have

been inserted ow from Article 16(4). They do not alter the structure of
Article 16(4).
They retain the controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables the States to
provide for reservation keeping in mind the overall efficiency of the State
administration under Article 335. They do not obliterate any of the
constitutional requirements, namely, ceiling limit of 50% (quantitative
limitation), the concept of creamy layer (qualitative exclusion), the sub-
classification between OBCs on one hand and SCs and STs on the other hand, the
concept of post-based roster with inbuilt concept of replacement.

The State concerned will have to show in each case existence of the compelling
reasons, namely, backwardness, inadequacy of representation and overall
administrative
Efficiency before making provision for reservation.

The impugned provision is an enabling provision. The State is not bound to

make reservation for SCs/STs in matters of promotions. However, if they wish
to exercise their discretion and make such provision, the State has to collect
quant able data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance
with Article 335.
It is made clear that even if the State has compelling reasons, the State will
have to see that its reservation provision does not lead to excessiveness so
as to breach the ceiling limit of 50% or obliterate the creamy layer or extend
the reservation indefinitely.
Therefore, M. Nagaraj laid down three requirements: –
1. General efficiency of the service must not be compromised. This is traceable to Article 335 of the Constitution.
2. The State must come to the conclusion that the groups in question are not adequately represented in the service,
based on quantifiable data. This flows from Article 16(4A) itself.
3. The State, based on quantifiable data, must come to the conclusion that the class benefitting from the ameliorative
measure is “backward”.
 U.P. Power Corporation Ltd. v. Rajesh Kumar & Ors., (2012) 7 SCC 1. In this case, the Court was examining the
constitutionality of Section 3(7) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994, and Rule 8-A of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007.
Section 3(7) preserved pre-existing Government Orders in U.P. that provided for reservation in promotion. Rule 8-A
provided for consequential seniority.
As it was found that no quantifiable data had been collected by the State of U.P. for effectuating reservation in promotion
and making the rule of consequential seniority applicable, the Court held: –

“86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench
in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the
reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules
cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B)
are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions
precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not
necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission,
for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the
part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on
parameters laid down therein.
… In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the
2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been
given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall
remain undisturbed.” [Emphasis supplied]
The result of this judgment was, essentially, that all SC/ST candidates in the State services in U.P. would be subjected to
reversion, i.e. they would be demoted to the posts they held as on 15.11.1997 (when the five year period of protection
provided by Indra Sawhney ended), as the provisions on the basis of which they had been promoted had been effectively
struck down with retrospective effect (reaching all the way back to 1997).

Rajeev Kumar Gupta vs Union of India 2016 SC : Supreme Court directs

reservation in promotion for disabled persons in Government jobs
The Supreme Court set aside Government of India instructions disallowing reservation
in promotion for persons with disabilities, and held that wherever posts are identified
to be suitable for disabled persons, 3% reservation must be given in direct recruitment
as well as in promotion.
The State’s response was this: in Indra Sawheny v Union of India, the Supreme Court had
held that reservations in promotion were impermissible under Article 16(4).
Subsequently, To get around this, Parliament then amended Article 16(4) by inserting
16(4A), which specifically authorised reservations in promotions for certain Scheduled
Castes and Scheduled Tribes. 16(4A), therefore, excepted only SC/STs from Indira
Sawhney’s rule against reservations in promotions. That rule would continue to apply to
all other classes of employees, including persons with disabilities.

The basic premise of the State’s argument, therefore, was that the authority for
reservations was contained within Article 16(4) of the Constitution. If that was the
case, then Indra Sawhney’s interpretation of 16(4) – that it did not allow for
reservations in promotions – would hold the field, and prevent the two-judge bench from
reaching a different conclusion.
The Court rejected the argument on the basis that Article 16(4) was not the authority
for reservations under the Constitution. It did so by going over the history of
affirmative action jurisprudence:
Article 16(4) was an instance of, or an emphatic expression of, Article 16(1). That is,
Article 16(1) involved a commitment to substantive equality (or, in the words of
Justice Mathew, proportional equality), and Article 16(4) illustrated one specific way
in which that substantive equality could be achieved.
The corollary of this is that Article 16(1) not only permits, but actively
contemplates, reservations. So far (to my knowledge), the Court has been circumspect
about this conclusion. In the disability judgment, however, Justice Chelameswar takes
the logic to its explicit conclusion. In paragraph 21, he notes that:
“Article 16(4) does not disable the State from providing differential treatment
(reservations) to other classes of citizens under Article 16(1).”

Whether Art.16 (4) an exception toArt.16 (1)

 Backward classes contemplated under Article 16(4) are the socially and educationally
backward classes of citizens. In Devadasan, it was held by this Court that Article
16(4) is an exception to the principle contained in Article 16(1). However, Subba Rao,
J., in his dissent opined that Article 16(4) is not an exception to Article 16(1) but
an emphatic way of expressing the principle inherent in Article 16(1). This dissenting
opinion later found approval in the majority decision in State of Kerala v. N.M.
Thomas, (1976) 2 SCC 310. Finally, in Indra Sawhney, a 9-judge Bench by majority
(speaking through Jeevan Reddy, J.) confirmed that Article 16(4) is not an exception to
the Rule in Article 16(1) but it is an “instance of (such) classification”10

Suresh Chandra Gautam vs State of U.P. 2016 SC

The Supreme Court while rejecting a PIL seeking direction to the Uttar Pradesh (UP) government to grant reservation
in promotion ruled that scheduled caste (SC) and scheduled tribe (ST) members could not claim quota as a right in
government job promotions.

Amendments Story
This was a conflict of judiciary and interests of the executive / legislative. So to
continue the existing share of reservation in the promotions as well, an amendment bill
was brought to the parliament, which after being enacted came into force as
Constitution (77th amendment) Act, 1995. Later it was further amended to
include consequential seniority by 85th amendment.
One by one, the government made four amendments of the constitution viz. 77th, 81st,
82nd and 85th to provide not only for reservations in promotion but also for
consequential seniority on that basis. What this means is that a person gets promoted
through reservations, then claims to be senior on the basis of that promotion for the
purposes of a further promotion, and this continues indefinitely.
Challenging the amendments: M Nagaraj Case
In the M Nagaraj & Others vs. Union of India & Others (2006) the validity of these
amendments was challenged in the Supreme Court through various petitions clubbed
together on the ground that these altered the Basic Structure of the Constitution. But
the court upheld the amendments because they did not alter the basic structure of the
constitution.

 The court further held that these provisions are merely enabling provisions. If a
state government wishes to make provisions for reservation to SC/STs in promotion, the
state has to collect quantifiable data showing backwardness of the class and
inadequacy of representation of that class.

 The Supreme Court had made it very clear that Article 16 (4A), which was inserted
through these amendments, was only an enabling provision. In essence, every time a
government or the legislature sought to provide reservation in promotions under
Article 16 (4A), it would have to pass constitutional muster. While justifying each
attempt to provide reservation in promotions, the state would have to demonstrate
backwardness, inadequacy of representation and maintenance of efficiency.

Implications of M Nagaraj Case

The conditions laid down in Nagaraj case had raised a number of concerns. Since Article
16 (4A) permits reservation in promotions only for the SCs/STs and not for the OBCs,
the first condition in Nagaraj requiring the state to demonstrate backwardness of the
beneficiaries is problematic because it may lead to bringing in the ‘creamy layer’ test
for SCs/STs through the backdoor. However, Supreme Court had held for several times
that test of ‘creamy layer’ is not applicable to SCs/STs. The settled position of law
is that all members of recognised SC/ST groups automatically satisfy the condition of
backwardness and there is no burden on the state to further establish the backwardness
of those individuals benefiting from reservation.
The Constitution 117th amendment Bill
The current controversy started from a judgment delivered by a two-judge bench of the
Supreme Court in U.P Power Corporation Ltd. v. Rajesh Kumar in April 2012. In the M.
Nagaraj Case of 2006, it was already held by the Supreme Court that the state must
demonstrate backwardness, inadequacy of representation and maintenance of efficiency
before providing reservation in promotions. What the U.P Power Corporation did for the
first time was to strike down reservation in promotions for not meeting these criteria.
The UP Power corporation did this because the question of inadequacy of representation,
the text of Article 16 is clear that it is a matter for the state to determine.
The response of the government has now come in the form of 117 th Constitution Amendment
Bill introduced in the Rajya Sabha.
The article 16 4 A as per this new amendment bill speaks as follows:
Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes
and the Scheduled Tribes notified under article 341 and article 342, respectively,
shall be deemed to be backward and nothing in this article or in article 335 shall
prevent the State from making any provision for reservation in matters of promotions,
with consequential seniority, to any class or classes of posts in the services under
the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of
the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes
in the services of the State.”.
We see that the proposed Article 16 (4A), which seeks to substitute the existing
Article 16 (4A), has done away with concerns of efficiency by stating that nothing in
Article 335 can be an impediment, and the reference to ‘adequacy of representation’ has
been deleted.
Government says that the reservation in promotions at the entry level does not ensure
that the project of equality of opportunity is complete. It says that the reservation
in promotions would take that project further, and it would not let Article 335 to
become a roadblock in this project.

Other Recent Cases Of Reservation

in Ram Singh vs Union of India 2015, the Supreme Court overturned a government decision
to grant reservations to the Jat community in nine states (by including them in the
Central List of Backward Classes [“Central List”]).
The ICSSR submitted a report (but made no specific recommendations about
inclusion/exclusion in the Central List). The report was discussed by the NCBC, which
also held public hearings. At the end of this process, on 26.2.2014, the NCBC submitted
a report to the government, stating that “the Jat Community had not fulfilled the
criteria for inclusion in the Central List of OBCs.” But on 2.3.2014, the cabinet
rejected this report, on the ground that it did not take into account “ground
realities.” Two days later, via a notification, Jats were placed in the Central List
for the nine states.
At this point, it is important to note the status of the NCBC. It is a statutory body,
established under the National Commission for Backward Classes Act, 1993. Under S.
9(2), it is provided that when it comes to inclusion or exclusion from the Lists, “the
advice of the Commission shall ordinarily be binding upon the Central Government.” This
closely followed the judgment of the Supreme Court in Indra Sawhney vs Union of India,
where Justice Jeevan Reddy, commenting on the need for just such a specialised body,
had observed that “its advice/opinion should ordinarily be binding upon the Government.
Where, however, the Government does not agree with its recommendation, it must record
its reasons therefore.”
the government’s contention that Jats were on the State Lists of eight out of the nine
states was rejected by the Court, on the ground that those lists were made more than a
decade ago, and that “a decision as grave and important as involved in the present case
which impacts the rights of many under Articles 14 and 16 of the Constitution must be
taken on the basis of contemporaneous inputs and not outdated and antiquated
data.” (Paragraph 48) The Court also found that the minutes of the Cabinet meeting held
just before the Notification reflected a focus on the educational “backwardness” of the
Jat community by highlighting school, college and graduate enrollment (Paragraph 49).
The “backwardness” contemplated under Article 16, however, was social backwardness.
Consequently, the Court held that the cabinet notification ignored relevant material
(the NCBC report) and, in turn, based itself upon irrelevant material (educational
parametres and decade-old data); consequently, following the well-established
principles of judicial review that we have discussed above, it set aside the
notification.

The Supreme Court on Reservation Benefits for the Reconverted

In an interesting judgment delivered last month K.P. Manu,Malabar Cements Ltd vs
Chairman,Scrutiny 26 February, 2015 Dipak Misra, V. Gopala Gowda
, a two-judge bench of the Supreme Court held that, subject to certain conditions, an
erstwhile Christian who “reconverted” to Hinduism was eligible for Scheduled Caste
reservation benefits.
The appellant, K.P. Manu, had a great-grandfather who belonged to the Hindu Pulaya
community (which is a Scheduled Caste). His son – i.e., the appellant’s grandfather –
converted to Christianity. The appellant’s father was also a christian. But at the age
of 24, the appellant “reconverted” to Hinduism. He applied for a caste certificate from
his community and from the local tehsildar, both of whom issued it to him. This was
challenged before a Scrutiny Committee, which recorded a finding that the caste
certificate was incorrectly issued, on the ground that the appellant’s father and
grandfather had been christians, and that even after his “reconversion”, the appellant
had married a Christian woman.

On the basis of the Scrutiny Committee’s report, the State Government directed the
appellant’s employer to remove him from service and recover Rs. 15 lakhs from him. This
was challenged before the High Court, which affirmed the Committee’s findings.
Consequently, the appellant approached the Supreme Court.

Therefore, the Supreme Court was faced with a very narrow question: is a reconvert from
Christianity entitled to reservation benefits if his original/ancestral caste is a
Scheduled Caste? To answer the question, the Court analysed a number of
its previous judgments dealing with the issue of conversions and affirmative action.
According to the established jurisprudence of the Supreme Court, “ordinarily”,
conversion from Hinduism would mean an expulsion from one’s caste. This was not a hard-
and-fast rule though, since admittedly, the caste system been partially incorporated
into other religions as well. Consequently, the question would be decided on a case-to-
case basis, depending upon the “structure of the caste, and its rules and regulations.”

it held:

“In our considered opinion, three things that need to be established by a person who
claims to be a beneficiary of the caste certificate are (i) there must be absolutely
clear cut proof that he belongs to the caste that has been recognised by the
Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the
original religion to which the parents and earlier generations had belonged; and (iii)
there has to be evidence establishing the acceptance by the community. Each aspect
according to us is very significant, and if one is not substantiated, the recognition
would not be possible.” (para 34)

16(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.

The Abolition of Untouchability (Art. 17)

Article 17 abolishes “untouchability” and its practice in any form is made an offence
punishable under the law. No article in the Constitution was adopted with such
unanimity and so great an acclamation and enthusiasm as this article. The custom of
untouchability had not only thrown millions of the Indian population into abysmal gloom
and despair, shame and disgrace, but it had also eaten into the very vitals of the
nation. There would be no better sign of the determination to eradicate the evil than
incorporating this Article into the chapter on Fundamental Rights in the Constitution.
The untouchability Offences Act was amended in 1976 making its penal clauses more
stringent. The Act has been also renamed as the Protection of Civil Rights Act. One
significant new provision of the Act is that a person convicted of an untouchability
offence will be disqualified for contesting the elections. It was for the first time
that such a provision became a law in the history of elections in India.
For the effective enforcement of the declaration contained in this article, the
Constitution contemplates penal laws specifying various acts which are to be prohibited
and penalised and under Article 35 the parliament alone can make laws prescribing
punishments for the acts forbidden under Article 17.

This right is directed against private persons only but,

People'S Union For Democratic Rights vs. Union Of India & Others on 18 September, 1982
SC P Bhagwati Wherever any fundamental right which is enforceable against private individuals
such as, for example, a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the
constitutional obligation of the State to take necessary steps for the purpose of interdicting such
violation and ensuring observance of the fundamental right by the private individual who is
transgressing the same. The fact that the person whose fundamental right is-violated can always
approach the court
for the purpose of enforcement of his fundamental right, cannot absolve the State from its
constitutional obligation to see that there is no violation of the fundamental right of such person,
particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle
against a strong and powerful opponent who is exploiting him.
In State of Karnataka v. Appa Bala Ingale (AIR 1993 SC 1126), this was the first case
which came before Supreme Court under this act. In this case Harijan community was
threatned with use of gun to show
about their social disability. Supreme Court in this case convicted the respondents.

ARTICLE 18. ABOLITION OF TITLES

1. Art.18 Clause (1) prohibits the conferment of titles, Military and academic
distinctions are exempted from the prohibition.
Clause (2) prohibits a citizen of India from accepting any title from a foreign
State.
Clause (3) provides that a non-citizen who holds any office of office of profit
or trust under the State shall not accept, without the consent of the President,
any title from any foreign State.
Clause (4) provides that no person citizen or non citizen holding any office of
profit or trust, shall, without consent of the President, accept any present or
emolument or office of any kind from or under any foreign State.

2. American Constitution under Article 8 also have the similar provision and have
prohibited the persons holding the office of trust or profit from receiving gifts
in any forms from foreign states without the permission of the Congress.
3. In Balaji Raghavan v. Union of India (AIR 1996 SC 770), In 1954 the Government of
India introduced four awards namely , Bharat Ratna, Padma Vibhushan, Padma
Bhushan and Padma Shri for exceptional and distinguished service in any field
including public service. These awards were abolished in 1977 but were reinstated
in 1980. There validity was challenged in Court under Article 18 on the ground of
their inconsistency with that article.
the Court observed that it does not conflict with Article 18 and Court also
noted indiscriminate conferment of these awards without any clear guidelines and
it advised that a committee under the Prime Minister consisting among others
i.e., Speaker of the Lok Sabha, the Chief Justice of India or his nominee and the
leader of the opposition in consultation with the President of India should
nominate persons for these awards.

4. CONCLUSION Article 18 thus abolishes the conferment of titles through different

ways. It’s to be noted here that Article18 does not, like Article 17 provide
breach of any obligation will be an offence punishable in accordance with law.

Article 19
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

Reasonable restrictions
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and integrity of India or public order,
reasonable restrictions on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and integrity of India or public order or
morality, reasonable restrictions on the exercise of the right conferred by the said
sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any of the rights conferred by the
said sub clauses either in the interests of the general public or for the protection of
the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub clause, and, in particular, nothing in
the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise

These various freedoms are necessary not only to promote certain basic rights of the
citizens but also certain democratic values in, and the oneness and unity of, the
country. Art. 19 guarantee some of the basic, values in, and the oneness and unity of,
the country. Art. 19 guarantee some of the basic, valued and natural rights inherent in
a person.
Patanjali Shastri,J. in A.K. Gopalan case, observed,
“man as a rational being desires to do many things, but in a civil society his desires
will have to be controlled with the exercise of similar desires by other individuals”.

These rights are not exhaustive of all the rights of a free man who has far more and
wider rights. The freedoms enumerated in Article 19(1) are those great and basic rights
which are recognized as the natural inherent in the status of a citizen. According to
Supreme Court, it is possible that a right does not find express mention in any clause
of Art. 19(1) and yet it may be covered by some clause therein. This gives an
additional dimension to Article 19(1) in the sense that even though a right may not be
explicit, it may yet be implicit in the various clauses of Art.19.
The principle on which the power of the State to impose restriction is based is that
all individual rights of a person are held subject to such reasonable limitations and
regulations as may be necessary or expedient for the protection of the general welfare.
In the words of Das, J., “social interest in individual liberty may well have to be
subordinated to other greater social interests. Indeed, there has to be a balance
between individual rights guaranteed under Article 19(1) and the exigencies of the
State which is the custodian of the interests of the general public, public order,
decency or morality and of other public interests which may compendiously be described
as social welfare.”

Re-Ramlila Maidan Incident Dt ... vs Home Secretary And Ors , 2012 SC

Bench: B.S. Chauhan, Swatanter Kumar
“ A law restricting the exercise of any of the seven freedoms guaranteed by clause (1)
of Article 19 to be constitutionally valid, No person can be divested of his
fundamental rights. They are incapable of being taken away or abridged. All that the
State can do, by exercise of its legislative power, is to regulate these rights by
imposition of reasonable restrictions on them. Upon an analysis of the law, the
following tests emerge:-

a) The restriction can be imposed only by or under the authority of law. It cannot be
imposed by exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).”

It may be emphasized that the requirement that a restriction should be reasonable is of

great constitutional significance, for it acts as a limitation on the power of the
legislature, and consequently, widens the scope of judicial review of laws restraining
the exercise of freedoms guaranteed by Article 19.
Freedom of speech is essential for the proper functioning of the democratic process.
The freedom of speech and expression is regarded as the first condition of liberty. It
occupies a preferred position in the hierarchy of liberties giving succor and
protection to all other liberties.

The test of reasonableness has to be applied to each individual statute impugned and no
abstract standard or general pattern of reasonableness can be laid down as applicable
to all cases. The meaning would vary according to which of the six rights guaranteed
under clause (1) is being restricted by the impugned law. Some of the principles which
the Supreme Court has affirmed in ascertaining the reasonableness of restrictions on
the exercise of the rights secured under this article.

In the case of Bachan Singh & Ors. v. State of Punjab & OrS. (2) this Court observed
as follows "The Court has in no uncertain terms laid down the test for ascertaining
reasonableness of the restriction on the rights guaranteed under Article 19 to be,
determined by a reference to the nature of the right said to have been infringed, the
purpose of the restrictions sought to be imposed, the urgency of the evil and the
necessity to rectify or remedy it all of which has to be balanced with the Social
Welfare or Social purpose sought to be achieved. The right of the individual has
therefore to be sublimated to the larger interest of the general public."

1.)Reasonableness demands proper balancing: – The phrase ‘reasonable restrictions’

connotes that the limitation imposed upon a person in the enjoyment of a right should
not be arbitrary or of an excessive nature. Legislation which arbitrarily or
excessively invades any of the six freedoms cannot be said to contain the quality of
reasonableness, and unless it strikes a proper balance between the freedoms guaranteed
under Article 19(1) and social control permitted by clauses (2) to (6) of Article 19,
it must be held to be wanting in reasonableness.
In Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat, (1986) 3 SCC 12
(hereinafter referred to as 'Qureshi-III') the constitutional validity of the Bombay
Act as amended by Gujarat Act 16 of 1961 was challenged. The ban prohibited slaughter
of bulls and bullocks below the age of 16 years. The petitioners pleaded that such
a restriction on their right to carry on the trade or business in beef and allied
articles was unreasonable. Yet another plea was urged that the total ban offended their
religion as qurbani (sacrifice) at the time of BakrI'd or Id festival as enjoined and
sanctioned by Islam. The High Court rejected the challenge on both the grounds. The
writ petitioners came in appeal to this Court. The appeal was dismissed. While doing
so, this Court took note of the material made available in the form of an affidavit
filed by the Under Secretary to the Government of Gujarat, Agriculture, Forest and
Cooperation Department wherein it was deposed that because of improvement and more
scientific methods of cattle breeding and advancement in the science of looking after
the health of cattle in the State of Gujarat, today a situation has been reached
wherein the cattle remain useful for breeding, draught and other agricultural purposes
above the age of 16 years as well. As the bulls and bullocks upto the 16 years of age
continued to be useful, the prescription of the age of 16 years up to which they could
not be slaughtered was held to be a reasonable restriction, keeping in mind the balance
which has to be struck between public interest which requires useful animals to be
preserved, and permitting the appellants (writ petitioners) to carry on their trade and
profession. The test of reasonableness of the restriction on the fundamental right
guaranteed by Article 19(1)(g)was held to have been satisfied.

2. Reasonableness both substantive and procedural: – In determining the reasonableness

of a statute, the court would see both to the nature of the restriction and procedure
prescribed by the statute for enforcing the restriction on the individual freedom.
Principles of natural justice are an element in considering the reasonableness of a
restriction where Article 19 is applicable. Absence of provision for review makes the
provisions unreasonable.

3. Reasonableness and objective concept: – The reasonableness of a restriction has to

be determined in an objective manner and from the standpoint of the interests of the
general public and not from the point of view of the persons upon whom the restrictions
are imposed or upon abstract considerations.

4. Reasonableness of restriction and not of law: – The court is called upon to

ascertain the reasonableness of the restriction and not of the law which permits the
restriction. A law may be reasonable, but the restriction imposed by it on the exercise
of freedom may not be reasonable.

5. Reasonableness includes total prohibition: – The word ‘restriction’ also includes

cases of prohibition and the State can establish that a law, though purporting to
deprive a person of his fundamental right, under certain circumstances amounts to a
reasonable restriction only.

6. Reasonableness and American ‘Due Process’: – The Constitution framers deliberately

avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility
and attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’,
and caution has, therefore, to be exercised before the literal application of American
decisions. Our Constitution provides reasonably precise general guidance in this
matter.

7. Reasonableness and Directive Principles of State Policy: – That the restrictions are
imposed in carrying out the Directive Principles of State Policy is a point in favour
of the reasonableness of the restrictions.

Pathumma And Others vs State Of Kerala And Others on 16 January, 1978 One of the tests laid
down by this Court is that, in judging the reasonableness of the restrictions imposed by clause (5)
of Article 19, the Court has to bear in mind the Directive Principles of State Policy. It will be seen
that Article 38 contains a clear directive to the State to promote the welfare of the people by securing
and protecting as effec- tively as possible a 'social order in which justice, social, economic and political
,hall inform all the institutions of national life. Article 39(b) contains a direction to secure that the
ownership and control of the material resources of the community are so distributed as best to
subserve the common good. Indisputably, the object of the Act is to eradicate rural indebtedness and
thereby to secure the common good of people living in abject poverty. The object, therefore, clearly
fulfils the directive laid down in Articles 38 and 39(b) of the Constitution as referred to above.

8. Reasonableness of Taxes: – Prima facie a tax is not a restriction on any of the

freedoms guaranteed under Article 19. Mere excessiveness of a tax is not a ground for
challenging it as a restriction on one of the freedom in Article 19(1).

(1) Freedom of speech and expression:-

Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and
expression’. Under Article 19(2), reasonable restrictions can be imposed on the
exercise of this right for certain purposes. Any limitation on the exercise of the
right under Art. 19(1)(a) not falling within the four corners of Art. 19(2) cannot be
valid.

The freedom of speech under Article 19(1) (a) includes the right to express one’s views
and opinions at any issue through any medium, e.g., by words of mouth, writing,
printing, picture, film, movie, etc. It thus includes the freedom of communication and
the right to propagate or publish opinion. But this right is subject to reasonable
restrictions being imposed under Art. 19(2).

The ‘freedom of speech and expression’ includes the right to acquire information and
disseminate the same. It includes the right to communicate it through any available
media whether print or electronic or audio-visual. This freedom includes the freedom to
communicate or circulate one’s opinion without interference to as large a population in
the country, as well as abroad, as is possible to reach.
In the landmark case of Maneka Gandhi v. Union of India Bhagwati, J. had emphasized on
the freedom of speech and expression in the following words:

“Democracy is based essentially on free debate and open discussion. If democracy means
government of the people by the people, it is obvious that every citizen must be
entitled to participate in the democratic process and in order to enable him to
intelligently exercise his right of making a choice, free and general discussion of
public matters is absolutely essential.”

Freedom of the press

Freedom of the press is implied from the freedom of speech and expression guaranteed by
Article 19(1) (a). There is no specific provision ensuring freedom of the press as
such. The freedom of the press is regarded as a “species of which freedom of expression
is a genus. Thus being only a right flowing from the freedom of speech, the freedom of
the press in Indian stands on no higher footing than the freedom of speech of a
citizen, and the press enjoys no privilege as such distinct from freedom of the
citizen.

The prime purpose of the free press guarantee is regarded as creating a fourth
institution outside the government as an additional check on the three official
branches- executive, legislative and the judiciary. It is the primary function of the
press to provide comprehensive and objective information on all aspects of the
country’s social, economic and political life. The press serves as a powerful antidote
to any abuse of power by government officials and as a means for keeping the elected
officials responsible to the people whom they were elected to serve.

The Supreme Court has emphasized that the freedom of the press is not so much for the
benefit of the press as for he benefit of the general community because the community
has a right to be supplied with information and the government owes a duty to educate
the people within the limits of its resources.

In Brij Bhushan V. State of Delhi, Imposition of pre-censorship on publication

is, therefore, unless justified under clause (2), violative of freedom of speech and
expression. an order issued under East Punjab Safety Act, directing the editor and
publisher of a newspaper “to submit for scrutiny, in duplicate, before publication
,till further orders, all communal matters and news and views about Pakistan, including
photographs and cartoons”, was struck down by the Supreme Court observing, there can be
little doubt that the imposition of pre-censorship on a journal is a restriction on the
liberty of the press which is an essential part of the freedom of speech and expression
declared by Art. 19(1)(a).
Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious
encroachment on the valuable and cherished right to freedom of speech if a newspaper is
prevented from publishing its own view or views of its correspondents”.

The’ Freedom of Speech and Expression’ Is Indeed A Very High One:

In recent judgment of the Supreme Court in Khushboo v. Kannaiammal 2010 upholds the
right to freedom of speech and expression. Khushboo’s right to freedom of speech was
violated by the institution of multiple criminal cases against her in various courts
across the country and consequent harassment that she suffered.

Freedom of speech and expression includes the freedom of propagation of

ideas and is ensured by the freedom of circulation. In Romesh Thapper v.
State of Madras AIR 1950 SC , a law banning entry and circulation of journal in a
state was held to be invalid. The Court Held that that there can be no doubt that
freedom of speech and expression includes freedom of propagation of ideas, and that
freedom is ensured by the freedom of circulation .A law which authorizes imposition of
restrictions on grounds of ‘public safety or the ‘maintenance of public order’ falls
outside the scope of the authorized restrictions under clause (2) and therefore void
and unconstitutional., “without liberty of circulation, the publication would be of
little value”.

Purpose of Freedom of speech and expression

Freedom of speech not only allows people to communicate their feelings, ideas, and
opinions to others, rather it serves a broader purpose as well. These purposes can be
classified into four:

1. It helps an individual to attain self- fulfillment;

2. It assists in the discovery of truth;
3. It strengthens the capacity of an individual to participate in the decision-
making process;
4. It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

Freedom of speech and of the press lays at the foundation of all democratic
organizations, for without free political discussion no public education, so essential
for the proper functioning of the popular government is possible.

In Sakal Papers (p) ltd. V. Union of India, The right of freedom of speech is
infringed not only by a direct ban on the circulation of a publication, but also by an
action of the government which would adversely affect the circulation of the paper. a
government order which fixed the number of pages and size which a newspaper could
publish at a price was challenged by the petitioners on the ground that it infringed
the liberty of the press implicit in the terms of Art. 19(1)(a). The order affected the
liberty of the press because its adoption would mean, the petitioners explained, either
the reduction in the existing number of pages or raising of the price. In either case,
there would be reduction in the volume or circulation of the paper and therefore a
direct violation of the liberty of the press. On behalf of the State, the law was
justified as a reasonable restriction on the business activity of a newspaper in the
interests of the general public.

The Court agreed that newspapers have two aspects-dissemination of news and views and
commercial. The two aspects are different, the former falls under Art. 19(1)(a) read
with Art. 19(2), and the latter falls under Art. 19(1)(g) and can be regulated under
Art. 19(6). However, the state cannot seek to place restriction on business by directly
immediately curtailing any other freedom of the citizen guaranteed by the constitution
and which is not susceptible of abridgement on the same grounds as are set out in Art.
19(6). “Therefore, the right of freedom of speech cannot be taken away with the object
of placing restrictions on the business activities of a citizen.

The Court accepted the plea of the petitioners that the order affected the circulation
and so restrained the dissemination of news and views which a newspaper had the freedom
to do. The order was struck down and held to be inoperative. Therefore, referring the
press as a business and justifying the impugned restriction under Art. 19(6) as a
proper restriction on the right to carry on the business of publishing a newspaper
“would be wholly irrelevant for considering whether the impugned Act infringes or does
not infringes the freedom guaranteed by Art. 19(1)(a).” This means the freedom of
speech cannot be restricted for the purpose of regulating the commercial aspects of the
activities of the newspapers.

In Express Newspapers v. Union of India In this case the validity of the Working
Journalist Act 1955 was challenged. This Act was enacted to regulate conditions of
service of persons employed in newspaper industries. The Court held that Act is valid
.It is said that press was not immune from laws of general application or ordinary
forms of taxation or laws of industrial relations .The Act was passed to improve the
service conditions of the women in the newspaper industry and therefore, impose
reasonable restriction on the right guaranteed by Article 19(1)(a).

When Freedom of the Press is violated test to be applied

Effect test
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 (direct and
inevitable effect test to check the validity of the impugned state
action for violation of fundamental rights).

Bennett Coleman & Co. V. Union of India, is a case of great significance in the area of
freedom of speech and expression. India faces a shortage of indigenous newsprint.
Because of the shortage of foreign exchange, quantity of newsprint imported was not
adequate to meet all requirements. Some restrictions, therefore, become necessary on
the consumption of newsprint. Accordingly, s system of newsprint quota for newspapers
was evolved. The actual consumption of newsprint by newspaper during 1970-71 & 1971-72,
whichever was less, was taken as the base. For dailies with a circulation up to
1,00,000 copies, 10% increase in the basic entitlement was to be granted, but for
newspapers with a larger circulation, the increase was to be only 3%. Newspapers with
less than 10 pages daily could raise the number of pages by 20% subject to the ceiling
of 10. A few more restrictions were imposed on the user of newsprint. This newsprint
policy was challenged in the Supreme Court.

By a majority, the Supreme Court declared the policy unconstitutional. While the
Government could evolve a policy of allotting newsprint on a fair and equitable basis,
keeping in view the interests of small, medium and big newspapers, the Government could
not, in the grab of regulating distribution of newsprint, control the growth the
circulation of newspapers. In effect, here the newsprint policy became the newspaper
control policy. While newsprint quota could be fixed on a reasonable basis, post-quota
restrictions could not be imposed. The newspapers should be left free to determine
their pages, circulation and new editions within their fixed quota. The policy of
limiting all papers whether small or large, to 10 pages was held to be discriminatory
as it treated unequal as equals. The restrictions imposed cut at the very root of the
guaranteed freedom. In the words of the Court, “Freedom of the press is both
qualitative and quantitative. Freedom lies both in circulation and in content.”`

SC also relied on effect test The test of infringement of a particular fundamental

right is not the object of the authority making the law impairing neither the right nor
the form of the law but the "direct" and "inevitable" effect or consequence of the law
on the right.

BY SAYING “(vii) This Court in the Bank Nationalisation case laid down two tests. First
it is not the object of the authority making the law impairing the right of neither the
citizen nor the form of action that determines the invasion of the right. Secondly, it
is the effect of the law and the action upon the right which attracts the jurisdiction
of the court to grant relief. The direct operation of the Act upon the rights forms the
real test.”

J. Mathew, in a dissent, observed that there was no direct regulation of content and
that a restriction on number of pages did not mean an abridgment of freedom of
expression. He reasoned that the control of newsprint and regulating its distribution
was necessary to ensure that it was efficiently utilized. Insofar as it made newsprint
utilization efficient and prevented monopoly by a few newspapers, the policy expanded
rather than abridged freedom of speech and expression. He disagreed with the majority
judgment and held that the policy was not unconstitutional.
Virendra V. State of Punjab, The general principle is that it is unreasonable to
leave absolute and arbitrary discretion to an administrative officer to regulate the
freedom of speech and expression. The discretion to be valid must be exercisable for
purposes specified in Art. 19(2), and subject to legislative policy and procedural
safeguards. Like, banning of publication in any newspaper of any matter relating to a
particular subject or class of subjects would be obnoxious to the right of free speech.

The significant judicial pronouncement in the area is Virendra V. State of Punjab. This
is an important decision of the Supreme Court illustrating the Scope of Permissible
restriction on the right of freedom of speech and expression. Punjab Special Powers
(Press) Act empowered the State Government to:

 Prohibit the Printing or Publication of any article, report news item, letter or
any other material relating to or connected with “Save Hindi Agitation”;

 The imposition of ban against the entry and circulation of the said papers
published from New Delhi in the State of Punjab and

 Authorizing the State Government of its delegate to impose Pre-censorship, for a

maximum period of two months in any issue of a newspaper.

These provisions were challenged on the ground of giving arbitrary and uncontrolled
discretion to the government to curtail freedom of speech ‘on its subjective
satisfaction’. The Supreme Court pointed out that there existed in Punjab serious
tension amongst the various communities and in such a situation, conferment of wide
powers to be exercised in the subjective satisfaction of the government could not be
regarded as an unreasonable restriction. The State Government being in possession of
all material facts, was the best authority to take anticipatory action for prevention
of threatened breach of peace. Therefore, determination of necessity be left to the
judgment and discretion of the government. To make the exercise of those powers
justifiable would defeat the very purpose of the Act.

The first provision relating to ban on publication of news, etc. was upheld in the time
of tension brought about or aided by the ‘Save Hindi Agitation’, taking into
consideration the safeguard provided therein, as being a reasonable restriction and
procedurally reasonable were:

(a) The positive requirement of the existence of the satisfaction of the authority as
to the necessity for the making of order for the specific purposes mentioned in the
Act.

(b) The discretion was given in the first instance to the State Government and not to
every subordinate officer to determine the necessity of passing the order.

(c) The order could remain in force only for two months from the making thereof.
(d) The aggrieved party was given the right to make representation to the State
government which could, on consideration thereof, modify, confirm or rescind the order.

The second provision of the Act mentioned above, namely the power to impose a ban
against the entry and the circulation of the paper, was not sustained as a reasonable
restriction on the freedom of speech because there was no time-limit for the operation
of an order made against a paper and also because there was no provision made for any
representative being made to the State Government.

Further the court held that a law conferring discretion on the executive could not be
invalid if it laid down the policy so that discretion was exercised to effectuate the
policy. The law in question satisfied this test for it laid down the purpose for which
the power could be exercised. Further there were two safeguards subject to which the
government was to exercise its power, viz., an order could remain in force only for two
months, and the aggrieved person could make a representation to the government against
the order, and so Act as a whole was valid of the order, nor did it provide for any
representation to the government against the order.

The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot be
denied the protection of Art. 19(1)(a) merely because the same is issued by business
man. “Commercial Speech” is a part of freedom of speech guaranteed under Art. 19(1)(a).
The public at large has a right to receive the “commercial speech”. The protection of
Art. 19(1)(a) is available both to the speaker as well as the recipient of the speech.

The Supreme Court accepted as valid the printing of yellow pages by the Tata Press.
Printing of a directory of telephone subscribers is to be done exclusively by the
Telephone Department as a part of its service to the telephone subscribers. But yellow
pages only contain commercial advertisements and Art. 19(1)(a) guarantee freedom to
publish the same.

RIGHTS OF A CONVICT TO EXPRESS

In Smt. Prabha Dutt v. Union of India the question was whether prisoners condemned to
death could be interviewed. It was held that the newspaper reporters can interview the
prisoners condemned to death if they are willing to be interviewed. Unless, in a given
case there are weighty reasons for denying the opportunity to interview. The reasons
for denying the interview should be recorded in writing.[12]

In M. Hasan v. State of Andhra Pradesh,[13] the Andhra Pradesh High Court has held that
denial of permission to a press reporter to interview a willing condemned prisoner on a
ground not falling within Art. 19(2) is not valid. “Any such denial is deprivation of a
citizen’s fundamental right of freedom of speech and expression”. Convicts are not
wholly denuded of their fundamental rights.

Further, the Press Council Act, 1978 provides that a journalist should not be compelled
to disclose the source of any news or information published by the newspaper. But the
Division Bench in In Re: Harijai Singh[14] has held that if justice demands, scribe may
be compelled to reveal the source of their news. In this contempt case against the
editors of the Tribune and the Punjab Kesari, the contemnors, while tendering apology,
revealed the source of their news item.

In a historic judgment in R.Rajagopal v. State of Tamil Nadu the Supreme Court has held
that the government has no authority in law to impose a prior – restrain upon
publication of defamatory material against its officials. Public authorities who
apprehend that they or their colleagues may be defamed could not prevent the press from
publications of such material, could take action for damages after the publications of
such material if they prove that the publication was based on false facts. The court
held that no actions could be initiated against the press if the publications were
based on public records including court records.

Freedom of the Press, the Court said, means absence of interference by the state accept
in so far as it is authorized by the constitution and by laws.

The ruling was given by the court while allowing a writ petition by a Tamil Weekly
Magazine “Nakheeran” seeking a direction to the TamilNadu Government from interfering
with the publications of the autobiography of the condemned prisoners, Auto Shanker, in
the magazine who had been charged and tried for as many as six murders. This mercy
petition to the president of India was pending consideration. The petitioner was
editor, printer and publisher of the magazine published from Madras. The second
petitioner is the associate editor of the magazine. Their case is the condemned
prisoner Auto Shanker who was convicted for six murders and sentenced to death had
written his autobiography in jail and had handed over the same to his wife with the
knowledge and approval of the jail authorities, for being delivered to his advocate
with her request to publish it in the petitioner’s magazines. The autobiography
depicted a close relationship between the prisoners and several IAS, IPS and other
Officers, where indeed his partners in several crimes. The petitioner decided to
commence the serial publications of the autobiography for this purpose they announce
that very soon the magazine would be coming out with sensational life history of Auto
Shanker. This announcement sent shocked waves among several police and prison officials
who were afraid that their links with the condemned prisoners would be exposed they
force Auto Shanker, by applying third degree methods, to write letters addressed to the
inspector general of the prisoners and the editor of the magazine requesting that his
life story should not be published in the

magazine. On July 15th, 1994 informing him that the autobiography was false and Auto
Shanker had denied he had written any such book an therefore ask him to stop the
publications of serial.

The Division Bench of the Supreme Court consisting of Mr. Justice B.P.Jeevan Reedy and
Mr. Justice Suhas C. Sen, has held that petitioner has right to publish the
autobiography of Auto Shanker in so far as it appears from the public records even
without his consent or authorization. But if they go beyond that and publish his life
story they may be invading his right to privacy and will be liable for the consequences
in accordance with law. The remedy of the affected officials, if any, is after the
publications, the Court said.

On the issue of the citizen’s right to privacy, the Court held it is included in
Article 21 of the Constitution and “A citizen has right to safe guard, the privacy of
his own, his family, marriage, procreation, motherhood, child bearing and education
among other matters.” None can publish anything concerning the above matters without
the persons consent.

The Court made it clear that any publications containing the privacy aspects would
become unobjectionable it is enough for the press to prove that he acted after a
reasonable verification of the facts; It is not necessary for the press to prove that
what is published that is true.

But in the interest of decency an exception has to be carried out to this rule, that
is, the name of a female who has victim of sexual assault, kidnapping, abduction, or a
like offence should not be published in the Press. The right of Privacy of public
servants, however, stands on different footing. The Court ‘accordingly held that the
petitioners were entitled to publish the autobiography of Auto Shanker as it appeared
from public record’

RIGHT TO REPLY AND RIGHT TO INFORMATION

IN LIC V. MANUBHAI D. SHAH, THE SUPREME COURT STATED A LIBERAL INTERPRETATION SHOULD BE GIVEN TO THE
RIGHT OF FREEDOM OF SPEECH AND EXPRESSION GUARANTEED BY RT. 19(1)(A ) . THE COURT HAS CHARACTERIZED
THIS RIGHT AS A “BASIC HUMAN RIGHT ”. THIS RIGHT INCLUDES “THE RIGHT TO PROPAGATE ONE’S VIEWS THROUGH
THE PRINT MEDIA OR THROUGH ANY OTHER COMMUNICATION CHANNEL , E. G . THE RADIO AND TELEVISION ”. THUS,
EVERY CITIZEN “HAS THE RIGHT TO AIR HIS OR HER VIEWS THROUGH THE PRINT AND/OR THE ELECTRONIC MEDIA
SUBJECT, OF COURSE , TO PERMISSIBLE RESTRICTIONS IMPOSED UNDER ART . 19(2) OF THE CONSTITUTION.
In this case the Supreme Court has taken cognizance of two situations. One, the
respondent circulated a research article suggesting that the LIC was charging unduly
high premiums from those who took out life insurance policies. The LIC published a
counter reply to this paper in a daily newspaper and also in its own in-house magazine.
The respondent then prepared a rejoinder and got it printed in the same daily
newspaper. He also wanted the LIC to print his rejoinder in their magazine, but the LIC
refused to do so. The Supreme Court was called upon to decide the question whether the
LIC was right in refusing to publish the rejoinder the responded in magazine. Answering
in the negative the court pointed out that the attitude of the LIC was both “unfair and
unreasonable”-unfair because fairness demanded that both view points were placed before
the readers and unreasonable because there was no justification for refusing
publication. By refusing to print and publish the rejoinder the LIC had violated the
respondent’s Fundamental Right.

Every free citizen has an undoubted right to lay what sentiments he pleases before the
public. Freedom of speech and expression is subject only to the restrictions imposable
under Art. 19(2). Efforts by intolerant authorities to curb or suffocate this freedom
must be firmly replied, more so when public authorities betray autocratic, tendencies.

LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament
requires LIC to function in the best interest of the community. The community is,
therefore, entitled to know whether or not, this requirement of the statute is being
satisfied in the functioning of the LIC.

The right of a citizen to exhibit films on the Doordarshan subject to the terms and
conditions to be imposed by the latter has been recognized. On further consideration in
Secretary, Ministry I&B V. Cricket Association of Bengal, the Court has held that air
waves or frequencies are public property, their use must be controlled and regulated by
a public authority in the interest of public and to prevent the invasion of their
rights. As the electronic media involves the use of the air wages, this factor creates
an inbuilt restriction on its use as in the case of any other public property. This
limitation in the nature of public property involved in the electronic media is in
addition to the grounds of restriction on the right of freedom of speech and expression
under Art. 19(2). Accordingly, while an individual has a right under Art. 19(1)(a) to
have an access to telecasting, this right is subject to the limitation on account of
use of public property, i.e. the air waves involved in the exercise of the right can be
controlled and regulated by the public authority even on grounds not strictly covered
under Art. 19(2). The Court also asked the Central Government to take immediate steps
to establish an independent autonomous public authority representative of all sections
and interests of the society to control and regulate the use of air waves. The
provision for the Prasar Bharti seems to be taking care of this issue.

Test of clear and present danger (obscenity)

In Ajay Goswami v. Union of India, 2007 SC a writ petition was filed to ensure that
minors are not exposed to sexually oriented material being published in certain
newspapers without the consent of parents or guardians. It was held that the incidence
of shielding minors should not be such that the adult population is made to see and
read what is fit for children. The court held that there should be no suppression of
speech and expression supposedly to protect children from harmful material. The court
stated that there were already sufficient safeguards available in terms of various
legislations, norms, rules and regulations to protect society in general under Press
Council Act and IPC. This Court borrowed from the American test of clear and present danger and observed

Clear and Present Danger In S. Rangarajan v. P. Jagjivan & Ors., (1989) SCC , while
interpreting Article 19(2), this Court borrowed from the American test of clear and
present danger and observed:

"The commitment to freedom demands that it cannot be suppressed unless the situations
created by allowing the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural or far-fetched. It should have
a proximate and direct nexus with the expression. The expression of thought should be
intrinsically dangerous to the public interest. In other words, the expression should
be inseparably like the equivalent of a 'spark in a powder keg'."

Test of Ordinary Man The test for judging a work should be that of an ordinary man of
common sense and prudence and not an "out of the ordinary or hypersensitive man." As
Hidayatullah, C.J. remarked in K.A. Abbas:

"If the depraved begins to see in these things more than what an average person would,
in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in
everything, it cannot be helped."
[Abbas v.Union of India AIR 1971 SC The case is one of the firsts in which the issue of prior
censorship of films under Article 19(2) came into consideration of the Supreme Court of India.
Under the Cinematograph Act, 1952, films are divided into two categories- ‘U’ films for
unrestricted exhibition, and ‘A’ films that can be shown to adults only. The petitioner’s film was
refused the ‘U’ certificate, and he challenged the validity of censorship as violative of his
fundamental right of freedom of speech and expression. He contended that no other form of
speech and expression was subject to such prior restraint, and therefore, he demanded equality of
treatment with such forms. The Court, however, held that motion pictures are able to stir
emotions more deeply than any other form of art.]

[Hence, pre- censorship and classification of films between ‘U’ and ‘A’ was held to be valid and was justified under Article
19(2) of the Constitution.]
The Hicklin test/contemporary community standards test

In Bobby Art International, Etc v. Om Pal Singh Hoon , 1996 SC the Supreme Court, while adjudicating the
appropriateness of the movie Bandit Queen being given a Central Board of Film Certification (“Censor Board”)
certificate with an “A” rating, exhaustively analysed the theme of the movie. The Court held that the objections of the
Censor Board that the movie depicted social evils could not be sustained as it was unavoidable in a movie which
showed the consequent harm caused by it.

In Ramji Lal Modi v. The State of U.P., [1957] S.C., this court upheld Section 295A of
the Indian Penal Code only because it was read down to mean that aggravated forms of
insults to religion must have a tendency to disrupt public order. Similarly, in Kedar
Nath Singh v. State of Bihar, 1962 Supp. S.C., Section 124A of the Indian Penal Code
was upheld by construing it narrowly and stating that the offence would only be
complete if the words complained of have a tendency of creating public disorder by
violence. It was added that merely creating disaffection or creating feelings of enmity
in certain people was not good enough or else it would violate the fundamental right of
free speech under Article 19(1)(a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar
Kashinath Kunte & Ors., 1996 SCC, Section 123 (3A) of the Representation of People Act
was upheld only if the enmity or hatred that was spoken about in the Section would tend
to create immediate public disorder and not otherwise.

DecencyorMorality
This Court in Ranjit Udeshi v. State of Maharashtra [1965] S.C.R. took a rather
restrictive view of what would pass muster as not being obscene. The Court followed the
test laid down in the old English judgment in Hicklin's case which was whether the
tendency of the matter charged as obscene is to deprave and corrupt those whose minds
are open to such immoral influences and into whose hands a publication of this sort may
fall. Great strides have been made since this decision in the UK, United States as well
as in our country.
Thus, in Director General, Directorate General of Doordarshan v. Anand Patwardhan, 2006
(8) SCC, this Court noticed the law in the United States and said that a material may
be regarded as obscene if the average person applying contemporary community standards
would find that the subject matter taken as a whole appeals to the prurient interest
and that taken as a whole it otherwise lacks serious literary artistic, political,
educational or scientific value (see Para 31).

In a recent judgment of this Court, Aveek Sarkar v. State of West Bengal, 2014 (4) SCC,
this Court referred to English, U.S. and Canadian judgments and moved away from the
Hicklin test and applied the contemporary community standards test.

in Aveek Sarkar v. State of West Bengal, the Supreme Court has held that a photograph of
Boris Becker and his fiancee, in the nude, is not “obscene” within the meaning of S. 292 of
the Indian Penal Code. This judgment is particularly significant because it expressly
rejects the Hicklin Test, the archaic 1868 rule for determining obscenity, that the Court
has regularly used in its history – most notably, to uphold the ban on Lady Chatterly’s
Lover in Ranjit Udeshi’s Case. Interestingly, by citing a number of countries where Lady
Chatterly’s Lover was not found obscene, the Court seems – at least implicitly – to be
expressing its disapproval of Udeshi, almost fifty years after it was decided (paragraphs
16, 17 and 22).

In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an
entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of
society, the Court adopts what it called the “community standards” test:

“A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the
tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive
of deprave mind (sic) and designed to excite sexual passion in persons who are likely to see it, which
will depend on the particular posture and the background in which the nude/semi-nude woman is
depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be
held to be obscene, but the obscenity has to be judged from the point of view of an average person,
by applying contemporary community standards.” (Paragraph 24)

While welcome in that the Supreme Court gets rid of the Hicklin Test at last, the
judgment is also problematic in many respects. First, the Court cites the 1957 US
Supreme Court case of Roth v. United States, and its use of the phrase “contemporary
community standards” has been lifted from Roth

Shreya Singhal v. Union of India 24 March 2015 Supreme Court declared a

draconian provision—Section 66A of the Information Technology Act, 2000—
unconstitutional. It was group of petitions, but the first was filed by then law
student Shreya Singhal, granddaughter of late Judge Sunanda Bhandare, in light of the
arrest of Shaheen Dhada and Rinu Srinivasan. They were arrested under Section 66A for
criticizing the shutdown of Mumbai after the death of Shiv Sena leader Bal Thackeray on
social networking website Facebook.

The case came to be known as Shreya Singhal versus Union of India, now in the annals of
history as a landmark decision in the free speech regime.

The court struck down Section 66A of the IT Act for being “open ended, undefined, and
vague” and the words used in the text of the provision being “nebulous in meaning”.

The provision was titled “punishment for sending offensive messages through
communication service” and included information shared via a “computer resource or a
communication device” known to be “false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity,
hatred or ill will”.

The wide net cast by the section did not go unnoticed by the apex court which said,
“Section 66A is cast so widely that virtually any opinion on any subject would be
covered by it, as any serious opinion dissenting with the mores of the day would be
caught within its net.” The Court further held that the Section was not saved by virtue
of being 'reasonable restrictions' on the freedom of speech under Article 19(2). The
case was a watershed moment for online free speech in India. Speaking for the Court,
Justice Nariman discussed the various standards which are applicable to adjudge when
restrictions on speech can be deemed reasonable, under Article 19(2) of the Indian
Constitution. The Court held that Section 66-A was vague and over-broad, and therefore
fell foul of Article 19(1)(a), since the statute was not narrowly tailored to specific
instances of speech which it sought to curb. Importantly, the Court also considered the
'chilling effect' on speech caused by vague and over-broad statutory language as a
rationale for striking down the provision. Further, the Court held that the 'public
order' restriction under Article 19(2) of the Constitution would not apply to cases of
'advocacy', but only to 'incitement', specifically incitement which has a proximate
relation to public disorder.

Of the challenge on the grounds under Article 14 of the Constitution of India, the
Court held that "we are unable to agree with counsel for the petitioners that there is
no intelligible differentia between the medium of print, broadcast and real live speech
as opposed to speech on the internet. The intelligible differentia is clear – the
internet gives any individual a platform which requires very little or no payment
through which to air his views."

The Supreme Court further read down Section 79 and Rule 3(4) of the Intermediaries
Guidelines, under the Act, which deals with the liability of intermediaries, mostly
those which host content and provide online services. Whereas the Section itself uses
the term 'receiving actual knowledge', of the illegal material as the standard at which
the intermediary is liable for removing content, the Court held that it must be read to
mean knowledge received that a Court order has been passed asking it to take down the
infringing material.

Finally, the Court also upheld the secret blocking process under Section 69A of the
Act, by which the Government can choose to take down content from the Internet, holding
that it did not suffer from the infirmities in Section 66A or Section 79, and is a
narrowly drawn provision with adequate safeguards.

sabu mathew george v. union of india 2017 SC right to internet

Citizens have the right to access the Internet to gain information, wisdom and
knowledge and their right cannot be curtailed unless it encroaches into the boundary of
illegality, the Supreme Court observed that the fundamental right of expression
includes “the right to be informed and the right to know and the feeling of protection
of expansive connectivity” the Internet offers on the click of a button.

The court clarified that a general prohibition on all online content about pre-natal
sex determination will curtail the fundamental right to know of a genuine information-
seeker. A three-judge Bench led by Justice Dipak Misra held the prohibition should kick
in only if the content found online is violative of Section 22 (prohibition of
advertisement relating to pre-natal determination of sex) under the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act of 1994.

“To elaborate, if somebody intends to search for ‘medical tourism in India’, he is

entitled to search as long as the content does not frustrate or defeat the restriction
postulated under Section 22 of the Act,” Justice Misra dictated for the Bench in the
order.

Commercial Advertisements

In Hamdard Dawakhana v. Union of India[15] the Supreme Court considered the question
that how far are advertisements protected under Art. 19(1)(a). In this case, Parliament
enacted an Act with a view to control advertisements of drugs in certain cases. The Act
was challenged on the ground that restrictions on advertisements was a direct
abridgment of the freedom of expression. The Court stated that an advertisement, no
doubt, is a form of speech, but its true character is to be determined by the object
which it seeks to promote.
An advertisement promoting drugs and commodities, the sale of which is not in public
interest, could not be regarded as propagating any idea and, as such, could not claim
the protection of Art. 19(1)(a). An advertisement meant to further business falls
within the concept of trade and commerce and cannot be regarded as a part of freedom of
speech.[16]

However, in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India[17]differing

from the Hamdard Dawakhana ruling, the Supreme Court observed that all commercial
advertisements cannot be denied the protection of Art. 19(1) (a) of the Constitution
merely because they are issued by businessmen. Advertising pays large portion of the
costs of supplying the public with newspapers.

Reading Hamdard Dawakhana and Indian Express together, the Supreme Court has concluded
in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.,1995 SC that ‘commercial speech’
cannot be denied the protection of Art. 19 (1)(a) merely because the same is issued by
businessmen. It is a part of freedom of speech and the public at large has a right to
receive the ‘commercial speech’.

Freedom of Silence- National Anthem Case

Freedom of speech also includes the right to silence. In a case6, three children belonging to
Jehovah’s witnesses were expelled from the school for refusing to sing the national anthem,
although they stood respectfully when the same was being sung. They challenged the validity of
their expulsion before the Kerala High Court which upheld the expulsion as valid and on the
ground that it was their fundamental duty to sing the national anthem. On appeal, the Supreme
Court held that the students did not commit any offence under the Prevention of Insults to
National Honour Act, 1971. Also, there was no law under which their fundamental right under
Article 19(1) (a) could be curtailed.

Accordingly, it was held that the children’s expulsion from the school was a violation of their
fundamental right under Article 19(1) (a), which also includes the freedom of silence.
Re: Noise Pollution 2005 SC Undoubtedly, the freedom of speech and right to expression are
fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create
noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to
speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody
can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can
indulge into aural aggression. If anyone increases his volume of speech and that too with the
assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to
unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful,
comfortable and pollution-free life guaranteed by Article 21. Article 19 cannot be pressed into service
for defeating the fundamental right guaranteed by Article 21. It has been held in the case of 'Om
Birangana Religious Society v. State, ' that the 'Freedom of speech and expression guaranteed
under Article 19 of the Constitution of India includes, by necessary implication, freedom not to listen
and/or to remain silent. A citizen has a right to leisure, right to sleep, right not to hear and right to
remain silent. He also has the right to read and speak with others'. Because of the tremendous sound
and noise, the citizens cannot exercise all these fundamental rights.

 Compelled speech
In Union of India v. The Motion Picture Association, the Court upheld various
provisions of the Cinematograph Act that imposed certain forms of compelled speech on
moviemakers while exhibiting their movies, on the ground that “to earmark a small
portion of time of this entertainment medium for the purpose of showing scientific,
educational or documentary films, or for showing news films has to be looked at in this
context of promoting dissemination of ideas, information and knowledge to the masses so
that there may be an informed debate and decision making on public issues. Clearly, the
impugned provisions are designed to further free speech and expression and not to
curtail it.”

 People’s Union for Civil Liberties(PUCL) v. Union of India10

In this case, public interest litigation (PIL) 11 was filed under Article 3212 of the Indian Constitution
by PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2)13 of The
Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of public
emergency” and “in the interest of public safety” is the sine qua non14for the application of the
provisions of Section 5(2). If any of these two conditions are not present, the government has no
right to exercise its power under the said section.

Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under
Article 19(2).

 Freedom of Speech and Sedition

The offence of sedition, in India, is defined under Section 124-A of the Indian Penal Code as,
“whoever by words either spoken or written, or by signs, or by visible representation or otherwise
brings into hatred or contempt or excite or attempts to excite disaffection towards the
government established by law in India shall be punished”.
In the recent case of Kanhaiya Kumar v. State of Nct of Delhi P.(CRL)558/2016, students of
Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who
was hanged in 2013. The event was a protest through poetry, art, and music against the judicial
killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting
anti-Indian slogans. A case therefore filed against several students on charges of offence under
Sections [124-A, 120-B, and 34]8. The University’s Students Union president Kanhaiya Kumar was
arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar
was released on bail by the Delhi High Court as the police investigation was still at nascent stage,
and Kumar’s exact role in the protest was not clear.

 Trial by Media

Interference with administration of justice is neither a permissible freedom nor an

unreasonable restriction. In the case of M. P. Lohia v. State of West Bengal, AIR 2005
SC 790, relating to suicide by wife due to her harassment for dowry, an application for
grant of anticipatory bail was rejected by Courts below. When special leave petition
from such rejection was pending before Supreme Court, an article appeared in a magazine
based on an interview of the family of the deceased, giving their version of the
tragedy and extensively quoting the father of the deceased as to his version of the
case which could all be materials that may be used in the forthcoming trial. The
Supreme Court took the view that such articles appearing in the media would certainly
interfere with the administration of justice and deprecated such practice and cautioned
the publisher, editor and the journalist who were responsible for the said article
against indulging in such trial by media when the issue was sub judice.

In Rajendra Sail v. M. P. High Court Bar Association, AIR 2005 SC 2473 it was held that
while the media can, in the public interest, resort to reasonable criticism of a
judicial act or the judgment of a Court for public good or report any such statements,
it should refrain from casting scurrilous aspersions on, or impute improper motives or
personal bias to the judge. Nor should they scandalize the Court or the judiciary as a
whole, or make personal allegations of lack of ability or integrity against a judge.
The judgments of Courts are public documents and can be commented upon, analyzed and
criticized, but it has to be in a dignified manner without attributing motives.

 Voters Have Right to Know About their Candidates

In a landmark judgment in Union of India v. Association for Democratic Reforms4, a
three judge bench held that the amended Electoral Reforms Law passed by Parliament is
unconstitutional as being volatile of citizen’s right to know under Art. 19(1)(g).

 Contempt of court
In Duda P.N. v. Shivshankar, P., the Supreme Court observed that the contempt
jurisdiction should not be used by Judges to uphold their own dignity. In the free
market places of ideas, criticism about the judicial system or the Judges should be
welcomed, so long as criticisms do not impair or hamper the “administration of
justice”.

In Auto Shankars’ Case, Jeevan Reddy J., invoked the famous “Sullivan doctrine” that
public persons must be open to stringent comments and accusations as long as made with
bonafide diligence, even if untrue.

In Arundhati Roy, In re, the Supreme Court observed that a fair criticism of the
conduct of a Judge, the institution of the judiciary and its functioning may not amount
to contempt, if made in good faith and in public interest.

In Indirect Tax practitioners’ Association v. R.K. Jain, the S.C. observed that the
Court may now permit truth as a defence if two things are satisfied, viz., (i) it is in
public interest and (ii) the request for invoking said defence is bona fide. (S.13
,Contempt of Courts Act,1971)

In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court
carved out a specific exception to the rule against prior restraint. In SEBI, the Court
was concerned about the issue of media trials causing prejudice in sub judice matters.
In that context, the Court held that it had inherent powers under the Constitution
to “prohibit temporarily, statements being made in the media which would prejudice or
obstruct or interfere with the administration of justice in a given case pending in the
Supreme Court or the High Court or even in the subordinate courts.” Drawing this power
under Article 129 of the Constitution, which authorised the Supreme Court to punish for
contempt of itself, the Court held that the power to punish included the power to
prevent as well. On this basis, the Court held that it could pass “postponement orders”
(i.e., temporary injuncting the media from reporting on a particular event) in order to
ensure the proper administration of justice, a fair trial, and the protection of the
rights of the accused under Article 21. The Court warned that:
“Given that the postponement orders curtail the freedom of expression of third parties,
such orders have to be passed only in cases in which there is real and substantial risk
of prejudice to fairness of the trial or to the proper administration of justice which
in the words of Justice Cardozo is “the end and purpose of all laws”. However, such
orders of postponement should be ordered for a limited duration and without disturbing
the content of the publication. They should be passed only when necessary to prevent
real and substantial risk to the fairness of the trial (court proceedings), if
reasonable alternative methods or measures such as change of venue or postponement of
trial will not prevent the said risk and when the salutary effects of such orders
outweigh the deleterious effects to the free expression of those affected by the prior
restraint. The order of postponement will only be appropriate in cases where the
balancing test otherwise favours non-publication for a limited period.”
OTHER FUNDAMENTAL FREEDOMS
M.H. Devendrappa v. Karnataka State Small Industries Development Corpn 1998 SC The
fundamental freedoms enumerated under Article 19 are not necessarily and in all
circumstances mutually supportive, although taken together they weave a fabric of a
free and equal democratic society. e.g. the right to reside and settle in any part of
the country can be put in jeopardy by a vociferous local group freely expressing its
view against persons from another part of the country. Freedom of speech of one affects
the freedom movement of another. Exercising the right to form an association may
curtail the freedom to express views against its activities. For example, a person
joining an association to promote adoptions cannot express anti-adoption views. He may
lose his membership. Some restriction on one's rights may be necessary to protect
another's rights in a given situation. Proper exercise of rights may have, implicit in
them, certain restrictions. The rights must be harmoniously construed so that they are
properly promoted with the minimum of such implied and necessary restrictions. In the
present case, joining Government service has, implicit in it, if not explicitly so laid
down, the observance of a certain code of conduce necessary for the proper discharge of
functions as a Government servant. That code cannot be flouted in the name of other
freedoms. Of course, the courts will be vigilant to see that the code is not so widely
framed as to unreasonably restrict fundamental freedom. But a reasonable code designed
to promote discipline and efficiency can be enforced by the Government organisation in
the sense that those who flout it can be subjected to disciplinary action.
Freedom to Assemble Peaceably and Without Arms as Provided Under Article
19 (1) (b)

CAN THE STATE RESTRICT A CITIZEN’S RIGHT TO PROTEST?

Supreme Court in Re-Ramlila Maidan Incident vs Home Secretary And Ors (2012). Justice
Swantanter Kumar noted that it must be borne in mind that the provisions of Section 144
of CrPC are attracted only in emergent situations. The emergent power is to be
exercised for the purposes of maintaining public order.

The question that arises in most of the cases relating to Article 19(1)(b) is that can
the state restrict a person’s right to protest? In a landmark judgment given by the
Supreme Court on the incident that took place on the midnight of 4-5th June, 2011 at
Ramlili Maidan, Delhi where Baba Ramdev and his supporters were carrying on a protest
against corruption and black money. Their protest was against the government who failed
in taking effective steps to curb the menace of black money and corruption in India.
The apex court has held that the protest was peaceful. Satyagraha which is beyond the
concept of ‘passive resistance’ forms the essence of democracy. Saytagraha is not
aggression but non-violence and its force lay in truth and the ability to struggle for
it. Supreme Court in this judgment has upheld the right to peaceful protest as a
Constitutional right and the right to assemble and demonstrate by holding dharnas is
the basic features of an effective democratic system. People in a democracy have a
right to raise their voices against the decisions and unreasonable actions of the
government or to express their opinion on any subject of national importance. The
government is obliged to respect and encourage the exercise of such rights. However,
recently political powers have resorted to the use of police powers to stop the people
from exercising their constitutional right of peaceful assembly. In this case also,
police powers were used to dictate that the size of the protest must be small and not
very large. Also, section 144 of the CrPC was unlawfully imposed. In this regard, the
Supreme Court observed that the decision to forcibly evict people sleeping at the
Ramlila Maidan at midnight of 4-5th June 2011 taken by either the police independently
or on consultation with the Ministry of Home Affairs was arbitrary, abuse of power and
improper. It was an invasion of legal protections available to the people present
there. Thus the restriction was unwarrantedly executed and showed the might of the
State.
ANITA THAKUR & ORS. VS GOVT. OF J & K & ORS. 2016.
Right to peaceful protest is a fundamental right: SC
Doctrine of sovereign immunity does not apply to cases of fundamental rights violation
and hence cannot be used as a defence in public law. A distinguishing feature of any
democracy is the space offered for legitimate dissent, said the Court.

A two Judge Bench comprising Justices A.K.Sikri and R.K.Agrawal was hearing a writ
petition filed by the petitioners who are migrants of the State of Jammu & Kashmir. The
allegation in the Petition was that they had planned to take out a peaceful protest
march up to Delhi for ventilating their grievances. However, when they reached near
Katra in Jammu & Kashmir, the authorities through their police personnel had beaten up
and manhandled these migrants in a most brutal and barbaric manner on 07.08.2007.
According to the Petitioners this incident has violated their rights guaranteed to them
under Articles 14, 19, 21 and 22 of the Constitution of India and prayers are made in
the petition for taking criminal action against the erring officials, and also to pay
compensation to each of the petitioners and other Jammu migrants who suffered serious
injuries, in the sum of Rs. 10 lakhs.
The Bench observed that holding peaceful demonstration in order to air their grievances
and to see that their voice is heard in the relevant quarters is the right of the
people. Such a right can be traced to the fundamental freedom that is guaranteed under
Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers
freedom of speech to the citizens of this country and, thus, this provision ensures
that the petitioners could raise slogan, albeit in a
peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers
the right to assemble and, thus, guarantees that all citizens have the right to
assemble peacefully and without arms. “It hardly needs elaboration that a
distinguishing feature of any democracy is the space offered for legitimate dissent.
One cherished and valuable aspect of political life in India
is a tradition to express grievances through direct action or peaceful protest.
Organised, non-violent protest marches were a key weapon in the struggle for
independence, and the right to peaceful protest is now recognised as a fundamental
right in the Constitution”, said the Bench

The Supreme Court has, held that the threat of going on a hunger strike extended by Baba Ramdev at
Ram Lila Maidan, cannot be termed illegal. Presumably, this right that the court spoke of flows from a
citizen’s right to freedom of expression. That right is subject to “reasonable restrictions” in the interest
of the sovereignty and integrity of India, public order, decency, morality, or in relation to contempt of
court, defamation or incitement to an offence.
RISTRICTIONS
In Balm Lai v. State of Maharashtra, AIR 1961 S.C. 884 In Babulal Parate vs State of Maharashtra (1961)
and Madhu Limaye vs Sub-Divisional Magistrate (1970),. It has been held that Section 144 of Criminal
Procedure Code which prohibits the holding of meetings is not volatile of freedom of assembly. Under this
section meetings can be banned and any assembly of more than five persons can be declared unlawful
and then ordered to be dispersed.

In Babutal Parate Vs. State of Maharastra8i, the court opined that the right of
citizens to take
out processions or to hold public meetings flows from this right

It does not imply that a citizen may hold meeting any-where on anybody's property. The government has a right to
control the time and place of a meeting. The right to take out procession on a public street is subject to the order
of the authority regulating traffic. This applies to all processions whether religious or non-religious.

Free Speech and Public Order –

S. Rangarajan vs P. Jagjivan Ram (1989) Justice K. J. Shetty wrote: “The State cannot plead its inability to
handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of
expression.”
in Superintendent, Central Prison vs Ram Manohar Lohia, the Supreme Court held that there must be a
“proximate” relationship between speech and public disorder, and that it must not be remote, fanciful or far
fetched. Thus, for the first time, the breath of the phrase “in the interests of” was qualified, presumably from
the perspective of reasonableness. In Lohia, the Court also stressed again that “public order” was of
narrower ambit than mere “law and order”, and would require the State to discharge a high burden of proof,
along with evidence.
Most recently, in Arup Bhuyan vs State of Assam (2011), the Court read down a provision in the TADA
criminalizing membership of a banned association to only apply to cases where an individual was
responsible for incitement to imminent violence (a standard borrowed from the American case
of Brandenburg).[GB1]
Lastly, in 2015, we have seen the first instance of the application of Section 144 of the CrPC to online
speech. The wide wording of the section was used in Gujarat to pre-emptively block mobile internet
services, in the wake of Hardik Patel’s Patidar agitation for reservations. Despite the fact that website
blocking is specifically provided for by Section 69A of the IT Act, and its accompanying rules, the Gujarat
High Court upheld the state action.
The following conclusions emerge:
(1) “Public Order” under Article 19(2) is a term of art, and refers to a situation of public tranquility/public
peace, that goes beyond simply law-breaking
(2) Prior restraint in the interests of public order is justified under Article 19(2), subject to a test of
proximity; by virtue of the Gujarat High Court judgment in 2015, prior restraint extends to the online sphere
as well
(3) The proximity test requires the relationship between speech and public order to be imminent, or like a
spark in a powder keg

Freedom of Association Article 19(1) (c) right “to form associations, or

unions or Co- Operative Societies.”
Grounds on which this freedom gets restricted: clause (4) of the Article 19
1. Sovereignty and Integrity of India: To safeguard the sovereignty of the country the
freedom to form association can be restricted. This freedom will also be restricted if
it causes any disturbance or affects the oneness of the country.
2. Public Order: To maintain safety, public peace, order and tranquillity of the
country, the right to form association can be restricted.
3. Morality: This freedom can be restricted if any of the individual’s activities
involve indecency or obscenity.
The right to form association includes the right to form companies, societies,
partnerships,, trade union and political parties. The right guaranteed is not merely
the right to form association but also to continue with the association as such. The
freedom to form association implies also the freedom to form or not to form, to join or
not to join, an association or union.

In Damayanti v. Union of India,

the validity of Hindi Sahitya Sammelan Act, 1962 was challenged as violative of Article 19(1)(c). The
petitioner was a member of an association . The Act changed the composition of the association and
introduced new members. The result of this alteration was that the members who voluntarily formed the
association were now compelled to act in the association with other members in whose admission they had
no say. The Supreme Court held- The Act violated the rights of the original members of the society to form
an association guaranteed under Art 19 (1)(c). “ The right to form an association ” , the Court said , “
necessarily implies that the person forming the association have also the right to continue to be associated
with only those whom they voluntarily admit in the association. Any law by which members are introduced
in the voluntary association without any option of being given to the members to keep them out, or any law
which takes away the membership of those who have voluntarily joined it, will be a law violating the right to
form association.” The Hindi Sahitya Sammelan Act does not merely regulate the administration of the
affairs of the original society, what it does is to alter the composition of the society itself. The result of this
change in the composition is that the members who voluntarily formed the association are now compelled
to act in the association with other members who have been imposed as members by the act and in whose
admission to membership they had no say. Such alteration in the composition of the association itself
clearly interferes with the right to continue to function as members of the association which was voluntarily
formed by the original founders. The Act, therefore violates the right of the original members of the society
to form an association guaranteed under Article 19 (1)(c).

Regarding the plea that the Act imposes reasonable restriction under clause (4) of Art 19, the Court said
that clause (4) cannot be called in to claim validity for the Act. Under clause (4), of Art 19 reasonable
restrictions can be imposed only in the interest of the of the sovereignty and integrity of India or the
interests of public order or morality . The alteration of the constitution of the society in manner laid down
by the act is not in the interest of the sovereignty or integrity of India or in the interests of public order or
morality.
Zoroastrian Cooperative v. Destrict Registrar, 2005, 2-Judge decision of the Supreme Court The
Cooperative Society argued that under Article 19(1)(c), Parsis had the fundamental right to association,
which right could not be infringed by imposing upon them members they did not wish to accept. It also
relied upon Article 29’s right of minorities to preserve their own culture. Lastly, it argued that the bye-laws
themselves violated no provision of the parent legislation, and were therefore legally sound. Court found,
was that as far as a housing society is concerned, “there should be a bond of common habits and common
usage among the members which should strengthen their neighbourly feelings, their loyal adherence to
the will of the society expressed by the committee’s orders and their unselfish and harmonious working
together. In India, this bond was most frequently found in a community or caste or groups like cultivators
of a village.”

b) Right to form association does not carry the right to recognition

In Raja Kulkarni Vs State of Bombay4 the Supreme Court held that the unions are classified as
representative unions and qualified unions under the Bombay Industrial Relations Act, 1946 is according to
the percentage of membership. Giving the right to unions with membership of 15% alone to represent
workers was a reasonable classification and there was no infringement of the fundamental right of the
workers to freedom of speech and expression and to form association or unions under Article 19(a) and (c)
of the Constitution.
In All-India Bank Employees Association v. National Industrial Tribunal (Bank Disputes),
Bombay5; Supreme Court of India again had occasion to consider content and scope of the right,
guaranteed under Article 19(1)(c) of the Constitution. It was held that even a very liberal interpretation of
the said constitutional provision cannot lead to the conclusion that the fundamental right to form unions
carries with it a concomitant guarantee that the trade unions so formed shall be enabled to carry, effective
collective bargaining or shall achieve the purpose for which they were brought into existence. The court
held:
“In our opinion, the right guaranteed under sub-clause (c) of clause (1) of Article 19 extends to the
formation of an association and insofar as the activities of the association are concerned or as regards the
steps which the union might take to achieve the purpose of its creation, they are subject to such laws as
might be framed and the validity of such laws is to be tested by reference to the criteria to be found in clause
(4) of Article 19 of the Constitution6”.
In Raghubar Dayal Jai Prakash v. Union of India7", wherein the S.C had to deal with a challenge
raised against Section 6 of the Forward Contracts (Regulation) Act, 1952 on the ground of alleged violation.
of Article. 19(1)(c) of the Constitution. Upholding the validity of the Section the Supreme Court held that the
freedom of association guaranteed by Article 19(1)(c) did not carry with it a guaranteed right to recognition
of the association.
The legal position being thus well-settled that Article 19(1)(c) does not confer on a trade union a right to
claim the grant of recognition by the employer, it is not possible to accept the petitioner's contention that
the denial of recognition to it by the Board constitutes a violation of the petitioner's fundamental right
under the said article of the Constitution. There being no other statutory provision in force in this State
which confers on every trade union, irrespective of the state of its membership, a right to be recognised by
the employer, or imposes a corresponding obligation on the employer to grant such recognition to all trade
unions, it must be held that the petitioner-union has no legal or enforceable right for the grant of
recognition to it by the Board.
Withdrawal of recognition of a trade union to represent workmen in certain categories, consequent upon
recognition of another union, which had a membership of the majority of such workmen, as their sole
bargaining agent does not violate Article 19(1)(c)
C) Right to form association does not carry the right to achieve object of association.
Dharam Dutt & Ors vs Union Of India & Ors on 24 November, 2003

(A right to form unions guaranteed by Article 19(1)(c) does not carry with it a fundamental right in the
union so formed to achieve every object for which it was formed with the legal consequence that any
legislation not falling within clause (4) of Article 19 which might in any way hamper the fulfillment of
those objects, should be declared unconstitutional and void.)

a right to form associations or unions does not include within its ken as a fundamental right a right to form
associations or unions for achieving a particular object or running a particular institution, the same being a
concomitant or concomitant to a concomitant of a fundamental right, but not the fundamental right itself.
The associations or unions of citizens cannot further claim as a fundamental right that it must also be able
to achieve the purpose for which it has come into existence so that any interference with such achievement
by law shall be unconstitutional, unless the same could be justified under Article 19(4) as being a restriction
imposed in the interest of public order or morality; (ii) A right to form associations guaranteed
under Article 19 (1)(c) does not imply the fulfillment of every object of an association as it would be
contradictory to the scheme underlying the text and the frame of the several fundamental rights guaranteed
by Part III and particularly by the scheme of the guarantees conferred by sub-clauses (a) to (g) of clause (1)
of Article 19; (iii) While right to form an association is to be tested by reference to Article 19(1)(c) and the
validity of restriction thereon by reference to Article 19(4), once the individual citizens have formed an
association and carry on some activity, the validity of legislation restricting the activities of the association
shall have to be judged by reference to Article 19(1)(g) read with 19(6). A restriction on the activities of the
association is not a restriction on the activities of the individual citizens forming membership of the
association; and (iv) A perusal of Article 19 with certain other Articles like 26, 29 and 30 shows that
while Article 19 grants rights to the citizens as such, the associations can lay claim to the fundamental rights
guaranteed by Article 19 solely on the basis of there being an aggregation of citizens, i.e., the rights of the
citizens composing the body. As the stream can rise no higher than the source, associations of citizens
cannot lay claim to rights not open to citizens or claim freedom from restrictions to which the citizens
composing it are subject.

D) Right to form association does not carry the right to inform rival union

In K.R.W Union Vs. Registrar, it was held that an order under Section 8 of the Trade Unions Act, 1926
without informing to the existing rival union was not violative of Art 19(1)(c). The right to be recognized by
government or the right to represent workmen was not absolute. Article 19(1)(c) did not confer on any
individual or association the right to carry on trade union activities free of competition from rivals,
therefore state action which introduced new competitors could not be challenged as contravening Article
19(1)(c). Since an order of the Registrar under Section 8 granting recognition to a rival union did not place
any restrictions on the fundamental rights of the existing union, that union had no locus standi to file a writ
petition under Article 226”9.
E) The right not to join an association is not a fundamental right

In Tika Ramji Vs U.P10 the contention of the petitioner was that right to form an association implied the
right not to form or join it, he further contented that both rights were one integral right guaranteed by
Article 19(1)(c). The facts of the above case are under provisions of the U.P. Sugarcane (Regulation of
Supply and Purchase) Act, 1953, two notifications issued by the U.P. Government were impuned, inter alia,
as violating Article 19(1)(c). The petitioner urged that the provision relating to the supply of sugarcane by a
co-operative society to factories manufacturing sugar would in substance compel him to join such a society,
thus violating his fundamental right under Article 19(1)(c) not to form, or join, an association. Bhagwati J
held that assuming that the right to form an association implies a right not to form an association, it does
not follow that the negative right must also be regarded as a fundamental right. The citizens of India have
many rights which have not been given the sanctity of fundamental rights and there is nothing absurd or
uncommon if the positive right alone is made a fundamental right. The whole fallacy in the argument urged
on behalf of the petitioners lies in this that it ignores that there is no compulsion at all on any cane grower
to become a member of the cane growers co-operative society
In All-India Bank Employees Association Vs. National Industries Tribunal12, the Supreme
Court held that freedom to form unions does not carry with it the concomitant right that such unions
should be able to achieve the objects for which they were formed. The contention of the appellants was that
section 34-A of the Banking Companies Act, 1949 contravened the fundamental right guaranteed to trade
unions by Article 19(1)(c) as it prevented them from effectively exercising the right of collective bargaining
in respect of wages, bonus etc. Before industrial tribunals by shutting out important and relevant evidence,
Section 34-A provided that no banking company shall be compelled to produce or give its books of account
or other documents for inspection or furnish or disclose any statement or information which the company
claims to be of confidential nature. If a dispute was pending and a question was raised whether any amount
from the reserves or other provisions should be taken into account by a tribunal, the tribunal could refer the
matter to the (RBI) Reserve Bank of India whose certificate as to the amount which could be taken into
account, was made final and conclusive.
The Supreme Court held that 34-A was constitutionally valid and did not offend either Article 19(1)(c) or
Article 14 of the Constitution. It was held that Article 19(1)(c) should not be read literally and that the right
to form unions carried with it the guarantee of their effective functioning.
F) Freedom of association and government employees
In O.K Ghosh Vs E.X.Joseph13 the respondent, a government servant was the secretary of the civil
accounts association. The appellant was the accountant general of Maharashtra. A memo was served on the
respondent intimating him that it was proposed to hold an enquiry against him for having deliberately
contravened the provisions of Rule 4-A of the Central Civil Services (Conduct) Rules 1955 in so far as he
participated actively in various demonstrations organized in connection with the strike of the central
government employees and had taken active part in the preparations made for the strike. The respondent
filed a writ petition in the High Court of Bombay with a prayer that a writ of certiorari be issued to quash
the charge sheet issued against him. He also prayed for a writ of prohibition against the appellant
prohibiting him from proceeding further with the departmental proceedings against him. The respondent
Joseph also contended that Rules 4-A and 4-B were invalid as they contravened the fundamental right
guaranteed to him under 19(1)(a)(b)(c) and (g). The High Court held that Rule 4-A was wholly valid but
Rule 4-B was invalid. Rule 4-A provided that no government servant shall participate in any demonstration
or resort to any form of strike in connection with any matter pertaining to his conditions of service. Rule B
provided that no government servant shall join or continue to be a member of any service association which
the government did not recognize or in respect of which the recognition had been refused or withdrawn by
it. As both parties were not satisfied with the judgement given in the High court they preferred appeal to the
Supreme Court.
The Supreme Court held that Rule 4-A in so far as it prohibited the demonstration of employees was
violative of fundamental rights guaranteed by Article 19(1) a and (b), that the High Court was wrong in its
conclusion. The Supreme Court further held that participation in demonstration organized for a strike and
taking active part in preparations for it cannot mean participation in the strike. The respondent could not
be said to have taken part in the strike and the proceedings against him under Rule 4-A were invalid. The
Supreme Court also held that Rule 4-B imposed restrictions on the undoubted right of the government
servants under Article 19 which were neither reasonable in the interest of public order under Article 19(4)
in granting or withdrawing recognition, the government might be actuated by considerations other than
those of efficiency or discipline amongst the services or public order. The restrictions imposed by Rule 4-B
infringed Article 19(1)(c) and must be held to be invalid.
In P.Balakotaiah Vs Union of India14 raised the question whether Rules 3 and 7, Railway Service
(Safeguarding of National Security) Rules, 1949 violated Article 19(1)(c). The appellants contended that
their services were terminated because they were communists and trade unionists and consequently the
orders terminating their services under Rule 3 amounted in substance to denial to them of the freedom to
form associations. The appellants were informed that they had carried on agitation among the Railway
workers for a general strike with a view to paralyse communications and the movement of essential supplies
and thereby create disorder and confusion in the country. As their services were terminated the appellant’s
fist moved the High Court under Article 226 of the Constitution. Their contention was that Railway Services
(Safeguarding National Security) Rules, 1949 contravened Articles 14, 19(1)(c) and 311 of the Constitution
and as such the orders terminating their services were void.
Their petitions were dismissed by the High Court. Their appeals were also dismissed by the Supreme Court
which held that the charge shows that action was taken against the appellants not because they were
communists or trade unionists but because they were engaged in subversive activities. The orders
terminating their services did not contravene Article 19(1)(c) as they did not infringe any of the rights of the
appellants guaranteed by that Article which remained precisely what they were before. The appellants had a
fundamental right to form association but they had no fundamental right to be continued in Government
service. The order did not prevent from continuing to be in the Communist Party or being trade unionists.
G) Right of Association and Armed Forces
In O.K.A . Nair v. Union Of India 1976, an important question arose whether “ civilian’’ employees ,
designated as ‘ non – combatants’ such as cooks, chowkidars, laskers, barbers, mechanics , boot- makers,
tailors etc . attached to the Defence Establishments have a right to form associations or unions. The
appellants were members of the civil employees unions in the various centres of the Defence Establishment.
The Commandment declared their unions as unlawful associations . They challenged that the impugned
action was violative of their fundamental right to form associations or unions under Art 19(1)(c) of
the Constitution. They contended that the members of the unions , though attached to the Defence
Establishments, were civilians and their service conditions were regulated by Civil Service Rules and
therefore they could not be called as “ members of the Armed Forces’’ within the meaning of Art 33 of
the Constitution .The Supreme Court rejected the contentions of the appellants and held that the civilian
employees of the Defence Establishments answer the description of the members of the Armed Forces
within the meaning of Art 33 and, therefore were not entitled to form trade unions. It is their duty to follow
or accompany the Armed Personnel on active service or in camp or on march. Although they are non
combatants and in some matters governed by the Civil Service Rules , yet they are integral to Armed Forces
.Consequently, under Army Act the Central Government was competent to make rules restricting or
curtailing their fundamental right under Art 19(1)(c).
H) Restrictions on the Freedom of Association
The Criminal Law (Amendment) Act, 1908, as amended by the Madras Act, 1950, provides that if the State
Government is of opinion that any association interferes with the administration of law or with the
maintenance of law and order or that it constitutes a danger to the public peace it may, by notification in the
Official Gazette declare such association to be unlawful. Such a notification was to be placed before an
Advisory Board. Representation against such a notification could be made. If the Advisory Board was of
opinion that the association was not unlawful the Government was to cancel the notification.
The validity of the above Act was challenged in the case of State of Madras v. V.G. Rao17, The Supreme
Court held that the restrictions imposed by Section 16(2)(b) of the Act were unreasonable, The test under it
was subjective satisfaction of the Government and the factual existence of the grounds was not a justiciable
issue. Therefore, the vesting of power in the Government to impose restriction on this right, without
allowing the grounds tested in a judicial enquiry, was a strong element to be taken into consideration in
judging the reasonableness of the restrictions on the right to form association or union. The existence of an
Advisory Board could not be a substitute for judicial inquiry.
But a Government order requiring municipal teachers not to join unions other than those officially
approved was held to impose prior restraint on the right to form association and union, which was in the
nature of administrative censorship, and hence invalid.

In Haji Mohd.v. District Board , Malda , it was held that a restriction requiring a teacher to take prior
permission to engage in political activities is a reasonable restriction . It aimed at preventing teachers from
getting mixed up with political institutions. For, a teacher is not merely a citizen but he has to be under
certain terms and discipline of employment.

In Ramkrishna v. President ,District Board, Nellore, a Government order requiring municipal

teachers not to join unions other than those officially approved was held to impose prior restraint on the
right to form association and union, which was in the nature of administrative censorship, and hence
invalid.
PUCL and Another Versus the Union of India December, 16, 2003 SC The court has held that the
whole Act POTA is constitutional. Court held these sections intra vires the Constitution on the following
grounds: i) The right of citizens to form association or union that is guaranteed by Article 19(1)(c) of the
Constitution is subject to the restriction provided under Article 19(4). Under Article 19(4) of the
Constitution, the State can impose reasonable restrictions in the interest of sovereignty and integrity of
India. POTA is enacted to protect the same imposing restrictions under Article 19(4) of the Constitution.
Hence Section 18 is not unconstitutional. ii) The banned organisation can approach the Central
Government and can prove that it is not a terrorist organisation and can subsequently approach the Central
Review Committee and it is also free to exercise its Constitutional remedies. The post-decisional remedy
provided under POTA satisfies the audi alteram partenu requirement in the matter of declaring an
organisation as terrorist.

I) Right to form association does not carry the right to strike

Dharam Dutt & Ors vs Union Of India & Ors on 24 November, 2003
Even a very liberal interpretation cannot lead to the conclusion that the trade unions have a guaranteed
right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise.
The right to strike or the right to declare a lock-out may be controlled or restricted by appropriate industrial
legislation, and the validity of such legislation would have to be tested not with reference to the criteria laid
down in clause (4) ofArticle 19 but by totally different considerations. A right guaranteed by Article
19(1)(c) on a literal reading thereof can be subjected to those restrictions which satisfy the test of clause (4)
of Article 19.
In T.K.Rangarajan Vs State of Tamil Nadu, (AIR 2003 SC 3032) the Supreme Court delivering its
final verdict on August 6, 2003 made it amply clear that “Government employees have no fundamental,
legal, moral or equitable right to go on strike”, thus holding the state machinery and citizens to ransom.
Although the Tamil Nadu Government had initially dismissed 1,70,241 employees, the government in
response to the wishes of the Supreme Court agreed to take back those employees who had not resorted to
violence on ‘compassionate grounds’, yet still 6,072 employees remain dismissed. The Supreme Court had
recommended the establishment an effective redressal machinery to take care of the grievances and
demands of employees.

In T.K. Rangarajan v. Government of Tamilnadu and Others 2003 ((the Tamil Nadu
Government 2 lakh Employees Case)), Justice M. B. Shah, and Justice A. R. Lakshmanan, said, "Now
coming to the question of right to strike - in our view no such right exists with the government employee."
Even as early as 1961, the Supreme Court held that even a very liberal interpretation of Article 19 (1)(c)
cannot lead to the conclusion that the trade unions have a guaranteed right to strike as part of collective
bargaining or otherwise [1962 (3) SCR 269)]. In support of the theory of "concomitant right" to collective
bargaining, reliance was placed on Romesh Thappar's case (1950 SCR 404) where it was observed, "There
can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that
freedom is ensured by the freedom of circulation." It was argued if freedom of speech and expression "in
Article 19 (1) (a) was given the liberal construction so as to effectuate the object for which the freedom was
conferred, a similar construction should be adopted regarding the freedom of association guaranteed under
Article 19 (1) (c)."
"In case of strike by a teacher entire educational system suffers... In case of strike by doctors innocent
patients suffer; in case of employees of transport services entire movement of the society comes to a
standstill; business is adversely affected and number of persons find it difficult to attend to their work, to
move from one place to another or from one city to another. On occasion public properties are destroyed... "

In Ex. Captain Harish Uppal Vs Union Of India 2003 a three-judge of the Supreme Court held that lawyers
have no right to go on strike or give a call for boycott, not even on a token strike. It further held: “The
protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court
premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest
marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers
holding Vakalats on behalf of their clients cannot not attend Courts in pursuance of a call for strike or
boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited
with any adverse consequences by the Association or the Council and no threat or coercion of any nature
including that of expulsion MCRC Nos. 4063/15 and 4064/15 |2 can be held out. It is held that no Bar
Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or
boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare
cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may
ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified
that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence
of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief
Justice or the District Judge before Advocates decide to absent themselves from Court. The decision of the
Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are
under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all
Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must
not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains
from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to
damages which he might have to pay his client for loss suffered by him."
Bandh is illegal
In CPM Vs Bharat Kumar 1998 Case the Supreme Court stated that Bandh is illegal. Bandh (A general
Stike) is illegal because it carries an element of aggression or compulsion. The compulsion of shutting down
offices, shops and disturbance to public transport system, therefore violate a fundamental Right of citizen
(Right to Freedom of movement). Moreover, bandh prevents the workers to earn their daily bread;
therefore it violates the Right to Livelihood. It also violates the right to Freedom of Speech and expression.
(4) The Supreme Court held that the Hartal is not illegal. Because there is not any form of coercion involved
not disturb normal life criticism.
(5) ESMA (Essential Services Maintenance Act)- The citizens involved in delivery of essential services
cannot go on strike (Telecommunication, Administration etc.).
Right to form Association under Armed Forces Article 33 of the Constitution empowers the Parliament to
pass a law restricting the right to form political association to:
(a) The members of the Armed Forces.
(b) The members of the Forces charged with or
(c) Persons employed in any bureau or other organization established by the State for purposes of
intelligence or counter intelligence, or
(d) Persons employed in or connection with the telecommunication system.
Example: Police Forces (Restriction of Rights) Act, 1966, thus they do not have the right to form trade
unions and hence not to go on strike.
in Bharat Kr. Palicha, where Justice Balasubramanyan opined: "Bundh" is a Hindi word meaning
"closed" or "locked". The expression therefore conveys an idea that everything is to be blocked or closed.
Therefore, when the organisers of a bundh call for a bundh, they clearly express their intention that they
expect all activities to come to a standstill on the day of the bundh.
James Martin vs State Of Kerala on 16 December, 2003 SC
It needs to be noted that in the name of Hartal or Bandh or strike no person has any right to cause
inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty,
property of any citizen or destruction of life and property, and the least any government or public property.
It is high time that the authorities concerned take serious note of this requirement while dealing with those
who destroy public property in the name of strike, hartal or bandh. Those who at times may have even
genuine demands to make should not loose sight of the overall situation eluding control and reaching
unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-social
forces to gain control resulting in all around destruction with counter productive results at the expense of
public order and public peace. No person has any right to destroy another's property in the guise of bandh
or hartal or strike, irrespective of the proclaimed reasonableness of the cause or the question whether there
is or was any legal sanction for the same. The case at hand is one which led to the destruction of property
and loss of lives, because of irresponsible and illegal acts of some in the name of bandh or hartal or strike.
Unless those who organize can be confident of enforcing effective control over any possible turn of events,
they should think twice to hazard themselves into such risk prone ventures endangering public peace and
public order. The question whether bandh or hartal or strike has any legal sanctity is of little consequence in
such matters. All the more so when the days are such where even law-enforcing authorities/those in power
also precipitate to gain political advantage at the risk and cost of their opponents. Unless such acts are
controlled with iron hands, innocent citizens are bound to suffer and they shall be the victims of the
highhanded acts of some fanatics with queer notions of democracy and freedom of speech or association.
That provides for no license to take law into their own hands. Any soft or lenient approach for such
offenders would be an affront to rule of law and challenge to public order and peace.

2008: Kerala HC calls for appropriate legislation to curb hartal

The High Court observed in The Proper Channel vs. Managing Director, KSRTC:
“It is therefore necessary that the Government should step in and provide a simple and easy method to any
person, including statutory Corporations like KSRTC or a private individual, to claim compensation for any
loss they may suffer on account of such `forced hartals’. Appropriate legislation should be enacted granting
suo motu powers to a competent authority to call for claims, assessment of compensation, recovery
etc.Unless such measures are taken, the menace of `forced hartals’ cannot be curbed.”
From the reading of the above judgements it is very clear that there is no right for organizations to call
hartal/strikes. Instead, it is the right of an individual to get assurance from such organizations that call for
hartal/strikes that he will not be stopped from travelling or working despite the hartal. On any day, a citizen
of India has the right –

 To move freely
 To work in his/her workplace
 To complain to the police if he/she is stopped from travelling, and
 To sue the concerned for loss he/she suffers due to hartal/strikes.

Meanwhile, the organizations that call for hartal should follow the dicta laid in the judgments of the
Supreme Court and the High Court. They are duty bound to:

 Make it clear in their call that nobody will be compelled to participate in the ‘hartals’ or strikes
 Make it clear that traffic will not be obstructed
 Make it clear that those who are willing, may go for work
 Make it clear that the fundamental right of others to move about will not be affected, and
 Instruct their supporters to see that no coercion or force is used for compelling others to participate
in the strike or ‘hartal’.
4.13. Freedom of Movement
Article 19(1)(d) guarantees to a citizen the right to move freely throughout the country. Clause (e)
of Article 19(1) guarantees right to reside and settle in any part of the country. This right is
subjected to certain limitations on the grounds mentioned under Article 19(5). The citizens can
move from one state to another and to every place within the state. Externment or internment
orders requiring a person to leave a particular place or enter into a specific area only are violations
of this right. Article 19(5) says that restriction must be reasonable and in the interests of the
general public or for the protection of the interest of the Scheduled Tribes.

4.14. Right to Travel Abroad

The question whether the right to travel abroad could be regarded as a part of Article 19(1)(a) and
(g) was considered in Maneka Gandhi case. It was held that right to freedom of speech and
expression is exercisable not only in India but outside as well. Right to travel abroad and return to
one’s country was recognised by Supreme Court in Satwant Singh92 case also. This right finds a
place in the Universal Declaration of Human Rights Article 13(2) as well as in the ICCPR Article 12
(2), (3) & (4). The Constitution Review Commission suggested inclusion of this right under Article
21 as 21A as follows: 21A (1) Every person has the right to leave and return to one’s country.
(2) Nothing in clause (a) shall prevent the State from making any law imposing reasonable
restrictions in the interest of the sovereignty and integrity of India, security of India and friendly
relations of India with any foreign country.

4.15. Helmet Case

The condition that every two wheeler rider should wear a crash helmet is not a restriction on the
movement because it facilitates safe movement, and hence no violation of freedom of movement.
It was held so in Ajay Canu v. Union of India93. Exclusion of Sikh community from wearing helmet
was also under question in K. Veeresh Babu v. Union of India94. While upholding the validity of
condition of wearing the helmet, the Court held that the exemption provided to Sikhs to respect the
religious practice of wearing a headgear would not vitiate the measure.

In Kharak Singh v State of U.P.95 the police surveillance of suspects was upheld. The rule
providing for surveillance in Regulation 236 of the UP Police Regulations was held to be
constitutional. However, the watching and shadowing of suspects for the purpose of keeping a
record of their movements and activities did not infringe the right to move freely. It was held that
the regulation, which authorized domiciliary visits without the authority of law, violated Article
21. The Court has not approved the contention that such a restriction was an infringement of right
to movement. In his dissent, Justice Subbarao said those even psychological restraints on
freedom of movement violated Article 19(1)(d) and regulations authorising surveillance were
unconstitutional.
The Official Secrets Act, 1923 imposes a restriction on movement in to ‘prohibited’ areas for
security reasons. In Gurudatta Sharma v State of Bihar96, restrictions under Official Secrets Act
were upheld as valid on grounds of security, public order and public morality.

In case of conviction and imprisonment of an offender, right to movement will not arise, because
his right of movement was curtailed by a reasonable restriction on the grounds of social security.
In Sunil Batra v Delhi Administration97, it was held that the restriction imposed on a prisoner
under Section 30(2) of the prisons Act 1894 was reasonable on the grounds of safety and security
of the prisoners and prison security, and hence not violate of Article 19(1)(d). On the same lines
the imposition of capital punishment was held reasonable under Article 19(5) and not violate of
Article 19(1)(d). In A.K. Gopalan v State of Madras98 detention passed under Preventive
Detention Act was held to be not unconstitutional and did not offend the Article 19(1)(d).

Restrictions on the free movement imposed on prostitutes to carry on their trade within a specified
area and to reside in or move from particular areas have been held to be valid (The State of Uttar
Pradesh versus Kaushaliya).
Restrictions on residence imposed on habitual offenders have been upheld by the courts as being
reasonable ( P. Arumugham versus the State of Madras).
Again "restrictions on the movements of persons afflicted with by AIDS have been held by Bombay
High Court to be valid" ( Lucy R. D'Souza versus State of Goa).

In State of Madhya Pradesh v. Bharat Singh, AIR 1967 S.C. Section 3 (1) (b) of the M.P. Public Security
Act, 1959 empowered the State Government to issue an order requiring a person to reside or remain in
such a place as may be specified in the order to ask him to leave the place to go to another place selected
by the authorities in the interests of security of the State or public order.

The Supreme Court held that the impugned Section 3 (1) (b) of the Act imposes unreasonable restriction on
the right guaranteed by Article 19 (1) (e) and, therefore, void. The Act did not give an opportunity to be
heard to the concerned person about the place where he was asked to reside. Further, the section did not
indicate the extent of the place, area or its distance from the residence of the person extern.

In the interest of Tribal’s, the movements of non-tribals in Tribal areas can be considered valid. In
Seven North Eastern Tribal States the movement and settlement of non-tribals in tribal areas have
been restricted. Non tribals cannot even acquire the tribal land by transfer, nor can they transfer
the property to another non-tribal.

Article 19(1)(d) and Article 19(1)(e) are Complementary

It is to be noted that the right to reside [under Article 19(1)(e)] and right to move [under Article
19(1)(d)] freely throughout the Country are complementary and often go together. Most of the
Cases considered under Article 19(1)(d) are relevant to Article 19(1)(e) also. The two rights,
therefore, discussed together.

The Freedom of Movement and Residence apply only to citizens of India and not the
Foreigners. A foreigner cannot claim the right to reside and settle in the country as guaranteed by
Article Article 19(1)(e). The Government of India has The Power to expel foreigners from India.

RIGHT TO SHELTER
In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited[ AIR 1996 SC], the right
to shelter has been held to be a fundamental right which springs from the right to residence secured in
article 19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor, the
state has to provide facilities and opportunities to build houses
In Chameli Singh v. State of U. P [(1996) 25CC549 132] a Bench of three Judges of this Court had
considered and held that the right to shelter is a fundamental right available to every citizen and it was read
into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the
right to life more meaningful.
In PC Gupta Vs State of Gujarat and Ors, in 1994, the Court went further holding that the Right to shelter in
Article 19(1) (g) read with Articles 19(1) (e) and 21, included the right to residence and settlement.
Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the
meaningful right to life. The right to residence and settlement was seen as a fundamental right under Article
19(1)(e) and as a facet of inseparable meaningful right to life as available under Article 21.

In Ahmedabad Municipal Corporation, Appellant V. Nawab Khan Gulab Khan And Others, the Court
observed that,
“Article 19(1) (e) accords right to residence and settlement in any part of India as a fundamental right. Right
to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of
the Universal Declaration of Human Rights declares that everyone has the right to a standard of living
adequate for the health and well-being of himself and his family; it includes food, clothing, housing, medical
care and necessary social services. Article 11(1) of the International Covenant on Economic, Social and
Cultural Rights lays down that State parties to the Covenant recognise that everyone has the right to
standard of living for himself and his family including food, clothing, housing and to the continuous
improvement of living conditions.”

4.16. Right to Property

The right to hold property has ceased to be a fundamental right following the 44th Amendment to the
Constitution whereby sub-cl (f) has been omitted from Article 19. The right of property, which was
guaranteed under Article 31, was shifted from Part III of the Constitution and now find its place in Article
300A and clause (2) of said Article dealing with the compulsory acquisition of the property has been
repealed.

4.17. Freedom of Trade and Business

Article 19(1)(g) guarantees right to occupation. It provides that all citizens have the right to practice any
profession, or carry on any occupation, trade or business. Article 19(6) provides for reasonable restrictions
to which the right under 19(1)(g) is subjected. The restrictions on this freedom should be “in public interest”
and “reasonable”. The State can make any law
(i) Imposing reasonable restrictions in the interest of the general public;
(ii) Prescribing professional or technical qualifications necessary for practicing any profession, or carrying
on any occupation, trade or business and
(iii) Enabling the State to carry on any trade or business to the exclusion, complete or partial of citizens. The
Constitution protects the freedom of each individual citizen to carry on his trade or business but the
guaranteed right is not absolute.

4.18. Right to trade

The Article 19 (1) (g) guarantees to all citizens the right to practice any profession or to carry on any
occupation, trade or business. This freedom is not uncontrolled, for clause (6) of Article 19 authorises
legislation which imposes reasonable restrictions on this right in the interest of general public. However,
reasonable restrictions can be imposed on the use of this right. Under Article 19 (6), the State is not
prevented from making:

(a) A law imposing in the interests of general public reasonable restrictions on the exercise of the above
right,

(b) A law relating to professional or technical qualifications necessary for practicing any profession or
carrying on any occupation, trade or business,
(c) A law relating to the carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or
otherwise.

It is thus clear that under Article 19 (6) the State is empowered to impose reasonable restrictions on the
right guaranteed by Article 19 (1) (g). The condition, however, is that the restriction:

(a) Must be reasonable, and

(b) In the interest of general public.

In N.R. & F. Mills v. N.T.G. Brothers, AIR 1971 S.C. 264, the Government issued an order under the
Rice Milling Industries (Regulations) Act, 1958, sanctioning the change in the location of the rice mills from
its original site to the new site. The respondent challenged the order on the ground that appellant’s mill was
moved to a place in the vicinity of their rice mills and in consequence of the removal of the appellant’s mill,
their business was likely to be adversely affected and amounted to unreasonable restriction on his right to
carry on business.

The court held the order to be valid. The right to practice any profession, trade and business includes that it
is subject to reasonable restrictions imposed in the interest of general public and not that it adversely
affects other’s business.

In Lakhan Lal vs. State of Orissa, AIR 1977 S.C., it has been held that the State has the power to
enforce an absolute prohibition of manufacture for sale of intoxicating liquor. The State has the exclusive
right or privilege to manufacture, store, and sale of liquor and to grant that to its license holders on
payment of considerations with such considerations and restrictions for its regulations as may be necessary
in the public interest.

The right to carry on business includes the right to close it any time the owner likes. But as no right is
absolute, so the right to close is also not absolute. The restrictions can be placed on it in the interest of
public. In Excel Wear v. Union of India, AIR 1979 S.C., it was held that refusal or approval for closure
of a business when the owner cannot pay even minimum wages to his employees, was not in the interest of
public and hence it was invalid.

In Sukumar Mukherjee v. State of West Bengal, (1993) 3 S.C.C. 724, the appellants had challenged
the validity of West Bengal State Health Services Act, 1990, on the ground that it imposes, unreasonable
restriction on their right to carry on any occupation or trade or business under Article 19(l)(g) of the
Constitution.

Section 9 of the Act prohibited private practice by teacher-doctors. The Supreme Court held that imposition
of private practice on teacher-doctors is reasonable and in the interest of general public.

Reasonable Restrictions
In order to determine the reasonableness of the restrictions for the purpose of clause (6) of Article 19,
regard must be had to the nature of the business and conditions prevailing in the particular trade. It thus
obvious that nature and business must differ from trade to trade and no hard and fast rules concerning all
can be laid down.

The concept, “interest of the general public” is of wide import and covers legislation for these preservation
and protection of public safety, health, morality and general welfare of the people. In A.K. Gopalan v. state
of Madras, AIR 1956 S.C., the Supreme Court has that the word, “general public” refers to the rest of the
citizens with reference to free citizen who claims the right in question. It does not refer to any group or class
of people as distinguished from the people generally.

In Laxmi Khandsari vs. State o/U.P., AIR 1981 S.C., a notification issued under the Sugar-Cane (Control)
Order stopping crushers from producing Khandsari so that production of white sugar could be increased
and thereby making the sugar available to the consumers at a reasonable price, was held to be imposing
restrictions in the interest of general public on the right of persons using crushers, and therefore valid.

In Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 S.C., a Rule of the State Government
prescribing that no licensee would be allowed to exhibit more than four shows in a day, was held to be valid
as imposing reasonable restriction on the right to carry on business in the interest of general public.

Similarly, in Sreeniwas General Traders v. State of U.P., (1983) S.C.C., the validity of (Agricultural
Produce and Livestock) Markets Act, 1966 and the rules made thereunder, have been upheld by the court
on the ground that it imposes reasonable restrictions within the meaning of Article 19 (6) and hence not
violative of Article 19 (1) (g).

Here the Act seeks to enable producers to get a fair price for these commodities by eliminating middlemen.
Hence, the Supreme Court upheld the validity of the restrictions imposed by the Act on the principle of
“interest of general public.”

In All Delhi Cycle Rickshaw Operators’ Union v. Municipal Corporation of Delhi, (1987) 1 S.C.C., it
was held that the by-law 3 of the Cycle Rickshaw By-laws, 1960 framed under Delhi Municipal Corporation
Act, 1957, which restricted the issue of Licenses only to the owners of the rickshaws who play themselves
but excluded persons owning more than one cycle rickshaws and who hire them to rickshaw-pullers, was
constitutionally valid as it imposed reasonable restriction in the interest of general public and was therefore
not violative of Article 19 (1) (g). The object of the by-laws was to prevent exploitation of rickshaw pullers by
the owners of the cycle-rickshaws.

In Bombay Hawkers Union v Bombay Municipal Corporation which had come for consideration before
the Supreme Court , the provisions of the Bombay Municipal Corporation Act , 1888, were challenged on
the ground that the authorities were conferred arbitrary power to grant or refuse licenses for hawkers on
public streets and for removing unauthorized hawkers without giving them an opportunity to be heard.
Rejecting this contention the Supreme Court observed that the public streets are by their very definition,
meant for the use of the general public. No person, has the fundamental right to carry on any business
which causes nuisance, annoyance or inconvenience to the public. It was, therefore, held that the
provisions of the B.M.C Act were in the nature of reasonable restrictions in the interest of the general public
and not violative of Art 19(1) (g) of the Constitution.

In State of Kerala v. Joseph Antony, the State of Kerala had imposed a ban on the use of mechanised
fishing nets and mid- water trawlers in territorial waters. This was done to protect the livelihood of other
poorer fishermen , and to protect the pelagic fish wealth of the territorial waters. The Supreme Court held
that the restriction was a reasonable restriction, and not violative of Art 19(6).

(a) Nationalisation of trade or business

This too comes within Article 19 (6) (ii) of the Constitution. The State is competent under this Article to
nationalise any business or trade and carry on itself. In Moti Lal v. State of U.P., AIR 1951 Alld. 259, it was
held that the State was not competent to create monopoly in trade or business in its own favor,

In Bank Nationalisation case R.C.Cooper v. Union of India AIR 1970 SC the state prohibited the
named banks from carrying on the banking business was a necessary incident of the business assumed by
the Union and hence was not liable to be challenged under Article 19(6)(ii) in so far as it affected the right to
carry on business.

(b) Professional and technical qualification

The State may prescribe the professional or technical qualifications necessary for trade, business or
occupation, for example, it may prescribe that a lawyer must hold LL.B. degree or a doctor must have
passed M.B.B.S. degree exam, or so on. The Advocates’ Act, 1961, the Indian Medical Degrees Act,
Bengal Dentist Act, etc. are some of the examples which regulate professions requiring qualifications.

Establishing an education institution is neither a trade nor a profession within the meaning of Article
19(1)(g). Trade or Business normally connotes an activity carried on with a profit motive. Education cannot
be treated as commerce. In Unnikrishnan v. State of A.P. AIR 1993 SC the Supreme Court observed
that in true aspect the education is more a mission and vocation rather than a profession or trade or
business. Education cannot be converted into commerce. Establishing educational institutions can by no
stretch of imagination be treated as practice of any profession. from Mohini
Jain through Unnikrishnan and most recently in Right to Education, the Court has made it clear that the
historical rootedness of education as a public service and a charity throughout Indian history implies that
while it is protected under Article 19(1)(g), it does not enjoy the same levels of protection as other
businesses – especially when it comes to the question of profit. What this means is that a 19(6) balancing
test would give shorter shrift to profit than it would otherwise do (this argument is buttressed by Article
21A’s constitutional guarantee of education although that, of course, is limited in its scope to the ages of 6 to
14 and so can, at best, play only an indirectly interpretive role in this enquiry, as a guiding principle).
And secondly, the public interest in this case – cheap access to educational materials in a nation that still
suffers from grinding inequality and poverty – is close to overwhelming.
In D.C.M.’s case D.C.M. Ltd, v. Union of India, AIR 1989 Del.it was held that the discretion of the
Government as provided under Section 25D of the Industrial Disputes Act as amended in 1986 to refuse to
grant permission to close industrial undertaking does not infringe the fundamental rights guaranteed under
Article 14 and Art 19(1)(g) being saved by Article (6).

Saghir Ahmed v State UP AIR 1954 SC The Supreme Court also held that the right to carry on the
Business of transporting passengers in vehicles.

In yet another case Sadan Singh v New Delhi Municipal Committee AIR 1989 SC the Supreme
Court said that hawking and trading on public streets is also covered under Article 19(1)(g). The Supreme
Court upheld in several cases the involvement of state in trade to the exclusion or restriction of citizen
depending upon the directive principles of state policy and Indian controlled and planned economy.
Clause 6(ii) which was added by the amendment in 1951 made it clear that the freedom guaranteed to the
citizen would not prevent the State from undertaking, either directly or through a corporation owned or
controlled by it, any trade, business, industry or service whether, to the exclusion complete or partial of
citizens or otherwise. Kuldeep Singh J has defined the four expressions i.e profession, occupation, trade and
business in Sodan Singh‟s1 case as follow –
“ „Profession‟ means an occupation carried on by a person by virtue of his personal and specialised
qualifications, training or skill. The word „occupation‟ has a wide meaning such as any regular work,
profession, job, principal activity ,employment, business or a calling in which an individual is engaged.
„Trade‟ in its wider sense includes any bargain or sale , any occupation or business carried on for
subsistence or profit, it is an act of buying and selling of goods and services. It may include any business
carried on with a view to profit whether manual or merchantile. „Business‟ is very wide term and would
include anything which occupies the time. Attention and labour of am man for the purpose of profit. It
may include in its form trade, profession, industrial and commercial operations ,purchase and sale of
goods and would include anything which is an occupation as distinguished from pleasure”2
Thus, the basic underlying intention behind using such overlapping words is to make the article
comprehensive piece of legislature which covers the entire ambit.

LANDMARK JUDGMENT REGARDING SEXUAL HARASSMENT AT WORKPLACE:

VISHAKA VERSUS STATE OF RAJASTHAN
Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life
and Liberty’. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical
consequences of such an incident is also the violation of the victim’s fundamental right under Article
19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’. Such violations,
therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women.
This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a
siltation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of
fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any
occupation, trade or profession depends on the availability of a “safe” working environment. Right to life
means life with dignity. The primary responsibility fro ensuring such safety and dignity through suitable
legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive.

Nashirwar v. State of Madhya pradesh, AIR 1975 SC 360,

The Supreme Court held that there was no fundamental right to carry on trade in liquor because the reason
of public morality, public interest and harmful dangerous character of liquor.

State of. Andhra pradesh v. McDowell, AIR 1996 SC 1627.

In this case Court held that even if trade in intoxicating liquors fall within the scope of Article 19(1)(g) , the
state could still impose severe restrictions, or even prohibition, on the trade in intoxicating liquors.

Mohd.Hanif Quareahi V. State of Bihar AIR 1958 SC,

The Supreme Court Declared cow slaughter Act constitutional. Court ruled that the restriction was not
reasonable, looking to the blame which needs to be struck between public interest, which requires
preservation of useful animals , and permitting the different traders in beef, etc. To carry on their trade
and profession.

In Chintamanrao .v State of M.P, an Act of Madhya Pradesh Government empowered the Deputy
Commissioner to prohibit the manufacture of bidis during the agricultural season in such villages as he
might specify in his order. The Supreme Court held that such a provision is void , as it violates Art 19(1)(g) ,
since a total prohibition of the manufacture imposes an unreasonable and excessive restriction on the
lawful profession of manufacturing bidis.

Hinsa Virodhak Sangh v. Mirzapur Moti KureshJamat11 , in which Ahmedabad Municipal Corporation’s
order to ban slaughter house for nine days during Jain Festival was upheld , the Supreme Court heavily
relied on Om Prakash v. State of UP12case while deciding the Hinsa Virodhak13 , in this case also the
Municipal Corporation notice to ban the sale and consumption of eggs in three municipal towns during
religious festival was upheld.
Relationship between Article 301 with Article19(1)(g)

Article 301- FREEDOM TO TRADE, COMMERCE AND INTERCOURSE- TRADE , COMMERCE AND
INTERCOURSE THROUGHOUT THE TERRITOTY OF INDIA SHALL BE FREE, SUBJECT TO
PROVISIONS.”

The main objective behind this constitutional right is to establish economic unity and equality in all parts of
India.

Article 20
Protection in respect of conviction for offences. This protection is available against the
following three types of convictions -

a) Article 20(1) Ex-post Facto Legislation

This means enacting a law and giving it a retrospective (i.e., From a previous date/year)
effect. This power has been conferred to the Parliament by our Constitution. This is
applicable only for civil legislation while criminal legislation cannot be given
retrospective effect.

b) Article 20(2) Double Jeopardy

This means that an individual can be punished for a crime only once and also not beyond
the period prescribed by the authority. However, if a civil servant is dismissed on
criminal charges, his dismissal does not come under Double Jeopardy and he could be
well prosecuted further in the court.

c) Article 20(3) Prohibition against self incrimination

No person accused of an offence shall be compelled to be a witness against himself. The
cardinal principle of criminal law is, an accused should be presumed to be innocent till
the contrary is proved. It is the duty of the prosecution to prove the offence.

Protection Against Ex-Post Facto Law The Clause (1) of Article 20 : Provides protection to the
persons accused of crimes against ex-post-facto law - It prohibits the legislature to make retrospective
criminal laws. The first part of clause (1) provides that "no person shall be convicted of any offence except
for violation of `law in force' at the time of the commission of the act charged as on offence." This means
that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to
its commission. The protection afforded by clause (1) is available only against conviction or sentence for a
criminal offence under ex post facto law and not against the trial. The protection of clause (1) of Article 20
cannot be claimed in case of preventive detention, or demanding security from a person. The prohibition is
just for conviction and sentence only and not for prosecution and trial under a retrospective law. The
second part of clause (1) protects a person from `penalty greater than which he might have been subjected
to at the time of the commission of the offence'. But the accused can take advantage of the beneficial
provisions of the ex post facto law. The rule of beneficial interpretation required that ex-post-facto law
when is beneficial to the accused is not prohibited by clause (1) of Article 20.
(1) Prohibition against enacting Ex Post facto penal law
In Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394 - It was observed that what is prohibited
U/Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof, such trial
under a procedure different from what obtained at the time of the commission of the offence or by a court
different from that which had competence at the time cannot ipso facto be held to unconstitutional. Article
20(1) in its broad import has been enacted to prohibit convictions and sentences under ex-post facto laws.
This article must be taken to prohibit all convictions or subjections to penalty after the Constitution in
respect of Ex post facto law whether the same was a post-Constitution Law or a pre-Constitution Law.
In G.P. Nayyar v. State (Delhi Admn.), AIR 1979 SC 602 - Article 20(1) deals with Ex post facto
laws though that expression has not been used in the article. Though sovereign legislature has power to
legislate retrospectively, creation of an offence for an act which at the time of its commission was not an
offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1).
All that Article 20(1) prohibits is ex- post facto law and is designed to prevent a person being punished for
an act or omission which was considered innocent when done. It only prohibits the conviction of person or
his being subjected to a penalty under ex-post facto laws.
The legislature cannot make law which provides for punishment of acts or omissions which were committed
prior to the date when the Act came into force. If bringing gold into India was never an offence and a law is
made in 1970 making import of gold into India an offence and applying the law from 1960 onwards then
such law is not permitted
Dayal Singh vs State Of Rajasthan on 13 April, 2004 This Court only laid down the principle that an
ex post facto law which only mollifies the rigour of a criminal law did not fall within the said prohibition,
and if a particular law made a provision to that effect, though retrospective in operation, it will be valid. a
penal statute which create new offences is always prospective and a person can be punished for an offence
committed by him in accordance with law as it existed on the date on which an offence was committed.
Soni devrajbhai babubhai vs State of Gujarat 1991

Section 304B inserted in IPC in 1986 is a substantive provision creating a new offence and not merely a
provision effecting a change in procedure for trial of a pre-existing substantive offence. As a consequence,
accused cannot be tried and punished for the offence of dowry death provided in section 304B with the
minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new
offence of dowry death;
The protection under 20(1) is available only against Conviction or sentence for criminal offence,
not against trial. (In American law , it includes trial as well)
(2) A law cannot aggravate the crime
Second part of Article 20(1) says no person be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the offence. Kedar Nath v. State of
West Bengal, The accused committed an offence in 1947, whoch under the act then in force was punishable
by imprisonment or fine or both. The act was amended in 1949, which enhanced punishment for the same
offence by an additional fine equivalent to amount of money procured by the accused through the offence.
The SC held that the enhanced punishment could not be applicable to the act committed by the accused in
1947.
(3) Prohibition against conviction
However it may be noted that the interpretation of a provision of law by the courts do not create any new
offence for instance a decision in the Sarla Mudgal versus Union of India 1995 laying down that the
second marriage of Hindu husband after conversion to Islam without having his first marriage dissolved
would be an offence under section 494 IPC this judicial pronouncement did not lay down any new law or
offence thus article 20 sub clause one has no application Lily Thomas vs Union of India 2000 SC.

(4) When article 20(1) does not apply

(i)No prohibition for change in procedural laws

Transmission Corporation Of A.P vs Ch. Prabhakar & Ors on 26 May, 2004

all law which retrospectively changes the venue of a trial or an amended law which provides for setting up
of a special Tribunal to try summarily of offences under the act in question have been upheld by the court
as not violating the article 20(1)

(ii)Rule of Beneficial Construction

The rule of beneficial construction requires that ex-post facto law should be applied to reduce the rigorous
sentence of the previous law on the same subject. Such a law is not affected by Article 20(1). The principle
is based upon the legal maxim “Salus Populi Est Suprema Lex” which means the welfare of the people is
the supreme for the law. It is inspired by principles of justice, equity and good conscience.
Narcotic control Bureau versus Prakash Singh 2008 SC if any subsequent legislation tones down
punishment for an offence legislative benevolence can be extended to the accused who awaits judicial
verdict regarding sentence

Ratan Lal Vs.State of Punjab, a boy of 16 years was convicted for committing an offence of house-
trespass and outraging the modesty of a girl aged 7 years. The magistrate sentenced him for six months
rigorous imprisonment and also imposed fine. After the judgment of magistrate, the Probation of Offenders
Act, 1958 came into force. It provided that a person below 21 years of age should not ordinarily be
sentenced to imprisonment. The Supreme Court by a majority of 2 to 1 held that the rule of beneficial
interpretation required that ex-post facto could be applied to reduce the punishment. So an ex-post facto
law which beneficial to the accused is not prohibited by clause (1) of Article 20.
(iii)No application to Civil laws
Hathisingh MFG company vs UOI 1960 SC
Non fulfillment of civil liability May entel penal damages or imprisonment but that does not make out a
case under article 20(1) where the non payment of compensation by the employers closing their
undertaking was made punishable by imprisonment retrospectively by the act, the court upholding the
constitutionality of the impugned act held that the liability imposed was civil liability and since the failure
to discharge a civil liability was not an offence, article 20(1) would have no application.
Also it does not apply to a law punishing continuing offences or a case of preventive detention.

Double jeopardy Article 20(2)

Double jeopardy is a procedural defence that forbids a defendant from being tried twice for the same crime
for the same set of facts. It refers to the concept that it is wrong for a man to be subjected more than once to
the danger of being punished for an offense. The roots of the doctrine against double jeopardy can be found
in the well-established maxim of the English Common law, Nemo debet bis vexari, meaning that a man
must not be put twice in peril for the same offence.

At Common Law a defendant may plead autrefois acquit and autrefois convict (peremptory plea), meaning
the defendant has been acquitted or convicted of the same offence. If this issue is raised, evidence will be
placed before the court, which will normally rule as the preliminary matter whether the plea is sustained,
and if it so finds, the projected trial will be prevented from proceeding.

The principle was inexistence in India even prior to the commencement of the Constitution- Section 26 of
the General clause Act 1897 says: Where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same offence

The Criminal Procedure Code, 1973 of India also makes a provision for the doctrine. The ambit of the clause
2 of Article 20 is narrower than the protection afforded by s. 300 of the Criminal Procedure Code. Section
300, Cr.P.C combines both autrefois convict and autrefois acquit but it is a statuary right not a
fundamental right. It states that:

Person once convicted or acquitted not to be tried for same offence.

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried
again for the same offence, nor on the same facts for any other offence for which a different charge from
the one made against him might have been made under sub- section (1) of section 221, or for which he
might have been convicted under sub- section (2) thereof.

Article 20 of the Constitution of India provides protection against double jeopardy. It has been enshrined as
a part of the Fundamental Right by the fathers of our Constitution. The Indian Constitution, which has
been beautifully written as poetry-in-prose, guarantees to the people certain basic human rights
and freedoms, inter alia freedom against double jeopardy. Accordingly, no person can be prosecuted and
punished for the same offence more than once. The provision apotheosizes the principle that a person
cannot be tried twice for the same offence by an equally competent court.

When a person has been convicted for an offence by a competent court, the conviction serves a bar to any
further criminal proceedings against him for the same offence. The idea is that no one ought to be punished
twice for one and the same offence.

In India, a partial protection against double jeopardy (Autrefois convict) is a Fundamental Right
guaranteed under Article 20 (2) of the Constitution of India. It states that “No person shall be prosecuted
and punished for the same offence more than once”. However it does not extend to autrefois acquit, and so
if a person is ‘acquitted’ of a crime can be retried. The protection against autrefois acquit is a statutory right
in our country and not a fundamental right.

As per Indian Constitutions Article 20 “Protection in respect of conviction for offences” in the
Constitution of India 1949 says,
 1. No person shall be convicted of any offence except for violation of the law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission of the offence.
2. No person shall be prosecuted and punished for the same offence more than once
3. No person accused of any offence shall be compelled to be a witness against himself

A similar provision for the protection of those who have been already acquitted or convicted by a court has
been provided for the U.S Constitution as well. The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put
in jeopardy of life or limb . . . .” The four essential protections included are prohibitions against, for the
same offense: (i) retrial after an acquittal; (ii) retrial after a conviction; (iii) retrial after certain
mistrials; and (iv) multiple punishments.”

The criminal justice system operates on the basis of certain values within which it admits no compromise.
The double jeopardy principle is one such value protected by the system. It is a procedural safeguard, which
bars a second trial then an accused person is either convicted or acquitted after a full-fledged trial by a court
of competent jurisdiction[ii]

There is an important difference between the guarantee against double jeopardy and most of the other
constitutional rights of the accused person. The guarantee against double jeopardy determines the number
of times that a person may be tried and not the way in which he may be tried.

[A] History and origin of this principle

During the eighteenth century, the extreme procedure was generally followed. It should be noted that, in
eighteenth century, Blackstone stated thus:

“First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the
common law of England, that no man is to be brought into jeopardy of his life for more than once for the
same offence and hence it is allowed as a consequence that when a man is once fairly found not guilty
upon any indictment or other prosecution, before any court having competent jurisdiction of the offence
he may plead such acquittal in bar of any subsequent accusation for the same crime.”[ Blackstone,
Commentaries, 335, (1889)]

Both the continental and the English systems drew the doctrine of double jeopardy from the common
source of Canon law.[viii] The origin of the maxim that, “not even God judges twice for the same act” was
present in church canons as early as 847 A.D

The concept of double jeopardy was prevalent in the Roman law in the Justinian Code.

The classical argument for the need of maintaining the rule is apparent in the observation of the court in
Green v. United States[ (1957) 355 US]. The Court observed thus:
“The underlying idea… is that the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offence, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

Blackstone further advanced the doctrine by pronouncing that “the plea of autrefois acquittal, or a formal
acquittal, is grounded on the universal maxim…that no man is to be brought into jeopardy of his life more
than once for the same offence.” A main distinction between historical doctrine and modern double
jeopardy provisions is that the former only applies to capital crimes. In modern times, double jeopardy is
not limited only to crimes affecting “life or limb” but, rather, applies to all criminal prosecutions
and punishments in which an individual is at risk of multiple attacks on his or her liberty.

In modern times, remnants of double jeopardy exist in many countries, including Australia, Canada, the
United Kingdom, parts of Asia, and the United States. It exists as a constitutional right is many countries
such as United States, Canada, Mexico and India.

The protection is also given under this rule has gained international recognition also through various
international documents, for instance, Article 14(7) of the International Covenant on Civil and Political
Rights, Article 4(1), Protocol 7 to the European Convention of Human Rights and Article 50 of the Charter
of Fundamental Rights of the European Union. The states are bound to cope with the relevant provisions of
the conventions to which they are parties

[B] India Scope of Article 20(2)

The object of this clause is to protect an individual from being subjected to prosecution and conviction more
than once for the same offence.[ A.A. Mulla v State of Maharashtra, AIR 1997 SC] The ambit of Article 20(2)
is narrower than the English or the American rule against double jeopardy. The Indian provision enunciates
only the principle of autrefois acquit. In Britain and in U.S.A., both these rules operate and a second trial is
barred even when the accused has been acquitted at the first trial for that offence. In India, however, Article
20(2) may be invoked only if when there has been a prosecution and punishment in the first instance.

There is also the concept of ‘continuing offence’ which means that where an act or commission constituting
the offence is continued from day to day, a fresh offence is committed every day and each offence can be
punished separately.[ Mohd. Ali v Sri Ram Swarup, AIR 1965 All]

Appeal

In the case of Kalawati v State of Himachal Pradesh[ AIR 1953 SC], a person accused of committing
murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not
plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not
apply as there was no punishment for the offence at the earlier prosecution: and an appeal against an
acquittal was in substance a continuation of the prosecution.

Enhancement of punishment by the revising authority does not amount to second punishment.[ D.A.
Kelshikar v State of Bombay, AIR 1960 Bom]

Same Offence

Where there are two distinct offences made up of different ingredients, embargo under Article 20(2) or
Section 26 General Clauses Act 1897 has no application, though the offences may have some
overlapping features. The doctrine of double jeopardy protects a person from being tried and punished
twice for the same offence but not from different offences arising out of violation of different laws by the
same set of facts. The Supreme Court in the recent case of Monica Bedi v State of Andhra Pradesh[
2011 1 SCC] has ruled that a passport on fictitious name amounted to a double jeopardy for her as a
Portuguese court too had earlier convicted her for owning forged passport.

A limitation read into the Article 20(2) is that the former ‘prosecution’ (which indicates that the
proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal which it is
authorised to administer.

Preventive Detention is not ‘prosecution and punishment’ and, therefore, it does not bar prosecution of the
person concerned.[ Ghulam Ahmad v State of Jammu and Kashmir, AIR 1954 J&K] In the case of State of
Bombay v S.L. Apte[ AIR 1961 SC], the Supreme Court explained the legal position as follows:

“The crucial requirement for attracting Article 20(2) is that the offences are the same, i.e., they should be
identical. It is therefore, necessary to analyse and compare not the allegations in the two complaints but
the ingredients of the two offences and see whether their identity is made out…”

For instance, the offence under Section 161 I.P.C., is different from the offence of criminal misconduct
punishable under Section 5(2) of the Prevention of Corruption Act, though some of the ingredients of the
two offences may be common.[ Kunji Lal v State of Madhya Pradesh, AIR 1955 SC] When a person
was convicted in U.S.A. under its drug laws and on the same set of facts tried in India under the Narcotics
Drugs and Psychotropic Substances Act, 1985, it was held that the application of the principle of double
jeopardy was not available since the offences in USA and India are distinct and separate.[ Jitendra
Panchal v Narcotics Control Bureau, (2009) 3 SCC]

Leo Roy Frey vs. Superintendent, District Jail, Amritsar · AIR 1958 SC the accused was
prosecuted and punished under the Sea Customs Act, 1878. Later on, he was prosecuted under Section 120
of the Indian Penal Code, 1860 for conspiracy to commit the act for which he was already convicted under
the Sea Customs Act, 1878. It was held that the second prosecution was not barred by Article 20(2), since it
was not for the same offence. Committing an offence and conspiracy to commit that offence has been held
to be two distinct offences.
The requirement of Article 20(2) that a person must have been prosecuted and punished
is conjunctive and not disjunctive.[ Gopalakrishna Naidu v M.P., (1952) A.N] Thus, Article 20(2)
prohibits the prosecution and punishment of a person more than once for the same offence. It does not,
however prohibit a second prosecution and punishment for an offence for which he was previously
prosecuted and acquitted.

To operate as a bar under Article 20(2), the second prosecution and the consequential punishment must be
for the same offence, i.e., an offence whose ingredients are the same.[ Manipur Administration v Nila
Chandra Singh, AIR 1964 SC] One of the important conditions to attract the provision under clause (3) of
article is that, the trial must be conducted by a court of competent jurisdiction. If the court before which the
trial had been conducted does not have jurisdiction to hear the matter, the whole trial is null and void and it
cannot be said that there has been prosecution and punishment for the same offence.

Thus, the three conditions for the application of this clause are:

 The person should be ‘prosecuted and punished’.

 It should be for the ‘same offence’.
 The offence should be committed ‘more than once’.

Administrative and departmental proceeding

Under the provisions of the Indian Constitution, the conditions that have to be satisfied for raising the plea
of autrefois convict are firstly; there must be a person accused of an offence; secondly; the proceeding or
the prosecution should have taken place before a ‘court’ or ‘judicial tribunal’ in reference to the law which
creates offences and thirdly; he accused should be convicted in the earlier proceedings. The requirement of
all these conditions have been discussed and explained in the landmark decision, Maqbool
Hussain v. State of Bombay[A.I.R. 1953 S.C] In this case, the appellant, an Indian citizen, was arrested
in the airport for the illegal possession of gold under the provisions of the Sea Customs Act, 1878.
Thereupon, an action was taken under section 167(8) of the Act, and the gold was confiscated. Sometimes
afterwards, he was charge sheeted before the court of the Chief Presidency Magistrate under section 8 of the
Foreign Exchange Regulation Act, 1947. At trial, the appellant raised the plea of autrefois convict, since it
violates his fundamental right guaranteed under article 20(2) of the constitution. He sought the
constitutional protection mainly on the ground that he had already been prosecuted and punished
inasmuch as his gold has been confiscated by the customs authorities. By rejecting his plea, the court held
that the proceedings of the Sea Customs Authorities cannot be considered as a judicial proceedings because
it is not a court or judicial tribunal and the adjudgment of confiscation or the increased rate of duty or
penalty under the provisions of the Sea Customs Act does not constitute a judgment or order of a court or
judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. The court also held that
the proceedings conducted before the sea customs authorities were, therefore, not ‘prosecution’ and the
confiscation of gold is not punishment inflicted by a ‘court’ or ‘judicial tribunal’. The appellant, therefore,
cannot be said to have been prosecuted and punished for the same offence with which he was charged
before the Chief Presidency Magistrate Court.
The presence of the phrase, ‘prosecuted and punished’ in Article 20(2) indicates that the proceedings so
contemplated are of the nature of a criminal proceedings in front of a court of law, or a judicial tribunal, and
the prosecution in that context means an initiation or starting of a proceeding of a criminal nature in
accordance with the procedure prescribed in the statute which created the offence.

The view taken in the Maqbul Hussain case has been taken in several cases like the case of Thomas Dana
v Punjab[ Narayanlal Bansilal v M.P. Mistry , (1959) 1 SCR]which said that ‘prosecution’ in
Article 20(2) means “a proceeding by way either of indictment or of information in the criminal courts, in
order to put an offender on his trial; the exhibition of a criminal charge against a person before a court of
justice. Gajendragadkar J. in Narayanlal Bansilal v M.P. Mistry also followed the same principle.

Venkataraman v Union of India , (1954)SCR the appellant was dismissed from service as a result of
an inquiry under the Public Servants (Inquiries) Act, 1960, after the proceedings were before the Enquiry
Commissioner. Thereafter, he was prosecuted before the Court for having committed offences under the
Indian Penal Code, and the Prevention of Corruption Act. The Supreme Court held that the proceeding
taken before the Enquiry Commissioner did not amount to a prosecution for an offence. It was in the nature
of a fact finding to advise the Government for disciplinary action against the appellant. It cannot be said
that the person has been prosecuted. Hence a government servant who has been punished for an offence in
a Court of law may be subjected to departmental proceedings for the same offence or conversely.

[C] Double Jeopardy and Res Judicata/ Issue

Estoppel
In essence, the policy of protection against double jeopardy expounds that a matter, once put to an end,
may not be reopened or re litigated. The finality principle found expression in the Roman-law doctrine
of res judicata. The basic tenet of the doctrine is that a matter or question raised by one’s adversary who
has already been the subject of adjudication in previous legal proceedings, cannot be raised once again.
Roman texts on the principle of res judicata reveal a concern that a community ought to be protected
against what may be regarded as oppressive multiplication of suits.

Our Supreme Court has held that the application of the above rule of res judicata in India is not excluded by
the fact that the rule against double jeopardy has been codified in s. 300 of the Cr. P.C., and also guaranteed
by Article 20(2) of the Constitution[ Manipur Administration v Thokchom Bira Singh, AIR 1965
SC ] because the scope of the two principles is not identical. For, the rule of res judicata rests on the
principle where an issue of fact has been tried by a competent court on a former occasion and the finding of
that court has been in favour of the accused, such finding would constitute an estoppels against the
prosecution- not as a bar to the trial but as a precluding the reception if evidence to disturb the finding of
fact when the accused is tried subsequently even for a different offence. Since the doctrine of res
judicata rests on the identity of the issues at the two trials, it is also known as the doctrine of ‘issue
estoppel’.

The basic difference between the principle of double jeopardy and res judicata is that while the rule of
double jeopardy is not applicable unless the offence involved in the subsequent proceeding is not the same
as in the former proceeding, the rule of res judicata applies even though the offence for which the
subsequent proceeding has been brought is a different one.

In India, the starting point of issue estoppels was the Privy Council decision in Sambasivam v Public
Prosecutor, Federation of Malaya[ (1950) A.C.]. Lord MacDermott in this judgement said that:

“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a
lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same
offence. To that it must be added that the verdict is binding and conclusive in all the subsequent
proceedings between the parties to the adjudication. The maxim, ‘Res judicata pro veritate accipiture’ is
no less applicable to criminal as to civil proceedings.”

Hedge J. in Assistant Collector, Customs v Malwani[ (1969) 2 SCR] has also observed that the
issue estoppel rule was but a facet of the doctrine of autrefois acquit. And that it was based on the principle
of res judicata.

[D] The subsequent position of Law.

In O.P.Dahiya V Union of India[ (2003)1 SCC ], it was held that if the accused was neither convicted
nor acquitted of the charges against him in the first trial his retrial would not amount to double jeopardy
and in State of Rajasthan V Hat Singh[ AIR 2003 SC], it was said that prosecution and other
punishment under two sections of an Act, the offences under the two Sections being distinct from each
other, does not amount to double jeopardy.

The Supreme Court in a recent decision of Kolla Veera Raghav Rao v. Gorantla Venkateswara
Rao[ AIR 2011 SC], explaining this proposition of law inter alia observed that a person cannot be
convicted even for a different offence under a different statute if the facts leading to the conviction under
both the statutes are the same. The Supreme Court observed that Section 300(1) of Cr.P.C. is wider than
Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that ‘no one can be
prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C. states that no one
can be tried and convicted for the same offence or even for a different offence but on the same facts. In the
present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C.
applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The
impugned judgment of the High Court was set aside.

This decision does not discuss aspect of double jeopardy and is in considerable contrast from the earlier
enunciation of law and it has been criticized.
Conclusion
There are two pillars found in every legal system. One is legal certainty and the other is equity. When the
offender is prosecuted and punished, he must know that, by paying the punishment, he has expiated his
guilt and need not fear further sanction. If he is acquitted, he must have the certainty that he will not be
prosecuted again in further proceedings. A sentence, whether absolvitor or condemnatory, is a complete
bar, not only to any subsequent trial for the same offence, but for any other crime involving the
same species facti, whether at the instance of the public or private property.

(c) Prohibition Against Self Incrimination Clause (3) of Article 20

INTRODUCTION

Clause (3) of Article 20 of the Indian Constitution, 1950 provides that “No person accused of any offence
shall be compelled to be a witness against himself.” This principle is espoused on the maxim “nemo
teneteur prodre accussare seipsum”, which essentially means “NO MAN IS BOUND TO ACCUSE
HIMSELF.”

The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against testimonial
compulsion for people who are accused of an offence and are compelled to be a witness against themselves.
The provision borrows from the Fifth Amendment of the American Constitution which lays down that, “No
person shall be compelled in any criminal case to be a witness against himself”, same as mentioned in the
Constitution of India embodying the principles of both English and American Jurisprudence. This
libertarian provision can be connected to an essential feature of the Indian Penal Code based on the lines of
Common Law that, “an accused is innocent until proven guilty” and the burden is on the prosecution to
establish the guilt of the accused; and that the accused has a right to remain silent which is subject to his
much broader right, against self-incrimination.

The tendency of Indian legal system manifests scepticism of the police system. This is the reason
confessions of an accused is only admissible if recorded by a Magistrate in accordance with an elaborate
procedure to ensure that they are made voluntarily. Protection is also accorded by the provisions of The
Indian Evidence Act. This protection is available to every person including not only individuals but also
companies and incorporated bodies.

This clause gives protection only if the following ingredients are present:

1. It is a protection available to a person accused of an offence;

2. It is a protection against compulsion to be a witness against oneself; and
3. It is a protection against such “Compulsion” as resulting in his giving evidence against himself.

1. PERSON ACCUSED OF AN OFFENCE

A person accused of an offence means a “person against whom a formal accusation relating to the
commission of an offence has been levelled, which may result in prosecution”. Formal accusation in India
can be brought by lodging of an F.I.R or a formal complaint, to a competent authority against the particular
individual accusing him for the commission of the crime.

The words ‘accused of an offence’ make it clear that this right is only available to a person accused of an
offence. A person is said to be an accused person against whom a formal accusation relating to the
commission of an offence has been levelled which in normal course may result in his prosecution and
conviction. It is not necessary that the actual trial or iniquity should have started before the Court. Thus in
M. P. Sharma v. Satisn Chandra, it was held that a person, whose name was mentioned as an accused in the
first information report by the police and investigation was ordered by the Magistrate, could claim the
protection of this guarantee.

The mere fact that at the relevant time the person was arrested on suspicion of having committed an offence
under Section 124 of the Bombay Police Act and a panchanama had been prepared seizing the goods were
immaterial when neither the case was registered nor the F.I.R. was recorded by the police. Thus where a
custom officer arrests a person and informs him of the grounds of his arrest for the purpose of holding an
inquiry into the violation of the provisions of the Sea Customs Act there is no formal accusation of an
offence.

It is only on making of such formal accusation that Clause (3) of Article 20 becomes operative covering that
person with its protective umbrella against testimonial compulsion. It is imperative to note that, “a person
cannot claim the protection if at the time he made the statement, he was not an accused but becomes an
accused thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations against a
government servant, since there is no accusation of any offence within the meaning of Article 20 (3).[
Srikant Upadhya v. Union of India, AIR 1963]

Self-incrimination has been extensively discussed in the case of Nandini Satpathy v. P.L Dani[
AIR 1978 SC]. In this case, the appellant, a former Chief Minister of Orissa was directed to appear at
Vigilence Police Station, for being examined in connection to a case registered against her under the
Prevention of Corruption Act, 1947 and under S. 161/165 and 120-B and 109 of The Indian Penal Code,
1860. Based on this an investigation was started against her and she was interrogated with long list of
questions given to her in writing. She denied to answer and claimed protection under Article 20(3). The
Supreme Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary police
harassment and hence it extends to the stage of police investigation apart from the trial procedure.

Right to silence
Nandini Satpathy v. P.L Dani[ AIR 1978 SC]. Further, this right to silence is not limited to the case
for which the person is being examined but also extends to other offences pending against him, which may
have the potential of incriminating him in other matters. It was also held that the protection could be used
by a suspect as well.

Aloke Nath Dutta & Ors vs State Of West Bengal on 12 December, 2006 Article 20(3) of the
Constitution of India provides that no person accused of any offence shall be compelled to be a witness
against himself. The right to remain silent is an extension of the rule of civil liberty enjoined by our
Constitution. Considering the guarantee under Article 20 (3) and also humanizing standards under Article
21 we need to tread cautiously while construing retracted confession. Although such caution is subject to
some exceptions such as per se evidence of the motivating factors of retraction or retraction based on
extraneous circumstances. To withdraw from what has been said previously needs to be interpreted in the
vein of right to remain silent as an extension of this civil liberty. In this context, it will be useful to refer to
the following passage from the decision of this Court in State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan
Guru [(2005)11SCC 600] :

"This Court rejected the contention advanced on behalf of the State that the two provisions, namely, Article
20(3) and Section 161, did not operate at the anterior stages before the case came to Court and the
incriminating utterance of the accused, previously recorded, was attempted to be introduced. Noting that
the landmark decision in Miranda v. Arizona [1966, 384 US 436] did extend the embargo to police
investigation also, the Court observed that there was no warrant to truncate the constitutional protection
underlying Article 20(3). It was held that even the investigation at the police level is embraced by Article
20(3) and this is what precisely Section 161 means."

Protection against criminal proceeding only In Delhi Judicial Service Association v. State of Gujarat,
it has been held that mere issue of notice or pendency of contempt proceedings do not attract Article 20(3)
as the contemnors were not “accused of any offence”. A criminal contempt is different from an ordinary
offence. Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the
pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end
in imposing punishment on the contemnor. A contemnor is not in the position of an accused. Even if the
contemnor is found to be guilty of contempt, the court may accept apology and discharge the notice of
contempt, whereas tendering of apology is no defence to the trial of a criminal offence.

This shows that the guarantee in our Constitution is narrower than that in the American Constitution. In
America the protection of self-incrimination is not confined to the accused only. It is also available to a
witness. The position is the same in English law. But the protection under clause (3) of Article 20 is only
available to the accused.

2. PROTECTION AGAINST COMPULSION TO BE A WITNESS

The protection contained in Article 20(3) is against compulsion “to be a witness” against oneself. In M.P
Sharma v. Satish Chandra[ AIR 1954 SC], the Supreme Court gave a wide interpretation of the expression
“to be a witness” which was inclusive of oral, documentary and testimonial evidence. The Court also held
that the protection not only covered testimonial compulsion in the Court room but also included compelled
testimony previously obtained from him.

To be a witness —- Furnishing Evidence

In M.P Sharma’s case it was held that, Article 20 (3) was directed against self-incrimination by the accused
person. Self-incrimination must mean conveying information based upon the personal knowledge of the
person giving the information and cannot include merely the mechanical process of producing documents
in the Court.

Exception

It follows that giving thumb impressions, or impression of foot or palm or fingers or specimens of writings
or exposing body for the purpose of identification are not covered by the expression ‘to be a witness’ under
Article 20(3).

In State of Bombay v. Kathi Kalu, the Supreme Court held that the interpretation of the phrase “to be
witness” given in Sharma’s case was too broad and required a qualification. “To be a witness” is not
equivalent to “furnishing evidence”, that is to say, as including not merely making of oral or written
statements but also production of documents or giving materials which may be relevant at a trial to
determine the guilt or innocence of the accused. Self-incrimination can only. mean conveying information
based upon personal knowledge of the person giving information and cannot include merely the mechanical
process of producing documents in court which may throw. light on any point in controversy, but which do
not contain any statement of the accused based on his personal knowledge. Thus when a person gives his
finger impression or specimen writing or signature, though, it may amount to furnishing evidence in the
large sense is not included within the expression “to be a witness”. In these cases, he is not giving any
personal testimony. They are merely materials for comparison. Hence, neither seizures made under search-
warrant, nor the compulsory taking of photographs, finger-print or specimen writing of an accused would
come within the prohibition of Article 20(2). What is forbidden under Article 20(3) is to compel a person to
say something from his personal know ledge relating to the charge against him.
The appellant who was not an accused in the Police case but in fact a witness whose statement was recorded
under Article 161 of Cr. P.C. although his name figured as an accused in the complaint filed later on in the
same case, was held not to be entitled to a blanket protection under Article 20 (3), for invoking the
constitutional right under Article 20 (3), a formal accusation against the person claiming the protection
must exist. In case of trial in the police case, if answer to certain questions tends to incriminate or
otherwise, it has to be considered at that time.

The Court distinguished ‘to be a witness’ from ‘furnishing evidence’[ P.U.C.L v. Union of
India, AIR 2004 SC], and interpreted the former to mean imparting knowledge in respect of relevant facts
by an oral statement or statement in writing made or given in court or otherwise. The latter included
production of documents or giving materials which might be relevant at a trial to determine the guilt or
innocence of the accused.

ANALYSIS

Thus, self-incrimination in context of Article 20(3) only means conveying information based upon personal
knowledge of the person giving information. But where an accused is compelled to produce a document in
his possession which is not based on the personal knowledge of the accused, in such a case there is no
violation of Article 20(3).
Searches & Seizures

In V.S Kuttan Pillai v. Ramakrishnan[ AIR 1980 SC], the Supreme Court held that search of the premises
occupied by the accused without the accused being compelled to be a party to such a search would not be
violative of the constitutional guarantee enshrined in Article 20(3).

Section 27 of The Indian Evidence Act, 1872

S.27 of the Indian Evidence Act, 1872, provides that during investigation when the discovery of evidence by
the police is led by some fact that was disclosed by the accused then so much of the information as relates to
the facts discovered, may be proved irrespective of the fact whether that information amounts to a
confession of not. It was held that the provisions of this section are not prohibited within the scope of
Article 20(3) unless compulsion had been used in obtaining the information. In Parshadi v. U.P. State,
an accused who was charged with committing of a murder stated to the police that he would give clothes of
the deceased which he had placed in a pit and thereafter he dug out the pit in presence of witnesses and
took out the clothes which were identified as the clothes belonging to the deceased. The Supreme Court held
that the statement of the appellant was admissible in evidence.

3. COMPULSION TO GIVE EVIDENCE “AGAINST HIMSELF”

The protection under Article 20(3) is available only against compulsion of the accused to give evidence
against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily produces
documentary evidence, incriminatory in nature, Article 20(3) would not be attracted.

The term compulsion under Article 20(3) means ‘duress’. Thus, compulsion may take many forms. If an
accused is beaten, starved, tortured, harassed etc. to extract a confession out of him/her then protection
under Article 20(3) can be sought. In Nandini Satpathy v. P.L. Dani, the Supreme Court has
considerably widened the scope of clause (3) of Article 20. The Court has held that the prohibitive scope of
Article 20(3) goes back to the stage of police interrogation not commencing in court only. It extends to, and
protects the accused in regard to other offences pending or imminent which may deter him from voluntary
disclosure. The phrase ‘compelled testimony’ must be read as evidence procured not merely by physical
threats or violence but by psychic (mental) torture, atmospheric pressure, environmental coercion, tiring
interrogatives, proximity, overbearing and intimidatory methods and the like. Thus, compelled testimony is
not limited to physical torture or coercion, but extends also to techniques of psychological interrogation
which cause mental torture in a person subject to such interrogation.

A case at hand would be Mohd. Dastagir v. State of Madras[ AIR 1960 SC] where the appellant went to
the residence of the Deputy Superintendent of Police and handed him an envelope. On opening the
envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the officer.
The DSP refused it and asked the appellant to place the envelope and the notes on the table, and he did as
told, after which the cash was seized by the Police.In this case the Supreme Court held that, the accused
wasn’t compelled to produce the currency notes as no duress was applied on him. Moreover the appellant
wasn’t even an accused at the time the currency notes were seized from him. Hence in this case the scope of
Article 20(3) was not applicable.

Tape Recording of statements made by the accused

If statements recorded are made by the accused, without any duress, with or without his knowledge are not
hit by Article 20(3). In Yusufali v. State of Maharashtra, a tape-recorded statement made by the accused
though made without knowledge of the accused but without force or oppression was held to be admissible
in evidence.

In State v. M. Krishna Mohan, the Supreme Court has held that taking of specimen finger print and
handwriting from accused is not prohibited by Article 20 (3) as being ‘witness against himself.’

Waiver of privilege

Kalawati v. H.P AIR 1983 The privilege given by article 20(3) to the accused person may be waived by
him does this article is not violated when he voluntarily give evidence against himself in this case the court
said that for the applicability of the article 20 (3) there must be compulsion to be witness.

SCIENTIFIC TESTS – INVOLUNTARY?

The issue of involuntary administration of certain scientific techniques, like narco-analysis tests, polygraph
examination, etc. for the purpose of improving investigation efforts in criminal cases has gained a lot of
attention. For a long time, there was a debate about whether such tests were violative of Article 20(3) or not
and the same issue were brought to the Supreme Court in the case of Selvi v. State of Karnataka[
AIR 2010 SC].

In this case the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex Court, and drew
the following conclusions:

1. The right against self-incrimination and personal liberty are non-derogable rights, their
enforcement therefore is not suspended even during emergency.
2. The right of police to investigate an offence and examine any person do not and cannot override
constitutional protection in Article 20(3);
3. The protection is available not only at the stage of trial but also at the stage of investigation;
4. That the right protects persons who have been formally accused, suspects and even witnesses who
apprehend to make any statements which could expose them to criminal charges or further
investigation;
5. The law confers on ‘any person’ who is examined during an investigation, an effective choice
between speaking and remaining silent. This implies that it is for the person being examined to
decide whether the answer to a particular question would be inculpatory or exculpatory;
6. Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as
criminal proceedings;
 7. Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts protection under
Article 20(3);
8. Conducting DNA profiling is not a testimonial act, and hence protection cannot be granted under
Article 20(3);
9. That acts such as compulsory obtaining signatures and handwriting samples are testimonial in
nature, they are not incriminating by themselves if they are used for the purpose of identification or
corroboration;
10. That subjecting a person to polygraph test or narco-analysis test without his consent amounts to
forcible interference with a person’s mental processes and hence violates the right to privacy for
which protection can be sought under Article 20(3);
11. That courts cannot permit involuntary administration of narco-tests, unless it is necessary under
public interest.

ANALYSIS AND CONCLUSION

Article 20 (3), invokes protection against self-incrimination and gives an accused the right to remain silent
over any issue which tends to incriminate him. This protection by the Indian Constitution is also extended
to suspects. Article 20 clause 3, has been carefully crafted to protect the accused from further self-
incriminating himself only if any statement of his might result in prosecution. For the benefit of the Courts,
the Supreme Court has distinguished between the terms “witness” and “furnish evidence”, the former
including furnishing statements from one’s own knowledge and the latter referring to simply presenting
documents required by the court under which protection under Article 20(3) cannot be sought.

This article also stretches its privileges to a person who is compulsorily being made a witness and also
covers searches and seizures wherein, an accused or the person being searched is under no obligation to be
a part of the search. If any confession or a mere statement is made based on which some material
corroboration is found then that statement cannot be protected under Article 20(3). Under the law, an
accused cannot be tortured to make a statement or a confession and no duress can be exercised in order to
obtain some information out of him, in such a case the statement would be void and the privileges under
Article 20(3) would be applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary
administration of mental processes, are considered violative of Article 20(3) and can only be done in a few
cases as it disrupts the right to privacy.

But with the advancement in medical sciences, the certainty of such scientific tests has increased and the
author thinks that they provide an effective tool to furnish evidence which help in speedy disposal of cases.
By balancing the harmony between the protective rights and the need for speedy disposal.

Article 21 reads as:

“No person shall be deprived of his life or personal liberty except according to a procedure established by
law.”
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a
democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life
and liberty.

This right has been held to be the heart of the Constitution, the most organic and progressive provision in
our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as
defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

The Article prohibits the deprivation of the above rights except according to a procedure established by law
.Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution,
Article 40(4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a
foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India,
as mentioned in Article 19 (1) (e).

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

Initially, the approach to Article 21, as in A.K. Gopalan v. State of Madras, AIR 1950 SC 27 was
restricted to a rather literal interpretation of the Article. It was a circumscribed approach. The majority held
that Article 22 was a self-contained code, and that the law of preventive detention did not have to satisfy the
requirements of Articles 14, 19, and 21. A narrow interpretation was placed on the words “personal liberty”,
to confine the protection of Article 21 to freedom of the person against unlawful detention. This judgment
led to a theory wherein the freedoms under Articles 19, 21, 22, and 31 were considered to be exclusive. The
basis for this was the thought process that certain Articles in the Constitution exclusively deal with specific
matters and in determining if an infringement of fundamental rights had occurred, the object and form of
State action alone needed to be considered, and the effect of the law on the fundamental rights of the
individuals in general would be ignored.

the very first case which arose immediately after the inauguration of the Constitution. In this case, the court
interpreted article 21 extremely literally and opined that the expression 'procedure established by law' only
meant any procedure which was laid down in the statute by the competent legislature to deprive a person of
his life or personal liberty, and that it was not permissible to read in the article any such concept as natural
justice, or due process of law, or reasonableness. Also, the court ruled that each fundamental right was
independent of each other and that article 19 did not apply where article 21 applied. Article 19 applied to a
free man and not to a person in preventive detention. Thus, the procedure could not be challenged even if it
were not reasonable or not consistent with natural justice. It meant that a person could be deprived of his
life or personal liberty according to the procedure laid down in the relevant law passed by the legislature
and that the court could not go into the question whether the procedure was reasonable or not. The
legislature was free to lay down any procedure. As thus interpreted, article 21 ceased to be a restriction on
the legislature; it only constituted a restriction on the executive which must act according to the law while
depriving a person of his life or personal liberty.
Gopalan, a very much criticized decision, held the field for over twenty-five years, during which period the
'right to life' did not have much of a security. Article 21 played a very insignificant role in offering any
protection to a person in respect of his life or personal liberty. The judicial attitude, however, underwent a
metamorphosis after the traumatic experiences under the internal emergency imposed in 1975 which was
lifted in 1977

2.30 This was overruled in, R.C. Cooper v. Union of India, (1970), where it was held that even where a
person is detained in accordance with the procedure prescribed by law, as mandated be Article 21, the
protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law
authorising such detention has to satisfy the test of the applicable freedoms under Article 19(1).

2.31 The concept of “personal liberty” gradually began to be liberally interpreted by the judiciary. The
Hon’ble Supreme Court of India, in Kharak Singh v. State of UP, AIR 1963 SC 1295, held, with
respect to ‘personal liberty’, that “We feel unable to hold that the term was intended to bear only this
narrow interpretation but on the other hand consider that “personal liberty” is used in the Article as a
compendious term to include within itself all the varieties of rights which go to make up the “personal
liberties” of man other than those dealt with in the several clauses of Article 19(1). In other words, while
Article 19(1) deals with particular species or attributes of that freedom, “personal liberty” in Article 21
takes in and comprises the residue.”

2.32 In the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Court examined the
judgments in A.K. Gopalan’s case, R.C. Cooper’s case, and Kharak Singh’s case in detail. It was observed
that:

“The expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights
which go to constitute the personal liberty of man and some of them have been raised to the status of
distinct fundamental rights and given additional protection under Article 19.”

2.33 It was further observed that any law interfering with personal liberty of a person must satisfy a triple
test:

(i) it must prescribe a procedure;

(ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article
19 which may be applicable in a given situation; and
(iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14
pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right
of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure
prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning
of Article 21.

The Court reiterated the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus has been
established between these Articles. This means that a law prescribing a procedure for depriving a person of
‘personal liberty’ has to meet the requirements of Art. 19. Also, the procedure established by law in Art. 21
must answer the requirement of Art. 14 as well.

The court further held that the concept of reasonableness must be projected in the procedure contemplated
by article 21. This was because of the link between articles 21, 19 and 14. Suggesting that the expressions
'life' and 'personal liberty' in article 21 /ought to be given broad and liberal interpretation, the court ruled:
'It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and
personal liberty.'68 As regards 'personal liberty', the court said that it is of the 'widest amplitude' and 'it
covers a variety of rights which go to constitute the personal liberty of man'.
Maneka Gandhi thus completely overturned Gopalan; and ushered in a revolution in judicial thinking
about article 21. It gave a new life to article 21 and, thus, extended substantive and procedural protection to
life and personal liberty. The court took a great step forward by interpreting 'procedure' in article 21 as 'fair,
reasonable, and just procedure; thus introducing elements of procedural due process in Indian law. The
courts can now insist on better procedural safeguards in cases of deprivation of personal liberty.
This nexus between articles 21, 19 and 14 had emerged even before Maneka Gandhi. See John Martin v
State of WB AIR 1975 SC 775. In fact, the emergence of this nexus led to the Supreme Court decision in
Maneka Gandhi.

The law on the point viz. What is the proper test or yard-stick to be applied for determining whether a
statute infringes a particular fundamental right?
RC Cooper case and Bennett Coleman case shows that the test of pith and substance of the subject matter
And of the direct object and of incidental effect of the legislation are relevant to questions of legislative
competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is
a sound and correct approach to interpretation of legislative measures and State action in relation to
fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge
fundamental rights. if the effect of State action on a fundamental right is direct and inevitable, then a
fortiorari it must be presumed to have been intended by the authority taking the action and hence this
doctrine of direct and inevitable effect is described aptly as the doctrine of intended and real effect.

Post-Maneka era
In the post-Maneka era the words 'according to procedure established by law' became indirectly
transformed into 'due process of law Since Maneka, article 21 has emerged as the Indian version of the
American concept of due process of law and has become the source of many substantive rights and
procedural safeguards to the people. BHAGWATI, P.N. said
“The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than
attenuate their meaning and content by a process of judicial construction.”
The term 'personal liberty has been given a very wide connotation, covering a variety of rights which
constitute personal liberty. Its deprivation shall be only as per procedure established by law, but the
procedure has to be 'fair, just and reasonable'. The Supreme Court underlined this metamorphosis in its
attitude towards article 21 in the following words:
Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a
force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of
Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation. Abdul
Rehman Antulay v R.S. Naik AIR 1992 SC
A nexus has been established between articles 21, 19 and 14. This means that the 'procedure' in article 21
does not mean any procedure: it must answer the test of reasonableness. The reincarnation of article 21 that
Maneka Gandhi brought about has had a deep impact on contemporary constitutional jurisprudence. Some
aspects of this development are discussed below.

In the case of Kharak Singh v. State of Uttar Pradesh[i], the Supreme Court quoted and held that:

By the term “life” as here used something more is meant than mere animal existence. The inhibition against
its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body by amputation of an armour leg or the pulling out of an eye, or the
destruction of any other organ of the body through which the soul communicates with the outer world.

In Sunil Batra v. Delhi Administration[ii], the Supreme Court reiterated with the approval the above
observations and held that the “right to life” included the right to lead a healthy life so as to enjoy all
faculties of the human body in their prime conditions. It would even include the right to protection of a
person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in
peace, to sleep in peace and the right to repose and health.

According to K. Iyer. J “true our Constitution has no ‘due process’ clause but the consequence is same”(after
cooper and maneka case) and added that Art. 21 is the counterpart of the procedural due process in the
U.S.

Right To Live with Human Dignity

In Maneka Gandhi v. Union of India[ 1978 AIR], the Supreme Court gave a new dimension to Art. 21
and held that the right to live the right to live is not merely a physical right but includes within its ambit the
right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union
Territory of Delhi[ 1981 AIR],observed that:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare
necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading
writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with
fellow human beings and must include the right to basic necessities the basic necessities of life and also the
right to carry on functions and activities as constitute the bare minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti Morcha v.
Union of India[v]. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an
expanded interpretation. Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the
Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42
and at the least, therefore, it must include protection of the health and strength of workers, men and
women, and of the tender age of children against abuse, opportunities and facilities for children to
develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and
humane conditions of work and maternity relief. These are the minimum requirements which must exist
in order to enable a person to live with human dignity and no State neither the Central Government nor
any State Government-has the right to take any action which will deprive a person of the enjoyment of
these basic essentials.”

Following the above stated cases, the Supreme Court in Peoples Union for Democratic Rights v.
Union of India[vi], held that non-payment of minimum wages to the workers employed in various Asiad
Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article
21 of the Constitution. Bhagwati J. held that, rights and benefits conferred on workmen employed by a
contractor under various labour laws are clearly intended to ensure basic human dignity to workmen. He
held that the non-implementation by the private contractors engaged for constructing building for holding
Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these
laws was held to be violative of fundamental right of workers to live with human dignity contained in Art.
21[vii].

In Chandra Raja Kumar v. Police Commissioner Hyderabad[viii],it has been held that the right to
life includes right to life with human dignity and decency and, therefore, holding of beauty contest is
repugnant to dignity or decency of women and offends Article 21 of the Constitution only if the same is
grossly indecent, scurrilous, obscene or intended for blackmailing. The government is empowered to
prohibit the contest as objectionable performance under Section 3 of the Andhra Pradesh Objectionable
Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan[ix], the Court struck down a provision of Bombay Civil
Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of Re. 1 per
month to a suspended Government Servant upon his conviction during the pendency of his appeal as
unconstitutional on the ground that it was violative of Article 21 of the Constitution.

Right Against Sexual Harassment at Workplace

Art. 21 guarantees right to life right to life with dignity. The court in this context has observed that:

“The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient
amplitude to encompass all facets of gender equality including prevention of sexual harassment or abuse.”

Sexual Harassment of women has been held by the Supreme Court to be violative of the most cherished of
the fundamental rights, namely, the Right to Life contained in Art. 21.

In Vishakha v. State of Rajasthan[x], the Supreme Court has declared sexual harassment of a working
woman at her work as amounting to violation of rights of gender equality and rights to life and liberty which
is clear violation of Articles 14, 15 and 21 of the Constitution. In the landmark judgment, Supreme Court in
the absence of enacted law to provide for effective enforcement of basic human rights of gender equality
and guarantee against sexual harassment laid down the following guidelines:

1. All employers or persons in charge of work place whether in the public or private sector should take
appropriate steps to prevent sexual harassment. Without prejudice to the generality of this
obligation they should take the following steps:
1. Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.
2. The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
3. As regards private employers steps should be taken to include the aforesaid prohibitions in
the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
4. Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work places
and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.
2. Where such conduct amounts to specific offences under I,P,C, or under any other law, the employer
shall initiate appropriate action in accordance with law by making a complaint with appropriate
authority.
3. The victims of Sexual harassment should have the option to seek transfer of perpetrator or their own
transfer.

In Apparel Export Promotion Council v. A.K. Chopra[xi], the Supreme Court reiterated
the Vishakha rulingand observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation
of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious
Fundamental Rights guaranteed by the Constitution of India…. In our opinion, the contents of the
fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of
gender equality, including prevention of sexual harassment and abuse and the courts are under a
constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a
female at the place of work is incompatible with the dignity and honour of a female and needs to be
eliminated….”

Right Against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right to life right
to live with human dignity. Right to life, would, therefore, include all those aspects of life that go on to make
life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty[xii], the supreme court held that

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire
society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only
by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape,
looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime
against basic human rights and is also violative of the victim’s most cherished of the fundamental rights,
namely, the right to life with human dignity contained in Art 21”.

Right to Reputation

Reputation is an important part of one’s life. It is one of the finer graces of human civilization that makes
life worth living. The Supreme Court referring to D.F. Marion v. Minnie Davis[xiii] in Smt. Kiran
Bedi v. Committee of Inquiry[xiv] held that “good reputation was an element of personal security
and was protective by the Constitution, equally with the right to the enjoyment of life, liberty and
property. The court affirmed that the right to enjoyment of life, liberty and property. The court affirmed
that the right to enjoyment of private reputation was of ancient origin and was necessary to human
society.”

The same American Decision has also been referred to in the case of State of Maharashtra v. Public
Concern of Governance Trust[xv], where the Court held that good reputation was an element of
personal security and was protected by the constitution, equally with the right to the enjoyment of life,
liberty and property.

It has been held that the right equally covers the reputation of a person during and after his death. Thus,
any wrong action of the state or agencies that sullies the reputation of a virtuous person would certainly
come under the scope of Art. 21.

In State of U.P. v. Mohammaad Naim[xvi], succinctly laid down the following tests while dealing the
question of expunction of disgracing remarks against a person or authority whose conduct comes in
consideration before a court of law:

 whether the party whose conduct is in question is before the court or has an opportunity of
explaining or defending himself
  whether there is evidence on record bearing on that conduct justifying the remarks
 whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that
conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and
should not normally depart from sobriety, moderation and reserve

In State of Bihar v. Lal Krishna Advani[xvii], a two-member commission of inquiry appointed to

inquire into the communal disturbances in Bhaglapur district on 24th October, 1989, made some remarks in
their report, which impinged upon the reputation of the respondent as a public man, without affording him
an opportunity of being heard. The Apex Court ruled that it was amply clear that one was entitled to have
and preserve one’s reputation and one also had the right to protect it. The court further said that in case any
authority , in discharge of its duties fastened upon it under the law, transverse into the realm of personal
reputation adversely affecting him, it must provide a chance to him to have his say in the matter. The court
observed that the principle of natural justice made it incumbent upon the authority to give an opportunity
to the person, before any comment was made or opinion was expressed which was likely to prejudicially
affect that person.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include right to
livelihood. In Re Sant Ram[xviii], a case which arose before Maneka Gandhi case, where the Supreme
Court ruled that the right to livelihood would not fall within the expression “life” in Article 21.The court said
curtly:

“The right to livelihood would be included in the freedoms enumerated in Art.19, or even in Art.16, in a
limited sense. But the language of Art.21 cannot be pressed into aid of argument that the word ‘life’ in Art.
21 includes ‘livelihood’ also.”

But then the view underwent a change. With the defining of the word “life” in Article 21 in broad and
expansive manner, the court in Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nandkarni[xix], came to hold that “the right to life” guaranteed by Article 21
includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal
Corporation[xx], popularly known as the “Pavement Dwellers Case” a five judge bench of the Court now
implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of
living, that is, the means of Livelihood. That the court in this case observed that:

“The sweep of right to life conferred by Art.21 is wide and far reaching. It does not mean, merely that life
cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence,
except according to procedure established by law. That is but one aspect if the right to life. An equally
important facet of the right to life is the right to livelihood because no person can live without the means
of livelihood.”
If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way
of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of
abrogation[xxi].

In the instant case, the court further opined:

“The state may not by affirmative action, be compelled to provide adequate means of livelihood or work to
the citizens. But, any person who is deprived of his right to livelihood except according to just and fair
procedure established by law can challenge the deprivation as offending the right to life conferred in
Article 21.”

Emphasizing upon the close relationship of life and livelihood, the court Stated: “That, which alone makes it
impossible to live, leave aside what makes life livable, must be deemed to be an integral part of right to life.
Deprive a person from his right to livelihood and you shall have deprived him of his life[xxii].”

Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and for that matter
on right to livelihood. What Art. 21 insists is that such deprivation ought to be according to procedure
established by law which must be fair, just and reasonable. Therefore anyone who is deprived of right to
livelihood without a just and fair procedure established by law can challenge such deprivation as being
against Art. 21 and get it declared void[xxiii].

In D.T.C. v. D.T.C. Mazdoor Congress[xxiv], a regulation conferring power on the authority to

terminate the services of a permanent and confirm employee by issuing a noticing without assigning him
any reasons and without giving him a hearing has been held to be a wholly arbitrary and violative of Art. 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd[xxv]., it was held that when a government servant or
one in a public undertaking is suspended pending a departmental disciplinary inquiry against him,
subsistence allowance must be paid to him. The Court has emphasized that a government servant does not
his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law which must be
fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of right to
livelihood under Art. 21 is unsustainable. In, Chameli Singh v. State of Uttar Pradesh[xxvi], it was
held by the Hon’ble Supreme Court that when the land of a landowner was acquired by state in accordance
with the procedure laid down in the relevant law of acquisition the right to livelihood of such a landowner
even though adversely affected, his right to livelihood is not violated. The Court opined that, the state
acquires land in exercise of its power of eminent domain for a public purpose. The landowner is paid
compensation in lieu of land, and therefore, the plea of deprivation of right to livelihood under Art. 21 is
unsustainable.

In M. J. Sivani v. State of Karnataka & Ors[xxvii]., the Supreme Court held that right to life under
Article 21 does protect livelihood but added a rider that its deprivation cannot be extended too far or
projected or stretched to the avocation, business or trade injurious to public interest or has insidious effect
on public moral or public order. It was, therefore, held that regulation of video games or prohibition of
some video games of pure chance or mixed chance and skill are not violative of Article 21 nor is the
procedure unreasonable, unfair, or unjust.

HIV Not a Sound ground for Termination

In MX of Bombay Indian Inhabitants v. M/s. ZY[xxviii], it was held that a person tested positive for
HIV could not be rendered “medically unfit” solely on that ground so as to deny him the employment. The
right to life includes the right to livelihood. Therefore, right to livelihood cannot hang on to the fancies of
the individuals in authority. Even though the petitioner might have been a nuisance to others and
conducted themselves either in a disorderly way or unbecoming on their profession but, that in itself, it is
not sufficient for the executive to take away their source of livelihood by an executive fiat.

Right to Work Not a Fundamental Right under Art.21

In Sodan Singh v. New Delhi Municipal Committee[xxix], the five judge bench of the Supreme
Court distinguished the concept of life and liberty within Art.21 from the right to carry on any trade or
business, a fundamental right conferred by Art. 19(1)(g) and held the right to carry on trade or business is
not included in the concept of life and personal liberty. Article 21 is not attracted in case of trade and
business. The petitioners, hawkers doing business off the pavement roads in Delhi, had claimed that the
refusal by the Municipal authorities to them to carry on business of their livelihood amounted to violation
of their right under Article 21 of the Constitution. The court opined that while hawkers have a fundamental
right under Article 19(1) (g) to carry on trade or business of their choice; they have no right to do so in a
particular place. They cannot be permitted to carry on their trade on every road in the city. If the road is not
wide enough to be conveniently accommodating the traffic on it, no hawking may be permitted at all, or
may be permitted once a week. Footpaths, streets or roads are public property and are intended to several
general public and are not meant for private use. However, the court said that the affected persons could
apply for relocation and the concerned authorities were to consider the representation and pass orders
thereon. The two rights were too remote to be connected together. The court distinguished the ruling in
in Olga Tellis v. Bombay Municipal Corporation[xxx] and held that “in that case the petitioners
were very poor persons who had made pavements their homes existing in the midst of filth and squalor and
that they had to stay on the pavements so that they could get odd jobs in city. It was not the case of a
business of selling articles after investing some capital.”

In Secretary, State of Karnataka v. Umadevi[xxxi], the Court rejected that right to employment at
the present point of time can be included as a fundamental right under Right to Life under Art. 21.

Right to Shelter

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited[xxxii], the right to
shelter has been held to be a fundamental right which springs from the right to residence secured in article
19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor, the state
has to provide facilities and opportunities to build houses[xxxiii].
Upholding the importance of the right to a decent environment and a reasonable accommodation,
in Shantistar Builders v. Narayan Khimalal Totame[xxxiv], the Court held that

“The right to life would take within its sweep the right to food, the right to clothing, the right to decent
environment and a reasonable accommodation to live in. The difference between the need of an animal
and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body,
for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect
– physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child.
That would be possible only if the child is in a proper home. It is not necessary that every citizen must be
ensured of living in a well-built comfortable house but a reasonable home particularly for people in India
can even be mud-built thatched house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U.P[xxxv]., a Bench of three Judges of Supreme Court had considered
and held that the right to shelter is a fundamental right available to every citizen and it was read into Article
21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life
more meaningful. The Court observed that:

“Shelter for a human being, therefore, is not a mere protection of his life and limb. It is however where he
has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore,
includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light,
pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy
access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over
one’s head but right to all the infrastructure necessary to enable them to live and develop as a human
being[xxxvi].”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of family .K. Ramaswamy
J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra
Bose[xxxvii], held that right to social and economic justice is a fundamental right under Art. 21. The
learned judge explained that right to life and dignity of a person and status without means, were cosmetic
rights. Socio-economic rights were, therefore, basic aspirations for meaning right to life and that Right to
Social Security and Protection of Family were integral part of right to life.

In N.H.R.C. v. State of Arunachal Pradesh[xxxviii], (Chakmas Case), the supreme court said that
the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it
cannot permit anybody or group of persons to threaten other person or group of persons. No State
Government worth the name can tolerate such threats by one group of persons to another group of persons;
it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to
perform its Constitutional as well as statutory obligations.
Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde[xxxix], it was held that right to
economic empowerment of poor, disadvantaged and oppressed dalits was a fundamental right to make their
right of life and dignity of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa[xl], the Supreme held that security
against sickness and disablement was a fundamental right under Art. 21 read with Sec. 39(e) of the
Constitution of India.

In L.I.C. of India v. Consumer Education and Research Centre[xli], it was further held that right
to life and livelihood included right to life insurance policies of LIC of India, but that it must be within the
paying capacity and means of the insured.

Right Against Honour Killing

A division bench of Allahabad high court, In Surjit Kumar v. State of U.P.[xlii], took serious note on
harassment, in ill treatment and killing of a person who was a major, for wanting to get married to a person
of another caste or community, for bringing dishonor to family since inter caste or inter community
marriage was not prohibited in law, the court said that such practice of “honour killing” was a blot on
society. The court, therefore, directed the police to take strong measures, against those who committed such
‘honour killing’.

Right to Health

In State of Punjab v. M.S. Chawla[xliii], it has been held that- the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.

The Supreme Court in Vincent v. Union of India[xliv], emphasized that a healthy body is the very
foundation of all human activities.Art.47, a directive Principle of State Policy in this regard lays stress note
on improvement of public health and prohibition of drugs injurious to health as one of primary duties of the
state[xlv].

In Consumer Education and Research Centre v. Union of India[xlvi], The Supreme Court laid
down that:

“Social justice which is device to ensure life to be meaningful and livable with human dignity requires the
State to provide to workmen facilities and opportunities to reach at least minimum standard of health,
economic security and civilized living. The health and strength of worker, the court said, was an
important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art.
21.”

Right to Medical Care

In Parmananda Katara v. Union of India[xlvii], the Supreme Court has very specifically clarified
that preservation of life is of paramount importance. The Apex Court stated that ‘once life is lost, status quo
ante cannot be restored[xlviii].’ It was held that it is the professional obligation of all doctors (government
or private) to extent medical aid to the injured immediately to preserve life without legal formalities to be
complied with the police. Article21 casts the obligation on the state to preserve life. It is the obligation of
those who are in charge of the health of the community to preserve life so that the innocent may be
protected and the guilty may be punished. No law or state action can intervene to delay and discharge this
paramount obligation of the members of the medical profession. No law or State action can intervene to
avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The
obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise which
would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. The
court also observed:

“Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether he be an
innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of
those who are in charge of the health of the community to preserve life so that the innocent may be
protected and the guilty may be punished. Social laws do not contemplate death by negligence to
tantamount to legal punishment…. Every doctor whether at a Government hospital or otherwise has the
professional obligation to extend his services with due expertise for protecting life.”

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal[xlix], a person
suffering from serious head injuries from a train accident was refused treatment at various hospitals on the
excuse that they lacked the adequate facilities and infrastructure to provide treatment. In this case, the
Supreme Court further developed the right to emergency treatment, and went on to state that the failure on
the part of the Government hospital to provide timely medical treatment to a person in need of such
treatment results in violation of his right to life guaranteed under Article 21. It acknowledged the limitation
of financial resources to give effect to such a right, but maintained that it was necessary for the State to
provide for the resources to give effect to the entitlement of the people of receiving emergency medical
treatment[l].

It has been reiterated, time and again, that there should be no impediment to providing emergency medical
care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others[li], it was held that a
hospital is duty bound to accept accident victims and patients who are in critical condition and that it
cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the
expenses or on the ground that there is no close relation of the victim available who can give consent for
medical treatment[lii].

The court has laid stress on a very crucial point, viz., state cannot plead lack of financial resources to carry
out these directions meant to provide adequate medical services to the people. The state cannot avoid its
constitutional obligation to provide adequate medical services to people on account of financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga[liii], the Supreme Court has recognized that provision
of health facilities cannot be unlimited. The court held that it has to be to the extent finance permits. No
country gas unlimited resources to spend on any of its projects.
In Confederation of Ex-servicemen Association v. Union of India[liv], right to get free and timely
legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A policy decision in
formulating contributory scheme for ex-servicemen and asking them to pay one time contribution does not
violate Art. 21 nor is it inconsistent with Part IV of the constitution.

No Right to die

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to live or a right
to die if a person chooses to end his life? If so, what is the fate of Sec. 309, I.P.C., 1860, which punishes a
person convicted of attempting to commit suicide? There has been difference of opinion on the justification
of this provision to continue on the statute book.

This question came for consideration for first time before the High Court of Bombay in State of
Maharashtra v. Maruti Sripati Dubal. In this case the Bombay High Court held that the right to life
guaranteed under Article 21 includes right to die, and the hon’ble High Court struck down Section 309 of
the IPC that provides punishment for attempt to commit suicide by a person as unconstitutional.

In P. Rathinam v. Union of India[lv], a two judge Division Bench of the Supreme Court, took
cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court supporting the
decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies
in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking. The
court argued that the word life in Art. 21 means right to live with human dignity and the same does not
merely connote continued drudgery. Thus the court concluded that the right to live of which Art. 21 speaks
of can be said to bring in its trail the right not to live a forced life. The court further emphasized that
“attempt to commit suicide is in realty a cry for held and not for punishment.”

The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of
Punjab[lvi]. The question before the court was that if the principal offence of attempting to commit
suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof be punishable
under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been included in Art.21 (Rathinam
ruling), and Sec. 309 having been declared unconstitutional, any person abetting the commission of suicide
by another is merely assisting in the enforcement of his fundamental right under Art. 21.

The Court overruled the decision of the Division Bench in the above stated case and has put an end to the
controversy and ruled that Art.21 is a provision guaranteeing protection of life and personal liberty and by
no stretch of imagination can extinction of life’ be read to be included in protection of life. The court
observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or
extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”

Euthanasia and Right to Life

Euthanasia is termination of life of person who is terminally ill or in a permanent vegetative state. In Gian
Kaur v. State of Punjab[lvii], the Supreme Court has distinguished between Euthanasia and attempt to
commit suicide. The court held that death due to termination of natural life is certain and imminent and the
process of natural death has commenced. These are not cases of extinguishing life but only of accelerating
conclusion of the process of natural death that has already commenced.

The court further held that, this may fall within the ambit of Right to live with human dignity up to the end
of natural life. This may include the right of a dying man to also die with dignity when his life is ebbing out.
This cannot be equated with the right to die an unnatural death curtailing the natural span of life.

Sentence of death –Rarest of rare cases

The issue of abolition or retention of capital punishment was dealt with by the law commission of India.
After collecting as much available material as possible and assessing the views expressed by western
scholars, the commission recommended the retention of the capital punishment in the present state of the
country. The commission held the opinion that having regard to the conditions of India, to the variety of the
social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to
the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and
order in the country, India could not risk the experiment of abolition of capital punishment.

In Jagmohan v. State of U.P[lviii], the Supreme Court had held that death penalty was not violative of
articles 14, 19 and 21.it was said that the judge was to make the choice between death penalty and
imprisonment for life on the basis of circumstances, facts and nature of crime brought on record during
trail. Therefore, the choice of awarding death sentence was done in accordance with the procedure
established by law as required under article 21

But, in Rajindera Parsad v. State of U.P.[lix], Krishna Iyer J., speaking for the majority, held that
capital punishment would not be justified unless it was shown that the criminal was dangerous to the
society. The learned judge plead for the abolition of death penalty and said that it should retained only for
“white collar crimes”

However, in Bachan Singh v. State of Punjab[lx], the leading case of on the question, a constitution
bench of the supreme court explained that article 21 recognized the right of the state to deprive a person of
his life in accordance with just, fair and reasonable procedure established by a valid law .It was further held
that death penalty for the offence of murder awarded under section 302 of I.P.C did not violate the basic
feature of the constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar[lxi], it has held that a Public Interest Litigation is maintainable for
insuring enjoyment of pollution free water and air which is included in ‘right to live’ under Art.21 of the
constitution. The court observed:
“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment
of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of
life in derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for removing
the pollution of water or air which may be detrimental to the quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the
dangers of diseases and infection. Maintenance of health, preservation of the sanitation and environment
have been held to fall within the purview of Article 21 as it adversely affects the life of the citizens and it
amounts to slow poisoning and reducing the life of the citizens because of the hazards created if not
checked.

The following are some of the well-known cases on environment under Article 21:

In M.C. Mehta v. Union of India(1988)[lxii], the Supreme Court ordered closure of tanneries that
were polluting water.

In M.C. Mehta v. Union of India(1997)[lxiii], the Supreme Court issued several guideline and
directions for the protection of the Taj Mahal, an ancient monument, from environmental degradation.

In Vellore Citizens Welfare Forum v. Union of India[lxiv], the Court took cognizance of the
environmental problems being caused by tanneries that were polluting the water resources, rivers, canals,
underground water and agricultural land. The Court issued several directions to deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan[lxv], the Supreme Court held that the
„right to life‟ means clean surrounding which lead to healthy body and mind. It includes right to freedom
from stray cattle and animals in urban areas.

In M.C. Mehta v. Union of India (2006)[lxvi], the Court held that the blatant and large-scale misuse
of residential premises for commercial use in Delhi, violated the right to salubrious sand decent
environment. Taking note of the problem the Court issued directives to the Government on the same.

In Murli S. Deora v. Union of India[lxvii], the persons not indulging in smoking cannot be compelled
to or subjected to passive smoking on account of act of smokers. Right to Life under Article 21 is affected as
a non-smoker may become a victim of someone smoking in a public place.

Right Against Noise Pollution

In Re: Noise Pollution[lxviii], the case was regarding noise pollution caused by obnoxious levels of
noise due to bursting of crackers during Diwali. The Apex Court suggested to desist from bursting and
making use of such noise making crackers and observed that:
“Article 21 of the Constitution guarantees life and personal liberty to all persons. It guarantees a right of
persons to life with human dignity. Therein are included, all the aspects of life which go to make a
person’s life meaningful, complete and worth living. The human life has its charm and there is no reason
why the life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in
peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No
one can claim a right to create noise even in his own premises that would travel beyond his precincts and
cause nuisance to neighbors or others. Any noise, which has the effect of materially interfering with the
ordinary comforts of life judged by the standard of a reasonable man, is nuisance…. While one has a right
to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody
can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can
indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of
artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or
obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and
pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the
fundamental right guaranteed by Article 21[lxix]”.

Right to Know or Right to Be Informed

Holding that the right to life has reached new dimensions and urgency the Supreme Court in R.P. Ltd. v.
Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to
function effectively, people must have the right to know and to obtain the conduct of affairs of the State.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link
between Art.21 and Right to know, particularly where “secret government decisions may affect health, life
and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in Reliance Petrochemicals
Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens who had been made
responsible to protect the environment had a right to know the government proposal.

PERSONAL LIBERTY

Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the
English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of
liberty. What can be more important than liberty? In India the concept of ‘liberty’ has received a far more
expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely
freedom from bodily restraint; and has held that it encompasses those rights and privileges that have long
been recognized as being essential to the orderly pursuit of happiness by free men. The meaning of the term
‘personal liberty’ was considered by the Supreme Court in the Kharak Singh’s case, which arose out of the
challenge to Constitutional validity of the U. P. Police Regulations that provided for surveillance by way of
domiciliary visits and secret picketing. Oddly enough both the majority and minority on the bench relied on
the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in Munn v
Illinois, which held the term ‘life’ meant something more than mere animal existence. The prohibition
against its deprivation extended to all those limits and faculties by which the life was enjoyed. This
provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of
an eye or the destruction of any other organ of the body through which the soul communicated with the
outer world. The majority held that the U. P. Police Regulations authorizing domiciliary visits [at night by
police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional. The
Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be
free from restrictions or encroachments on his person, whether they are directly imposed or indirectly
brought about by calculated measures.

The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental
rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an
incident of imprisonment

Right to Privacy

As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a person to be free from
unwarranted publicity; and the right to live without unwarranted interference by the public in matters
with which the public is not necessarily concerned”

Although not specifically referenced in the Constitution, the right to privacy is considered a ‘penumbral
right’ under the Constitution, i.e. a right that has been declared by the Supreme Court as integral to the
fundamental right to life and liberty. Right to privacy has been culled by Supreme Court from Art. 21 and
several other provisions of the constitution read with the Directive Principles of State Policy. Although no
single statute confers a crosscutting ‘horizontal’ right to privacy; various statutes contain provisions that
either implicitly or explicitly preserve this right[lxx].

For the first time in Kharak Singh v. State of U.P.[lxxi] question whether the right to privacy could be
implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the court.
“Surveillance” under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the
fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted
surveillance by “domiciliary visits at night”, was held to be in violation of Article 21. A seven-judge bench
held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this court in
Kharak Singh’s case. Although the majority found that the Constitution contained no explicit guarantee of
a “right to privacy”, it read the right to personal liberty expansively to include a right to dignity. It held
that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby, is as it
were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the
very concept of civilization”
In a minority judgment in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions placed on his
movements, but also free from encroachments on his private life. It is true our Constitution does not
expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of
personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical
happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family,
is his ‘castle’; it is his rampart against encroachment on his personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to
privacy using Article 21.

In Govind v. State of Madhya Pradesh[lxxii], The Supreme Court took a more elaborate appraisal of
the right to privacy. In this case, the court was evaluating the constitutional validity of Regulations 855 and
856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of habitual offenders
including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down
these invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon
the right of privacy. It is only persons who are suspected to be habitual criminals and those who are
determined to lead a criminal life that are subjected to surveillance.”

The court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21.
Mathew J. observed in the instant case,

“The right to privacy will, therefore, necessarily, have to go through a process of case by case
development. Hence, assuming that the right to personal liberty. the right to move freely
throughout India and the freedom of speech create an independent fundamental right of privacy as an
emanation from them that one can characterize as a fundamental right, we do not think that the right is
absolute…..

…… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and
that the right to privacy is itself a fundamental right that fundamental right must be subject to
restrictions on the basis of compelling public interest”

In R. Rajagopalan v. State of Tamil Nadu[lxxiii], The right to privacy of citizens was dealt with by the
Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by
Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, childbearing and education among other matters. None can publish
anything concerning the above matters without his consent – whether truthful or otherwise and whether
laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and
would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts
himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects
becomes unobjectionable if such publication is based upon public records including court records. This is
for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists
and it becomes a legitimate subject for comment by press and media among others. We are, however, of the
opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a
female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be
subjected to the indignity of her name and the incident being publicized in press/media.”

The final case that makes up the ‘privacy quintet’ in India was the case of PUCL v. Union of
India[lxxiv], the Supreme Court observed that:

We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and
“personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a
right to privacy; Article 21 is attracted. The said right cannot be curtailed “except according to procedure
established by law”.

Scope and Content of Right to Privacy:

Tapping of Telephone

Emanating from the right to privacy is the question of tapping of telephone.

In R.M. Malkani v. State of Maharashtra, the Supreme Court held that, the telephonic conversation of
an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the
conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law
and prevent corruption of public servants.

Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act, 1885. The Section lays
down the circumstances and grounds when an order for tapping of a telephone may be passed, but no
procedure for making the odder is laid down therein.

The Supreme Court in PUCL v. Union of India held that in the absence of just and fair procedure for
regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the
fundamental rights of citizens under Section 19 and 21. Accordingly, the court issued procedural safeguards
to be observed before restoring to telephone tapping under Section 5(2) of the Act.

The Court further ruled that “right to privacy is a part of the right to “life” and “personal liberty” enshrined
under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is
attracted. The said right cannot be curtailed “except according to procedure established by law”. The court
has further ruled that Telephone conversation is an important facet of a man’s private life. Right to privacy
would certainly include telephone conversation in the privacy of one’s home or office. Telephone tapping
would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure
established by law. The procedure has to be just, fair and reasonable.”

Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) vs Union of India 2017 is a resounding
victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the
Indian biometric identity scheme Aadhaar. The judgment's ringing endorsement of the right to privacy as a
fundamental right marks a watershed moment in the constitutional history of India. The one-page order
signed by all nine judges declares:

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article
21 and as a part of the freedoms guaranteed by Part III of the Constitution.

The right to privacy in India has developed through a series of decisions over the past 60 years. Over the
years, inconsistency from two early judgments created a divergence of opinion on whether the right to
privacy is a fundamental right. Last week's judgment reconciles those different interpretations to
unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a
manner which would enhance their conformity with international human rights instruments ratified by
India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of
other guaranteed freedoms. the Supreme Court has overruled verdicts given in the M.P. Sharma case in
1958 and the Kharak Singh case in 1961, both of which said that the right to privacy is not protected under
the Indian constitution.

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy
safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or
her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and
recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary
from the intimate zone to the private zone and from the private to the public arenas, it is important to
underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy
attaches to the person since it is an essential facet of the dignity of the human being;

This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests
comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the
challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution
cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to
concerns which were not present seven decades ago and the rapid growth of technology may render
obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and
flexible to allow future generations to adapt its content bearing in mind its basic or essential features;
Privacy has both positive and negative content. The negative content restrains the state from committing an
intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the
state to take all necessary measures to protect the privacy of the individual.

Disclosure of Dreadful Diseases

In Mr. X v. Hospital Z[lxxv], the question before the Supreme Court was whether the disclosure by the
doctor that his patient, who was to get married had tested HIV positive, would be violative of the patient’s
right to privacy. The Supreme Court ruled that the right to privacy was not absolute and might be lawfully
restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and
freedom of others. The court explained that the right to life of a lady with whom the patient was to marry
would positively include the right to be told that a person, with whom she was proposed to be married, was
the victim of a deadly disease, which was sexually communicable. Since the right to life included right to
healthy life so as to enjoy all the facilities of the human body in the prime condition it was held that the
doctors had not violated the right to privacy.

Right to privacy and subjecting a person to medical tests

It is well settled that the right to privacy is not treated as absolute and is subject to such action as may be
lawfully taken for the preventive of crimes or disorder or protection of health or morals or protections of
rights and freedom of others. In case there is conflict between fundamental rights of two parties that which
advances public morality would prevail.

A three-judge bench in case of Sharda v. Dharmpal[lxxvi], ruled that a matrimonial court had the
power to direct the parties to divorce proceedings, to undergo a medical examination. a direction issued for
this could not be held to the violative of one’s right to privacy but court however said that for this there
must be a sufficient material .

Right to Privacy-Woman’s Right to Make Reproductive Choices

A woman’s right to make reproductive choices includes the woman’s right to refuse participation in sexual
activity or alternatively the insistence on use of contraceptive methods such as undergoing sterilization
procedures woman’s entitlement to carry a pregnancy to its full term, to give birth and subsequently raise
children.

Right to go abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi[lxxvii], the Supreme Court
has included Right to travel abroad contained in by the expression “personal liberty” within the meaning of
Article 21.

In Maneka Gandhi v. Union of India[lxxviii], validity of Sec. 10(3)(c) of the passport Act 1967, which
empowered government to impound the passport of a person, in the interest of general public was
challenged before the seven-judge Bench of the Supreme Court.
It was contended that, right to travel abroad being a part of right to “personal liberty” the impugned section
didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.

The court held that the procedure contemplated must stand the test of reasonableness in order to conform
to Art.21 other fundamental rights. It was further held that as the right to travel abroad falls under Art. 21,
natural justice must be applied while exercising the power of impounding passport under the Passport Act.
BHAGWATI, J., observed:

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 that 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.

Right against Illegal Detention

In Joginder Kumar v. State of Uttar Pradesh[lxxix], the petitioner was detained by the police
officers and his whereabouts were not told to his family members for a period of five days. Taking the
serous note of the police high headedness and illegal detention of a free citizen, the Supreme Court laid
down the guidelines governing arrest of a person during investigation:

An arrested person being held in custody is entitled, if he so requests to have a friend, relative or other
person told as far as is practicable that he has been arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the police station of this right. An
entry shall be required to be made in the diary as to who was informed of the arrest.

In the case of D.K. Basu v. State of West Bengal[lxxx], the Supreme Court laid down detailed
guidelines to be followed by the central and state investigating agencies in all cases of arrest and detention
till legal provisions are made in that behalf as preventive measures and held that any form of torture or
cruel inhuman or degrading treatment, whether it occurs during interrogation, investigation or otherwise,
falls within the ambit of Article 21.

Article 21 & Prisoner’s Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their
conviction deprived of all their fundamental rights that they otherwise possess. Following the conviction of
a convict is put into a jail he may be deprived of fundamental freedoms like the right to move freely
throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21
and he shall not be deprived of his life and personal liberty except by a procedure established by law[lxxxi].

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21. The
Court has interpreted Article 21 so as to have widest possible amplitude. On being convicted of crime and
deprived of their liberty in accordance with the procedure established by law. Article 21, has laid down a
new constitutional and prison jurisprudence[lxxxii]. The rights and protections recognized to be given in
the topics to follow:

Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra[lxxxiii], the Supreme Court said while holding free legal aid
as an integral part of fair procedure the Court explained that “ the two important ingredients of the right of
appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him to file an appeal
and secondly, provision of free legal service to the prisoner who is indigent or otherwise disabled from
securing legal assistance. This right to free legal aid is the duty of the government and is an implicit aspect
of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity.

In other words, an accused person at lease where the charge is of an offence punishable with imprisonment
is entitled to be offered legal aid, if he is too poor to afford counsel. Counsel for the accused must be given
sufficient time and facility for preparing his defence. Breach of these safeguards of fair trial would invalidate
the trial and conviction.

Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar[lxxxiv], it was brought to the notice of
the Supreme Court that an alarming number of men, women and children were kept in prisons for years
awaiting trial in courts of law. The Court took a serious note of the situation and observed that it was
carrying a shame on the judicial system that permitted incarceration of men and women for such long
periods of time without trials.

The Court held that detention of under-trial prisoners, in jail for period longer than what they would have
been sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus, ordered the
release from jail of all those under-trial prisoners, who had been in jail for longer period than what they
could have been sentenced had they been convicted

In A.R. Antulay v. R.S. Nayak[lxxxv], a Constitution Bench of five judges of the Supreme Court dealt
with the question and laid down certain guidelines for ensuring speedy trial of offences some of them have
been listed below[lxxxvi]:

 Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried
speedily.

 Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision and retrial.

 The concerns underlying the right of speedy trial from the point of view of the accused are:

 The period of remand and pre-conviction detention should be as short as possible.

  The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly
prolonged investigation, enquiry or trial should be minimal; and

 Undue delay may well result in impairment of the ability of the accused to defend him.

 While determining whether undue delay has occurred, one must have regard to all the attendant
circumstances, including nature of offence, number of accused and witnesses, the workload of the
court concerned. Each and every delay does not necessarily prejudice the accused. An accuser’s plea
of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a
speedy trial

In the case of Anil Rai v. State of Bihar[lxxxvii], the Supreme Court directed the Judges of the High
Courts to give quick judgements and in certain circumstances the parties are to submit application to the
Chief Justice to move case to other bench or to do the needful at his discretion.

Right to Fair Trial

Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in Zahira
Habibullah Sheikh v. State of Gujarat[lxxxviii] said that right to free and fair trial not only to the
accused but also to the victims, their family members and relatives, and society at large.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe present-day
unsatisfactory and irrational rules for bail, which insists merely on financial security from the accused and
their sureties. Many of the under trials being poor and indigent are unable to provide any financial security.
Consequently they have to languish in prisons awaiting their trials.

But incarceration of persons charged with non-bailable offences during pendency of trial cannot be
questioned as violative of Article 21 since the same is authorised by law. In the case of Babu Singh v.
State of Uttar Pradesh[lxxxix], the Court held that right to bail was included in the personal liberty
under Article 21 and its refusal would be deprivation of that liberty which could be authorised in accordance
with the procedure established by law.

No right to Anticipatory Bail

Anticipatory bail is a statutory right and it does not arise out of Article 21. Anticipatory bail cannot be
granted as a matter of right as it cannot be granted as a matter of right as it cannot be considered as an
essential ingredient of Article 21.

Right against Handcuffing

Handcuffing has been held to be prima facie inhuman and therefore unreasonable, over-harsh and at first
flush, arbitrary. It has been held to be unwarranted and violative of Article 21.
In Prem Shankar v. Delhi Administration[xc], the Supreme Court struck down the Rules that
provided that every under-trial who was accused of a non-bailable offence punishable with more than three
years prison term would be routinely handcuffed. The Court ruled that handcuffing should be resorted to
only when there was “clear and present danger of escape” of the accused under -trial, breaking out of police
control.

Right against Solitary Confinement

It has been held that a convict is not wholly denuded of his fundamental rights and his conviction does not
reduce to him into a non – person whose rights are subjected to the whims of the prison administration.
Therefore, the imposition of any major punishment within the prison system is conditional upon the
observance of procedural safeguard.

In Sunil Batra v. Delhi Administration[xci], the petitioner was sentenced to death by the Delhi
session court and his appeal against the decision was pending before the high court. He was detained in
Tihar Jail during the pendency of the appeal. He complained that since the date of conviction by the session
court, he was kept in solitary confinement. It was contended that Section 30 of Prisoners Act does not
authorize jail authorities to send him to solitary confinement, which by itself was a substantive punishment
under Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law and it
could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted the
argument of the petitioner and held that imposition of solitary confinement on the petitioner was violative
of Article 21.

Right against Custodial Violence

The incidents of brutal police behaviour towards persons detained on suspicion of having committed crimes
are a routine matter. There has been a lot of public outcry from time to time against custodial deaths.

The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use
of third-degree methods to extort confessions. The Court has classified these as being against human
dignity. The rights under Article 21 secure life with human dignity and the same are available against
torture.

Death by Hanging not Violative of Article 21

In Deena v. Union of India[xcii], the constitutional validity of the death sentence by hanging was
challenged as being “barbarous, inhuman, and degrading” and therefore violative of Article 21. Referring to
the Report of the UK Royal Commission, 1949; the opinion of the Director General of Health Services of
India, the 35th Report of the Law Commission; and the opinion of the Prison Advisers and Forensic
Medicine Experts, the Court held that death by hanging was the best and least painful method of carrying
out the death penalty, and thus not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order directed the execution of the death sentence of an accused by
hanging at the Stadium Ground of Jaipur. It was also directed that the execution should be done after giving
widespread publicity through the media.

On receipt of the above order, the Supreme Court in Attorney General of India v. Lachma
Devi[xciii] held that the direction for execution of the death sentence was unconstitutional and violative of
Article 21. It was further made clear that death by public hanging would be a barbaric practice. Although the
crime for which the accused has been found guilty was barbaric it would be a shame on the civilised society
to reciprocate the same. The Court said, “a barbaric crime should not have to be visited with a
barbaric penalty.”

Right against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu[xcv], the Supreme Court held that delay in execution
of death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and
the death sentence would be commuted to life imprisonment. The cause of the delay is immaterial, the
accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab[xcvi], the Supreme Court said that prolonged wait for execution of a
sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo that is through
Article 21. But the Court held that this cannot be taken as the rule of law and applied to each case and each
case should be decided upon its own faces.

Right to Write a Book

In State of Maharashtra v. Prabhakar Pandurang[xcvii], the petitioner while under detention in

jail wrote a book on science and sought the permission from the Government to send the manuscript of the
book to his wife for publication, to which the Government refused. The Court held that this was an
infringement of personal liberty and that Article 21 included the right to write the book and get it published.

Right against Bar Fetters

In Sunil Batra v. Delhi Administration, the Supreme Court gave Right against Bar Fetters and held
that treatment that offended human dignity and reduced man to a level of beast would certainly be arbitrary
and could be questioned under Article 21, but the right is not absolute.

PROCEDURE ESTABLISHED BY LAW

The expression “procedure established by law” has been subject matter of interpretation in a catena of
cases. A survey of these cases reveals that courts in the process of judicial interpretation have enlarged the
scope of the expression. The Supreme Court took the view that “procedure established by law” in Article 21
means procedure prescribed by law as enacted by the state and rejected to equate it with the American “due
process of law.” But, in Maneka Gandhi v Union of India the Supreme Court observed that the procedure
prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not
“arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the requirement of Article
21 would not be satisfied. Thus, the “procedure established by law” has acquired the same significance in
India as the “due process of law” clause in America. Justice V. R. Krishna Iyer, speaking in Sunil Batra v
Delhi Administration has said that though “our Constitution has no due process clause” but after Maneka
Gandhi’s case “the consequence is the same, and as much as such Article 21 may be treated as counterpart
of the due process clause in American Constitution.”

Recently the Supreme Court has dealt with an increasing number of people sentenced to death for “bride-
burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman,
Lichma Devi, to death for two separate cases of killing two young women by setting them on fire. In an
unprecedented move the court ordered both prisoners to be publicly executed. In a response to a review
petition by the Attorney General against this judgment the Supreme Court in December 1985 stayed the
public hangings, observing that “a barbaric crime does not have to be met with a barbaric penalty.” The
Court observed that the execution of death sentence by public hanging is violation of article 21, which
mandates the observance of a just, fair and reasonable procedure. Thus, an order passed by the High Court
of Rajasthan for public hanging was set aside by the Supreme Court on the ground inter alia, that it was
violative of article 21. In Sher Singh v State of Punjab the Supreme Court held that unjustifiable delay
in execution of death sentence violates art 21.

The Supreme Court has taken the view that this article read as a whole is concerned with the fullest
development of an individual and ensuring his dignity through the rule of law. Every procedure must seem
to be ‘reasonable, fair and just.’ The right to life and personal liberty has been interpreted widely to include
the right to livelihood, health, education, environment and all those matters that contributed to life with
dignity. The test of procedural fairness has been deemed to be one that is commensurate to protecting such
rights. Thus, where workers have been deemed to have the right to public employment and its concomitant
right to livelihood, a hire-fire clause in favour of the State is not reasonable, fair and just even though the
State cannot affirmatively provide livelihood for all. Under this doctrine the Court will not just examine
whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a fair, just
and reasonable manner. This has meant, for example the right to speedy trial and legal aid is part of any
reasonable, fair and just procedure. The process clause is comprehensive and applicable in all areas of State
action covering civil, criminal and administrative action.

The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v. Union of
India observed that, the fundamental right guaranteed under Article 21 of the Constitution of India
provides that none shall be deprived of his life without due process of law. The Court observed that smoking
in public places is an indirect deprivation of life of non-smokers without any process of law. Taking into
consideration the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed
prohibition of smoking in public places. It issued directions to the Union of India, State Governments and
the Union Territories to take effective steps to ensure prohibition of smoking in public places such as
auditoriums, hospital buildings, health institutions etc. In this manner the Supreme Court gave a liberal
interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of non-
smokers.
Further, when there is inordinate delay in the investigation – it affects the right of the accused, as he is kept
in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the
investigation as per the provisions of the Code, there can be no cause of action. But, if the case is kept alive
without any progress in any investigation, then the provisions of Article 21 are attracted and the right is not
only against actual proceedings in court but also against police investigation. The Supreme Court has widen
the scope of ‘procedure established by law’ and held that merely a procedure has been established by law a
person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable. It is thus
now well established that the “procedure established by law” to deprive a person of his life and personal
liberty, must be just, fair and reasonable and that it must not be arbitrary, fanciful or oppressive, that the
procedure to be valid must comply with the principles of natural justice.

ARTICLE 21 AND THE EMERGENCY

In A.D.M. Jabalpur v. S. Shukla[xcviii], Popularly known as habeas corpus case, the supreme court
held that article 21 was the sole repository of the right to life and personal liberty and therefore, if the right
to move any court for the enforcement of that right was suspended by the presidential order under article
359, the detune would have no locus standi to a writ petition for challenging the legality of his detention.

Such a wider connotation given to article 359, resulted in the denial of the cherished right to personal
liberty guaranteed to the citizens. Experience established that during emergence of 1975, the fundamental
freedom of the people had lost all meanings.

In order that it must not occur again, the constitution act, 1978, amended article 359 to the effect that
during the operation of proclamation of emergency, the remedy for the enforcement of the fundamental
right guaranteed by article 21 would not be suspended under a presidential order.

In view of the 44th amendment, 1978, the observation made in the above cited judgments are left merely of
academic importance.

Right to Education Article 21A

Supreme Court has held that children of the nation are a supremely important asset. Their nurture and
solicitude are our responsibility, children's programme should find a prominent part in our national plans
for the development of human resources, so that our children grow up, to become robust citizens, physically
fit, mentally alert, and morally healthy; endowed with the skills and motivations needed by society. Equal
opportunities for development to all children during the period of growth should be our aim, for this would
serve our larger purpose of reducing inequality and ensuring social justice. [ Lakshmi Kant Pandey v.
Union of India, AIR 1984 SC]
Education is one of the most important functions of the State. The State has a basic responsibility in regard
thereto. Earl Warren, CJ, speaking for the US Supreme Court emphasized the right to education while
stating - "today, education is the most important function of the State and local Governments. It is required
in the performance of our most basic responsibility, even services in the armed forces. It is the very
foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in helping him to adjust normally to his
environment. In these days it is doubtful any child may reasonably be expected to succeed in life if he is
denied the opportunity of an education[Brown v. Board of Education 98 L. Ed. 873 : 347 US 483
(1954)]."
The Constitution framers were of the view that right to education should exist in India, but at that time the
position was different, so they had put it under Article 45 in Directive Principles of the State Policy.
Initially, this Article states that the State to make provision within 10 years for free and compulsory
education for all children until they complete the age of 14 years. The object of this directive was to abolish
illiteracy from the country. Unfortunately, some States failed to enact a law for free and compulsory
education to the children below the age of 14 years. Even though, many States have taken steps towards free
basic education, but, they could not make it compulsory.
In early time, the question was raised before Kerala High Court regarding the justiciability of Article 45 of
the Constitution but it was held that Article 45 is not justiciable, being only directive in nature. The Article
does not confer legally enforceable right upon primary schools to receive grants-in-aid from the
Government. Joseph Valamangalam, Rev. Fr v. State of Kerala, AIR 1958 Ker
The first time the question of right to free and compulsory education was raised in the case of Mohini
Jain AIR 1992 SC in 1992, popularly known as "capitation fee case".
In this case, petitioner Mohini Jain of Meerut (UP) had challenged the validity of a notification issued by
the Government under the Karnataka Education Institutions (Prohibition of Capitation Fee) Act, 1984,
which was passed to regulate tuition fee to be charged by the Private Medical Colleges in the State. Under
the notification the tuition fee to be charged from students was as: Candidates admitted against
Government seats Rs. 2000 per annum, the Karnataka students Rs. 25,000 per annum and students from
outside Karnataka Rs. 60,000 per annum. The petitioner was denied admission on the ground that, she was
unable to pay the exorbitant tuition fee of Rs. 60,000 per annum.
The two judge bench of the Supreme Court held that the right to education at all levels is a fundamental
right of the citizen under Article 21 of the Constitution and charging capitation fee for admission to
education institutions is illegal and amounted to denial of citizen's right to education and is also violative of
Article 14 being arbitrary, unfair and unjust. Capitation fee makes the availability of education beyond the
reach of poor. The right to education is concomitant to the fundamental rights enshrined under Part -III of
the Constitution. The fundamental right to speech and expression cannot be fully enjoyed unless a citizen is
educated and conscious of his individualistic dignity. The education in India has never been a commodity
for sale, their Lordships declared.
Supreme Court held that the right to education is a fundamental right' under Article 21 of the Constitution,
which cannot be denied to a citizen by charging higher fee known as capitation fee. The right to education
flows directly from the right to life. The right to life under Article 21 and the dignity of an individual cannot
be assured unless it is accompanied by the right to education.
The Supreme Court was asked to examine the correctness of the decision given by the court in Mohini
Jain in the case of Unnikrishnan. AIR 1993 SC The petitioner running Medical and Engineering Colleges
in the State of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu contended that if Mohini
Jain decision is correct and followed by the respective State Governments they will have to close down their
colleges.
The five Judges bench by 3-2 majority partly agreed with the Mohini's case decision and held that right to
education is fundamental right under Article 21 of the Constitution as it directly flows from "right to life".
As regards its content, the court partly overruled the Mohini Jain's decision and held that the right to free
education is available only to children until they complete the age of 14 years, after that the obligation of the
State to provide education is subject to the limits of its economic capacity and development. The obligation
created by Articles 41, 45 and 46 can be discharged by the State either by establishing its own institutions or
by aiding, recognising or granting affiliation to private institutions. Private education institutions are a
necessity in the present day context.
Right to education is not stated expressly as a Fundamental Right in Part III of the Constitution of India.
However, having regard to the fundamental significance of education to the life of an individual and the
nation, right to education is implicit in and flows from the right to life guaranteed by Article 21. That the
right to education has been treated as one of transcendental importance in the life of an individual is
recognised all over the world. Without education being provided to the citizens of this country, the
objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail.
Unni Krishnan J.P. v. State of AP
The private section's sector should be involved and encouraged in the field of education. But they must be
allowed to do so under strict regulatory controls in order to prevent private education institutions from
commercialising education. The charging of the permitted fees by the private educational institutions,
which is bound to be higher than charged by similar Government institutions, cannot itself be characterised
as capitation fee. The majority accordingly held that admission to all recognized private educational
institutions particularly medical and engineering shall be based on merit, but 50% of seats in all
professional colleges be filled by candidates prepared to pay a higher fee. The court held that there shall be
no quota reserved for the management or for any family, caste or community, which may have established
such college. The criteria of such eligibility and all other conditions shall be the same in respect of both "free
seats" and "payment seats"; the only distinction shall be requirement of higher fee by payment students.
The court evolved a scheme, which would provide more opportunities to meritorious students who are
unable to pay higher fee prescribed by Government for such colleges.
Insertion of Article 21A in the Constitution
Until the Supreme Court Judgment in Mohini Jain the right to education lay hidden in the Directive
principles of State Policy of the Constitution of India. The concerned provisions ran,
“41. Right to work, to education and to public assistance in certain cases.-The State shall, within
the limits of its economic capacity and development, make effective provision for securing the right to work,
to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.
45. Provision for childhood care and education to children below the age of fourteen years.-
The State shall endeavour to provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they complete the age of fourteen
years.
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes
and other weaker sections.- The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of exploitation."
After Mohini Jain Case Articles 14 and 21 are added to this list.
“14. The State shall not deny to any person equality before the law or the equal protection of the laws within
the territory of India.”
“21. No person shall be deprived of his life or personal liberty except according to procedure established by
law.”
The controversy raised in Unnikrishnan J.P. v. State of Andhra Pradesh compelled the State to bring
an amendment to the Constitution curtailing educational rights upto the age of fourteen only. Constitution
(Eighty-sixth Amendment) Act, 2002 was then incorporated Article 21 A into the Constitution of India
and Government started to enact sufficient legislations to achieve the intentions of Article 21 A. Article 21 A
guarantees free and compulsory education to all children of the age of six to fourteen years in such manner
as the State may, by law, determine. It runs,
“21A. The State shall provide free and compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine.”
Guidelines of the Supreme Court in Ashok Kumar Thakur v. Union of India(2008) INSC
The Supreme Court in this case has held that “an inversion in priorities between higher and
primary/secondary education would make compliance with Article 21A extremely difficult. It is not
suggested that higher education needs no encouragement or that higher education should not receive more
funds, but there has to be much greater emphasis on primary education. Our priorities have to be
changed. Nothing is really more important than to ensure total compliance of Article 21A. Total compliance
means good quality education be imparted and all children aged six to fourteen regularly attend schools.” In
this regard Supreme Court issued the following guidelines to the Central Government.
“(a) provides low-income parents/guardians with financial incentives such that they may .afford to send
their children to schools;
(b) criminally penalizes those who receive financial incentives and, despite such payment, send their
children to work;
(c) penalizes employers who preclude children from attending schools;
(d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The State
is obligated under Article 21A to implement free and compulsory education in toto.
(e) until we have accomplished for children from six to fourteen years the object of free and compulsory
education, the Government should continue to increase the education budget and make earnest efforts to
ensure that children go to schools and receive quality education;
(f) the Parliament should fix a deadline by which time free and compulsory education will have reached
every child. This must be done within six months, as the right to free and compulsory education is perhaps
the most important of all the fundamental rights. For without education, it becomes extremely difficult to
exercise other fundamental rights.” The Central Government acted accordingly and the Right of the
Children to Free and Compulsory Education Act, 2009 was enacted.
Recommendations for the Enforcement of Compulsory Education
Supreme Court has recommended the following recommendations for making free and compulsory
education possible in the country. Ashok Kumar Thakur v. Union of India, (2008) INSC
(a) The recommendations for the enforcement of compulsory education are contingent upon the
implementation of a financial incentive programme that would make education viable for the poor. The
carrot must come before the stick. If there is no financial incentive programme in place, the Government
cannot expect the poorest of the poor to send their children to school.
(b) The Parliament should criminally penalize those parents who receive financial benefits and, despite
such payments, send their children to work and penalize those employers who preclude children from
attending school or completing homework. It has become necessary that the Government set a realistic
target within which it must fully implement Article 21A regarding free and compulsory education for the
entire country.
(c) The Government should suitably revise budget allocations for education. The priorities have to be ·set
correctly. The most important fundamental right may be Article 21A, which, in the larger interest of the
nation, must be fully implemented. Without Article 21A, the other fundamental rights are effectively
rendered meaningless. Education stands above other rights, as one's ability to enforce one's fundamental
rights flows from one's education. This is ultimately why the judiciary must oversee Government spending
on free and compulsory education.
(d) At the same time, spending is an area in which the judiciary must not overstep its constitutional
mandate. The power of the purse is found in Part V, Chapter II of the Constitution, which is dedicated to the
Parliament. But the Supreme Court will not ignore the Article 21A right to education, when a dearth of
quality schooling puts it in jeopardy. The Government's education programmes and expenditures, wanting
in many respects, are an improvement over past performance. They nearly fall short of the constitutional
mark. Lackluster performance in primary/secondary schools is caused in part because Government places
college students on a higher pedestal. Money will not solve all our education woes, but a correction of
priorities in step with the Constitution's mandate will go a long way.
Right of the Children to Free and Compulsory Education Act, 2009
The Right of Children to Free and Compulsory Education Act provided for the following changes in the
primary education scenario.
1. Free and compulsory education to all children of India in the 6-14 age group;
2. No child shall be held back, expelled, or required to pass a board examination until
completion of elementary education;
3. A child who completes elementary education (upto class VIII) shall be awarded a certificate;
4. Calls for a fixed student-teacher ratio;
5. Will apply to all of India except Jammu and Kashmir;
6. Provides for 25 per cent reservation for economically disadvantaged communities in admission to Class
One in all private schools;
7. Mandates improvement in quality of education;
8. School teachers will need adequate professional degree within five years or else will lose job;
9. School infrastructure (where there is problem) to be improved in three years, else recognition cancelled;
10. Financial burden will be shared between state and central government.
11. Model Rules prescribed and the States must make rules.
Constitutional Validity came into force on April 1, 2010 The Supreme Court in Society for Un-aided
Private Schools of Rajasthan v. U.O.I. & Anr. Upheld the constitutional validity of the Right to
Education Act, 2009, which mandates 25% free seats to the poor in government and private unaided
schools uniformly across the country. Chief Justice S.H.Kapadia said the act will apply uniformly to
government and unaided private schools except unaided private minority schools.
In Krishnagiri District Private Schools' Association v. The State Of Tamil Nadu and Anr. 2010
WLR Madras High Court has held that the right to education will include the right to choose the medium of
instruction and whether the parents can exercise such a right on behalf of the child the Full bench held that
a parent is entitled to direct and education of his son in the manner he considers best suited and to guide
thereby his future prospects. The State has no concern and we hope no right to direct him to do so in a
particular manner.
In Ka. Kalaikottuthayam v. State of Tamil Nadu(2010) 5 MLJ the Madras High Court has declared
that no school is entitled to fail a student until the age of 14 years. Referring to the recently enacted Right of
Children to Free and Compulsory Education Act, 2009 and holding that it created a statutory bar on the
school from failing a child till the age of 14 years, the promotion of a student during those years was
automatic. Allowing a writ petition filed by a student who had been withheld in class VI by the school
administration for having failed in the examination, the High Court declared that in view of the change in
law, such a restriction could not be imposed by the school.
In Society for Unaided Private Schools of Rajasthan v Union of India & Anr. (2012) 6 SCC the
Supreme Court of India upheld the constitutionality of section 12 of the Right of Children to Free and
Compulsory Education Act (RTE Act) , which requires all schools, both state funded and private, to accept
25% intake of children from disadvantaged groups. However, the Court held that the RTE Act could not
require private, minority schools to satisfy a 25% quota, as this would constitute a violation of the right of
minority groups to establish private schools under the Indian Constitution.

Article 22
22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon
as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice

(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
magistrate

(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an
enemy alien; or (b) to any person who is arrested or detained under any law providing for
preventive detention

(4) No law providing for preventive detention shall authorise the detention of a person for a
longer period than three months unless (a) an Advisory Board consisting of persons who
are, or have been, or are qualified to be appointed as, Judges of a High Court has reported
before the expiration of the said period of three months that there is in its opinion sufficient
cause for such detention:
(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order

(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to
in that clause to disclose facts which such authority considers to be against the public
interest to disclose

(7) Parliament may by law prescribe

(a) the circumstances under which, and the class or classes of cases in which, a person may
be detained for a period longer than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in accordance with the
provisions of sub clause (a) of clause ( 4 );

(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of
clause ( 4 ) Right against Exploitation

Right to Freedom – Articles 19-22

Part III of the Constitution runs from Article 12 to Article 35, but we often end up missing how the framers
grouped certain rights together. Articles 19-22, for instance, are couched under Right to Freedom. One
possible explanation offered is that Article 19 confers positive freedoms while Articles 20-22
confer negative freedoms by limiting what the State can do. Article 21 states that No person shall be
deprived of his life or personal liberty except according to procedure established by law.

This is followed by Article 22, which immediately tells us exactly how the State can take away this right to
life and personal liberty. So, we find general protections in Articles 22(1) to (3): every person arrested must
be informed of the grounds of arrest and be permitted to engage legal counsel of her choice [Article 22(1)],
as well as be produced before a magistrate within 24 hours of being detained [Article 22(2)]. This,
interestingly, is followed up by 22(3) which specifically takes away these rights in case of enemy
aliens and persons arrested and detained under preventive detention laws. The remainder of Article 22 –
clauses (4) to (7) – moves on to lay down the limits of preventive detention laws and confer certain limited
rights upon detenus. Thus, ordinarily preventive detention is capped at three months unless reviewed by an
Advisory Board which recommends otherwise [Article 22(4)], where the case is not of a category warranting
special treatment [Article 22(7)]. Detenus have a right to be informed of the grounds behind a detention
order as soon as may be [where disclosure is not contrary to public interest as per Article 22(6)], and also
to make a representation against the order [Article 22(5)].

The majority of Article 22 appears a precision-based instrument chipping away the edges of the basic rights
guaranteed by Article 21. It has frequently been attacked throughout the history of independent India, with
detractors often pointing to the worst excesses of the Emergency in 1975 as indicative of the misuse Article
22 allows. What if I told you that Article 22 was introduced into the Constitution in order to prevent the
worst excesses from materialising? That is the lesson we learn from history, to which I now turn.

General protections in Articles 22(1) to (3)

In Joginder Kumar Vs State of U.P And Others AIR 1994 SC, the Hon'ble Supreme Court of India
held that '' the arrest should not be merely on suspicion about the person's complicity in the crime and the
police officer must be satisfied about necessity and justification of such arrest on the basis of some
investigation and the reasons for arrest must be recorded by the police officer in his diary and the arrest
should normally be avoided except in cases of heinous crime.''
The Court observed that that the English Law also recognizes the arrested person’s right to have someone
informed upon request and to consult privately with a lawyer. The apex court stated that these rights are
inherent in Articles 21 and 22(1) of the Indian Constitution and was required to be recognized and
scrupulously protected.

Thereafter, the following guidelines were laid down:

1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or
other person who is known to him or likely to take an interest in his welfare told as far as is
practicable that he has been arrested and where is being detained.

2. The Police Officer shall inform the arrested person when he is brought to the police station of this
right.

3. An entry shall be required to be made in the Diary as to who was informed of the arrest. (These
protections from power flow from Articles 21 and 22(1) and must be enforced strictly.)

And upon production of the arrested person before him, the Magistrate has to satisfy himself that the
requirements have been complied with.

The Requirements To Be Followed in All Cases Of Arrest Or Detention As Per Ruling Shri D.K. Basu Vs
State Of West Bengal: ''A. The following requirements to be followed in all cases of arrest or detention
till legal provisions are made in that behalf as preventive measurers :
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their designations. The particulars of all such
police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time
of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family
of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter
signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known
to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested an
is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the
next friend or relative of the arrestee fives outside the district or town through the Legal Aid Organisation in
the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after
the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or
detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which
shall also disclose the name of the next friend of the person who has been informed of the arrest and the
names and particulars of the, police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and
minor injuries, if any present on his/herbed, must be recorded at that time. The "Inspection Memo" must
be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of
the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils
and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga
Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
(11) A police control room should be provided at all district and State Headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing
the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on
conspicous notice board. (Para 36).
B. These requirements are in addition to the constitutional and statutory safeguards and do not detract
from various other directions given by the courts from time to time in connection with the safeguarding of
the rights and dignity of arrestee. (Para 39)''
Limits of preventive detention laws Article 22 – clauses (4) to (7)
Review by Advisory Board-

To provide safeguards against arbitrary detention, clause (4) of Article 22 states that no law providing for
preventive detention shall provide detention of a person for a longer period thanthree months unless an
Advisory Board constituted by persons who are or have been or are qualified to be High Court judges has
reported before the expiration of the said period of three months that there is, in its opinion, sufficient
cause for such detention. If the Advisory Board reports that the detention is not justified, the Government is
duty bound to revoke the detention order.(foot note- Shaibban Lal Saksena v. State of U.P., Air 1954 Sc 179)
It is no business of Advisory Board to express any opinion as to how much longer than three months the
person should be kept it detention. The expression „such detention‟ in Article 22(4) (a) refers to preventive
detention and not how long the person is to be detained. It is clear from clauses (4)and (7) of Article 22 that
the policy of Article 22 is, except where there is a Central Act to the Contrary passed under clause (7) (a), to
permit detention for a period of three months only, and detention in excess of that period is permissible
only in those cases where an Advisory Board, setup under the relevant statute, has reported the sufficient
cause for such detention. In A. K. Gopalan v/s State of Madras AIR 1950 SC 27], the majority held that the
word “and” in Article 22(7) (a) meant in the context „or‟ which meant that it was enough if Parliament,
under Article 22(7) (a), prescribed either the circumstances or the classes of cases inwhich a person might
be detained for a period longer than three months without reference of Advisory Board. This meant that
clauses (4) and (7) of Article 22 provide for two powers which are alternative or independent:

i) to make a law providing for a longer detention without an Advisory Board and
ii) To make a law providing for a longer detention without an Advisory Board.

This view was rejected by the Supreme Court in Shambhu Nath Sarkar v/s State of West Bengal
AIR 1973 SC 1425]. It was observed that if the theory pf independent alternative power is accepted, clause
(4) (a) would be totally nullified by clause (4) (b) read with clause (7)(a); such a construction would mean
that though the Constitution makers laid down a safeguard against a law providing for a longer duration,
they, in the very same breath, nullified that safeguard by generally empowering Parliament to enact laws
with longer period of detention without the intercession of an Advisory Board. The language of clauses (4)
and (7) does not bear out such a construction. Moreover, the construction under which clause (4) (b) read
with clause (7) lays down an exception to clause (4) (a) harmonises both the clauses and bring out the
true\intention in enacting the two clauses.
In State of West Bengal v/s Ashok Dey [foot note- AIR 1972 SC 1660], it was argued that since clause (7)
authorizes only Parliament to make a law for preventive detention for a period longer than three months, a
State Legislature in competent to make a law subject to such limitations ashave been specified in Article 22.
If a State Legislature was intended by the Constitution tofunction under a limitation in respect of the period
of detention, such expression would have been given expressly in the Article 22 by the makers of the
Constitution. The only limitation imposed by clause (4) of Article 22 is that no law providing for the
preventive detention should authorize such detention for over three months without the permission of the
advisory board.
In Fagu Shaw v. State of West Bengal [AIR 1974 SC 613], the question arose whetherParliament is bound
to prescribe the maximum period of detention under Article 22(7) (b) inorder that the proviso to Article (4)
(a) might operate. The Supreme Court held that as Parliament and State Legislatures have power under
Entry 3 of List III in Schedule VII of the constitution to pass a law enabling the detention of a person for a
longer period than three months in case the law provides for the opinion of the Advisory Board, there could
be no limit to that period, reasonableness apart. The proviso in Article 22(4) (a) merely enables Parliament
to put a curb on that power by prescribing the maximum period of detention under Article 22(7) (b). The
provisodoes not, proprio vigore, compel Parliament to fix the maximum period.
So, the requirements of the Advisory Board can be dispensed in two cases:

i) when the detentionis not to exceed the period of three months, and
ii) ii) under clause (4) (b) read with clause (7) (a)and (b) of Article 22.
In Puranlal Lakhanlal v. Union of India [AIR 1958 SC 163], the Supreme Court observed that the
constitution evidently does not contemplate detention of a person for the period of three or less as
sufficiently serious to have the safeguard of a report by an Advisory Board to the effect that there is
sufficient causes for detention.
Grounds of Detention and Representations:

Clause (5) of Article 22 gives two rights to the detenu. First, he has the right to be communicatedthe
grounds on which the order of detention has been made against him and that is to be done „as soon as may
be‟. [Durga Pada Ghosh v. State of W.B. 1972 (2) SCC 656/ AIR 1972 SC2420] Communication here means
imparting to the detenu sufficient knowledge of all the grounds of detention which are in the nature of
charges against him. Thus, where the detenu didnot know sufficient English to understand the grounds
communicated to him, it was held that there was no sufficient compliance with the requirements laid down
in the constitution. (Harikishan v. State of Maharashtra AIR 1962 Sc 911). The grounds for making the
order are the reasons on which the detaining authority was satisfied that it was necessary to make the order.
The grounds are conclusion of the facts and not a complete detailed recital of facts. Grounds also include all
materials on which those conclusions are based. No part of such grounds can be held back nor can new
grounds be added thereto. (foot note- State of Bombay v. Atma Ram Sridhar Vaidya, AIR 1951 SC 157). The
constitutional right of the detenu will equally be infringed where any of the grounds supplied earlier is
revoked by the detaining authority subsequently.
In Shibban Lal Saksena v. State of Uttar Pradesh the petitioner had been supplied with two grounds of his
detention. Subsequently, the detaining authority revoked one of the grounds. It was contended that in these
circumstances the detention is illegal and the petitioner is entitled to be released. In reply, the state
contended that the remaining ground was sufficient to sustain the detention order. The Supreme Court held
the detention invalid and observed as follows:

“To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to
substitute an objective judicial test for the subjective decision of the executive authoritywhich is against the
legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of
these grounds was irrelevant for the purposes of the Act, or was wholly illusory and this would violate the
detention order as a whole”.

The other right which a detenu has been given is that he should be afforded the earlier opportunity of
making a representation against the order. But without getting information sufficient to make a
representation against the order of detention, it is not possible for detenu to make representation. Hence
the Supreme Court has held that the detenu should be furnished with particulars of grounds of his
detention sufficient to enable him to make a representation which on Non-specification of the prejudicial
activities in the detention order does not vitiate the order so long as such particulars have been stated in the
grounds of detention. It is pointed out in the earlier paragraph that no new ground can be added to those
supplied earlier. But particulars as distinct from grounds may be supplied in subsequent communication,
which may be sent to the detenu sometime afterwards. ( State of Bombay v. Atma Ram Sridhar Vaidya).
Also if the disclosure of any facts is against the public interest, the detaining body may not disclose those
facts. So the obligation to furnish particulars and the duty to consider whether the discloser of any facts
involved therein is against the public interest, are vested in the detaining authority, not in any other body.

Detenu’s Representation

In the case of Abdul Nasar Adam Ismail v. State of Maharashtra and others reported in (2013) 4
SCC 435 and in particular paragraph No.16 of the said decision, which reads as under :

“16. The principles which have been laid down by the Constitution Bench and the other judgments which we
have referred to earlier can be summarised.

Article 22(5) of the Constitution casts a legal obligation on the Government to consider the detenu’s
representation as early as possible. Though no time-limit is prescribed for disposal of the representation,
the constitutional imperative is that it must be disposed of as soon as possible. There should be no supine
indifference, slackness or callous attitude. Any unexplained delay would be a breach of the constitutional
imperative and it would render the continued detention of the detenu illegal. That does not, however, mean
that every day’s delay in dealing with the representation of the detenu has to be explained. The explanation
offered must be reasonable indicating that there was no slackness or indifference. Though the delay itself is
not fatal, the delay which remains unexplained becomes unreasonable.

The court can certainly consider whether the delay was occasioned due to permissible reasons or
unavoidable causes. It is not enough to say that the delay was very short. Even longer delay can as well be
explained. So the test is not the duration or the range of delay, but how it is explained by the authority
concerned.

If the inter-departmental consultative procedures are such that the delay becomes inevitable, such
procedures will contravene the constitutional mandate. Any authority obliged to make order of detention
should adopt a procedure calculated towards expeditious consideration of the representation.

The representation must be taken up for consideration as soon as such representation is received and dealt
with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a
final decision is taken and communicated to the detenu.”

The above passage is from the latest judgment of Bombay High Court in Shailesh Vs. Commissioner of
Police Nagpur City dated 8 May 2015 and in this case the Court after taking into consideration the entire
material available on record, finds that there is no substance in the Petition of detenu. The order of
detention is therefore perfectly justified and do not find any infirmity in it.

PROCEDURE OF ADVISORY BOARDS:

Power is given under clause (7) (c) to Parliament to prescribe the procedure to be followed by an advisory
board in an enquiry under sub-clause (a) of clause (4). The procedure laid down in parliamentary
legislation will override the procedure established by a State law. The idea is to prevent, as far as possible, h
azardous and unjust procedure being laid down under Stateenactments. In addition to the procedure which
Parliament may lay down, the courts have evolved certain norms to be followed in respect of the
proceedings before the Advisory Boards. It has been held in the case A.K. Roy v/s Union of India that
an Advisory Board is not a judicial or quasi judicial body and therefore it is not required to follow the
required procedure for such bodies.
The board is in fact in the nature of a body charged with the responsibility of advising the executive in
regard to cases of preventive detention where it is intended that such detention will last for more than three
months. Therefore, a detenu cannot claim the right of cross examination in the proceedings before the
Advisory Board. But right to a real and effective personal hearing by the board to the detenu has
been recognised in case the detention law says that such hearing has to be given if the detenu so desires.
This was held by Supreme Court in Hamid Sarfaraz v/s M. S. Kashekar [AIR 1981 SC 459] Moreover,
in the absence of any provision to the contrary, the detenu has the right to offer oral and documentary
evidence before the Advisory Board in order to rebut the allegations made against him. It was held in the
landmark judgment: A.K. Roy v/s Union of India.

The observation in Francis Coralie v/s Union Territory of Delhi [AIR 1981 SC 746,751] that a detenu has
the right to consult a legal advisor of his choice for any purpose includinghis release from preventive
detention has been left open by the Court in A.K. Roy v/s Union of India without conformation or
rejection. But it has been held that “if the detaining authority or the Govt. takes the aid of legal practitioner
or advisor before the advisory Board, the detenu must be allowed the facility of appearing before the Board
through a legal practitioner”. And denial of such facility invalidates detention. It was held in
Nand Lal v/s State of Punjab [AIR1981 SC 2084]
It has further been held in landmark judgment of A.K. Roy v/s Union of India that the detenu is entitled to
be aided or assisted, if he so demands, “by a friend, who in truth and substance, is not a legal practitioner”
in the proceedings before the Board. Denial of such facility to the detenu invalidates his detention.
But the detenu has to make a request to the Board that he wants to be represented by a friend. In the
absence of such request the Board is not obliged to tell him that he can avail of such facility.It was observed
by the Supreme Court in Phillipa Anne Duke v/s State of Tamil Nadu [AIR 1982 SC 1178,1181].
The board must conclude its proceedings expeditiously and must express its opinion within the time
prescribed by law. Failure to do so makes the detention invalid. Along with its opinion the Board must
forward the entire record of proceedings before it to the government because the government is supposed to
take a decision on the perusal of the entire record which it cannot do in the absence of the record. Therefore
any decision to continue the detention without going through such record makes the detention illegal for
non-application of mind.
In the absence of an independent office and staff the, Advisory Board can use the government staff for the
purpose of correspondence, etc. even with the detenu. Such use does not vitiate the opinion of the Board. It
was held in the case Nand Lal v/s State of Punjab [AIR 1981SC 2041,2045]

No preventive detention without proof

In a case, Pooja Batra vs Union of India & Others on 27 March, 2009, the Supreme Court has held that a
person cannot be held in preventive detention (custody) without adequate evidence asotherwise it would be
violative of his or her 'personal liberty' guaranteed by the Constitution.In matters relating to preventive
detention, authorities have to examine whether there was anyorganised act or activity giving room for an
inference that the detainees would continue toindulge in similar prejudicial activity warranting detention of
the person, the apex court said."In an appropriate case, if there is no adequate material for arriving at such
a conclusion basedon solitary incident, the court is required and is bound to protect him in view of the
personalliberty which is guaranteed under the Constitution of India," a bench of Justices Dalveer Bhandari
and P Sathasivam observed.
Under law, a person can be held under 'preventive detention' for a certain period if there are sufficient
evidence to indicate that the accused has the propensity to indulge in criminal activities, if he/she is not
detained by the authorities. The bench passed the observation whileupholding an appeal filed by Pooja
Batra, challenging the preventive detention of her husband Deepak Batra by Customs authorities, under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.
The authorities held Deepak Batra under preventive detention on the ground that he had smuggled goods
into the country since 2006, though they did not have adequate evidence to back up their charge. The
accused's wife filed a petition in the Delhi High Court against the detention but it dismissed her plea and
imposed a fine of Rs 50,000 on her, following which she appealed in the apex court.
Upholding her appeal, the apex court said there was no material on record to establish the charge of the
Customs authorities that the accused was indulging in smuggling activities warranting his preventive
detention.
"There is nothing in the order of detention which would indicate that any of the said earlier imports were
effected in contravention of any of the provisions of the Customs Act, 1962, or that they could have been
regarded as having been smuggled into the country," the bench observed. The apex court, while quashing
the detention order, also relieved the petitioner of the Rs 50,000fine imposed by the high court.
Supreme Court has expressly given its opinion on preventive detention in various cases. Some of the
important Judgments of the Supreme Court of India are as follows:
1) A.K. Gopalan v. State of Madras: In this case the Hon‟ble Supreme Court of India held that clauses (4)
and (7) of Article 22 provide for two powers which are alternative or independent: i)to make a law providing
for a longer detention without an Advisory Board and ii) to make a law providing for a longer detention
without an Advisory Board.
2) Maneka Gandhi v/s. Union of India: In this case the concern shown by the Supreme Court to that right
in the Forty-fourth Amendment making enforcement of Articles 20 and 21nonsuspendable even during a
Proclamation of Emergency.
3) A.K. Roy v/s. Union of India: The Supreme Court held that the Amended clauses (4) and (7) of Article
22, which could take effect only in a notification from the Central Government and if such notification is not
issued by the Central Government, it remains inoperative.
4) Pooja Batra v/s. Union Of India & Others: the Supreme Court has held that a person cannot be held in
preventive detention (custody) without adequate evidence as otherwise it would be violative of his or her
'personal liberty' guaranteed by the Constitution.

5) Shiv Kant Shukla v/s.Additional District Magistrate, Jabalpur: This High Court ruled that

Habeas Corpus as an instrument to protect against illegal imprisonment is written into the Constitution. Its
use by the courts cannot, in our opinion, be constitutionally abridged by the Executive or by Parliament
except in the manner provided by Article 368 of the Constitution.
These are some of the important case laws just to name a few or we can say, the
landmark judgments given by Supreme Court which have helped us enormously to find out the trueintentio
n of makers of the Indian Constitution in enacting the provisions of the Preventive Detention.

the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that “The
majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive
detention, the validity of an order of detention must be determined strictly according to the terms and
‘within the four corners of that Article‘.” As Mr. Seervai notes, the majority incorrectly considered the
‘Complete Code’ idea as being approved by Gopalan and that this was further compounded in Haradhan
Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the
view of Fazl Ali, J. and overruled Gopalan for accepting the ‘Complete Code’ argument [wrongly, of course].
This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together
with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978
by Maneka Gandhi transplanting ‘procedure established by law’ with ‘due process of law’ without amending
the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into
preventive detention laws
Federal Laws Authorising Preventive Detention article 22(6) Exception to clause 5

Is it purely coincidental that the federal laws authorising preventive detention in India today have some
connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps.
Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin
the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was
not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black
Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What
are the purposes of these laws and what do they proscribe?

 COFEPOSA: Allows for preventive detention for “conservation and augmentation of foreign
exchange and prevention of smuggling activities.“

 NSA: Persons acting “prejudicial to the defence of India, the relations of India with foreign powers,
or the security of India” as well as those acting “prejudicial to the security of a State, the
maintenance of public order, or the maintenance of supplies and services essential to the
community can be preventively detained.

 Black Marketing Act: Allows for detention in cases for prevention of “blackmarketing and
maintenance of supplies of commodities essential to the community.”

Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was
challenged in A.K. Roy v Union of India [AIR 1982 SC 710],and upheld by the Supreme Court. It
helped that the legislature had copied the objectives from the Seventh Schedule.
The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the
Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for
India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule
were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of
Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar
challenges for fundamental rights violations.

Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7
SCC 499] held that this didn’t matter. It noted that as the validity of the COFEPOSA had been upheld once,
the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address
the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22.
The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the
security of India by the Court.

RIGHTS AGAINST EXPLOITATION (ARTICLES 23-24)

Article 23 enacts a very important fundamental right in the following terms:
“23. Prohibition of traffic in human beings and forced labour.—
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any
contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes,
and in imposing such service the State shall not make any discrimination on grounds only of religion, race,
caste or class or any of them.”
This Article has been clearly designed to protect the individual not only against the State, but also against
private individuals. It prohibits not only forced labour, but also ‘traffic in human beings’, which includes
trafficking women for immoral or other purposes.
The reasoning behind the inclusion of this Article in Part III is examined in

In Kahaosan Thangkhu vs. Simirci Shailes case AIR 1961, in Manipur there was a village in which
there was a custom of offering one day's free labour to the village headman. This custom was held violative
of Art. 23.
Gaurav Jain v Union of India: [(1997) 8 SCC 114; AIR 1997 SC 3021] The Supreme Court held that
the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and
rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The
Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such
children and child prostitutes and for its implementation and submission of periodical report of its
Registry.
Compulsory services for public purpose Article 23(2)
State vs Jorawar on 15 September, 1952 That Article prohibits 'begar' and other similar forms of forced
labour, except for compulsory service for public purposes. Conscription for the defence of the country, or
for social services, are possible instances of imposition of compulsory service for public purposes. That
cannot however be said of imposition of compulsory service for the purpose of carrying a load of
Government property by the Tahsildar or any Government servant in normal times.
In Sanjit Roy vs. State of Rajasthan (1983, SCC (1) 525), the Supreme Court ruled that the payment
of wages at less than the statutory minimum rate — even for famine relief — violated the ban on forced
labour stipulated by Article 23 of the Constitution. As such, any law which sought to derogate from the
payment of minimum wages was ultra vires. "Whenever any labour or service is taken by the State from any
person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least,
minimum wage to such person on pain of violation of Article 23," Justices P.N. Bhagwati and R.S. Pathak
ruled. They added: "The State cannot be permitted to take advantage of the helpless condition of the
affected persons and extract labour or service from them on payment of less than the minimum wage."

The judges drew on an earlier judgment (Peoples Union for Democratic Rights and Ors. vs. Union of India
and Ors., 1982), in which the apex court expanded the definition of "forced labour" to include "compulsion
arising from hunger and poverty, want and destitution." Clearly, then, employing an indigent woman or
man under the EGA in a State where the minimum wage is more than Rs. 60 would constitute forced labour
and fall foul of Article 23.
State Of Gujarat And Anr vs Hon'Ble High Court Of Gujarat on 24 September, 1998
Traffic in human beinghs is absolute while prohibition aghainst "forced labour" is made subject to one
exception, i.e., State is permitted to impose compulsory service if such service is necessary for public
purpose. Otherwise the ban against forced labour is also absolute. The expression "forced labour" seems to
be collocted with the word "begar". That word is understood to be the labour or service which a person is
forced to give without reeceiving any remuneration for it. The exception envisaged in sub-clause (2)
regarding "public purposes" is very wide enough to contain all such exceptional conditions. Thus it is
apparently clear that imposition of forced labour on a prisoner will get protection from the ban
under Article 23 of the COnstitution only if it can be justified as a necessity to achieve some public purpose.
It is hence reasonable conclusion from the above discussion that a directive from the court under the
authority of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory
manual labour gets legal protection under the exemption provided in Clause (2) of Article 23 of the
Constitution because it serves a public purpose.

Article 24 prohibits the employment of children in factories, etc., and reads as follows:

“No child below the age of fourteen years shall be employed to work in any factory or mine
or engaged in any other hazardous employment”

(, Atma Ram vs. State of Bihar AIR 1952 Pat, Peoples Union for Domestic Rights vs Union of
India (1982) 3 Sec. 235, sec 24 Prohibition of employment of children in factories etc. This article
provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged
in any other hazardous employment. In lieu of this Article legislature enacted child Labour (Prohibition and
Regulation) Act 1986.
People�s Union for Democratic Rights v. Union of India: [ AIR 1982 SC] Also known as the
Asiad Worker�s case. The Supreme Court held that though the Employment of Children Act, 1938 did not
include the construction work on projects because the construction industry was not a process specified in
the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under
14 could not be employed in a hazardous occupation. The right of a child against exploitation under Art.24
was enforceable even in the absence of implementing legislation, and in a �public interest� proceeding

In Salal Hydro Project vs. State of J.K. (1983) 3SCC, the Supreme Court held that employment of
children below 14 years even in construction work amounts to violation of Art. 24.
Lakshmi Kant Pandey v. Union of India: [(1984) 2 SCC 244; AIR 1984 SC 469] This is an
extremely important case relating to the adoption of Indian children by persons inside and outside India. In
the absence of legislation, the Supreme Court framed elaborate guidelines in the matter. There was no law
to regulate inter-country adoptions and such lack of legal regulation could cause incalculable harm to
Indian children. Considering the possibility of child trade for prostitution as well as slave labor, legal
regulation of such adoptions was essential. Therefore, Justice Bhagwati created a scheme for regulating
both inter-country and intra-country adoptions. The Supreme Court held that any adoption in violation of
or non-compliance with may lead adoption to be declared invalid and expose person concerned with to
strict action including prosecution. For years, social activists have used these directions to protect children
and promote desirable adoptions. The Government of India framed a national policy in this regard.
Also Indian Council for Social Welfare v. State of A.P.[(1999) 6 SC]
In the case of M.C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756, the Hon’ble Supreme Court
took judicial notice of child labour in Sivakasi, where the provisions of Article 24 were being violated. It was
held that abolition of child labour is definitely a matter of great public concern and importance. Poverty was
held to be the driving force behind the evil of child labour.

Sakshi v Union of India: [(1999) 8 SCC 591] In this Public Interest Litigation matter, the Supreme
Court of India asked the Law Commission to consider certain important issues regarding sexual abuse of
children submitted by the petitioner and the feasibility of amendment to sec 375 and 376 IPC.

FREEDOM OF RELIGION (ARTICLES 25 – 28)

Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens
of India. The objective of this right is to sustain the principle of secularism in India. According to the
Constitution, all religions are equal before the State and no religion shall be given preference over the other.
Citizens are free to preach, practice and propagate any religion of their choice.
Declaration of Secularism

India is a secular state: The concept of secularism is implicit in the preamble of the constitution, which
declares the resolve of the people to secure to all its citizens liberty of thought, belief, faith, and worship.
The 42nd Amendment Act, 1976, has inserted the word 'secular' in the preamble. This amendment is
intended merely to spell out clearly the concept of 'secularism' in the constitution. There is no mysticism in
the secular character of the state. In India, a secular state was never considered as an irreligious or
atheistic state. It only means that in matters of religion it is neutral. It is the ancient doctrine in India that
the state protects all religions but interferes with none.
In St. Xavier's College v. State of Gujarat,11 explaining the secular character of the Indian
constitution of Supreme Court held that there is no mysticism in the secular character of the state.
Secularism is neither anti-God nor pro-God. It treats alike the devout, the agnostic and the atheist. It
eliminates God from the matters of the state and ensures that no one shall be discriminated against on the
ground of religion.
The state can have no religion of its own. It should treat all religions equally. The state must extend similar
treatment to the Church, the Mosque and the Temple. In a secular state, the state is only concerned with the
relation between man and man. It is not concerned with the relation of man with God. It is left to the
individual's conscience. Every man should be allowed to go to heaven in his own way. Worshipping God
should be according to the dictates of one's own conscience. Man is not answerable to the State for the
variety of his religious views. The right of worship was granted by God for man to worship as he pleased.
There can be no compulsion in law of any creed or practice of any form of worship.
In SR. Bommai v. Union of India12 the Supreme Court held that secularism is a basic feature of the
constitution.
In Santosh Kumar v. Secretary, Ministry of Human Resources Development.13 the Supreme
Court held that introduction of Sanskrit language as a subject in the Central Board of Secondary Education
is not against secularism, as it is the mother of all Aryan languages. The Court directed the CBSE to make
necessary amendments in the syllabus within three months to make Sanskrit an elective subject for
nurturing our cultural heritage. Secularism represents faith born out of the rational faculties. Secularism is
neither anti- God nor pro-God, as it treats alike the devout, agnostic and the atheist.
In Aruna Roy v. Union of India,14 the Supreme Court held that secularism means developing,
understanding and respect for different religions. the Supreme Court has said that secularism has a positive
meaning that is developing, understanding and respect towards different religions. The real meaning of
secularism in the language of Gandhi is “sarva dharma samabhav” meaning equal treatment and respect for
all religions, but we misunderstood the meaning of secularism as negation of all religions”.

In the leading case of SR Bommai v Union of India (1994) 3 SCC 1 various judges of the Supreme Court of
India individually explained the significance and place of secularism under the Constitution in very
meaningful words sampled below:

i. The Constitution has chosen secularism as its vehicle to establish an egalitarian social order.
Secularism is part of the fundamental law and basic structure of the Indian political system.
ii. Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the
Constitution, the concept of secularism was very much embedded in our constitutional philosophy
from the very beginning. By this amendment what was implicit was made explicit.
iii. Constitutional provisions prohibit the establishment of a theocratic State and prevent the State from
identifying itself with or otherwise favouring any particular religion
iv. Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal
treatment of all religions.
v. When the State allows citizens to practice and profess their religion, it does not either explicitly or
implicitly allow them to introduce religion into non-religious and secular activities of the State. The
 freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is
different from the secular life. The latter falls in the exclusive domain of the affairs of the State.

Right to Religious Freedom

Interpreting the constitutional provisions relating to freedom of religion the Supreme Court has observed:

The right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they are
subject to reform on social welfare interpreting Article 25 and 26 strikes a careful balance between matters
which are essential and integral part and those which are not and the need for the State to regulate or
control in the interests of the community — AS Narayana Deeshitalyu v State of Andhrn Pradesh

 Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of
Indian civilization from the start of history. They serve to emphasize the secular nature of Indian
democracy which the founding fathers considered should be the very basis of the Constitution –
Sardar Suedna Taiiir Saifiiddin v State of Bombay.

Article 25 Freedom of Conscience and free profession, practice and propagation

of religion
Article 25(1) guarantees to every person and not only to the citizens of India, the freedom of ‘conscience’
and 'the right freely to profess, practice and propagate religion.' This, however, is subject to public order,
health, morality, and other provisions relating to Fundamental Right. According to Article 25 (2) (a) the
State is not, however, prevented from making any law regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious practice. According to Article 25
(2)(b) the State is also not prevented from making any law providing for social welfare and reform, or for
throwing open of Hindu Religious institutions of a public character to all classes and sections of the Hindus.
According to explanation 1 wearing and carrying of kirubans by the Sikh is included in the profession of the
Sikh religion. According to explanation 2 the term 'Hindu' in this Article includes persons professing the
Sikh, Jain or Buddhist religion and the reference to Hindu religious institution is to be construed
accordingly Ishtiak Hussain farroqui vs. State of Uttarpradesh AIR, 1988 SC

What is Religion? The term 'religion' is not defined in the constitution and indeed it is a term which is
hardly susceptible to any rigid definition. The Supreme Court has defined it broadly. Religion is a matter of
faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of
beliefs or doctrines which are regarded by those who profess that religion, is conducive to their spiritual
well being, but it will not be correct to say that religion is nothing else but a doctrine of belief. A religion
may lay down a code of ethical rules for its followers to accept, it may prescribe rituals and observances,
ceremonies and modes of worship which are regarded as integral part of religion, and those forms and
observances might extend even to matters of food and dress.15 Thus, religion is essentially a matter of
personal faith and belief. Every person has right to entertain such religious beliefs and ideas as may be
approved by his judgment or conscience but also exhibit his belief and ideas by such overt acts which are
sanctioned by his religion.
The High Court of Australia observed in Jehovah’s Witnesses Inc vs Commonwealth in1943: “What is
religion to one is superstition to another.”
The Constitution combines freedom of religion with a mandate to the state to intervene in religious affairs if
social welfare so demands. The state has power to regulate secular activities associated with religious
practice. The question is how to decide whether an activity is religious or secular.
In the Shirur Mutt case (1954), it was held that the term “religion” will cover all rituals and practices
“integral” to a religion. The SC took upon itself the responsibility of determining what is integral. The court
said that the question of religion would be decided by taking into consideration what the religious
denomination considered essential or crucial. This is called the “essentiality test”. But this exercise
produces obscure results and tends to lead the court into an area beyond its competence.
The essentiality test was crystallised in the temple entry case. After examining selective Hindu texts, the
court came to the conclusion that untouchability was not an essential Hindu practice. In Gramsabha of
Village Battis Shirala vs Union of India, a sect claimed that the capture and worship of a live cobra is
essential to its religion. It relied on Shrinath Lilamrut, which prescribed such a practice. The court relied on
the more general Dharmasastra to rule that, since there was no mention of capturing a live cobra therein, it
could not be an essential practice. In another case, a Muslim police officer challenged a regulation that did
not permit him to grow a beard. Rather than looking at the essentiality of the beard in Islam, the court
rejected the petitioner’s argument by relying on the irrelevant fact that certain Muslim dignitaries do not
sport a beard. The court looked at empirical evidence of practice rather than religious texts. Yet, animal
sacrifice among Hindus was denied protection, despite empirical evidence to the contrary.
Similarly, in the Tandava dance case, the Calcutta High Court had originally found that Tandava dance was
an essential practice of the Ananda Marg. But the SC overturned this decision, relying on the doctrine of
precedent to hold that Tandava was not an essential practice. Here, essentiality was determined by earlier
judicial verdicts and not religious texts. Another strange reason cited was that, since the Ananda Marg came
into existence in 1955 and since the Tandava dance was adopted only in 1966, the practice could not be
accepted as essential. The apex court’s approach appears to identify a religious practice as integral only if it
existed when the religion/ sect was founded. This logic could produce an approach to religious practices
that is frozen in time, making religious reform impossible.
The essentiality test reached another levels in Ismail Faruqui, whereby land on which the Babri mosque
stood was acquired. Instead of settling the issue in favour of the state on the basis of eminent domain, the
court went into the question of whether praying at the mosque is an essential Islamic practice. It held that
while offering prayers is an essential practice, the offering of such prayers at the mosque is not, unless the
place has a particular religious significance in itself. Everyone knows that congregational prayer is central to
Islam and mosques are an essential means for this objective.

Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors on 19 March, 1996Very
often the words "religion" and "dharma" are used to signify one and the same concept or notion; to put it
differently, they are used inter-changeably. This, however, is not so, as would become apparent from what is
being stated later, regarding our concept of dharma. I am of the considered view that the word religion in
the two articles has really been used, not as is colloquially understood by the word religion, but in the sense
of it comprehending our concept of dharma. The English language having had no parallel word to dharma,
the word religion was used in these two articles. It is a different matter that the word dharma has now been
accepted even in English language, as would appear from Wester's New Collegiate Dictionary which has
defined it to mean : "Dharma : n. [Ekt. ff.dharayati he holds;] akin to L firmus firm: custom or law regarded
as duty: the basic principles of cosmic or individual existence: nature : conformity to one's duty and
nature." The Oxford Dictionary defines dharma as : "Right behaviour, virtue; the Law [Skt = a decree,
custom]".
The distinction between religion and dharma has also been explained by saying that religion is enriched by
visionary methodology and theology, whereas dharma blooms in the realm of direct experience. Religion
contributes to the changing phases of a culture; dharma enhances the beauty of spirituality. Religion may
inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in
the heart.
The 1995 judgment defined Hindutva or Hinduism as a "way of life"
In the case of Ramesh Yeshwant Prabhoo vs Prabhakar K. Kunte 1995 sc the Supreme Court bench
dealt with the meaning of the word "Hindutva" or "Hinduism" when used in election propaganda. The court
came to the conclusion that the words "Hinduism" or "Hindutva" are not necessarily to be understood and
construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos
of the People of India depicting the way of life of the Indian people. Unless the context of a speech indicates
a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian
people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are
indicative more of a way of life of the Indian people and are not confined merely to describe persons
practicing the Hindu religion as a faith" (Emphasis supplied). This clearly means that, by itself, the word
"Hinduism" or "Hindutva" indicates the culture of the people of India as a whole, irrespective of whether
they are Hindus, Muslims, Christians, Jews etc. The Supreme Court Bench has further observed that "the
mere fact that these words (Hindutva or Hinduism) are used in the speech would not bring in within the
prohibition of sub-section (3) or (3A) of Section 123. It may well be that these words are used in the speech
to promote secularism and to emphasize the way of life of the Indian people and the Indian culture or ethos,
or to criticize the policy of any political party as discriminatory or intolerant. Whether a particular speech in
which a reference is made to Hindutva and or Hinduism falls within the prohibition under sub-section (3)
or (3A) of Section 123 is therefore a question of fact in each case"

Recently on OCTOBER 25, 2016 The Supreme Court declined a plea of social activist Teesta Setalvad to
check the “devastating consequences” of its 1995 judgment defining Hindutva or Hinduism as a "way of life"
and nothing to do with "narrow fundamentalist Hindu religious bigotry".
A seven-judge Bench, led by Chief Justice of India T.S. Thakur, clarified that the Supreme Court is presently
only examining what constitutes corrupt electoral practices under Section 123 (3) of The Representation of
the People Act, 1951. The court said it would not be going into the larger issue of whether 'Hindutva' means
the Hindu religion. “We will not go into the larger debate as to what is Hindutva or what is its meaning. We
will not re-consider the 1995 judgment and also not examine Hindutva or religion at this stage,” a seven-
judge constitution bench headed by Chief Justice T S Thakur said.
“At this stage, we will confine ourselves to the issue raised before us in the reference. In the reference, there
is no mention of the word ‘Hindutva’. If anybody will show that there is a reference to the word ‘Hindutva’,
we will hear him. We will not go into Hindutva at this stage,” the bench, which also comprised Justices M B
Lokur, S A Bobde, A K Goel, U U Lalit, D Y Chandrachud and L Nageshwar Rao, said.

Specifically, the Constitution Bench is hearing arguments on whether it amounts to a corrupt electoral
practice if a candidate ropes in the services of religious leaders to use their mass appeal to swing votes in his
favour.
Abhiram Singh vs C.D. Commachen (Dead) By Lrs.& Ors on 2 January, 2017 Delivering a
landmark ruling, the Supreme Court today held that seeking votes in the name of religion, caste or
community amounted to corrupt practice and election of a candidate who indulged in it can be set aside. A
seven judge constitution bench of the court headed by Chief Justice T S Thakur who retires tomorrow
passed the ruling by a 4:3 majority. The bench was interpreting section 123(3) of the Representation of
Peoples Act. Justices D Y Chandrachud, A K Goel and U U Lalit dissented from the majority view. “Election
is a secular exercise and therefore a process should be followed….the relationship between man and god is
an individual choice and state should keep this in mind” , held the majority view. On their part the
dissenting judges said such an interference by the court almost amounted to judicial redrafting of law. They
said prohibiting candidates from articulating issues effecting voters reduced democracy to an abstraction.
The bench was dealing with the appeal filed in 1992 by BJP leader Abhiram Singh, whose election to 1990
Maharashtra Assembly was set aside in 1991 by the Bombay High Court on the ground that he had appealed
for votes on the basis of Hindu religion
On October 25 the seven judge constitution bench of the Supreme Court which was hearing a slew of
petitions relating to decisions and questions on electoral malpractices arising out of its earlier judgments
said for now it will not touch on its 1995 definition of “hindutva is a way of life and not a religion” and also
not ban its use during election

The freedom of conscience is absolute inner freedom of the citizen to mould his own relation with God in
whatever manner he likes. When this freedom becomes articulate and expressed in outward form it is 'to
profess and practice religion'. To profess a religion means to declare freely and openly one's faith and
belief. He has right to practice his belief by practical expression in any manner he likes. To 'practice' religion
is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious beliefs and ideas
by such acts as prescribed by religious order in which he believes. To 'propagate' means to spread and
publicize his religious view for the others.

 Freedom of conscience connotes a person’s right to entertain beliefs and doctrines concerning
matters which are regarded by him to be conducive to his spiritual well being – Ratilal Panachand
Gandhi v State of Bombay.

 To profess a religion means the right to declare freely and openly one’s faith – Punjab Rao v DP
Meshram.
  Religious practices or performances of acts in pursuance of religious beliefs are as much a part of
religion as faith or belief in particular doctrines – Ratilal Panachand Gandhi v State of Bombay.

 What constitutes an integral or essential part of a religion or religious practice is to be decided by

the courts with reference to the doctrine of a particular religion and includes practices regarded by
the community as parts of its religion- Seshammal v State of Tamil Nadu.

 The right to profess, practise and propagate religion does not extend to the right of worship at any or
every place of worship so that any hindrance to worship at a particular place per se will infringe
religious freedom – Ismail faruqi v Union of India.

 Under Article 25 to ‘propagate’ religion means ‘to propagate or disseminate his ideas for the
edification of others’ and for the purpose of this right it is immaterial ‘whether propagation takes
place in a church or monastery or in a temple or parlour meeting’ – Commissioner, Hindu Religious
Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Rev. Stainislaus v. State of M.P., the Supreme Court held that the word 'propagation' only indicates
persuasion and exposition without any element of coercion. The right to propagate one's religion does not
give a right to convert any person to one's own religion. There is no fundamental right to convert any person
to one's own religion. What Article-25 (1) guarantees is not right to convert another person to one's own
religion, but to transmit or spread one's religion by an exposition of its tenets. Article-25 guarantees
freedom of conscience to every citizen, and not merely to the followers of one particular religion. It,
therefore, postulates that there is no fundamental right to convert another person to one's own religion
because if a person purposely undertakes the conversion of another person to his religion, as distinguished
from his effort to transmit or spread the tenets of his religion that would impinge on the freedom of
conscience, guaranteed to all the citizens of the country alike.

In Bijoe Emmanual v. State of Kerala,17 (National Anthem Case) the Supreme Court held that no person
can be compelled to sing the National Anthem if he has genuine, conscientious religious objection.
In N Aditya v. Travancore Dewaswom Board,18 the Supreme Court held that Brahmins do not have
monopoly over performing puja in a temple and said that a non-Brahmin can be appointed as a pujari if he
is properly trained and well versed with rituals.
Limits of Religious Freedom
The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are
limitations within which these rights can bu exercised, as also lawful restrictions which can be imposed by
the State on such rights, as detailed below:
1. The right to freedom of religion is, in general, subject to public order, morality, health and the other
provisions of the Constitution - Article 25(1).
2. Despite the right to religious freedom, the State can pass laws providing for social welfare and reform and
also to regulate or restrict any secular activity - economic, financial, and political, etc. - even though it may
be traditionally associated with religion - Article 25(2).
3. Despite the minorities' right to establish and maintain educational institutions, no citizen can be kept
away from any State-aided or State- maintained educational institution only on religious grounds - Article
29(2).

1. The right to freedom of religion is, in general, subject to public order, morality, health and
the other provisions of the Constitution - Article 25(1).
In Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare Association,20 the Supreme Court held that
in the exercise of the right to religious freedom under Articles-25 and 26, no person can be allowed to create
noise pollution or disturb the peace of others. The custom of religious prayer through the use of
loudspeakers is not an essential element of any religion.
In Masud Alam v. Commissioner of Police, A.I.R. 1956 Cal the banning of electrical loudspeakers was held
valid. The court observed that every religion has right to have propagandists. But when such propaganda is
made through loudspeakers in a crowded and noisy locality to detriment of public morals, health, order, it
is prohibited by Article 25. A loudspeaker may take one to Hell instead of Heaven by very volume of its
sound.
In Acharya Jagdishwaranand A wa dh uta v. Commissioner of Police, Calcutta,22 the Supreme Court held
that the Tandava dance in procession or at public places by Ananda Margis carrying lethal weapons and
human skulls was not an essential religious rite of the followers of Anand Marga and hence the order under
section-144, Cr.P.C. prohibiting such procession in the interest of public order and morality was not
violative of the rights of petitioners under Articles-25 and 26 of the constitution.

2. Despite the right to religious freedom, the State can pass laws providing for social welfare
and reform and also to regulate or restrict any secular activity - economic, financial, and
political, etc. - even though it may be traditionally associated with religion - Article 25(2).

In Bhuri v. State of J. & K. (Vashno Devi Shrine case21 the Supreme Court held that the service of the priest
is a secular activity and that it may be regulated by the state under Article-25 (2) of the constitution. The
court made distinction between religious service and the person who performs service.

In Ismail Faruqui v. Union of India,19 the Supreme Court held that the state can in exercise of its sovereign
power acquire places of worship like mosques, churches, temples etc. which, is independent of Article-300
(A) of the constitution if it is necessary for maintenance of law and order. Such acquisition per se does not
violate Articles-25 and 26 of the constitution.
In Javed v. Haryana23 the Supreme Court held that provisions of the Haryana Panchayati Raj Act, 1994
which disqualify persons having more than two children from contesting election for the post of Sarpanch
and Panch in Panchyatas does not violate Article-25 of the constitution. The Muslim law permits marrying
four women but does not anywhere mandates it as a duty to perform four marriages. Such practices which
encourage bigamy or polygamy can be regulated by making law. The right to contest election for any office
in Panchayat is neither fundamental right nor a common law right. It is a statutory right and subject to
qualification and disqualifications prescribed by law. If a person does not fulfil such qualification he can be
prevented from contesting election for such posts.
In the Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC the Supreme Court further held that the
religious practice under question should not only be “enjoined or sanctioned”90 by one’s religion but it
must also be “an obligatory overt act”91 of the concerned religion to exhibit its tenet. As seen earlier, in this
case the appellants pleaded for the sacrifice of a cow on Bakr-Id day.92 After going through the Islamic
custom of animal sacrifice on Bakr-Id day and the tradition maintained by Muslim rulers in India, the
Supreme Court observed that cow sacrifice was sanctioned by Islam but it was not an obligatory overt act to
express Islamic faith and, therefore, it would not be protected under practice of religion as given in clause
(1) of article 25.

Article 26 Freedom to manage Religious Institutions

According to this Article every religious nomination or a section thereof has
the right:

 To establish and maintain institutions for religious and charitable purposes.

 To manage its own affairs in matters of religion;
 To own and acquire moveable and immoveable property and
 To administer that property in accordance with law.
 The right is subject to public order, morality and health.

Tile right guaranteed by Articles-25 and 26 is to be read together. Right guaranteed by Article-25 is an
individual right as distinguished from the right of an
organized body like the religious denomination or any section thereof dealing with religious doctrine or
belief as well as acts done in pursuance of religion, rituals, observances, ceremonies and modes of worship.
These articles embody the principles of religious tolerance that has been the characteristic feature
of Indian civilization from the start of history. It is this secular nature of Indian democracy, which the
founding fathers considered should be the very basis of the constitution.

The expression ‘matters of religion’ in Article 26 extends to acts done in pursuance of religion and covers
rituals, observances, ceremonies and modes of worship – Jagannath Ramanuj Das v State ofOrissa AIR
1954 SC 400; Dargah Committee v Husain.

 To claim to be a religious denomination a group has to satisfy three conditions: common faith,
common organization and designation by a distinctive name – SK Mittal v Union of India.

 A religious denomination has the right to lay down the rites and ceremonies to be performed by its
members – Ramanuj v Tamil Nadu State.
  A ‘common burden’ (e.g., land revenue) which is imposed on all does not violate the right of a
religious denomination –Govt. of Tamil Nadu v Ahobila.

 Property of a religious denomination violating the agrarian reform and land ceiling laws can be
lawfully acquired by the State – Narendra v State of Gujarat.

 A law which takes away the right of administration from a denomination and vests it in a secular
body would infringe upon the Constitution – Ratilal Panachand Gandhi v State of Bombay.

 Since the State is secular and freedom of religion is guaranteed both to individuals and groups, it is
against the constitutional policy to pay out of public funds any money for the promotion or
maintenance of a particular religion – Commissioner, Hindu Religious Endowments v LT Swamiar.

Venkataramana v. State of Mysore, A.I.R. 1958 S.C. the Supreme Court of India held that no Hindu
can claim as part of rights protected by Article 25 (2) (b) that a temple must be kept open for worship at all
hours of the day and night, or that he should personally perform those services which acharyas or pujaris
alone could perform. Thus, the right recognized by Article 25 (2) (b) necessarily becomes subject to some
limitations or regulations which arise in the process of harmonizing this right with that protected by Article
26 (b).81 In the instant case the facts were that in order to remove the disability imposed on harijans from
entering into temples dedicated to the Hindu public generally, The Madras Legislature enacted the Madras
Temple Entry Authorization Act, 1947. The Government passes an order that the Act would be applicable to
a temple belonging to Godwa Saraswati Brahimin Community. The trustees of the temple filed a suit which
ultimately reached the Supreme Court. Their contention was that the temple being denominational one,
they were entitled to the protection of Article 26 and it was a matter of religion as to who were entitled to
take part in worship. They further contented that opening of the temple to communities other than Godwa
Saraswath Brahmins was violative of Article 26 (b) of the Constitution and this void.

It was held by the Supreme Court that the ‘matters of religion’ in Article 26 (b) include even practices which
are considered by the community as part of its religion.

Right to excommunication
Supreme Court in Sardar Syedna Saifuddin v State of Bombay (the Dawoodi Bohra case). Recall that in
that case, a Constitution Bench of the Supreme Court struck down the 1949 Bombay Prevention of
Excommunication Act. The Bombay Act defined “excommunication” as “the expulsion of a person from any
community of which he is member depriving him of rights and privileges which are legally enforceable by
a suit of civil nature”, and went on to add that these rights included “the right to office or property or to
worship in any religious place or a right of burial or cremation.” The majority held that the Act violated
right of religious denominations to manage their own affairs under Article 26(b) of the Constitution, and
was not saved by Article 25(2)(b)‘s social welfare or reform exception, since it outlawed even those
excommunications that were made purely on religious grounds.
Central Board of the Dawoodi Bohra Committee v State of Maharashtra The genesis of
Monday’s hearing lies in a Constitution Bench order passed in December 2004 (eleven years ago!),
directing the setting up of another Constitution Bench to consider the correctness of the Supreme Court’s
1962 decision in Sardar Syedna Taher Saifuddin v State of Bombay. In that case (yet another)
Constitution Bench of the Supreme Court had struck down the Bombay Prevention of Excommunication
Act of 1949, on the ground that it violated Articles 25 and 26 of the Constitution. Twenty-five years after
the decision in Sardar Syedna [hereafter “the Dawoodi Bohra Case”], in 1986, a writ petition was filed
asking the Court to review and overrule its decision. Eight years after the filing, in 1994, a two-judge
bench directed the matter to be heard by a seven-judge bench. A seven judge bench was constituted that
same year, but it adjourned the case. There was some controversy over whether the matter could be
referred directly to a seven-judge bench. In its 2004 order, the Supreme Court observed that only a bench
of ‘equal strength’ could question the correctness of a prior judgment; consequently, it was not open to a
bench of two judges to directly refer the matter to a seven-judge bench. After a lengthy discussion on the
need for judicial propriety and discipline, the Court held that the matter be placed before a five-judge
bench. Only if that bench doubted the correctness of the Dawoodi Bohra Case, could there be a further
referral to seven judges, to finally hear and decide the issue.

Goolrokh Gupta vs Burjor Pardiwala 7 December 2017

whether a Parsi woman ‘loses’ her religious identity upon marriage to a Hindu man under the Special
Marriage Act. The case stems from the events at a Parsi funeral, when the deceased’s daughter was denied
access to the Agiari (fire temple) and tower of silence to perform the last rites for her parents. The trust and
priests in charge of the Agiari claimed that the daughter, by marrying a Hindu man, could no longer be
considered Zoroastrian and was not entitled to enter its places of worship.

A woman does not lose her religious identity by marrying outside her community Chief Justice of India
Dipak Misra said only a woman can choose to change her religion.The court on Thursday disagreed with the
common law doctrine which holds that the religion of a woman is merged with that of the man she marries.
“The Special Marriage Act confers in her the right of choice,” Misra observed. “Her choice is sacred. I ask
myself a question: Who can take away the religious identity of a woman? The answer is only a woman can
choose to curtail her own identity.” The common law doctrine was upheld by the Gujarat High Court in
2010.

The Supreme Court’s Triple Talaq Judgment

In any event, is triple talaq protected under Article 25 as an “essential practice” of Islam?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J., Nariman and Lalit JJ.

The Muslim Personal Law Board argued that it was saved by Article 25, which guaranteed the freedom of
conscience and religion. Justice Nariman rejected this argument, pointing out that under Indian
jurisprudence, Article 25 only protected “integral” or “essential” aspects of religion. In view of extensive
and uncontroverted religious authority holding that triple talaq was an “irregular” way of conducting
divorce, it could not, under any circumstances, be held to be an essential aspect of Islam (or under the
Hanafi school of Islam, which practiced it) The second issue is Justice Nariman’s reliance upon the
essential religious practices test to deny triple talaq the protection of Article 25.

along with Ambedkar in the Constituent Assembly Debates – that Article 25 simply wasn’t applicable to
the laws of marriage, divorce, inheritance, which had a tangible impact upon the civil status of parties; in
other words, one cannot, under the cover of religion, claim a vast domain of human life off-limits from
constitutional values. As Ambedkar had said:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to
death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in
social matters we will come to a standstill. I do not think it is possible to accept a position of that sort.
There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of
religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected
with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance,
laws relating to tenancy or laws relating to succession, should be governed by religion.”

Minority opinion

The Chief Justice then advanced a proposition that is utterly bizarre. In paragraph 146, he said:

“‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through
Article 25 of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a
fundamental right. The elevation of ‘personal law’ to this stature came about when the Constitution came
into force. This was because Article 25 was included in Part III of the Constitution. Stated differently,
‘personal law’ of every religious denomination, is protected from invasion and breach, except as provided
by and under Article 25.”

Notably, no authority is advanced to support this proposition. That is because there is none. No Court has
held that “personal law” is a fundamental right. In fact, that sentence is incoherent – how can “personal
law” have the “stature” of a “fundamental right”? Rights under Article 25 belong to individuals, not to
“laws”. More importantly, Article 25 does not confer constitutional protection upon personal laws. It
guarantees that “all persons are equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion.”

To go from “all persons are equally entitled to… freely… practice… religion” to “Article 25 protects
personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the
Chief Justice been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1)
protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses
the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice
her religion; in other words, it does not protect religious norms, rules, or institutions, but individual
rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that
by denying him the option of triple talaq, his Article 25(1) right was being violated; such a case, however
(apart form being decided on separate grounds altogether), is conceptually different from conferring the
“stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is
crucial.

The Chief Justice then held that the 1937 Act did not codify triple talaq, but only negated the use of
“customs and usages” in adjudicating cases between Muslims (paragraph 156). I have already argued
above that this is a flawed reading of the 1937 Act. Consequently, he held that the only limitations upon
personal law can be those found in the opening phrase of Article 25(1): “public order, health, and
morality.” On this, he noted:

“… it is impossible to conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’.
We are also satisfied, that it has no nexus to ‘morality’, as well.“

But why? He provided no reasoning for this. If “morality” under Article 25(1) refers to the concept of
constitutional morality, then surely gender equality and non-discrimination art part of that definition of
morality? And if not, what else does morality mean? What does the Chief Justice think it means, and why
is instantaneous triple talaq “moral”? There are no answers.

The other preliminary phrase in Article 25(1) is “subject to… the other provisions of this Part” (that is, Part
III). The Chief Justice held that this is also inapplicable, because Articles 14, 15 and 21 – which triple talaq
potentially violates – are only applicable to State action against individuals, and not to private violations
of rights (paragraph 165). However, not only does this argument go against the Supreme Court’s recent
liquor ban judgment, which the Chief Justice himself signed on to, and which held that Article 21 places an
affirmative obligation upon the State to protect fundamental rights – but it also ignores the fact that
triple talaq is only legally effective because it is sanctioned by the Courts. Triple talaq does not operate in
some parallel, extra-legal domain; rather, it is not only recognised (as an aspect of personal law) by the
State, but it can also be enforced through the courts. Therefore, the State involvement is inextricable.

Lastly, the Chief Justice addressed an argument that instantaneous triple talaq violates principles of
constitutional morality, which he rejected by reiterating the proposition that personal laws themselves
are a part of fundamental rights, and ending with this paragraph:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach,
over a practice which constitutes an integral part of religion. The Constitution allows the followers of
every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all
faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they
may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and
age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the
followers. It is this religious consciousness, which binds believers into separate entities. The Constitution
endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.”
(paragraph 193)

It is a particularly stark irony that Chief Justice needed to replace the word “persons” (which is what
Article 25(1) says) with the word “entities”, in order to sustain this unsustainable conclusion.

Haji Ali Dargah: Bombay High Court Upholds Women’s Right to Access the Inner Sanctum

In an important judgment delivered today, the Bombay High Court upheld the right of women to access
the inner sanctum of the Haji Ali Dargah, and also held that, consequently, the Haji Ali Dargah Trust’s
decision to exclude them was illegal and unconstitutional.

The Court then turned to the arguments under Article 25 (freedom of religion), and Article 26(b) of the
Constitution – namely, that every religious denomination, or section, had the right to mange its own
affairs in matters of religion. On Article 25, relying upon the long-standing religious freedom
jurisprudence of the Supreme Court, the Court first invoked the “essential religious practices test” – i.e.,
was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam?
According to the Court, the test for an “essential practice” was that it must “constitute the very essence of
that religion, and should be such, that if permitted, it will change its fundamental character” (paragraph
29). This being the case, the Court found that the Trust had failed to demonstrate that Islam did not
permit the entry of women into Dargahs/Mosques, a claim that was further weakened, given that women
had been allowed entry up until 2011 – 2012 (paragraph 31). Of course, the Trust argued that it was only
after 2011 that its attention had been drawn to what the Sharia actually required; to this, the Court’s swift
response was that the Trust had placed nothing on record to show what specific aspects of the Sharia had
been drawn to the Trust’s attention that changed the position so drastically (paragraph 31).

The Court then turned to Article 26(b), which guaranteed to religious denominations the right to manage
their own affairs in matters of religion. The Court first went into the history of the Trust itself, and its
operations. It noted that the Haji Ali Dargah stood on public land, leased to the Trust by the Government;
a scheme for managing the Trust was drawn up by a government-appointed commissioner in 1936; the
role of the Trustees was to prepare books of account, conduct business, maintain the properties, and so on
(paragraph 33). This enquiry was important, because under the Supreme Court’s Article 26(b)
jurisprudence, especially insofar as it concerns the rights of trusts or maths, a distinction must be drawn
between religious activities on the one hand, and secular activities bearing the trappings of religion on the
other (unlike the essential practices test, this distinction is actually grounded in the Constitutional text –
for instance, Article 25(2)(a), which permits State intervention into secular aspects of religious practice

“Admittedly, the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world,
irrespective of their caste, creed or sex, etc. Once apublic character is attached to a place of worship, all
the rigors of Articles 14, 15 and 25 would come into play and the respondent No. 2 Trust cannot justify its
decision solely based on a misreading of Article 26. The respondent No. 2 Trust has no right to
discriminate entry of women into a public place of worship under the guise of `managing the affairs of
religion’ under Article 26 and as such, the State will have to ensure protection of rights of all its citizens
guaranteed under Part III of the Constitution, including Articles 14 and 15, to protect against
discrimination based on gender.” (paragraph 36)

In other words, the Dargah’s public character took it out of the protective scope of Article 26(b), and made
it subject to Articles 14, 15 and 25 of the Constitution. This is a fascinating point, especially given the long
history of temple-entry movements in India. Ever since the time of Ambedkar, temple-entry movements
have framed the basic question as being about access to public spaces, a right that could not be curtailed
on grounds of caste etc. In this case, the form of the Trust – as well as the fact that the Dargah was “open”
to all – allowed the Court to hold that the question of access was of a “public” character, and therefore,
impliedly, outside Article 26(b).

The Court then went on to hold, however, that even if it was attracted, Article 26(b) could not override
other constitutional provisions:

“Infact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26
cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution.”
(paragraph 36)

Let us now summarise the structure of the judgment:

1. The Haji Ali Dargah Trust justified the exclusion of women from the inner sanctum on the basis of
the freedom of religion (Article 25(1)), and the right of religious denominations to manage their
own affairs in the matters of religion (Article 26(b).
2. The Court rejected the Article 25(1) argument on the basis that the Trust had failed to place any
material on record to demonstrate that the exclusion of women from dargahs was an “essential
feature” of Islam. The Dargah’s claims were thrown further into doubt by the fact that women had
been accessing the sanctum up until 2011 – 12.
3. The Court rejected the Article 26(b) argument on the basis that:

1. The Scheme of the Dargah Trust did not allow it to adjudicate upon religious matters.
Hence, Article 26(b) was not attracted.
2. The Dargah Trust was a public charitable trust, and the Dargah was a public space open to
all. Hence, Article 26(b) was not attracted.
3. Even if Article 26(b) was attracted, it was overriden by Articles 14, 15 and 25(1)

4. The exclusion of women from the inner sanctum of the Dargah violated their rights under Articles
14 (equality), 15(1) (non-discrimination) and 25(1) (freedom of religion).
5. Consequently, insofar as the Dargah Trust was impeding the women’s enjoyment of their
fundamental rights, they were entitled to call upon the State to perform its positive obligations
under Part III of the Constitution, and vindicate their rights by taking appropriate enforcement-
oriented action.
in Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461, the Supreme Court had found that
religious scriptures are in the nature of personal law and their validity is ordinarily protected by Articles
25 and 26.

Article 27 Freedom as to payment of Taxes for the Promotion of any Particular

Religion
According to this Article no person shall be compelled to pay any taxes, the proceeds of which are
specifically appropriated in payment of expenses for the promotion and maintenance of any particular
religion or religious denomination.

Suresh Chandra v. Union of India, AIR 1975 Del the Delhi High Court uphold the constitutional validity of
the State assistance to the celebrations associated with the 2500th anniversary of the attainment of
salvation by Mahavira, the founder of Jainism. The Court said that the assistance of the State on an
occasion like this neither amounted to State giving support to Jainism nor infringed on article 27 of the
Constitution.
Article 28 Freedom as to attendance at religious instruction or religious worship
in certain educational institutions
As per Article 28 (1) no religious education is to be provided in any educational institution which is wholly
maintained out of the State funds.
Under Article 28(2), this restriction would not apply to an educational institution which, through
administered by the State has been established under an endowment or trust requiring that religious
instruction should be imparted in such an institution. In State recognized educational institution, religious
education can be imparted on a voluntary basis.
As per Article 28(3) no person attending an educational institution recognized by the State or receiving aid
from the State funds can be required to participate in any religious instruction imparted in the institution,
or to attend any religious worship conducted in the institution or any premises attached thereto unless he
consents to do voluntarily, or if a minor, if guardian gives his consent for the same.
D.V.A College, Julandhar V. State of Punjab206 saying that the provisioned not imply that religious
instruction would be given. A provision for an academic study of, and research in, the life and teaching or
the philosophy and culture of any great saint of India in relation to, or their impact on, the Indian and world
civilization could not be considered as providing for religious instruction. The court stated that religious
instruction is that ; which is imparted for inculcating the tenent, the ritual, the observance, ceremonies and
mode of worship of a particular sector denomination'
In Aruna Roy V, Union of India,207 the Supreme Court has ruled recently that article 28 does not ban a
study of religious. The whole emphasis of Art, 28 is "against imparting religious instruction" .There is no
prohibition on ' Study of religious philosophy and culture, particularly for having value based social life in a
society which is degenerating for power, post or property'.
PROTECTION OF MINORITIES Cultural and Educational Rights are guaranteed by Articles
29 and 30
Protection of Interest of Minorities (Article-29):
Article-29 (1) gives protection to every section of the citizens having a distinct language, script or culture by
guaranteeing their right to conserve the same. If such sections desire to preserve their own language, script
and culture, the state would not stand in their way.
In D. A.V College Jullunder v State of Punjab’s case104, it was held that were a legal provision required the
Guru Nanak University to promote studies and research in Punjabi language and literature, and to undertake
measures for the development of Punjabi language, literature and culture, did not infringe Article 29(1). The
Supreme Court had emphasized that the purpose and object of the linguistic States, which has come to stay
in India, is to provide greater facility for the development of the people of the area educationally, socially
and culturally in the regional language. The concern State or the University has every right to provide for the
education of the majority in the regional medium.
Clause (2) relates to admission into educational institutions, which are maintained or aided by state funds.
It provides that no citizen shall be denied admission in such institutions on grounds only of religion, race,
caste, language or any of them.
In Ravneet Kaur v Christian Medical College, Ludhiana’s Case,106 the Court held that a private institution
receiving aid from the State cannot discriminate on grounds of religion, caste, race language or any of them.

State of Bombay vs. Bombay Educational Society, AIR 1954 SC. , the State Government passed an Order that Anglo-
Indians could maintain their schools and teach in English but only to Anglo-Indian students. If they
admitted other Indians they would forfeit their aid unless they switched to Hindi as the medium of
instruction. The Order was struck down as unconstitutional and void on the ground that an MEI has the
right to admit students of its choice, even if it receives government aid.
The benefit of article 29(2) is not confined only to minority groups but extends to all citizens whether
belonging to majority or minority groups in the matter of admission to the educational institution maintained
or aided by the state. Article 29 (2) is broad and unqualified. It confers the special right on all citizens for
admission into the State maintained or aided educational institutions., to limit this right only to minority
groups will amount to holding that the citizens of the majority groups have no right to be admitted into an
educational institution for the maintenance of which they contribute by way of taxes.

The right to admission into an educational institution is a right, which an individual citizen has as a citizen
and not as a member of any community or class of citizens. A school run by a minority, if it is aided by state
funds, cannot refuse admission to children belonging to other communities. But a minority community may
reserve up to 50% seats for the members of its own community in an educational institution established and
administrated by it even if the institution is getting aid from the state.

Art 15 also prohibits discrimination on basis of religion like art 29(2) but some differences are -

Article-15 prohibits discrimination on the basis of religion etc.

Article-15 (1) protects all citizens against the state whereas the protection of Article-29 (2) extends to the
state or anybody who denies the right conferred by it.

Article-15 protects all citizens against discrimination generally but Article-29 (2) is a protection against a
particular species of wrong, namely, "denial of admission into educational institutions maintained or aided
by the state."
The specific grounds on which discrimination is prohibited are not the same in the two articles. Place of
birth, and sex do no occur in Article-29 (2) while 'language' is not mentioned in Article-15.
Right of minorities to establish and administer educational institutions (Article-30):
Article-30 (1) gives all minorities, whether based on religion or language, the right to establish and to
administer educational institutional of their choice.

Article-30 (2) provides that the state shall not, in granting aid to educational institutions, discriminate
against any educational institution on the ground that it is under the management of a minority, whether
based on religion or language.
Relation between Article 29 and 30
The Supreme Court has consistently held that the right to establish and administer an educational
institution under Article 30(1) is not confined only to purpose specified under Article 29(1). Though an
educational institution may serve as a means for conserving script, language and culture as mentioned in
Article 29(1), but Article 30(1) enables the religious and linguistic minority to establish an institution which
may have no concern with the object of conserving its script, language or culture.
The words “of their choice’ occurring in the Article 30(1) does not put any limitation on any particular type
of educational institution and includes the right to impart general secular education also for enriching the
children of minorities intellectually, morally and financially and enabling them to face the realities of life.
The Court in Rev. Father Proost v State of Bihar126 said that the width of Article 30 could not be cut down
by introducing any consideration on which Article 29(1) is based. Article 29(1) is a general protection given
to sections of citizens to conserve their language, script or culture. Article 30(1) is a special right to
minorities to establish educational institutions of their choice. This Court said that the two Articles create
two separate rights though it is possible that the rights might meet in a given case.
A.N. Ray, C.J. in St Xavier’s Case127 held that under Article 30(1) minority is not restricted to
establish and administer educational institutions of their choice only to cases where such institutions are
concerned with language, script or culture of the minorities. They reasons cited by him were
First, Article 29(1) confers the fundamental right on any section of the citizens which will include the
majority section whereas Article 30(1) confers the right on all minorities.
Second, Article 29(1) is concerned with language, script or culture, whereas Article 30(1) deals with
minorities of the nation based on religion or language.
Third, Article 29(1) is concerned with the right to conserve language, script or culture, whereas Article 30(1)
deals with the right to establish and administer educational institutions of the minorities of their choice.
Fourth, the conservation of language, script or culture under Article 29(1) may be by means wholly
unconnected with educational institutions and similarly establishment and administration of educational
institutions by a minority under Article 30(1) may be unconnected with any motive to conserve language,
script or culture. A minority may administer an institution for religious education which is wholly
unconnected with any question of conserving a language, script or culture.
All nine judges were unanimous in their opinion that Articles 29(1) and 30(1) deal with distinct matters and
may be considered supplementing each other so far as certain cultural rights of minorities are concerned.
Effect of incorporation/ recognition on the Status of Minority Institutions.
Referring to the Aligarh Muslim University case206 decided in 1968, H.M. Seervai remarked that “This is
the first case in which the Supreme Court has departed from the broad spirit in which it had decided cases
on Cultural and Educational rights of minorities which was reflected in the words of Das C. J.”. The “first
case” was followed by not a few in which the court whittled down Article 30. In the Aligarh Muslim
University’s case, it ruled, incredibly, that “The University was not established by Muslims”.
Stephen’s Decision based on ‘Melting Pot’ theory
Judges at times have based their decision on theories than on Law. In Stephan’s Case AIR 1992 SC the court
held that under Article 30(1), the Minority aided Educational institutions are entitled to prefer their
community candidates to maintain the minority character of their institutions subject to, of course, in
conformity with the University standards. The State may regulate the intake, with due regards to the need
of the community in the area which the institute is intended to serve. But in no case shall exceed 50 percent
of the annual admission to the members of the communities other then the minority community. The
admission of other community candidates shall be done purely on the basis of merit
Minority’s right to Establish and Administer Educational Institution as fundamental right
Article 30(1) of the Constitution of India gives linguistic and religious minorities a fundamental right to
establish and administer educational institutions of their choice. These rights are protected by a prohibition
against their violation. The prohibition is contained in Article 13 of the Constitution which declares that any
law in breach of the fundamental rights would be void to the extent of such violation. It is well-settled that
Article 30(1) cannot be read in a narrow and pedantic sense and being a fundamental right, it should be
given its widest amplitude. The width of Article 30(1) cannot be cut down by introducing in it
considerations which are destructive to the substance of the right enshrined therein.
Minorities have a Right to Establish –
The Supreme Court has pointed out in Ahmedabad St. Xavier’s College v State of Gujarat AIR 1974 SC that
the spirit behind article 30(1) is the conscience of the nation that the minorities, religious as well as
linguistic, are not prohibited from establishing and administering educational institutions of their choice
for the purpose of giving their children the best general education to make them complete men and women
of the country.
There have been instances when Minority Community wanted to start a school in a certain locality but the
State disallowed it. Such issue came up before the full bench of Kerala High Court in Fr Mathew MC Vicar v
State of Kerala AIR 1978 KER. Kerala Education Rules prescribe the procedures for determining the areas
where new schools were to be opened. The Petitioner wanted to start an educational school in a particular
area since it did not have a Catholic school but as per the rules no schools could be opened till the Director
of Education gave a report indicating the areas where schools can be opened. The Petitioner claimed
infringement of minority rights under Article 30 (1) and went to Court. Supporting the government decision
the Court observed "Regulation of the right, in time as well as space, must, it appears be permissible".
A different approach was adopted by the Karnataka High Court in Socio Legal Advancement Society vs.
State of Karnataka AIR 1989 KAR where a society founded for the benefit of the Malayali minority
community has been denied the recognition of a Teachers Training Institute established by the Society. The
State felt that allowing another institute would lead to unhealthy competition and bring about a dilution of
the Teachers Training Programme. The Court held that a minority institute could not be stopped from
establishing such an educational institution.
Even a single member of minority community may establish an Educational Institution for
the benefit of the community.
In, State of Kerala v Mother Provincial AIR 1970 SC, Supreme Court has clarified the position that a
Society or Trust consisting of members of a minority community, or even a single member of minority
community, may establish an educational institution.
The Supreme Court observed, “Establishment means bringing into being of an institution and it must be by
a minority community. It matters not if a single philanthropic individual with his own means, institution or
the community at large founds the institution or the community at large contributes the funds. The position
in law is the same and the intention in either case must be to found an institution for the benefit of a
minority community by a member of that community. It is equally irrelevant to this right that in addition to
the minority community, others from other minority communities or even from the majority community
can take advantage of these institutions.
Minorities right to Administer. Power of Government to regulate minority institutions
The right of religious and linguistic minorities to administer educational institutions of their choice, though
couched in absolute terms, is not free from regulations because it is necessary that even the minority
institutions must be subjected to some administrative control without impairing their identity or
independence as minority institutions. For the application of this right, minority institutions are divided
into three classes:

a) Institutions which neither seek aid nor recognition from state;

b) Institutions that seek aid from the state; and

c) Institutions which seek recognition but not aid.

While the institutions which neither seek aid nor recognition from the State cannot be subjected to any
regulation except those emanating from the general laws of the land such as labour, contract or tax laws.
The institutions that seek recognition only and not aid could be subjected to regulations or restrictions
pertaining to the academic standards and better administration of the institution in the interest of that
institution itself. Regulations and restriction for any other purpose are not permissible.
It can be said that a minority can preserve language, script, culture through the educational institution .But
the right to minority education doesn’t indicate real teaching but general secular education. Generally
establish means coming into existence of an educational institution by the minority and administer means
day to day administration of the institution. The power of administration has many facets like appointment
of teachers, admission of the students, choice to determination of language of educational institution etc.
The observation of the Supreme Court in Re Kerala Education Bill that, “the right conferred minorities to
administer educational institution of their choice is not an absolute right‟
Conditions for State Regulations
The state can make reasonable regulations for minority institutions, but it must respect certain
conditions. In this regard, the 11-Judge verdict approved and upheld in 2002 the dual test already
Minority Rights & Educational Institutions 5 6 Integral Liberation Vol. 9, No. 1 March 2005 laid down in
the Sidhajbhai’s and St. Xavier’s cases: “Recognising that the right to administer educational institutions
could not include the right to maladminister, it was held that regulations could be lawfully imposed for the
receiving of grants and recognition, while permitting the institution to retain its character as a minority
institution. The regulation ‘must satisfy a dual test, the test of reasonableness, and the test that it is
regulative of the educational character of the institution and is conducive to making the institution an
effective vehicle of education’...
The selection and appointment of teachers for an educational institution was regarded as one of the
essential ingredients under Article 30(1).13 This is applicable even in Aided Schools.
The provision of Article 30(1) does not however mean that the State can impose no regulations on the
minority institutions. In the Kerala Education Bill AIR 1958 SC, the Supreme Court has observed: “The
right conferred on the religious and linguistic minorities to administer educational institutions of their
choice is not an absolute right”. It has to be read with regulatory power of the State. Regulations which do
not affect the substance of the guaranteed rights, but ensure the excellence of the institutions and its proper
functioning in educational matters, are permissible.
Rights though protected by the Constitution have been a bone of contention since the commencement of the
Constitution. The cases on Minority Rights, from the State of Madras v S. Srimati Champakam
Dorairaj(1959)1SC (1951) to P. A. Inamdar v State of Maharashtra (2005) the issues questioned are almost
the same. The issues are regarding
a. Government grants, Affiliation or Recognition

b. Conditions for Grants, Affiliation and Recognition

c. Composition of Managing Bodies

d. Appointment of teachers

e. Disciplinary Action against the Staff and Salary of Teachers

f. Admission of students and fee structure

g. Medium of Instruction

(a) Government Grants, Affiliation or Recognition

In Managing Board, M.T.M v. State of Bihar AIR 1984 SC, the Supreme Court has emphasized that the
right to establish educational institutions of their choice must mean the right to establish real institutions
which will effectively serve the needs of their community and the scholars who resort to them. Clarifying the
position as regards the question of affiliation of, or grant to, minority institutions, the Court observed:
“There is, no doubt, no such thing as Fundamental Right to recognition by the State but to deny recognition
to the educational institutions except upon terms tantamount to the surrender of their Constitutional right
of administration of the educational institutions of their choice is in truth and in effect to deprive them of
their rights under Article 30(1). The legislative power is subject to the Fundamental Rights and the
legislature cannot indirectly take away or abridge the Fundamental Rights which it could not do directly.”
Do Minorities also have a fundamental right to claim affiliation, recognition and aid from
the University or Government?
Article 30 (2) is very categorical," The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it was under the management of a
minority, whether based on religion or language". On recognitions or affiliation though regulatory measures
can be imposed they cannot be such to erode the core of minority rights.
The issue of recognition came up for discussion before the Supreme Court in Sidhrajbhai’s Case AIR 1963
SC. The State argued that recognition was not a fundamental right. The Court said this was true but
"manifestly, in the absence of recognition by the government, teachers’ training in the college will have little
practical utility".
In All Saints High Schools Case 1980 2 SCC the Supreme Court observed “Although Article 30 does not
speak of the conditions under which minority educational institution can be affiliated to a College or
University yet the Article by its very nature implies that when an affiliation is asked for, the University
cannot be refused without sufficient reason or try to impose such conditions as would completely destroy
the autonomous administration of the institution".
It has been held by a Constitutional Bench of the Supreme Court in St. Xavier’s College, Ahmedabad v
State of Gujarat 1974 (1) SCC that “Affiliation must be a real and meaningful exercise of right for minority
institutions in the matter of imparting general secular education. Any law which provides for affiliation on
terms which will involve abridgment of the right of linguistic and religious minorities to administer and
establish educational institutions of their choice will offend Article 30(1): The educational institutions set
up by minorities will be robbed of their utility if boys and girls cannot be trained in such institutions for
University degrees. Minorities will virtually lose their right to equip their children for ordinary careers if
affiliation be on terms which would make them surrender and lose their rights to establish and administer
educational institutions of their choice under Article 30. The primary purpose of affiliation is that the
students studying in the minority institutions will have qualifications in the shape of degrees necessary for a
useful career in life. The establishment of a minority institution is not only ineffective but also unreal unless
such institution is affiliated to a University for the purpose of conferment of degrees on students.”
It has been held in T.M.A. Pai foundation Case v State of Karnataka (2002) 8 SCC that affiliation and
recognition has to be available to every institution that fulfils the conditions for grant of such affiliation and
recognition. The right of the minorities to establish and administer educational institutions of their choice
under Article 30(1) of the Constitution is subject to the regulatory power of the State for maintaining and
facilitating the excellence of the standard of education. Reference may, in this connection be made to
following observations of their lordships in the clarifying the Apex court verdict in T. M. A. Pai’s case, in
judgment rendered by a Constitutional Bench of the Supreme Court in P.A. Inamdar vs. State of
Maharashtra (2005) 6 SCC “Affiliation or recognition by the State or the Board or the University
competent to do so, cannot be denied solely on the ground that the institution is a minority educational
institution. However, the urge or need for affiliation or recognition brings in the concept of regulation by
way of laying down conditions consistent with the requirement of ensuring merit, excellence of education
and preventing maladministration. For example, provisions can be made indicating the quality of the
teachers by prescribing the minimum qualifications that they must possess and the courses of studies and
curricula. The existence of infrastructure sufficient for its growth can be stipulated as a prerequisite to the
grant of recognition or affiliation. However, there cannot be interference in the day-to-day administration.
The essential ingredients of the management, including admission of students, recruiting of staff and the
quantum of fee to be charged, cannot be regulated.
Apart from the generalized position of law that the right to administer does not include the right to mal
administer an additional source of power to regulate by enacting conditions accompanying affiliation or
recognition exists. A balance has to be struck between the two objectives:
i) To ensure the standard of excellence of the institution, and

ii) To preserving the right of the minority to establish and administer its educational Institution of
their choice.

Subject to a reconciliation of the above two objectives, any regulation accompanying affiliation or
recognition must satisfy the triple tests:
i) The test of reasonableness and rationality,

ii) The test that the regulation would be conducive to making the institution an effective vehicle of
education for the minority community or other persons who resort to it, and

iii) The test that there is no inroad into the protection conferred by Article 30(1) of the Constitution,
that is by framing the regulations the essential character of the institution being a minority educational
institution, is not taken away.

A minority educational institution seeking recognition or affiliation must fulfill the statutory requirements
concerning the academic excellence, the minimum qualifications of eligibility prescribed by the statutory
authorities for Head Master, Principal, teachers, lecturers and the courses of studies and curriculum. It
must have sufficient infrastructural and instructional facilities as well as financial resources for its growth.
No condition should be imposed for grant of recognition or affiliation, which would, in truth and in effect,
infringe the right guaranteed under Article 30(1) of the Constitution or impinge upon the minority
character of the institution concerned. If an utter surrender of the right guaranteed under Article 30(1) is
made a condition of recognition or affiliation, the denial of recognition or affiliation would be violative of
Article 30(1).
(b) Conditions for Grants, Affiliation and Recognition
What conditions can be imposed on these institutions as a requisite to giving grants, or according affiliation
or recognition to them? This has proved to be a complex and controversial problem. These conditions may
be of two kinds. One type of conditions may relate to such matter as syllabi, curriculum, courses, minimum
qualifications of teachers, their age of superannuation, library, conditions concerning sanitary, health and
hygiene of students, etc. The underlying purpose of such conditions is to promote educational standards
and uniformity and help the institutions concerned achieve efficiency and excellence and are imposed not
only in the interest of general secular education but also are necessary to maintain the educational
character and content of minority institutions. Such conditions cannot be regarded as violative of Article
30(1) and therefore, it is mandatory to be followed by all educational institutions. A right to administer
cannot be a right to mal administer. The matter has been succinctly explained by the Supreme Court in re
Kerala Education Bill (2005) 6 SCC: “The right to administer cannot obviously include the right to mal
administer. The minority cannot surely ask for aid or recognition for an educational institution run by them
in unhealthy surroundings. Without any competent teachers possessing any semblance of qualification, and
which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare
of the scholars. It stands to reason, then, that the Constitutional right to administer an educational
institution of their choice does not necessarily militate against the claim of the state to insist that in order to
grant aid the state may prescribe reasonable regulations to ensure the excellence of the institutions to be
aided…. Reasonable regulations may certainly be imposed by the state as a condition for aid or even for
recognition.”
c) Composition of Managing Bodies
The Gujarat University Act provided that the governing body of every college must include amongst its
members a representative of the University nominated by the Vice-Chancellor, representatives of teaching
and non-teaching staff and of the college students. In, St. Xavier’s College Case, the Supreme Court
declared the provision as non-applicable to minority institutions because it displaced the management and
entrusted it to a different agency; autonomy in administration was lost and new elements in the shape of
representatives of different types were brought in. The court emphasized that while the University could
take steps to cure maladministration in a college, the choice of personnel of management was a part of
administration which could not be interfered with.
d) Appointment of Teachers
in St. Xavier’ case thus: “It is upon the principal and teachers of a college that the tone and temper of an
educational institution depend. On them would depend its reputation, the maintenance of discipline and its
efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers
appointed by the management after an overall assessment of their outlook and philosophy is perhaps the
most important facet of the right to administer an educational institution. So long as the persons chosen
have the qualifications prescribed by the University, the choice must be left to the management. That is part
of the fundamental right of the minorities to administer the educational institution established by them.”
The aforesaid proposition of law enunciated in St. Xavier has been approved by the Supreme Court in
T.M.A. Pai Foundation’s Case. The State has the power to regulate the affairs of the minority educational
institution also in the interest of discipline and academic excellence. But in that process the aforesaid right
of the management cannot be taken away even if the Government is giving hundred percent grants. The fact
that the post of the Teacher, Headmaster, Principal is also covered by the State aid will make no difference.
It has been held by the Supreme Court in Secretary, Malankara Syrian Catholic College v T. Jose 2007
AIR SCW that even if the institution is aided, there can be no interference with the said right. Subject to the
eligibility conditions, qualifications prescribed by the State or Regulating Authority being met, the minority
educational institution will have the freedom to appoint Teachers, Lecturers, Headmasters, Principals by
adopting any rational procedure of selection. The imposing of any trammel thereon except to the extent of
prescribing the requisite qualifications and experience or otherwise fostering the interests of the institution
itself cannot but be considered as a violation of the right guaranteed under Article 30(1) of the Constitution.
e) Disciplinary Action against the Staff and Salary of Teachers
in All Saints High School, Hyderabad vs. State of Andhra Pradesh 1980 (2) SCC, a provision contained in
Andhra Pradesh Private Educational institution Control Act, 1995 requiring prior approval of the competent
authority of all orders of dismissal, removal or reduction in rank passed against a teacher by management
of the college was held to be inapplicable to a minority institution.
In Brahmo Samaj Education Society vs. State of West Bengal (2004) 6 SCC the Supreme Court has held
that “the State Government shall take note of the declarations of law made by this Court in this regard and
make suitable amendments to their laws, rules and regulations to bring them in conformity with the
principles set out therein.
(f) Admission of Students and Fee structure
In the St. Stephen’s College v. University of Delhi AIR 1992 SC, the Court ruled out that college was
established and administered by a minority community, viz., the Christian community which is
indisputably a religious minority in India as well as in the union territory of Delhi where the college is
located and hence enjoys the status of a minority institution. On the question of admission of students of
the concerned minority community, the Court has ruled that, according to Article 30(1), the minorities
whether based on religion or language have the right “to establish and administer” educational institutions
of their choice and the right to select students for admission is a part of administration. On this point, the
Court has observed: “It is indeed an important facet of administration. This power also could be regulated
but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of
the minority institution or for the betterment of those who resort to it.”
Policy for Reservation in Minority Educational Institutions
The policy of reservation can neither be enforced by the State nor any quota or percentage of admissions
can be carved out to be appropriated by the State in a minority educational institution. Minority institutions
are free to admit students of their own choice including students of non minority community as also
members of their own community from other States, both to a limited extent only and not in a manner and
to such an extent that their minority educational institution status is lost. If they do so, they lose the
protection of Article 30(1).”
In Society for Unaided Private Schools of Rajasthan v. Union of India[AIR 2012 SC]-The court
has taken a view that the Right of children to Compulsory Education Act, 2009 will not apply to unaided
minority schools but will apply to aided minority schools.
The 2009 Act was amended by the Right of Children to Free And Compulsory Education (Amendment) Act,
2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that subject to the provisions of Articles
29 and 30 of the Constitution, the provisions of the 2009 Act shall apply to conferment of rights on children
to free and compulsory education. So, 2009 Act will not apply to unaided minority schools but will apply to
aided minority schools.
It has been held by the Supreme Court in Case of P.A. Inamdar Vs. State of Maharashtra [2006 (6) SCC
537] that:

1. The policy of reservation in admission cannot be made applicable to a minority institution.

2. The policy of reservation in employment cannot be made applicable to a minority institution.

In the case of P.A. Inamdar one of the questions framed for being answered was whether private unaided
professional colleges are entitled to admit students by evolving their own matter of admission procedure.
While answering the question their Lordships have observed as under: - “So far as the minority unaided
institutions are concerned to admit students being one of the components of “the right to establish and
administer an institution”, the State cannot interfere therewith. Up to the level of undergraduate education,
the minority unaided educational institutions enjoy total freedom.”
However, different considerations would apply for graduate and postgraduate level of education, as also for
technical and professional educational institutions. Such education cannot be imparted by any institution
unless recognised by or affiliated with any competent authority created by law, such as a university, Board,
Central or State Government or the like. Excellence in education and maintenance of high standards at this
level are a must. To fulfil these objectives, the State can and rather must, in national interest, step in.
The education, knowledge and learning at this level possessed by individuals collectively constitute national
wealth.
T.M.A. Pai Foundation Case (2002) 8 SCC has already held that the minority status of educational
institutions is to be determined by treating the States as units. Students of that community residing in other
States where they are not in minority, shall not be considered to be minority in that particular State and
hence their admission would be at par with other non-minority students of that State. Such admissions will
be only to a limited extent that is like a “sprinkling” of such admissions, the term used is borrowed from
Kerala Education Bill, 1957. In minority educational institutions, aided or unaided, admissions shall be at
the State level. Transparency and merit shall have to be assured.

Article 15(5) of the Constitution of India exempts an educational institution covered under Article 30(1)
from the policy of reservation in admission. That being so, provisions of the Central Educational
Institutions (Reservation in Admission) Act, 2006 cannot be made applicable to an educational institution
covered under Article 30(1). Moreover, P.A. Inamdar236 is an authority on proposition of law that neither
can the policy of reservation be enforced by the State nor can any quota or percentage of admission be
carved out to be appropriated by the State in a minority educational institution.
Medium of Instruction
The right of a minority to establish and administer educational institutions of its choice also carries with it
the right to impart instruction to its children in its own language. The result of reading Article 29(1) and
30(1) together is that the minority has the choice of medium of instruction and the power of the state to
determine the medium of instruction has, therefore, to yield ground, to the extent it is necessary to give
effect to this minority right. The most significant case on this point is the D.A.V College, Bhatinada v. State
of Punjab AIR 1971 SC. By a notification, the Punjab Government compulsorily affiliated certain colleges to
the Punjab University which prescribed Punjabi in the Gurumukhi script as the sole and exclusive medium
of instruction and examination for certain courses. The Supreme Court declared that it violated the right of
the Arya Samajists to use their own script in the colleges run by them and compulsorily affiliated to the
University.
A particular State can validly take a policy decision to compulsorily teach its regional language English
Medium Students Parent Association v State of Karnataka[ (1994) 1 SCC. The State Government
takes the policy decision keeping in view the larger interest of the State, because the official and common
businesses are carried on in that State in the regional language. A proper understanding of the regional
language is necessary for easily carrying out the day to day affairs of the people living in that particular
State and also for proper carrying out of daily administration.
In Associated Managements of (Government Recognised Unaided English Medium) Primary and
Secondary Schools in Karnataka (KAMS) vs. State of Karnataka & Ors 2008 K. L. J. a Full Bench of the
Karnataka High Court has declared that the right to choose medium of instruction of their choice is a
fundamental right guaranteed under Articles 19(1) (a) (g), 21, 26, 29(1) and 30(1) of the Constitution. The
Full Bench has also held that
“(i) it is a fundamental right of the parent and child to choose the medium of instruction even in primary
school. The police power of the State to determine the medium of instruction must yield to the fundamental
right of the parent and the child and that
(ii) the Government policy compelling children studying in Government recognised schools to have primary
education in the mother tongue or the regional language is violative of Articles 19(1) (g), 26 and 30 (1) of the
Constitution.
Are the rights under Article 30 (1) absolute?
The Supreme Court has repeatedly held that Article 30 is subject to regulatory measures. In the re Kerala
Education Bill AIR 1958 SC the Supreme Court said, "The right to administer cannot obviously include the
right to mal administer".
In Sidhrajbhai’s Case AIR 1963 SC the Court laid down a very important proposition. It observed that,
though the State has a right to impose regulatory measures, this right has to be exercised in the interest of
the institution and not on the grounds of public interest or national interest. "If every regulatory order
which while maintaining the formal character of a minority institution destroys the power of administration
is held justifiable because it is in national or public interest, though not in its interest as an educational
institution the right guaranteed under Article 30 (1) will be but a teasing illusion, a promise of unreality.
Regulations must be towards making it effective as an educational institution".
In the State of Kerala v Rev Mother Provincial AIR 1970 SC the Supreme Court said "The Right of the State
to regulate education, educational standards and allied matters cannot be denied".
In the case of Nanda Ghosh v Guru Nanak Education Trust AIR 1984 CAL, the Calcutta High Court held
that the Education Board cannot interfere with the management of a minority institution by super ceding
its managing committee and appointing an administrator to take charge of the school and administer it.
Thus it can be said that the Rights of Minorities under Article 30 (1) are not absolute. The State have right
to regulate Minority Educational Institution but regulations must be towards making it effective as an
educational institution
Does an institution lose the advantages of Article 30 (1) if non-minority students are
admitted to it?
The Courts have held that this is not the case. In re Kerala Education Bill Case the Supreme Court
observed: 'The real import of Article 29 (2) and Article 30 (1) seems to us that they clearly contemplate a
minority institution with a sprinkling of outsiders admitted into it'. Minority Institution does not lose its
minority character and cease to be a minority institution by admitting a member of non minority into the
minority institution.
In case of State of Kerala v Rev. Mother Provincial250, the Supreme Court observed: “The first right is the
initial right to establish institutions of the minority's choice. Establishment means bringing into being of an
institution and it must be by a minority community. It is equally irrelevant that in addition to the minority
community others take advantage of these institutions. Such other communities bring in income and they
do not have to be turned away to enjoy protection”.
In St Stephen's College Case251 it was held that, “The minority institutions shall make available at least 50
% of the annual admission to members of communities other then the minority community. The admission
of other community candidates shall be done purely on the basis of merit”
Analysis: Thus the Minority institution does not lose the benefit under Article 30 even if non-minority
students are admitted to it.

Protection to Minority Institutional rights guaranteed through The National Commission for
Minority Educational Act of 2004.
The National Commission for Minority Educational Institutions Act has been enacted to safeguard the
educational rights of the minorities enshrined in Article 30(1) of the Constitution.
State as unit to determine Minority Status
252 It has been held by the Eleven Judges Bench of the Supreme Court in T.M.A. Pai Foundation vs.
State of Karnataka (2002) 8 SCC that a minority, whether linguistic or religious, is determinable only by
reference to demography of the State and not by taking into consideration the population of the country as a
whole. It ruled that as the reorganization of the States in India had been effected on linguistic lines, for the
purpose of determining a minority, the unit would be the State and not the whole of India. Thus, religious
and linguistic minorities, who have been placed on par in Article 30, have to be considered in terms of the
State concerned. Not surprisingly, this issue surfaced again in Bal Patil and another v Union of India and
others AIR 2005 SC and in Anjuman Madarsa Noorul Islam, Dehra Kalan, Ghazipur v State of
Uttar Pradesh Writ petition No 34892 of 2004 decided on 5.4.2007 by single bench of
Allahabad High Court where the judgment is delivered by Justice S. N. Srivastava (2007); these two
judgments have further complicated the question of definition of minorities, as both these judgments relate,
for the most part, to definitional issues. Bal Patil questioned the identity of Jains as a religious minority
while Srivastava J ruled that Muslims, by virtue of their numbers, cannot be considered a minority in Uttar
Pradesh.

Granting of Minority Status Certificate

In, S. K. Patro v State of Bihar, AIR 1970 SC The Court held that there is no bar to the members of other
communities to extend their help to the member of a minority community to establish an educational
institution of its choice.
In, N. Ammad v Emjay High School, (1998) 6 SCC the Court held that, ‘A minority educational institution
continues to be so whether the Government declares it as such or not. When the Government declares an
educational institution as a minority institution, it merely recognizes a factual position that the institution
was established and is being administered by a minority community. The declaration is merely an open
acceptance of the legal character of the institution which must necessarily have existed antecedent to such
declaration.’
State Government not to review earlier order conferring Minority Status on a Minority
Educational Institution
As it has been held by the Madras High Court in T.K.V.T.S.S. Medical Educational & Charitable Trust v
State of Tamil Nadu AIR 2002 Madras that a Minority Status cannot be conferred on a Minority
Educational Institution for particular period to be renewed periodically like a driving license. It is not open
for the State Government to review its earlier order conferring minority status on a minority educational
institution unless it is shown that the institution concerned has suppressed any material fact while passing
the order of conferral of minority status or there is fundamental change of circumstances warranting
cancellation of the earlier order. Reference may, in this connection, be made to the following observations
of their lordships : - “…………….In conclusion, we hold that if any entity is once declared as minority
entitling to the rights envisaged under Article 30(1) of the Constitution of India, unless there is fundamental
change of circumstances or suppression of facts the Government has no power to take away that cherished
constitutional right which is a fundamental right and that too, by an ordinary letter without being preceded
by a fair hearing in conformity with the principles of natural justice.”
In Azeez Basha vs. Union of India AIR 1968 SC a Constitutional Bench of the Supreme Court has held that
the expression “establish and administer” used in Article 30(1) was to be read conjunctively that is to say,
two requirements have to be fulfilled under Article 30(1), namely, that the institution was established by the
community and its administration was vested in the community. The Court held that Aligarh University was
established not only by the Muslims but by the Government of India by virtue of a Statute and therefore is
not a Minority Educational Institution. In S.P. Mittal v Union of India AIR 1983 SC, the Supreme Court has
held that in order to claim the benefit of article 30(1), the community must show; (a) that it is a religious or
linguistic minority, (b) that the institution was established by it. Without specifying these two conditions it
cannot claim the guaranteed rights to administer it.
Government, the University and the Court can investigate and satisfy themselves, whether
the claim of the institute is well founded
In Andhra Pradesh Christian Medical Association vs. Government of Andhra Pradesh AIR 1986 SC, the
Supreme Court has held that the Government, the University and ultimately the Court can go behind the
claim that the institution in question is a minority institution and “to investigate and satisfy itself whether
the claim is well founded or ill founded.”
The Supreme Court has also held that “What is important and what is imperative is that there must be some
real positive index to enable the institution to be identified as an educational institution of the minorities.”
Needless to add here that the right enshrined in Article 30(1) of the Constitution is meant to benefit the
minority by protecting and promoting its interests. There should be a nexus between the institution and the
particular minority to which it claims to belong. The right claimed by a minority community to administer
the educational institutions depends upon the proof of establishment of the institution.
Minority has vast discretion and option in deciding the type of institute which they want to
establish:
It has been held by a Full Bench of the Karnataka High Court in Associated Managements of Primary and
Secondary Schools in Karnataka v State of Karnataka and Ors. 2008 K.L.J that the words of “their choice”
which qualify “Educational institutions” shows the vast discretion and option which minorities have in
selecting the type of the institution which they want to establish.”

Right to Property
The Constitution (44th Amendment) Act 1978 constitute a water shed in the evolution of the Fundamental
Right to property in India. Truly speaking this amendment signifies the demise of the Fundamental Right to
property. Before 1978, there existed mainly two articles to protect private property viz. articles 19(1) (f) and
Both these Constitutional provisions were repealed by this Constitutional Amendment, and, thus, left
private property defenceless against legislative onslaught.
After 1978 in the area of property relations there are only four Constitutional provisions viz. articles 31A,
31B, 31C & 300A. Articles 31A 31B, & 31C although included in the chapter on Fundamental Rights can
hardly be characterised as amounting to Fundamental Rights to property in the real sense, for, these three
Constitutional provisions in effect, do not confer any right, but instead seek to impose drastic restrictions
on the right to property. The purport of these three provisions is to confer immunity on various types of
laws curtailing property rights. Article 30A thus confers some semblance of protection of private property,
but this Constitutional provision does not enjoy the status of a Fundamental Right.

Article 31A - Saving of Laws providing for acquisition of Estates etc.: Article 31A (1) as it stand now after
the 44th Amendment says "notwithstanding anything contained in article 13", no law providing for the
following “shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges
any of the rights conferred by the article 14 or article 19".

 The acquisition by the State of any 'estate' or of any rights therein or the extinguishment or
modification of any such rights; or,
 The taking over of the management of ay property by the State for a limited period either in the
public interest or in order to secure its proper management of the property; or.
 The amalgamation of two or more corporation either in the public interest or in order to secure
proper management of any of the corporation; or
 Extinguishment or modification of any rights of managing agents, secretaries and treasurers or
managing directors, directors or managers of corporation, or of any voting rights of share holders
thereof; or
 The extinguishment or modification of any rights accruing by virtue of any agreement, lease or
license for the purpose of searching for, or winning, any mineral or mineral oil, or the pre mature
termination or cancellation of any such agreement, lease or license.

Law providing for any of the above, is to be deemed to be void on the ground of its inconsistency with article
14 or 19. The protection of article 31A (1) does not apply to a law made by a State Legislature unless it has
been reserved for the President's consideration and has received his assent.
Article 31B provides that the Acts and regulations mentioned in the ninth schedule shall not be deemed to
be void, or ever to have become void, in spite of any adverse judicial pronouncement, on the ground that
they are inconsistent with or that they take away or abridge any of the Fundamental Right. The provision
thus immunizes the various pieces of legislation included in the ninth schedule from an attack on the
ground of their non- conformity with any of the Fundamental Right. No act mentioned in the ninth
schedule can be invalidated on the grounds of its violation of any other Fundamental Rights. Ramnath vs.
Union of India, AIR 1984 SC
Article 31C Saving of Laws giving effect to certain directive Principles: In 1976, article 31C was amended,
its scope further expanded, and it was sought to be made much more drastic, through the 42nd
Amendment. The first part of article 31C now said that no law giving effect to any of the Directive Principle
would be deemed to be void on the ground of its inconsistency with articles 14 and 19. Thus the 42nd
Amendment gave primacy to all the Directive Principles, and not only to articles 39(b) and 39(c) over
articles 14 and 19. The scope of article 31C was thus made much wider than what it was before 1976 when it
referred only to articles 39(b) and 39(c). Now article 31C refers to all the Directive Principles. It will, thus,
be seen that while before 1971 Fundamental Rights had precedence over the Directive Principles, after 1976,
this scenario has undergone a drastic change as all Directive Principles came to have precedence over article
14 and 19. The change was sought to be justified on the ground that the rights of the community must
prevail over the rights of the individual.

The Supreme Court in a number of cases like Minerva Mills case (Minerva Mills Ltd. vs. Union of
India AIR 1980 SC), WamanRao vs. Union of India AIR 1981 SC, Sanjeev Coke Mfg.co., vs.
Bharat Coking Cole Co. Lt. AIR 1983 SC, held that the article 31C which was expanded in its scope by
the 42nd Amendment so as to give primacy to all Directive Principles over article 14 and 19 to be invalid.
But in the property owner's case (Property Owners Association vs. State of Maharashtra (1996) 4
SC) it was argued that the doctrine of revival as it applies to ordinary statutes could not be applied to the
Constitutional Amendment. So the question whether article 31C exists in the Constitution or not, or
whether it died with the Supreme Court decision in Minerva Mills case, is going to be considered by the
Supreme Court only. Accordingly a Bench of five Judges sat in 2001 (Property Owners Association vs.
State of Maharashtra AIR (2001) SC ) to consider the issue, but the Bench suggested that the matter
be referred to a Bench of Judges as one of the points which arose for consideration relates to the
interpretation of article 39(b). The Bench of seven Judges met in 2002 and referred the matter to nine
Judges. Property Owners Association vs. State of Maharashtra 2002 (4) SCALE

Article 300A: Persons not to be deprived of property save by authority of law

44th amendment of the Constitution in 1978 transformed the right to property from the category of
fundamental Rights by repealing article 31, and converted it into an ordinary Constitutional Right by
enacting article 300A instead. Article 300A
merely says: "No person shall be deprived of his property saved by authority of law". The Constitutional
Right to property under article 300A is not a basic feature or structure of Constitution. It is only a
Constitutional Right. JilubhaiNanbhaikhachar vs. State of Gujarat , AIR 1995 SC. Article 300A
ensures that a person cannot be deprived of his property merely by an executive fiat. The rights in property
can be curtailed, abridged or modified by the State only by exercising its legislative power. Without law
there can be deprivation of property. No law, no deprivation of property is the principle underlying article
300A. An executive order depriving a person of his property without being backed by law is not
constitutionally valid. State of Mysore vs. K.C. Audiga, AIR, 1976 SC The very same principle was
invoked in other similar cases also viz. Bishambar Dayal Chandra Mohan, BishambarDayal Chandra
Mohan vs. State of Uttar Pradesh AIR 1982 SC Wazir Chand, Wazir Chand vs. State of
Himachal Pradesh AIR 1954 SC Bishan Das97and Vishnu Narayan and Associates State of West
Bengal vs. Vishnunarayan and Associates, (2002) 4 SCC by the Supreme Court.
The word "law" in article 300 A means a valid law. Such a law will therefore be subject to other provisions
of the Constitution example article 14, 19 (1) (g) and
Ordinarily the word 'law' in article 300A may mean a 'positive' or 'State made law'. e.g., a law made by
Parliament or a State Legislature or a rule, or a statutory order having the force of law. The extended
significance attached to article 14 viz. any unjust law denies equality, an unjust law may be vetoed by the
Court. However it should be underlined that article 21 does not apply to property area. Nevertheless, the
Court can interpret the word law in article 300A in a meaningful sense and not in the sense of merely a
statutory law. For e.g. compulsory transfer of A's property by law to B without any compensation may be
held invalid as an unreasonable or arbitrary law. But this needs judicial creativity of high order, such as that
displayed by the Supreme Court in Menaka Gandhi.99 The Supreme Court in Jilubhai case also ruled that
the law may fix an amount or which may be determined in accordance with such principles as may be laid
therein and given in such manner as may be specified in such law. However, such law shall not be
questioned on the ground that the amount so fixed or amount determined is not adequate. The amount
fixed should not illusory. The principles laid to determine the amount must be relevant to the
determination of that amount. JilubhaiNanbhaiKhachar vs. State of Gujarat AIR 1995 SC

Article 32 Remedies for enforcement of rights Conferred by Part III

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

Authorities amenable to Writ Jurisdiction of Supreme Court

 Government and the Parliament of India, Governments and Legislature of States and Local
Governments

 Government Departmental undertakings

 Agencies incorporated by statute

 Agencies registered under statute such as the Companies Act, Societies Registration Act

 Courts
  Private individuals and bodies

Agencies registered under statute are amenable only if the authorities are instrumentalities or agencies of
the Government.

Court of Law are not mentioned but they do have a chance to pose a threat to fundamental rights. Supreme
Court can interfere in such cases.

Private individuals and bodies are not amenable to this Article and hence are outside the Jurisdiction of
Supreme Court in regard to this Article.

JUDICIAL REVIEW
Judicial Review concept, which evolved in Marbury v. Madison, is armor to check-to-check lawlessness –
legislative as well as executive with a review to serve “legitimacy of power “and administrative
efficiency.[ii] Judicial review is the power by which judiciary aims at activising herself in retaining her
domain of judicial activity over the state inactivity. This judicial activism is a multifortiori as it makes action
popularize not only popular through strategies of PIL vide pro bono public, but a rule of life for the lowly
and lost, little man, deprived, underprivileged, destitute[iii]
Judicial Review In India
As in India so far as the fundamental rights are concern Judicial review is provided explicitly under Article
13 of Indian constitution and for the rest of the constitutional provisions judicial review is implicit under
the writ jurisdiction of the Supreme Court and the high courts given under article 32 and 226 respectively.
Further judicial review is also traceable in the “Doctrine of limited government”.
And the classic examples of above are given in the case His Holiness Kesavananda Bharati
Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: (1973) 4 SCC in which the
Supreme Court passed orders under article 13 of Constitution and the Bhagalpur Blinding caseof 1979-80,
in which the supreme court ordered under Article 32 of Constitution of India.
Origin
In post-independence India, the inclusion of explicit provisions for ‘judicial review’ were necessary in order
to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R.
Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision
related to the same as the ‘heart of the Constitution’. Article 13(2) of the Constitution of India prescribes
that the Union or the States shall not make any law that takes away or abridges any of the fundamental
rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the
contravention, be void.
While judicial review over administrative action has evolved on the lines of common law doctrines such as
‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice, the Supreme
Court of India and the various High Courts were given the power to rule on the constitutionality of
legislative as well as administrative actions. In most cases, the power of judicial review is exercised to
protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are
also approached to rule on questions of legislative competence, mostly in the context of Centre-State
relations since Article 246 of the Constitution read with the 7th Schedule, contemplates a clear demarcation
as well as a zone of intersection between the law-making powers of the Union Parliament and the various
State Legislatures.
Hence the scope of judicial review before Indian courts has evolved in three dimensions –
1) Firstly, to ensure fairness in administrative action
2) Secondly, to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule
on questions of legislative competence between the centre and the states. The power of the Supreme Court
of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens
the right to directly approach the Supreme Court for seeking remedies against the violation of these
fundamental rights.
Scope of Article 32
Article 32 provides a quick and immediate remedy for the enforcement of Fundamental Rights. Any
person may for the violation of any of his Fundamental Rights by an administrative action can go
straight to the Supreme Court, without being required to undergo the dilatory proceedings from the
lower to a higher court as one has to do in any ordinary litigation.
The Supreme Court has thus been constituted, as the protector and guarantor of Fundamental
Rights. Article 32 is itself of a Fundamental Rights and cannot therefore , be diluted or whittled down
by legislation, and can be invoked over when a law declares a particular administrative action as final.
Scope of Article 226 and 227
Writs under Article 226 have to be issued in grave cases where the subordinate tribunal or bodies or officers
act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice or refuse
to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act,
omission, error, or excess has resulted in manifest injustice.[ G.Veerappa Pillai vs. Raman and
Raman Ltd.), AIR 1952 SC] The High Court in its Writ jurisdiction cannot act as a Court of Appeal
against the orders of the State Governments or Union or other authorities.
Difference Between Article 32 and Article 226

1. The rights guaranteed by Article 32 can only be exercised for the enforcement of fundamental rights
only whereas the rights conferred under Article 226 of the constitution can be exercised not only for
the enforcement of fundamental rights but for ‘any other purpose’. The expression ‘and for any other
purpose’ in Article 226 will include the enforcement of ordinary legal right which do not amount to
fundamental rights.[ Jeshingbhai Ishwarlal vs Emperor, Air 1950 Bom] Thus the power
under Article 226 are wider than those under Article 32.
2. The order under Article 32 will Supersede the order passed by the High Court under Article 226 of
the Constitution previously.

An application under Article 226 may always be made first to Supreme Court since Article 32 is itself a
Fundamental Right. It is Substantive right not a mere procedural right. There is no need to resort to High
Court Before Approaching to the Supreme Court under Article 32.

Articles 32 and 226 of the Indian Constitution makes provisions for writs in the
country. Under clause (2) of Article 32 the Supreme Court is empowered to issue
appropriate direction, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition quo warranto and certiorari for the enforcement of any
fundamental rights guaranteed by Art III of the constitution.
Writs, Direction or orders
1) habeas corpus (to direct the release of a person detained unlawfully),
2) mandamus (to direct a public authority to do its duty),
3) quo warranto (to direct a person to vacate an office assumed wrongfully),
4) prohibition (to prohibit a lower court from proceeding on a case) and
5) certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).
(a) Habeas Corpus

It literally means ‘a demand to produce the body’ or ‘you may have the body’ (whether dead or alive). the
issuance of the writ means an order to the detaining authority or person to physically present before the
court the detained person and show the cause of detention so that the court can determine its legality or
otherwise (however, the production of the body of the person alleged to be unlawfully detained is not
essential). If the detention is found to be illegal, the detained person is set free forthwith. Its purpose is not
to punish the wrongdoer but merely to secure the release of the person illegally detained.

Since now, article 21 cannot be suspended even during the proclamation of emergency; this becomes a very
valuable writ for safeguarding the personal liberty of the individual. While the Supreme Court can issue the
writ of habeas corpus only against the state in cases of violation of fundamental rights, the high court can
issue it also against private individuals illegally or arbitrarily detaining any other person.

Writ of habeas corpus can be filed by any person on behalf of the person detained or by the detained person
himself. In Sunil Batra verses Delhi Administration, a letter written by a convict to one of the judges
of the Supreme Court was treated as a writ petition. The court employed this writ for the neglect of state
penal facilities. The writ was also issued when a ban was imposed on the law students to conduct interviews
with prison mates for affording them legal relief.

(b) Mandamus

It is a command to act lawfully and to desist from perpetrating an unlawful act. Where it has a legal right
which casts certain legal obligations on b, a can seek a writ of mandamus directing to perform its legal duty?
Mandamus may lie against any authority, officers, government or even judicial bodies that fail to
or refuse to perform a public duty and discharge a legal obligation.

The Supreme Court may issue a mandamus to enforce the fundamental right of a person when its violation
by some governmental order or act is alleged. The high courts may issue this writ to direct an officer to
exercise his constitutional and legal powers, to compel any person to discharge duties cast on him by the
constitution or the statute, to compel a judicial authority to exercise its jurisdiction and to order the
government not to enforce any unconstitutional law.

mandamus is a judicial remedy in the form of “‘an order’ to do or to forbear from doing some specific act”
which that agency is obliged to do or to refrain from doing under the law and which is in the nature of a
public duty or a statutory duty. It is considered as a residuary remedy of the public law.
It is a general remedy whenever justice has been denied to any person. It may be issued not only to compel
the authority to do something but also to restrain it from doing something. Therefore, it is both negative
and positive and hence can do the work of all other writs. It can be issued on all those counts on
which certiorari and prohibition can be issued.

Mandamus would lie only to enforce a duty which is ‘public’ in nature. There must be a specific demand for
the fulfillment of duty and there must be specific refusal by the authority. The applicant must’ve a legal
right to the performance of a legal duty. If the rights are purely of a private character no mandamus can be
issued. A ‘public duty’ is one which is created either by a statute, the constitution or by some rule of
common law. The public duty enforceable through mandamus must also be an absolute duty i.e. which is
mandatory and not discretionary. Mandamus would not lie where the duty is ministerial in nature i.e.
where the authority has to act on the instructions of his superior. The remedy of mandamus will not be
available against any person involved in the election process.

In Jatinder Kumar verses State of Punjab, held that article 320(3) of the constitution which provided
that before a government servant was dismissed, the UPSC should be consulted, did not confer any right on
a public servant and hence failure to consult the public service commission did not entitle the public servant
to get mandamus for compelling the government to consult the commission. However, if the authority is
under law obliged to exercise discretion, mandamus would lie to exercise it in one way or the other.

In Praga Tools Corporation verses CVI Manual, held that a mandamus could issue against a person
or body to carry out the duties placed on them by the statutes even though they are not public officials or
statutory body. Technicalities should not come in the way of granting that relief under article. 226. In Unni
Krishnan verses Union of India, held that a private medical/engineering college comes within the writ
jurisdiction of the court irrespective of the question of aid and affiliation.

In hearing the petition for mandamus, the court does not sit as a court of appeal. The court will not examine
the correctness or otherwise of the decision on merits. It cannot substitute its own wisdom for the
discretion vested in the authority unless the exercise of discretion is illegal. this is true for other writs also.

In UOI verses Prakash P. Hindu , it was held that parliament exercises sovereign power to enact laws
and no outside power or authority can issue a direction to enact a particular piece of legislation. Similarly,
no mandamus can be issued to enforce an act which has been passed by the legislature. therefore, the
direction issued by the apex court in Vineet Narain case regarding conferment of statutory status on
CVC cannot be treated to be of such a nature the non-compliance whereof may amount to contempt.

Where, however, the issuance of mandamus directing the investigating agencies to investigate into offences
was found futile, the court forged out a new tool of “continuing mandamus” requiring the agencies to report
the progress to the court so that monitoring by the court could ensure continuance of the investigation.

(C) Certiorari

‘Certiorari’ is a Latin word meaning ‘to inform’ or ‘to certify.’ it was essentially a royal demand for
information. The king wishing to be certified of some matter ordered that the necessary information be
provided for him. ‘certiorari’ may be defined as a judicial order operating in personam and made in the
original legal proceedings, directed to any constitutional, statutory or non-statutory body or person,
requiring the records of any action to be certified by the court and dealt with according to law.

it can be issued against constitutional bodies (legislature, executive and judiciary or their officers), statutory
bodies like corporations, non-statutory bodies like companies and cooperative societies and private bodies
and persons. Certiorari can be issued to quash judicial, quasi-judicial as well as administrative actions (AK
Kraipak verses Union of India ). In this case, the writ of certiorari was issued to quash the action of a
selection board, on the ground of personal bias.

The writ is corrective in nature, thus its scope of operation is quite large. The purpose of certiorari is not
only negative (to quash an action) but it contains affirmative or positive action also. In Gujarat steel
tubes v Mazdoor Sabha , held that while quashing the dismissal order, the court can also order
reinstatement and the payment of back wages.

Grounds for the issue of certiorari are:

(1) lack of jurisdiction; or the authority declining jurisdiction where it legally belongs to it.

(2) excess of jurisdiction.

(3) abuse of jurisdiction.

(4) violation of the principles of natural justice.

(5) error of law apparent on the face of the record – it includes not a mere error but a manifest error based
on clear ignorance or disregard of the law, or on a wrong proposition of the law, or on clear inconsistency
between facts and the law and the decision.

In Syed Yakoob verses Radhakrishnan, held that the jurisdiction of the high court to issue a writ
of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate
court. An error of law which is apparent on the face of the record can be corrected by a writ, but not an
error of fact, howsoever grave it may appear to be. However, if a finding of fact is based on ‘no evidence,’
that would be regarded as an error of law which can be corrected by certiorari.

(D) Prohibition

Prohibition is a judicial order to the agencies (constitutional, statutory or non-statutory) from continuing
their proceedings in excess or abuse of their jurisdiction or in violation of the principles of natural justice or
in contravention of the law of the land. it is issued primarily to prevent an inferior court or tribunal from
exercising its jurisdiction (i.e. exercising power or authority not vested in them).

Prohibition does not lie against an authority discharging purely administrative or executive functions, it
issues only against an authority discharging judicial functions (Isha Beevi verses Tax Recovery
Officer).
Before the writ of prohibition can be issued there must be something to be done. It is a ‘writ of right’.
Prohibition has much in common with certiorari’, both are ‘jurisdictional writs’ issued against judicial or
quasi-judicial authorities on similar grounds. however, prohibition is issued while judicial process is in
motion to prevent it from proceeding further, certiorari is issued to quash the proceedings and is therefore
issued when the judicial process has ended in a decision (i.e. on completion of the proceeding). Thus, the
object of the writ of prohibition is in short ‘prevention’ rather than cure, while certiorari is used as a ‘cure.’

However, these remedies may be applied simultaneously, certiorari to quash the proceedings and
prohibition to stop the tribunal from continuing to exceed its jurisdiction. The usual practice is to pray for
prohibition and alternatively certiorari because it may happen that pending proceedings for prohibition the
agency may hand over its final decision.

(e) Quo-Warranto

Quo-warranto is a question asking ‘with what authority or warrant’. The writ may be sought to clarify in
public interest the legal position in regard to claim of a person to hold a public office. An application
seeking such a writ may be made by any person provided the office in question is a substantive public office
of a permanent nature created by the constitution or law and a person has been appointed to it without a
legal title and in contravention of the constitution or the laws.

It can be issued against offices created by the constitution such as the advocate-general, the speaker of
legislative assembly, officers under the municipal act, members of a local government board, university
officials and teachers, but it will not issue against the managing committee of a private school which is not
appointed under the authority of a statute.

139. “Conferment on the Supreme Court of powers to issue certain writs.—Parliament may
by law confer on the Supreme Court power to issue directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
or any of them, for any purposes other than those mentioned in clause (2) of Article 32.”
Under Article 32 of the Constitution, the Supreme Court may be moved by appropriate proceedings for the
enforcement of fundamental rights by issuing writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto, and certiorari as may be appropriate. Article 139 empowers the Parliament to confer by law
additional power on the Supreme Court to issue directions, orders or writs for purposes other than the
enforcement of the fundamental rights something that was under the scheme of the Constitution reserved
for the High Courts (Article 226).
Direction or orders
Relief / Damages / Compensation
Under article 32 the Supreme Court may issue not only the specified writs but also make any order or give
any direction as it may consider appropriate in the circumstances of the case to give proper relief to the
petitioner. The Court can grant declaration or injunction as well if that be the proper relief. KK.Kochinni
vs. State of Madras AIR 1959 SC In course of time, the Supreme Court has given a new dimension to
article 32 and has implied there from the power to award damages/compensation when a Fundamental
Right of a person has been infringed and there is no other suitable remedy available to give relief and
redress in the specific situation for the injury caused to the petitioner. The Court has argued that under
article 32 its power is not only injective in ambit, i.e., preventing the infringement of a Fundamental Right
but it is also remedial in its scope. Therefore, the Court can not only inject violation of Fundamental Right
but also give relief when the right has already been violated. The Court has maintained that in the absence
of such a power, article 32 would be rocked of all its efficacy became emasculated and rendered futile and
become impotent. M.C. Mehta vs. Union of India, AIR 1987 SC In this connection the Supreme Court has
pointed in another one case viz. Common Cause, a Registered Society as follows:
“It is in the matter of enforcement of Fundamental Rights that the Court has the right to award damages to
the loss caused to a person on account of violation of his Fundamental Rights." Common Cause, A
Registered Society vs Union of India. AIR 1999 SC
In the case of Rudal Shah vs. State of Bihar 1983 SC,in writ petition for Habeas corpus, the Court
awarded damages to the petitioner against the state for breach of his rights of personal liberty guaranteed
by article 21 as he was kept in jail for fourteen years even after his acquittal by a Criminal Court. In
Bodhisattva Gauthamcase (BothiSattwaGautamvs, Suphrachakraborty AIR 1996 SC) the
Supreme Court awarded an interim compensation to the woman raped and the rapist was directed to pay
Rs. 1000/- per month to the woman pending criminal case against him. A significant Judicial
pronouncement on the question of monetary compensation under its writ jurisdiction is Chairman,
Railway Board vs. Chandrim aDas AIR 2000SC. The brief of the case is:
A Bangladesh woman was gang raped by some Railway employees in the Railway premises at the Howrah
Railway Station. A practicing lawyer filed a writ petition in the High Court under article 226 as Public
interest litigation. The High Court awarded damages to the victims against the Railways. On appeal, the
Supreme Court upheld the High Court decision. It was held to be a violation of the rights of the victim
under Article 21 which was available not only to the citizens but also to the non-citizens as well. The Court
rejected the contention that the matter s ought to have been raised through a Civil Suit rather than a Writ
Petition. Another objection raised was that the petition was filed not by the victim herself, but by a
practicing lawyer. Rejecting the objection also, the Court ruled in favour of the locus standi of the Petitioner
because, the petitioner claimed not only compensation but several other reliefs and it was filed in public
interest.
The categories of cases in which a Supreme Court has awarded damage are as follows:
Where the petitioner has suffered personal injuries at the hands of government Servants by their tortious
acts;
Bhim Singh vs. State of Jammu and Kashmir , AIR 1986 SC 494

Rudul Shah vs. State of Bihar AIR 1983 SC

People's Union for Democratic Rights vs. State of Bihar, AIR 1987 SC

Police atrocities; D.K. Basu vs. State of West Bengal, AIR 1997 SC
Arvinder Singh Beagga vs. State of Uttarpradesh, AIR 1995 SC

Custodial deaths; Nilabati Behera vs. State of Orissa, AIR 1993 SC

People's Union for Civil Liberties vs. Union of India, AIR 1997 SC
Azad Singh vs. State of Uttar Pradesh, AIR 2000 SC
Medical negligence PaschimBangaKhetMazdoor Samity vs West Bengal, AIR 1996 SC

Environmental pollution M.C. Mehta vs Union of India, (2001) 9 SCC 520, The Court issued certain
direction for the protection of the TajMahal at Agra.

Power to Issue General Damages

While the basic purpose underlying article 32 is to empower the Supreme Court to give relief to an
aggrieved person whose fundamental Right has been infringed, the Court has used article 32 for a much
wider purpose than that, viz., to lay down general guidelines having the effect of law to fill the vacuum till
such time the Legislature steps to fill in the gap by making the necessary law. The Court derives such a
power by reading article 32 with article 142 and article 141. Article 144 mandates all authorities to act in aid
of the Court orders. The Court has issued guidelines and directions in quite a few cases. Some of the cases
are:

Lakshmi Kant Pandey vs. Union of India, AIR 1984 SC where guidelines for adoption of minor children by
foreigners were laid down.
Supreme Court Advocates on Record Association vs. Union of India AIR 1994 SC, where the Supreme Court
laid down guidelines and norms for the appointment and transfer of High Court Judges.118
Vishaka vs. State of Rajasthan AIR 1997 SC where elaborate guidelines have been laid down to discourage
sexual harassment of women in work places.119
VineethNarain Vs. Union of India AIR 1998 SC, where the Court has laid down directions to ensure the
independence of the Vigilance Commission and to reduce corruption among Government servants. This has
been done to implement the rule of law “wherein the concept of equality enshrined in article 14 is
embedded." The Court has done so as no legislation has been enacted covering the said field to ensure
proper implementation of the rule of law.
Common Cause vs. Union of India, where the Supreme Court issued direction for revamping the system of
blood bank in the country. Thomas Das vs Union of India AIR 1996 SC
ViswaJagriti Mission vs. Central Government JT 2001 (6) SC, where the Court has issued guidelines against
ragging in educational institutions.

Besides the Supreme Court, the High Courts located in the various States are also designated as
constitutional courts and Article 226 permits citizens to file similar writs before the High Courts.
Judicial review has held in legitimizing of the government’s action protecting the fundamental rights and
helping the judiciary against any undue encroachment of the executive and the legislature over its powers.
It has also helped in maintaining the supremacy of the constitution, the division of powers, the separation
of powers and the rule of law etc. Because of its importance the Supreme Court ruled in Keshvananda
Bharti case 1973 that judicial review is the part of the basic structure of the constitution.
However while applying judicial review the judiciary shall follow the following condition

1. If two interpretations are possible for a given law where the first interpretation leads to validation of
the law and the second leads to its invalidation then the court hall give preference to the first
interpretation in preference to the second.
 2. Ordinarily the courts shall not pronounce one the validity before the law is brought under legal
enforceability.
3. Ordinarily the courts shall not pronounce under validity of the law suo –muto, but only on the
petition or a reference made to the judiciary.

Now these are the ideal conditions of judicial review and when these conditions are surpassed that amounts
to judicial overreach which is a very dangerous phenomenon. And this had happened many times in Indian
political history.

Grounds Of Judicial Review

Introduction

In recent times, many administrative decisions taken by the Government are being struck down either on
avoidable grounds of illegality or procedural irregularity or some other grounds which could have been
validly averted. Judicial review is the basic feature of the Indian Constitution and therefore, cannot be
abrogated even by an amendment of the Constitution. It is incorporated in Articles 226 and 227 of the
Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136
of the Constitution embody the principle of judicial review. Article 32 is included in Part III as a
fundamental right for enforcement of any of the fundamental rights conferred under Part III. Generally,
judicial review of any administrative action can be exercised on four grounds viz,

a) Jurisdictional Error

b) Irrationality

c) Procedural impropriety

d) Proportionality

e) Legitimate Expectation

These grounds of judicial review were developed by Lord Diplock in Council of Civil Service Union v.
Minster of Civil Service[i]. Though these grounds of judicial review are not exhaustive and cannot be put in
watertight compartments yet these provide sufficient base for the courts to exercise their review jurisdiction
over administrative action in the interest of efficiency, fairness and accountability.

Jurisdictional Error

The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative authority depends
upon facts the existence of which is necessary to the initiation of proceedings & without which the act of the
Court is a nullity. These are called “jurisdictional facts”. This ground of judicial review is based on the
principle that administrative authorities must correctly understand the law and it limits before any action is
taken. Court may quash an administrative action on the ground of ultra vires in following situations.

Lack of Jurisdiction:

It would be a case of “lack of jurisdiction” where the tribunal or authority has no jurisdiction at all to pass
an order. Court may review an administrative action on the ground that the authority exercised jurisdiction
which did not belong to it. This review power may be exercised inter alia on following grounds:

i) That the law under which administrative authority is constituted and exercising jurisdiction is itself
unconstitutional.

ii) That the authority is not properly constituted as required by law.

iii) That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did
not belong to it.

In Rafiq Khan vs. State of U.P[ii]., Panchayat Raj Act, 1947, did not empower the Sub- Divisional
Magistrate to modify the order of conviction & sentence passed by a Panchayat Adalat. He could either
quash the entire order or cancel the jurisdiction of the Panchayat Adalat. The magistrate maintained the
conviction of the accused in respect of one of the offences only & quashed the conviction in respect of other
offences. The Allahabad High Court quashed the conviction in respect of other offences by a writ of
certiorari.

In R. vs. Minister of Transport[iii], the Minister had no power to revoke a license. The order of the minister
revoking the license, was thus, held to be passed without jurisdiction & hence ultra vires.

Excess of Jurisdiction:

This covers a situation wherein though authority initially had the jurisdiction but exceeded it and hence its
actions become illegal. This may happen under following situations:

i) Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction.

ii) Entertaining matters outside its jurisdiction.

In R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd[iv]., the local planning authority
implemented a scheme of charging 25 pound for informal consultation between corporation officers &
property developers. The House of Lords held that imposition of the charge was unlawful. Such a charge
was neither incidental to the planning function of the local authority, nor could a charge be levied on the
public without statutory authority. The council had misconstrued its powers & accordingly, acted ultra
vires.
Abuse of Jurisdiction:

All administrative powers must be exercised fairly, in good faith for the purpose it is given, therefore, if
powers are abused it will be a ground of judicial review. In the following situations abuse of power may
arise:

 Improper purpose:

Administrative power cannot be used for the purpose it was not given. In Attorney General vs. Fulham
Corporation[v], the authority was empowered under the statute to establish washhouses for the non-
commercial use of local residents. The Corporation decided to open a laundry on a commercial basis. The
Corporation was held to have acted ultra vires the statute.

 Error apparent on the face of the record :

An error is said to be apparent on the face of the record if it can be ascertained merely by examining the
record & without having to have recourse to other evidence. In Syed Yakoob vs. K.S. Radhakrishnan[vi],
the Supreme Court explained, there would be a case of error of law apparent on the face of the record where
the conclusion of law recorded by an inferior tribunal is:

1. Based on an obvious misinterpretation of the relevant statutory provision,

2. In ignorance of it,
3. In disregard of it,
4. Expressly founded on reasons which are wrong in law

 Non-consideration of relevant material:

In exercising discretion, a decision-maker must have regard to relevant matters & disregard irrelevant
matters. In R vs. Somerset County Council, ex p Fewings[vii] the local authority decided to ban stag
hunting on land owned by the council & designated for recreational purposes. The Court of Appeal accepted
that in some circumstances, stag hunting could legitimately be banned. Animal welfare & social
considerations were relevant matters to take into account.

 In bad faith:

Where a decision –maker has acted dishonestly by claiming to have acted for a particular motive when in
reality the decision was taken with another motive in mind, he may be said to have acted in bad faith. In R
vs. Derbyshire County Council, ex p Times Supplements[viii], the local education authorities were under a
duty to advertise vacancies in a manner likely to bring it to the notice of persons who are qualified to fill the
post. Articles published in that paper were critical of the education authority. The council decided to stop
advertising vacancies in The Times despite the fact that these publications were read by the greatest
number of potential applicants. The papers sought judicial review. DC held that the council’s decisions had
been made in bad faith. They had not been taken on educational grounds but were motivated by
vindictiveness towards the paper.

 Fettering discretion:

An authority may act ultra vires if, in the exercise of its powers, it adopts a policy which effectively means
that it is not truly exercising its discretion at all. In H Lavender & Sons Ltd vs. Minister of Housing & Local
Government[ix], Lavender had applied for planning permission to extract sand & gravel from high grade
agricultural land. The local planning authority refused permission & lavender applied to the Minister of
Housing & Local Government. The appeal was dismissed; the Minister of Housing & Local Government
being persuaded by the Minister of Agriculture that such land should be preserved for agricultural
purposes. The decision was set aside. The minister was entitled to have a policy but, in reality the minister’s
decision had been based solely on another minister’s objection. The minister, therefore, did not open hi
mind to Lavender’s application & thereby fettered his discretion.

Irrationality (Wednesbury Test)

A general principle which has remained unchanged is that discretionary power conferred on an
administrative authority is required to be exercised reasonably. A person in whom is vested a discretion
must exercise his discretion upon reasonable grounds. A decision of the administrative authority shall be
considered as irrational if it is so outrageous in its defiance to logic or accepted norms of moral standard
that no sensible person, on the given facts and circumstances, could arrive at such a decision. Irrationality
as a ground of judicial review was developed by the Court in Associated Provincial Picture House v.
Wednesbury[x], later came to be known as “Wednesbury test” to determine ‘irrationality’ of an
administrative action. The local authority had the power to grant licenses for the opening of cinemas subject
to such conditions as the authority ‘thought fit’ to impose. The authority, when granting a Sunday licence,
imposed a condition that no children under the age of 15 years should be admitted. The applicants argued
that the imposition of the condition was unreasonable and ultra vires the corporation’s powers. Stating that
the Court should not substitute its view for that of the corporation the court observed: interference would
not be permissible unless it is found that the decision was illegal or suffered from procedural improprieties
or was one which no sensible decision maker could, on the material before him and within the framework of
law, have arrived at it. The Court would consider whether relevant matters were not taken into account or
whether the action was not bona fide or whether the decision was absurd.

In Roberts vs. Hopwood[xi], the council, in adopting a policy of paying higher wages than the national
average for its workers, was unreasonable, for the discretion of the council was limited by law. It was not
free to pursue a socialist policy at the expense of its rate payers.

In R v Broadmoor Special Hospital Authority ex parte S[xii], the Court of Appeal, dismissing an appeal
from an application for judicial review, ruled that the hospital’s policy of conducting routine and random
searches of patients without their consent was lawful. The applicants had claimed that the power to search
could not be implied into the Mental Health Act 1983, and that, if such power existed, it was irrational and
its exercise unlawfully fettered the hospital’s discretion because it was not subject to any exception or
medical grounds. The Court of Appeal upheld the finding of an implied power of search, ruling that it was
consistent with a ‘self-evident and pressing need’ to enable the hospital to fulfill its primary function of
treating patients and ensuring a safe and therapeutic environment for both patients and staff. Since the
hospital’s policy was in the interests of all, it had to be permitted to override medical objections raised in
individual cases.

A decision by an authority may also be unreasonable if conditions are attached to the decisions which are
difficult or impossible to perform.Where an authority makes a decision which is in part good, but in part
bad the court may either invalidate the entire decision or sever the bad part of the decision from the good.

The decision in Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms
Ltd[xiii] illustrates the principle. There, the Training Board was under a mandatory statutory duty to
consult certain organizations and trades unions before reaching a decision. The Board failed to consult the
Mushroom Growers Association. The court held that the decision was good, and could remain, in relation to
those associations which had been consulted, but bad in relation to the Mushroom Growers Association,
and that the Board had a duty to reconsider their decision after consultations with the Association. In
applying this test court would not apply ‘strict scrutiny’ and would not judge adequacy or sufficiency of the
material unless fundamental rights are violated, and would not substitute its judgment with the judgment
of the administrator unless the decision is perverse. If the action of the administrative authority violates any
of these principles court can quash such action as violative of Articles 14, 19 or 21 of the Constitution.

The Delhi High Court in Neha Jain vs. University of Delhi[xiv], holding that that cancellation of
examination & debarring the student for next exams as disproportionate punishment for adopting unfair
means in the examination, substituted cancellation of only one paper as sufficient punishment Since the
basic requirement of article 14 is fairness in action of the State, and non-arbitrariness in essence and
substance, being the heart of fair play, judicial interference with policy decision is permissible:

 If the decision is shown to be patently arbitrary, discriminatory or mala fide[xv].

 If it is found to be unreasonable or violative of any provision of the Constitution or any other
Statute[xvi].
 If it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of
the regulation-making power[xvii].
 If it is demonstrably capricious or arbitrary & not informed by any reason[xviii].

Irrationality applied to a decision which is so outrageous in its defiance of logic that no sensible person who
had applied his mind to the question to be decided would have arrived at it.

Procedural Impropriety

Failure to comply with procedures laid down by statute may invalidate a decision.Procedural Impropriety is
to encompass two areas: failure to observe rules laid down in statute; and a failure to observe the basic
common law rule of natural justice. In Bradbury v Enfield London Borough Council [xix], the Education
Act 1944 provided that, if a local education authority intends to establish new schools or cease to maintain
existing schools, notice must be given to the minister, following which, public notice must be given in order
to allow interested parties to comment. The Council breached the requirement of public notice and the
plaintiffs sought an injunction. The Council claimed that educational chaos would occur if they were
required to comply with the procedural requirements. That plea met with little sympathy in court.

In the Aylesbury Mushroom case[xx], the court ruled that the statutory requirements of consultation with
organizations or associations which represented substantial numbers of people could not be avoided by
consultation with the largest representative body of all agricultural horticultural and forestry industry,
workers – the Nation Farmers’ Union. The Board claimed that consultation with the Nation Farmers’ Union
involved consultation with all smaller representative bodies; a claim rejected by the court. For true
consultation to take place in accordance with law there must be communication with the representative
organizations and the opportunity given of responding thereto, without which ‘there can be no
consultation’. In Aylesbury Mushroom, the Mushroom Growers Association was not bound by the order,
although the order remained effective as against those who were consulted. It is a fundamental requirement
of justice that, when a person’s interests are affected by a judicial or administrative decision, he or she has
the opportunity both to know and to understand any allegations made, and to make representations to the
decision maker to meet the allegations. The principles of natural justice which are imposed by the courts
comprise two elements:

 Audi alteram partem (hear both sides)

 Nemo judex in causasua (there should be an absence of bias with no person being a judge in their
own cause).

The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary to show that
actual bias existed; the merest appearance or possibility of bias will suffice. The suspicion of bias must,
however, be a reasonable one.

In Pinochet case[xxi], extradition proceedings against the former Chilean Head of State were challenged on
the basis that one of the Law Lords, Lord Hoffmann, had links with Amnesty International, the charitable
pressure group which works on behalf of political prisoners around the world, which had been allowed to
present evidence to the court. It was accepted that there was no actual bias on the part of Lord Hoffmann,
but there were concerns that the public perception might be that a senior judge was biased. As a result, the
proceedings were abandoned and reheard by a new bench of seven judges.

The courts have long been struggling with the distinction between ‘judicial’ and ‘administrative’ functions in
an attempt to bring the ever- expanding administration of government departments under judicial control.
Two lines of thought were apparent. The first emphasized the distinction between a body which was
exercising powers under restrictive rules and a body which was conferred with a wide measure of
administrative discretionary power. The second line of thought placed great weight on the absence of any
true distinction between judicial and administrative functions, regarding the former as but a specialized
form of the latter.

Ridge v Baldwin [xxii]represents a classic case which reveals judicial insistence on procedural fairness
irrespective of the type of body determining a question. Ridge, the Chief Constable of Brighton, had been
suspended from duty following charges of conspiracy to obstruct the course of justice. Despite Ridge having
been cleared of any allegations against him, the Judge made comments which were critical of Ridge’s
conduct. Subsequently, Ridge was dismissed from the force. Ridge was not invited to attend the meeting at
which the decision to dismiss him was reached, although he was later give an opportunity to appear before
the committee which confirmed its earlier decision. Ridge appealed to the Home Secretary, who dismissed
his appeal. Ridge then sought a declaration that the dismissal was ultra vires, on the basis that the
committee had violated the rules of natural justice. The decision in Ridge v. Baldwin is also important
because it emphasizes the link between the right of a person to be heard and the right to know the case
brought against them.

Proportionality

Proportionality means that the administrative action should not be more drastic than it ought to be for
obtaining desired result. Proportionality is sometimes explained by the expression ‘taking a sledgehammer
to crack a nut’. Thus this doctrine tries to balance means with ends. Proportionality shares space with
‘reasonableness’ and courts while exercising power of review sees, ‘is it a course of action that could have
been reasonably followed’. Courts in India have been following this doctrine for a long time but English
Courts have started using this doctrine in administrative law after the passing of the Human Rights Act,
1998. Thus if an action taken by the authority is grossly disproportionate, the said decision is not immune
from judicial scrutiny. The sentence has to suit the offence & the offender. It should not be vindictive or
unduly harsh.

In Hind Construction Co. vs. Workmen[xxiii], some workers remained absent from duty treating a
particular day as holiday. They were dismissed from service. The industrial tribunal set aside the action.
This court held that the absence could have been treated as leave without pay. The workmen might have
been warned and fined. The Court said that it was impossible to think that any reasonable employer would
have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. The court
explained that the punishment imposed the workmen was not only severe but out of proportion.

In Sardar singh vs. Union of India[xxiv], a jawan, serving in the Indian Army was granted leave. While
going to his home town, he purchased 11 bottles of rum from the Army canteen, though he was entitled to
carry only 4 bottles. In the Court Martial proceedings instituted against him on that ground, he was
sentenced to undergo R.I. for 3 months and was also dismissed from service. The Supreme Court set aside
the punishment & held the action taken against the appellant as arbitrary & punishment as severe. The
doctrine of Proportionality is an important principle. It enables the Courts to check the possible abuse of
discretionary power by the Executive. Though there is much common substance in the principles of
Irrationality & Proportionality, the latter however, requires the Court to judge whether the action taken was
really needed as well as whether it was within the range of courses of action that could reasonably be
followed.

In Management K. Tea Estates vs. Mazdoor Sangh[xxv], the workmen of the tea estates, alleged to have
entered the estate armed with deadly weapons with a view to gherao the Manager & others in regard to their
demand for bonus, caused damage to property of the estate & wrongfully confined the Manager & others.
Punishment of dismissal of concerned workmen de hors the allegation of allegation of extortion was held to
be not disproportionate to the misconduct proved against them.

The Supreme Court has always maintained that it would employ the doctrine of Proportionality to test the
validity of an administrative action only when the Fundamental Rights of the aggrieved person are
disproportionately violated by the administrative authority.

Legitimate Expectations

A legitimate expectation will arise in the mind of the complainant wherever he or she has been led to
understand — by the words or actions of the decision maker – that certain procedures will be followed in
reaching a decision. A Legitimate Expectation amounts to an expectation of receiving some benefit or
privilege to which the individual has no right. Legitimate Expectation means expectation having some
reasonable basis. The doctrine of Legitimate Expectation has evolved to give relief to the people when they
are not able to justify their claims on the basis of law in the strict sense of the term they had suffered civil
consequences because their legitimate expectation has been violated. Two considerations apply to
legitimate expectations. The first is where an individual or group has been led to believe that a certain
procedure will apply. The second is where an individual or group relies upon a policy or guidelines which
have previously governed an area of executive action.

In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association[xxvi], the corporation
had given undertakings to the taxi drivers to the effect that their licenses would not be revoked without
prior consultation. When the corporation acted in breach of this undertaking, the court ruled that it had a
duty to comply with its commitment to consultation. A public body may act in a manner which creates an
expectation in the mind of a person or body.

In R v Secretary of State for Health ex parte U Tobacco International Inc.[xxvii], the company had opened
a factory in 1985 with a govt. grant, for the production of oral snuff. The government made the grant
available notwithstanding its awareness of the health risks of the product. In 1988, however, the
government — having received further advice from a committee — announced its intention to ban snuff.
The company sought judicial review, relying on a legitimate expectation based on the government’s action.
The court ruled, however, that, even though the applicant had a legitimate expectation, that expectation
could not override the public interest in banning a harmful substance.

In R.P. Singh vs. State of Bihar[xxviii], the Supreme Court explained that the expression “established
practice” referred to a regular, consistent, predictable & certain conduct, process or activity of the decision-
making authority. The expectation should be legitimate i.e. logical, reasonable & valid. The doctrine of
legitimate expectation would apply in cases where the decision taken by the authority is found to be
arbitrary, unreasonable & not taken in public interest. Change in policy however, can defeat the legitimate
expectation. In such a case, even by the way of change of old policy, the Courts would not intervene with the
decision.

In Jatinder Kumar vs. State of Haryana[xxix], the Court held that the Government had a right to review
the decisions taken by the previous establishments & hence it could suspend the process of recruitment
started by previous Government, because of allegations of irregularities & this could not be challenged on
the ground of violation of legitimate expectation.

Conclusion

Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and
executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic
justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only
check on our own exercise of power is the self-imposed discipline of judicial restraint. Mere possibility of
another view cannot be a ground for interference. Therefore, courts will not interfere unless the decision
suffers from illegality, irrationality, procedural impropriety and proportionality deficiency. Mere assertion
of these ground is not sufficient, each ground must be proved by evidence on record. Asserting the power of
judicial review, the court emphasized that the doctrine of immunity from judicial review is restricted to
cases or class of cases which relate to deployment of troops and entering into international treaties etc. in
policy matters and where subjective satisfaction of the authority is involved, court will not interfere unless
the decision is totally perverse and violates any provisions of the Constitution. If proper care is taken at the
level of making administrative decisions, there will be little scope for grievance and invoking courts’
jurisdiction. This will not only reduce the burden on courts but will also create a sense of security and
satisfaction in people which is the essence of good governance and foundation of a welfare State.

Limitations

Like fundamental rights themselves, the right to constitutional remedies under Article 32 are not without
limits. The constitution visualizes there situations when fundamental rights may be denied hut
constitutional remedies will not be available i.e. Article 32 will not be applicable.

 Article 33 empowers the Parliament to modify application of fundamental rights to armed forces
and the Police to ensure proper discharge of their duties.
 Secondly, under Article 34, during the operation of Martial law in any area, the Parliament may
indemnify any person in the service of the central or a state government for acts for the maintenance
or restoration of law and order.
 Thirdly, during emergency proclaimed under Art 352 of the constitution, the fundamental rights
guaranteed to the citizens, will remain suspended. Article 358 authorize the Parliament to restrict
fundamental rights guaranteed by Art 19 during the pendency of an emergency under Article 352.
Article 359 empowers the President to suspend the right to move the courts for the restoration of
fundamental rights. In other words, Article 359 empowers the President to suspend Art 32 of the
constitution. Such an order however is to be submitted to the Parliament, and the Parliament has the right
to disapprove the Presidential order.

In India, the exercise of power of judicial review is itself made subject to the limitations, expressly provided
in the constitution example articles 32,226, 74, 77, 163, 166, 105, 194, 12, 212. The Supreme Court has also
evolved certain self-imposed limitations on its powers of judicial review, as found in res judicata, laches,
standing, waiver, etc. A writ is a discretionary remedy and the high court can refuse it on the ground of
acquiescence, laches (delay), available alternative remedy and no benefit to the party. Under article 226(3),
a high court can grant interim relief by way of interlocutory orders.

When Supreme Court can refuse remedy under Article 32

In some circumstances the Supreme Court can refuse to grant the remedy under Article 32. Such
conditions are:

Res Judicata
Except in the petition under Article 32, for habeas corpus, the principle of res judicata applies to petition
under Article 32. In the absence of new circumstances arising since the dismissal of the petition filed in the
Supreme Court under Article 32, a fresh petition under Article 32 on the same matter cannot be filed in the
Supreme Court. Subsequent petition under Article 32 against petition dismissed by Supreme Court is
barred. If the petition under Article 226 is disposed of by the High Court on merit, the decision would
operate as res judicata and therefore the petition on the same grounds to the Supreme Court would be
barred.

Where the writ of habeas corpus has been refused by the High Court, The petitioner can file an
independent petition for the same writ under Article 32 of the Constitution. Not only once or twice, but
repeatedly.

The rule of constructive Res Judicata does not apply because there may be certain exceptions to the rule
that :

1. The person was not aware of correct facts while filing the first petition, or
2. Events have arisen subsequent to filing of the first petition.

The court must bear in mind that the doctrine of res judicata is confined generally to civil actions but
inapplicable to criminal actions and fundamentally lawless order.

Delay
If there is no reasonable explanation for the delay, the court may refuse to grant relief. It is not a rule of
law, but a rule of practice on the basis of court discretion and the discretion is to be exercised on the light
of the circumstances of each case.
Malicious Petition
The Supreme Court may dismiss the petition filed under Article 32, if it is found to be malicious or ill-
motivated.

Misrepresentation or Suppression of Material facts

If found that the petitioner made it clear misrepresentation as to the material facts or suppression of
material facts, the Supreme Court may dismiss the petition at any stage.
Anfractuous Petition
If the petition filed under Article 32 is found to be fruitless, unfruitful or in fructuous, it may be dismissed
by the Supreme Court for the writ of habeas corpus and the detainee has been released during tendency of
the proceedings, the petition my be dismissed on the ground of its having become in fructuous.

Existence of Adequate Alternative Remedy

Even though existence of alternative remedy does not bar the Supreme Court to entertain a petition under
Article 32, however the Supreme Court has held that in the case of adequate alternative remedy it may
exercise its discretion to refuse to entertain a petition file under Article 32. The Supreme Court cannot
refuse relief under article 32 on the ground that the aggrieved person may have his remedy from other court
(a person need not first exhaust the other remedies and then go to the supreme court); the disputed facts
have to be investigated before the relief given; and that petitioner has not asked for proper writ applicable
to his case.

In RN Kumar verses Municipal Corp. Of Delhi 1987, a two-judge bench of the supreme court held
that the citizens should not come to the court directly for the enforcement of their fundamental rights, but
they should first seek remedy in the high courts and then if the parties are dissatisfied with the high court’s
judgment, they can approach the supreme court by way of appeal. In this case, the petitioner challenged the
imposition of various taxes on their hotel. Disposing the petition the apex court laid down
following guidelines for the exercise of the right under art. 32:

(1) The scope of article. 226 are wider than article. 32.

(2) Hearing of the case at the level of high courts is more convenient to the parties. it saves lot of time.

(3) The high court has its own tradition and eminent judges/ lawyers,

(4) The Supreme Court’s workload is too much with cases pending before it for the last 10-15 years.

Similarly, in ( Kanubhai Brahmbhatt v . State of Gujarat, AIR 1987 SC the Supreme Court has
since held that where relief through High Court under article 226 is available, the High Court should be
approached first, the apex court directed the petitioner to first seek remedy in the high court.

While the jurisdiction of the high court is more extensive than that of the Supreme Court, art. 226 (4)
provides that the powers conferred on a high court shall not be in derogation of the powers conferred on the
supreme court by article 32(2). In L Chandra Kumar verses UOI AIR 1997 SC , held that a person
cannot go directly to the Supreme Court from a decision of a tribunal, without first going to the high courts.
Thus, the aggrieved person has got another remedy by way of a writ petition before the high court
concerned. Thus, what was earlier two-tier litigation has now become three-tier litigation. The tribunals
cannot oust the jurisdiction of the high courts under articles 226/227.

Locus standi – Locus standi rule is requirement is relaxed, broadened, and liberalized
PUBLIC INTEREST LITIGATION

Public Interest Litigation (PIL) are litigations are writ petitions brought before the High Court or Supreme
Court of India to protect basic human rights of the weak and the disadvantaged. Court has interfered and
given directions in while entertaining PIL it has mainly been where there has been an element of violation
of Art.21 of the Constitution of India or of human rights or where the litigation has been initiated for the
benefit of the poor and the under privileged who are unable to come to court due to some disadvantage. The
Courts are of the view that right to life conferred under Art. 21 includes the right to have the clear air,water
and atmosphre. Thus anyone brings a petition to protect the enviornment is treated as PIL.

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that
nebulous entity: the public in general. Prior to 1980s, only the aggrieved party could personally knock the
doors of justice and seek remedy for his grievance and any other person who was not personally affected
could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the
affected parties had the locus standi (standing required in law) to file a case and continue the litigation and
the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the
rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand
and the vast majority of illiterate citizens on the other. The traditional view in regard to locus standi in Writ
jurisdiction has been that only such persons who: a) Has suffered a legal injury by reason of violation of his
legal right or legally protected interest; or b) Is likely to suffer a legal injury by reason of violation of his
legal right or legally protected interest. Thus before a person acquired locus standi he had to have a
personal or individual right which was violated or threatened to be violated . He should have been a “person
aggrieved” in the sense that he had suffered or was likely to suffer from prejudice, pecuniary or otherwise.

Locus standi (the person who can sue ) for filing a litigation is normlly available only to a person who has
suffered a legal injury by reason violation of his legal right or legally protected interest by the impugned
action of the State or a public authority or legally protected interest by the impugned action of the State or a
public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation
of his legal right or legally protected interest of any such action. This rule has gone a radical change when
for the first time the Government decided to transfer the judges of the High Court for the first time. The
said proposal was challenged by an advocate called "S.P.Gupta". The rule of locus stand has been widened
and the Supreme Court of India for the first time held that any member of the public having sufficient
interest can maintain an action for judicial redress for public inquiry arising from breach of public duty or
from violation of some provision of the Constitution or the law and seek enforcement of such public duty
and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule
of law, the court held. It is an historical judgment which opened the Pandora's box for litigations by any
person.

The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial
prisoners. In Hussainara Khatoon v. State of Bihar, the PIL was filed by an advocate on the basis of the
news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners
languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 undertrial
prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these
prisoners. The same set pattern was adopted in subsequent cases.

A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta v.
Union of India. In this case it was held that “any member of the public or social action group acting
bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal
against violation of a legal or constitutional rights of persons who due to social or economic or any other
disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of
“public duties” where executed in action or misdeed resulted in public injury. And as a result any citizen of
India or any consumer groups or social action groups can now approach the apex court of the country
seeking legal remedies in all cases where the interests of general public or a section of public are at stake.

An interesting question first arose before the Supreme Court of India when M.C.Mehta filed a public
interest litigation to protect the Ganga River from pollution. In common law the Municipal Corporation can
be restrained by an injunction in an action brought by the riparian owner who has suffered on account of
pollution of the water in a river caused by the discharging into the river insufficiently treated sewerage from
discharging such sewage into the river. It would not be reasonable to expect any particular person to take
proceedings to stop it as a public interest litigation, it is objected by the opposite parties. But the court held
that nuisance caused by the pollution is a public nuisance, which is widespread in range and indiscriminate
in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as
distinct from the community at large. The petition filed by M.C.Mehta has been entertained by the Court
and issued orders. Thereafter several litigations were were entertained in public interest.

In the case of People’s Union for Democratic Rights v. Union of India, it was held that “Public
Interest Litigation which is a strategic arm of the legal aid movement and which is intended to bring justice
within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different
kind of litigation from the ordinary traditional litigation which is essentially of an adversary character
where there is a dispute between two parties, one making a claim or seeing relief against the other and that
other opposing such claim or relief. Public interest litigation is brought before the court not for the purpose
of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is
intended to promote and vindicate public interest which demands that violations of constitutional or legal
rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged
position should not go unnoticed and un-redressed.

That would be destructive of the Rule of Law which forms one of the essential elements of public interest in
any democratic form of government. The Rule of Law does not mean that the protection of the law must be
available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests
for protecting and upholding the status quo under the guise of enforcement of their civil and political rights.
The poor too have civil and political rights and the Rule of Law is meant for them also, though today it
exists only on paper and not in reality.”

Concept of PIL
According to the jurisprudence of Article 32 of the Constitution of India, “The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed”.
Ordinarily, only the aggrieved party has the right to seek redress under Article 32.

In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, articulated the concept of PIL as
follows, “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any burden is imposed in contravention of any
constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or
disability or socially or economically disadvantaged position unable to approach the court for relief, any
member of public can maintain an application for an appropriate direction, order or writ in the High Court
under Article 226 and in case any breach of fundamental rights of such persons or determinate class of
persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to
such person or determinate class of persons.”

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the
proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe
out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain
or private profit or political motive or any oblique consideration.

The Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s Devkala Consultancy
Service and Ors., held that “In an appropriate case, where the petitioner might have moved a court in her
private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may
treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice.
Thus a private interest case can also be treated as public interest case”.

In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan and Ors, the Supreme
Court held, “The Courts exercising their power of judicial review found to its dismay that the poorest of the
poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children,
handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice
or had been denied justice. A new branch of proceedings known as 'Social Interest Litigation' or 'Public
Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of
persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the
inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered
several other areas. Representative actions, pro bono publico and test litigations were entertained in
keeping with the current accent on justice to the common man and a necessary disincentive to those who
wish to by pass the, real issues on the merits by suspect reliance on peripheral procedural shortcomings…
Pro bono publico constituted a significant state in the present day judicial system.

They, however, provided the dockets with much greater responsibility for rendering the concept of justice
available to the disadvantaged sections of the society. Public interest litigation has come to stay and its
necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural
propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of
locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active
participant in the dispensation of justice”.
Subjects of Public Interest Litigation

Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who
are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their
social or economic background. Such litigation can be initiated only for redressal of a public injury,
enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not
filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in
public interest.

The following are the subjects which may be litigated under the head of Public Interest Litigation:
(I) The matters of public interest: Generally they include
(i) bonded labour matters
(ii) matters of neglected children
(iii) exploitation of casual labourers and non-payment of wages to them (except in individual cases)
(iv) matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and
Economically Backward Classes, either by co-villagers or by police
(v) matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration,
maintenance of heritage and culture, antiques, forests and wild life,
(vi) petitions from riot victims and
(vii) other matters of public importance.

(II) The matters of private nature: They include (i) threat to or harassment of the petitioner by private
persons, (ii) seeking enquiry by an agency other than local police, (iii) seeking police protection, (iv) land
lordtenant dispute (v) service matters, (vi) admission to medical or engineering colleges, (vii) early hearing
of matters pending in High Court and subordinate courts and are not considered matters of public interest.

(III) Letter Petitions: Petitions received by post even though not in public interest can be treated as writ
petitions if so directed by the Hon’ble Judge nominated for this purpose. Individual petitions complaining
harassment or torture or death in jail or by police, complaints of atrocities on women such as harassment
for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and
complaints of refusal by police to register the case can be registered as writ petitions, if so approved by the
concerned Hon’ble Judge. If deemed expedient, a report from the concerned authority is called before
placing the matter before the Hon’ble Judge for directions. If so directed by the Hon’ble Judge, the letter is
registered as a writ petition and is thereafter listed before the Court for hearing.
Against whom Public Interest Litigation can be filed
A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any
private party. The definition of State is the same as given under Article 12 of the Constitution and this
includes the Governmental and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of the Government
of India. According to Art.12, the term “State” includes the Government and Parliament of India and the
Government and the Legislatures of each of the States and all local or other authorities within the territory
of India or under the control of the Government of India.

Thus the authorities and instrumentalities specified under Art.12 are

• The Government and Parliament of India

• The Government and Legislature of each of the States
• All local authorities
• Other authorities within the territory of India or under the Government of India.

In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that “other authorities would include
all authorities created by the Constitution of India or Statute on whom powers are conferred by law”.

However, “Private party” can be included in the PIL as “Respondent”, after making concerned state
authority, a party. For example- if there is a Private factory in Delhi, which is causing pollution, then people
living nearly, or any other person can file a PIL against the Government of Delhi, Pollution Control Board,
and against the private factory. However, a PIL cannot be filed against the Private party alone.

Aspects of Public Interest Litigation

(a) Remedial in Nature: Remedial nature of PIL departs from traditional locus standi rules. It indirectly
incorporated the principles enshrined in the part IV of the Constitution of India into part III of the
Constitution. By riding the aspirations of part IV into part III of the Constitution had changeth the
procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v. Union of India,
Unnikrishnan v. State of A.P., etc were the obvious examples of this change in nature of judiciary.

(b) Representative Standing: Representative standing can be seen as a creative expansion of the well-
accepted standing exception which allows a third party to file a habeas corpus petition on the ground that
the injured party cannot approach the court himself. And in this regard the Indian concept of PIL is much
broader in relation to the American. PIL is a modified form of class action.

(c) Citizen standing: The doctrine of citizen standing thus marks a significant expansion of the court’s
rule, from protector of individual rights to guardian of the rule of law wherever threatened by official
lawlessness.

(d) Non-adversarial Litigation: In the words of Supreme Court in People’s Union for Democratic
Rights v. Union of India, “We wish to point out with all the emphasis at our command that public interest
litigation…is a totally different kind of litigation from the ordinary traditional litigation which is essentially
of an adversary character where there is a dispute between two litigating parties, one making claim or
seeking relief against the other and that other opposing such claim or resisting such relief”.

Non-adversarial litigation has two aspects:

1. Collaborative litigation: In collaborative litigation the effort is from all the sides. The claimant, the
court and the Government or the public official, all are in collaboration here to see that basic human rights
become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional
obligations. Court assumes three different functions other than that from traditional determination and
issuance of a decree. (i). Ombudsman- The court receives citizen complaints and brings the most important
ones to the attention of responsible government officials. (ii) Forum – The court provides a forum or place
to discuss the public issues at length and providing emergency relief through interim orders. (iii) Mediator
– The court comes up with possible compromises.

2. Investigative Litigation: It is investigative litigation because it works on the reports of the Registrar,
District Magistrate, comments of experts, newspapers etc.

(e) Crucial Aspects: The flexibility introduced in the adherence to procedural laws. In Rural Litigation
and Entitlement Kendra v. State of U.P., Supreme Court rejected the defense of Res Judicta. Court refused
to withdraw the PIL and ordered compensation too. To curtail custodial violence, Supreme Court in Sheela
Barse v. State of Maharashtra, issued certain guidelines. Supreme Court has broadened the meaning of
Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest
extent possible.

(f) Relaxation of strict rule of Locus Standi: The strict rule of locus standi has been relaxed by way of (a)
Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, Supreme Court
held that a petitioner, a professor of political science who had done substantial research and deeply
interested in ensuring proper implementation of the constitutional provisions, challenged the practice
followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the
legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a
petition under Article 32.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the
proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe
out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain
or private profit or political motive or any oblique consideration…court has to strike balance between two
conflicting interests:
(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of
others; and
(ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives,
justifiable executive and the legislature. It is depressing to note that on account of trumpery proceedings
initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for
the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and
developing the laudable concept of PIL and extending its ling arm of sympathy to the poor, ignorant, the
oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go
unnoticed, unrepresented and unheard.

(g) Epistolary Jurisdiction: The judicial activism gets its highest bonus when its orders wipe some tears
from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open
all over India for providing the footing or at least platform to the needy class of the society.
Abuse of PIL:

However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court
itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs.
And the abuse of PIL is also increasing along with its extended and multifaceted use.
Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since
frivolous cases could be filed without investment of heavy court fees as required in private civil litigation
and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs.
Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus
standi requirement has permitted privately motivated interests to pose as public interests. The abuse of PIL
has become more rampant than its use and genuine causes either receded to the background or began to be
viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the
disguise of the so-called public interests.
In his recent write up, Mr. Soli Sorabji, the former Attorney General while applauding the liberalization of
the rule of locus standi by the Supreme Court of India benefiting under-trial prisoners languishing in jail for
inordinately long periods, inmates of asylums and care homes living in sub-human conditions, children
working in hazardous occupation and similar disadvantaged persons, has lamented that PIL is being abused
with increasing frequency and that over the years.
The Court in State of Uttranchal Vs Balwant Singh Chaufal stated Civil Appeal No 1132 -1134
of 2002 in its Judgment dated 18.01.2010 ordered the following:
198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following
directions:-
(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed
for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest
litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the
genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High
Courts who have not yet framed the rules, should frame the rules within three months. The Registrar
General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent
to the Secretary General of this court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before
entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the
petition.
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must
be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public
harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique
motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives
must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous
petitions and the petitions filed for extraneous considerations.

Article 33
Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. -
Parliament may, by law, deter-mine to what extent any of the rights conferred by this Part shall, in their
application to, -(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes
of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication system set up for the purposes of
any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to en-sure
the proper discharge of their du-ties and the maintenance of discipline among them.”
UOI & Ors v LD Balam Singh 2002 9 SCC
Dismissing the appeal, the Court HELD : 1.1. Can it be said that the Army Personnel form a class
of citizens not entitled to the Constitution’s benefits and are outside the purview of the Constitution? To
answer above in the affirmative would be a violent departure to the basic tenets of the Constitution. An
Army Personnel is as much a citizen as any other individual citizen of this country. Incidentally, the
provisions as contained in Article 33 does not by it-self abrogate any rights and its applicability is
dependent on Parliamentary legislation. The language used by the framers is unambiguous and categorical
and it is in this perspective Article 33 may be noticed at this juncture.
A plain reading thus would re-veal that the extent of restrictionsnecessary to be imposed on any
of the fundamental rights in their ap-plication to the armed forces andthe forces charged with the
maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance
of discipline among them would necessarily depend upon the prevailing situation at a given point of time
and it would-be inadvisable to encase it in a rigid statutory formula. The Constitutions makers were
obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring
proper discharge of du-ties and the maintenance of discipline amongst the Armed Force Personnel and
therefore Article 33 empowered the Parliament to restrict or abridge within permissible extent, the rights
conferred under Part III of the Constitution in so far as the Armed Force Personnel are concerned.
Court in the case of PrithiPal Singh v. The Union of India(AIR 1982 SC 1413) observed :”It is one of the
cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to
be a citizen so as to wholly deprive him of his rights un-der the Constitution. More so when
this Court held in Sunil Batra v.Delhi Administration (1979) 1 SCR392 at p. 495 :(AIR 1978 SC 1675 at
p. 1727)that even prisoners deprived of personal liberty are not wholly denuded if their fundamental rights.
Though the appellate jurisdiction of the courts is excluded in cases of court martial , the
write jurisdiction remains (unless taken away by law under ART 33 )
O.A.K. Nair vs. Union of India, AIR 1976 SC The expression “members of the Armed Forces" used in sub
clause (a) above covered such civilian employees of the armed forces as barbers, carpenters, mechanics etc.
Although these persons are non-combatant, nevertheless, they are integral to the armed forces and, therefore,
their Fundamental Rights also can also be curtailed under article 33.

Kameshwar P.D.vs. State of Bihar, AIR 1962 SC Article 33 selects only a few services for special
treatment, such as, Military and Para- Military Forces, Police forces and analogous forces. Article 33 does
not exclude any other category of civil servant from the purview of Fundamental Rights by reason of being
Government Servant. This provision may therefore be treated as an exception to the Fundamental Right.
Dalbir Singh vs. State of Punjab, AIR, 1962 SC A law enacted by Parliament governing the armed forces
(Army Act) cannot be challenged on the ground that it infringes any fundamental right. The power is
conferred on Parliament and not on the State Legislature. Maintenance of Law and Order being a State
Subject the law governing the forces charged with the maintenance of public order falls within the State
sphere. Nevertheless, such a state law cannot abrogate a Fundamental Rights of member of such force.
This can only be done by Parliament under article 33.The Parliament is entitled to lay down to what extent
Fundamental Right can be modified by State Legislation applicable to the forces charged with the
maintenance of public order.
Delhi Police Non Gazetted karmcharisangh vs. Union of India AIR 1987 SC In this direction the
Parliament has enacted the Public Forces (Restriction of Rights) Act, 1966, for restricting certain
Fundamental Rights of the Police Forces functioning under the several statutes listed in the schedule to the
Act. The ban on a member of the police force from becoming a member of any trade union or labour union
was placed by the Central Government under the rules made under the Police Forces (Restriction of
Rights) Act, 1966. The ban placed on a member of police force from becoming a member of any trade
union or labour union has been upheld by the Supreme Court.127The Parliament has also enacted the
Intelligence organisation (Restriction of Rights) act. 1985, restricting certain Fundamental Rights in their
application to the members of certain Intelligence agencies.
Article 34: Restriction on Rights conferred by this part while Martial Law is in force in any area
Article 34 enables Parliament to enact an Act of Indemnity to protect Government and Military Officers
from any liability for action taken by them for restoration of order during the Martial Law period. Such an
Act cannot question on the ground of infringement of fundamental rights of a person.

Article 35: Legislation to give effect to the Provisions of this part

Article 35. (a)( i) confers on Parliament and not the State Legislatures powers to make laws with respect to
any matter which under articles 16 (3) , 32 (3), 33 & 34may be provided for by law made by Parliament .
Article 35 (a) (ii) confers on Parliament and not the State Legislature, power to make laws for prescribing
punishment for those acts which are declared offences under the Fundamental Rights.
Article 35.b lays down that any law existing on the date of the commencement of the Constitution and
dealing with any of the matters mentioned in articles 35(a)(i) and (ii) as mentioned above is to remain in
force until altered, repealed or amended by the Parliament.

What is Article 35A?

Supreme Court will take up a clutch of petitions challenging the constitutional validity of Article 35A.

It is a constitutional provision that allows the Jammu-Kashmir assembly to define permanent residents of
the state. According to the Jammu-Kashmir constitution, a Permanent Resident is defined as a person
who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and
has “lawfully acquired immovable property in the state”.

When was Article 35A introduced?

It was brought in by a presidential order in 1954 in order to safeguard the rights and guarantee the unique
identity of the people of Jammu-Kashmir. Only the Jammu-Kashmir assembly can change the definition of
PR through a law ratified by a two-thirds majority.
What is the challenge before the Supreme Court?
A batch of petitions challenged the constitutional validity of the Article 35A. A Supreme Court bench headed
by the then Chief Justice J S Khehar referred the matter to a three-judge bench which will take up the
petitions today.
Delhi-based NGO We the Citizens, in its petition, argued that Article 35A goes against the “very spirit of
oneness of India” as it creates a “class within a class of Indian citizens”.
Another petition, filed by lawyer Charu Wali Khanna, claims Article 35A discriminates against a woman’s
right to property.

The Indian Constitution (IC) protects certain sections of the society which have faced injustice historically.
In the similar vein, the IC protects certain States to immune from the Constitution under Part XXI titled
“Temporary, Transitional and Special Provisions” from Article 369 to 392. In this Part, the IC provides
temporary provisos to the state of Jammu and Kashmir (Art 370). The IC also provides special provisions
to State of Maharashtra and Gujrat (Art.371), Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art.
371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art.
371H), Goa (Art. 371-I) and Karnataka (Art. 371 J).

The object behind to provide “special” and “temporary” provision to the certain State was to protect these
State’s autonomy in some areas. The Constituent Assembly of India spare enough time on these provisions
to make India more democratic and inclusive.
The Presidential Order made under the Article of 370 (1) (d) which empower to the President of India to
make exception and modifications regarding the State subject with the concurrence of the State
Government. The Constitutional question arise here regarding the Presidential Order, 1954, Article 35A and
Article 370 (1) (d) that whether the President of India has the power to amend the Constitution? Whether
the Article 35A is the Constitutional valid which came into existence by the bypassing of all constitutional
mechanism? Whether the Article 368 has no meaning to amend the Constitution?
This Presidential Oder exercises its power from Article 370 (1), the Article 35A states: “35A.
Saving of laws with respect to permanent residents and their rights.—Notwithstanding anything contained
in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter
enacted by the Legislature of the State,—
(a) Denning the classes of persons who are, or shall be, permanent residents of the State of Jammu and
Kashmir; or
(b) Conferring on such permanent residents any special rights and privileges or imposing upon other
persons any restrictions as respects—
(i) Employment under the State Government;
(ii) Acquisition of immovable properly in the State;
(iii) Settlement in the State; or
(iv) Right to scholarships and such other forms of aid as the State Government may provide, shall be void
on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other
citizens of India by any provision of this Part”
Does the President of India have sole power to amend the Constitution through “Order”?
Besides giving assent to the Bill passed by the Bothe Houses (Lok Sabha and Rajya Sabha), President of
India has sole legislative power under article 123 power to make ordinance when either house of the
Parliament is not in session. This legislative powers of the President have only six-month effect; in other
words, it is the authority to make laws without discussion in the Parliament in urgency for a shorter period.
It is an exception in the making law not a general rule or a permanent measure.
In the Constitutional scheme, the President of India has no legislative power to amends the Constitution by
bypass the democratic process. President’s legislative, executive and judicial power is subjective to aid and
advice by the Council of Minister (Art 74), but all these powers do not allow to the President to go beyond
the spirit of the Constitution.
Does Article 370 have the power to incorporate new Article in the Constitution or amend the
Constitution?
Nowhere in the Article 370 mention that President of India has the power to amend the Constitution or
insert a new Article in the Constitution? The Article 370 only states that the President can make any
exceptions and modifications with the concurrence of the Government of the State. Subclause 1 (d) of the
Article 370 states that: “Such power of the other provisions of this Constitution shall apply in relation to
that State subject to such exceptions and modifications as the President may by order specify.”
Article 368: Amendment power of the Constitution and Article 35A Article 368 is the only
way to amend the Constitution, not the President. The marginal note of Article 368 states
“Power of the Parliament to amend the Constitution and procedure, therefore” which means it is the
Parliament that has the power to amend the Constitution. Sub-clause 2 of the Article 368 states that: “An
amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either
House of Parliament, and when the Bill is passed in each House by majority of the total membership of that
House and by a majority of not less than two-third of the members of that House present and voting, [it
shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution
shall stand amended in accordance with the terms of Bill” It is quite clear that Article 368 is the only ways
that amend the Constitution by way of addition, variation or repeal any provisos of the Constitution.

Directive Principles of State Policy in The Indian Constitution

The Directive Principles of State Policy contained in Part IV, Articles 36-51 of the Indian constitution
constitute the most interesting and enchanting part of the constitution.

The Directive Principles may be said to contain the philosophy of the constitution. The idea of directives
being included in the constitution was borrowed from the constitution of Ireland. As the very term
“Directives” indicate, the Directive principles are broad directives given to the state in accordance with
which the legislative and executive powers of the state are to be exercised.

Article 36 – Definition In this Part, unless the context otherwise requires, “the State” has the same
meaning as in Part III.

Article 37 reveals that:

1. The Directive Principles are not justifiable
2. They are Fundamental to the governance of the country
3. It shall be the duty of the State to apply these Directive Principles while formulating policies or making
laws for the governance of the State
Provisions:
The various articles on Directive, Principles are as follows.

Article 38 instructs the state to promote the welfare of people by securing and protecting a social order in
which justice (socio-economic and political) shall inform all the institutions of national life.

Article 39(a) it talks about state’s role in providing adequate means of livelihood to all its citizens.

Article 39(b) provides for state’s direction for equitable distribution of resources.

Article 39(c) provides for prevention of concentration of wealth in fewer hands.

Article 39(d) provides for equal pay for equal work, for both; men and women.

(e) that the health and strength of workers, men and women, and the tender age of children are not abused
and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against moral and
material abandonment. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 7, for cl. (f)

Article 39(A) provides for equal justice and free legal Aid.

Article 40 says that the state shall organize village Panchayat as units of self-government.

Article 41 provides for right to work, public assistance in case of unemployment, old age, sickness and
disablement keeping in view the limitations of economic resources.

Article 42 - the state will make provisions for the creation of just and humane conditions of work. It will
also ensure maternity relief.

Article 43 provides for living wages for worker and a decent standard of life, leisure and social and cultural
opportunities for people.

Article 43(A) provides for participation of workers in the management of industry and other undertakings.
It has been added by 42nd Amendment.
Article 44 provides for a Uniform Civil Code applicable to the entire country.

Article 45 provides free and compulsory education to children till 14 years of age. It has now been made a
fundamental right under Article 21A.

Article 46 provides for protection of educational and economic interests of weaker sections of the society
and in particular, of the scheduled castes and scheduled tribes.

Article 47 provides for prohibition of consumption of intoxicating liquor and to raise the level of nutrition
and five improvement of public health.

Article 48 provides for preserving and improving the breeds and prohibiting the slaughter of cows, calves
and other milks and draught catties.

Article 48A added by 42nd Amendment, provides for protection and improvement of the environment and
to safeguard the forests and wild life of the country.
Article 49 provides for protection of monuments of historical and national importance.

Article 50 provides for separation of judiciary from executive.

Article 51 provides for promotion of international peace and security.

Classification of DPs
1. Socialist Principles

Article 38 – the state shall endeavour to formulate such social system which will secure social, economic
and political justice to all in all the spheres of life. Article 39(a) - the state shall try to formulate its policy
in such a manner so as to secure adequate means of livelihood for all its citizens. Article 39(b) - the
ownership of material resources would be controlled in such a manner so as to sub-serve the common
good. Article 39(c) - the economy of the state will be administered in such a manner so that wealth may
not yet be concentrated in a few hands and the means of production may not be used against the public
interest. Article 41 - the State will work within the limits of its economic viability and progress, provide to
the citizens the right to work, the right to education and general assistance in the event of unemployment,
old age, disease and other disabilities. Article 42 - the state will make provisions for the creation of just
and humane conditions of work. It will also ensure maternity relief. Article 43 - the state will ensure
adequate wages, good life and rest to the labourers. The state will also endeavour to make available to the
labourers various socio-cultural facilities.
2. Liberal Principles

Article 44 - The State shall endeavour to formulate and implement a Uniform Civil Code for all the people
living throughout the territory of India. Article 45 - the State shall endeavour to provide early childhood
care and education for all the children until they complete the age of six years. Article 47 - the State shall
strive to raise the level of nutrition and the standard of living. Thus, it will endeavour to improve upon the
health of the people. Article 48 - the State shall strive to organise agriculture and husbandry on modern
and scientific lines. It will also try to maintain and improve upon the breed of the animals. Article 50 - the
state will try to separate the judiciary from the executive in the case of public service.

3. Gandhian Principles

Article 4 - the State will strive to organise Panchayats in villages and will endow them with such powers
which enable them to act as units of self government. Article 43 - the state shall strive to develop the
cottage industry in the rural areas both, on individual or cooperative basis. Article 47 - the state will
strive to ban the consumption of wine, other intoxicating drinks and all such commodities which are
considered injurious to health. Article 48 suggests that the State will ban slaughtering of cows, calves and
other milch cattle.
4. International principles

Article 51(a)- The State will strive to promote international peace and security. Article 51(b)- The State
will strive to maintain just and honourable relations among various states in the world. Article 51(c)- The
State will endeavour to promote respect for International treaties, agreements, and law. Article 51(f)- The
State will strive to settle international disputes by arbitration.

 Note: In India Gujarat, Manipur, Mizoram, Nagaland and Lakshadweep prohibited manufacture,
sale and consumption of alcohol. In Gujarat the law is in force since May 1, 1960. Gujarat is the only
state in India that has the death penalty for those who found guilty of making and selling spurious
(fake) liquor which causes death. This was done by amending the Bombay Prohibition (Gujarat
Amendment) Bill 2009.
 Note: the Bombay Prohibition Act 1949 is still in operation in both Maharashtra and Gujarat.
 Note: The Bangaram Island is the only place in Lakshadweep where the consumption is permitted.
 Impact of Prohibition in Haryana: After the 1996 assembly elections the HVP (Haryana Vikas Party)
imposed ban on liquor by the CM Bansilal and it had a very bad impact in
 86th Amendment of 2002 changed the subject matter of Article 45 and also made elementary
education a fundamental right under Article 21 A. (This came into effect on April 1, 2010). With this
the Children between the age group of 6 and 14 are entitled for free education.
 In Champakam Dorairajan case (1951) the Supreme Court ruled that in case of any conflict between
Fundamental Rights and DPSP, the Fundamental rights would prevail.
 In Golaknath case (1967) the Supreme Court held that Fundamental Rights cannot be amended for
the implementation of DPSP. ü In Keshavananda Bharati case (1973): The Supreme Court declared
that there is no essential dichotomy between the Fundamental rights and the Directive principles.
They complement and supplement each other.
 42nd amendment of 1976 accorded supremacy to Directive Principles of State Policy over
Fundamental rights.
 In Minerva Mills (1980) case the status of Directive Principles of State Policy was made subordinate
to the Fundamental rights.
 DR B R AMBEDKAR: The Directive Principles are the novel feature of the Indian Constitution. The
Directive Principles along with the Fundamental rights contain the Philosophy of the Constitution
and is the soul of the Constitution.
 DR BR AMBEDKAR: A state just awakened from freedom with its many preoccupations might be
crushed under the burden unless it was free to decide the order, the time, the place and the mode of
fulfilling them.
 JAWAHARLAL NEHU’S STATEMENT IN 1951: The DPSP represent a dynamic move towards a
certain objective. The Fundamental rights represent something static, to preserve certain rights
which exist. Both are right. But, somehow and sometime it might so happen that dynamic
movement and that static standstill do not quite fit into each other.
 Dr B R Ambedkar was strongly in favor of Uniform Civil Code.
 In S R Bommai vs Union of India case in 1994 the Supreme Court urged the government to enact a
Uniform Civil Code to promote National Integration.
 The Supreme Court (1994) stated that the Article 44 had remained a dead letter.
  The Preamble, Fundamental Rights and the DPSP are the integral parts of the Indian Constitution.
All the three are meant for building an egalitarian (equal) society and in the concept of socio-
economic justice. ü If The Fundamental Rights represent the don’ts, the DPSP represents the Do’s of
the executive and legislature then there is conflict.
 JAWAHARLAL NEHU’S STATEMENT IN PARLIAMENT IN 1955: The responsibility for economic
and social welfare policies of the nation should lie with the Parliament and not with the Courts. In
case of contradiction it was for Parliament to remove the contradiction and make Fundamental
rights sub serve the Directive Principles of State Policy.
 A Sessions Court in Delhi on forced marriage of a Muslim woman: The statements were given on
January 1, 2013 while dismissing an anticipatory bail application moved by a maulvi accused of
forcing a young Muslim girl into a wedding with a married man who allegedly raped her
subsequently. According to maulvi the Shariah permitted a Muslim to keep 4 wives at a time and
that the girl consented to the marriage. The judge Kamini Lau noted that the girl had not signed the
marriage certificate. Her parents were not present nor were there any witness. According to the
judge the Indian Legal system provides sufficient space for religious freedom but whenever any such
regressive religious practice come into conflict with the rights of the citizens as enshrined in the
Indian Constitution, it becomes obligatory for courts to ensure that it is the majesty of law and the
constitutional mandate that prevails. Judge made it very clear that in Islamic societies Polygamous
marriages are permitted but only in certain circumstances, that is primarily in situations where a
man’s death has left his widow with no means or support. Polygamy is neither mandatory nor
encouraged but merely permitted. The Korans conditional endorsement stresses that self interest or
sexual desire should not be the reason for entering into a polygamous marriage. It is a practical duty
that is associated with the social duty of Islamic men to protect the social and financial standing of
widow and orphans in their community.

Nature of DPSPs

Article 37 explains in whole the nature of the DPSPs,

“The provisions contained in this Part shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in making laws”

Thus, DPSPs are not enforceable by any Court, that is, no Court can force the government to enforce these
Principles or make laws regarding them. But mere non-enforceability does not make them useless. For the
following reasons, this Part has become an important part of the Constitution:

1. Sir B.N. Rau believed that these Principles had an “educative value”. [iv] This educative value was
for reminding those in power what the aim of the Indian polity is. All the provisions in the Part
encompass the goal of the Welfare State that is India.
 2. Though these Principles are not legally enforceable, they do have political justifiability. As put by Dr.
B.R. Ambedkar, “the government has to answer for them before the electorate at election time.”
3. They help the Courts in interpretation of various statutes. The interpretation shall be such that the
statutes are not in conflict with them. They also help the courts to determine the scope of
Fundamental Rights.

Thus, in Air India Statutory Corporation v. United Labour Union[v], the Supreme Court has rightly
observed that DPSPs are forerunners of the U.N. Convention on Right to Development. They are imbedded
as an integral part of the Constitution and that they now stand elevated to inalienable fundamental human
rights. Though non-justiciable, they are justiciable by themselves.

Relationship with Fundamental Rights

A major concern regarding the validity of the DPSPs is their compatibility with the Fundamental Rights
contained in Part III of the Constitution, enforceable even in the High Courts and the Supreme Court
through the manner of writs. The following are the points of difference between the two:

1. The Fundamental Rights are a limitation on the powers of the government operating on an
individual, whereas, the DPSPs are instructions to the government for achieving certain ends
through their actions.
2. Anything contained in the DPSPs cannot be violated either by the individuals or the State, as long as
there is no law made to that effect, while there are strict remedies against violation of an individual’s
Fundamental Right.[vii]
3. A law against the DPSPs cannot be declared as void by the courts, but this is not the case with
Fundamental Rights.[viii]

There often arises a conflict when a question regarding the priority is raised. The views have differed with
every judicial decision. In a view taken in 1951, in the case of State of Madras v. Champakan[ix] the
Supreme Court held that since any law contravening the Fundamental Rights is void, this is not the case if
an otherwise valid law contravenes the DPSPs. Thus, the Fundamental Rights should have precedence over
DPSPs. This view was, however, altered by the Constitution (42nd Amendment) Act, 1971. It widened Article
31C to basically state that if any law is made to implement the DPSPs it would be immune from
unconstitutionality on the grounds that it violates Articles 14 and 19. The Keshavnanda Bharti v. State of
Kerala[x] judgment also reiterated a similar view that subordinated Fundamental Rights to the DPSPs. But
this view has been foiled in Minerva Mills v. Union of India[xi] in which, the widening of Article 31C was
struck down and it was observed that both these facets were to be delicately balanced and that they were
complementary to each other.

Fundamental Rights vs Directive Principles

The directives differ from the fundamental rights in Part III of the Constitution or the ordinary laws of the
land, the following ways:

1. While the fundamental rights constitute limitations upon state action, the directive principles are in
the nature of instruments of instruction to the government of the day to achieve certain ends by
their actions.
2. Fundamental rights are justiciable, but the directive principles are non-justiciable.
3. The directives, however, require to be implanted by legislation, and so long as there is no law
carrying out the policy laid down in a Directives, neither the state nor individual can violate any
existing law or legal right under colour of following a Directives.
4. The fundamental rights lay down the negative obligation of the state. They are prohibitive in
character and are, in fact, in the nature of injunctions requiring the state not to do certain things.
Directive principles are, on the contrary, affirmative directions dealing with the positive obligations
of the state towards the citizens.
5. The main objective of fundamental rights is to establish political democracy, by guaranteeing
equality, liberty, religious freedom and cultural rights but the aim of directive principles of state
policy is to establish just social and economic order.
6. The court cannot declare any law as void on the ground that it contravenes the directives. Relative
Importance of DPs vis-a-vis FRs During the first sixteen years of the operation of the Constitution,
the directive principles were considered subordinate to the fundamental rights: the courts struck
down a number of laws enacted to implement directive principles on the ground that they violated
the fundamental rights. The conflict has its root in the fact that fundamental rights are enforceable
by the courts, while the directive principles are not so.

However, the government tried to overcome the problem by amending the Constitution. When the Supreme
Court laid down in the Golaknath Case that the fundamental rights cannot be abridged to implement the
directive principles, the Government tried to overcome the limitation in 1971 through the 24th Amendment
which gave Parliament the right to amend fundaments I rights. In the same year, the 25th Amendment Act
inserted Article 31c ensuring that certain laws meant to implement Directives in clauses 39 (b) and 39 (c)
will prevail even if these laws violate the rights granted in Article 14 and 19. An attempt to enhance the
scope of Article 3IC was made by the 42nd Amendment Act which gave primacy to any or all the directive
principles and deprived the courts of the right to look into such cases.

This attempt was foiled by the Supreme Court majority judgement in Minerva Mills Case which asserted
that such total exclusion of judicial review would offend the basic structure of the Constitution. On the
whole, however, the conflict between these two features of the Constitution is meaningless as they are, in
reality complementary to each other. The courts have increasingly based their judgment on a harmonious
reading of Part III and IV of the Constitution. The Supreme Court, after the judgment in the Kesavananda
Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being
complementary to each other, each supplementing the other’s role in aiming at the same goal of
establishing a welfare state.

Views of the framers of the Constitution

Sir B.N. Rau emphasized on precepts rather than on justiciable rights, and also thus distinguished between
justiciable and non-justiciable rights (an inspiration from the Irish Constitution) in his work, Constitutional
Precedents because of the difficulty in describing and limiting negative rights. The Precedents, during the
Drafting of the DPSPs, supplied the members with at least five of the original twelve provisions of the
Principles.[xiv]Rau also emphasized that these rights had an educative value. He also believed that these
Principles could occasionally invade the individual rights for greater goods. Therefore, it can be said that he
was a strong proponent of the DPSPs.

Dr. B.R. Ambedkar and K.T. Shah were other strong proponents of the Directive Principles. They did not
agree with Rau’s concept of ‘moral precepts’ and believed that they must also be justiciable. They
propagated the idea of a particular time limit within which these Directives must become justiciable.
Ambedkar also submitted to the Assembly a list of Fundamental Rights that included special provisions
regarding minorities, nationalization of land and the key industries (especially agriculture), state monopoly
over Insurance that was to be made compulsory for every adult, etc. To summarize, he strongly supported
the ideology of Socialism. Perhaps this shared ideology prompted Shah to also subscribe to viewpoints
similar to Ambedkar’s. However, the Assembly rejected this list on the ground that these provisions could
be dealt with through further legislation, and there was no need to include them in the Constitution itself.
When the inclusion of this list in the part concerning the Fundamental Rights was rejected, Ambedkar put
his weight behind the provisions of the DPSPs. Half a loaf of bread was better than none.[xv]

Alladi Krishnaswami Ayyar was initially skeptical of the DPSPs, but later converted to the belief that it was
idle to suggest that a freely appointed Legislature could ignore these Directives. Munshi also shared this
view, as can be assessed from his words, “Even the non-justiciable rights have to announced in order to
form the basis of protest against arbitrary legislation. They are a body of opinion to which public opinion
can rally.”

Except T.T. Krishnamchari, who called the DPSPs, “ a veritable dustbin of sentiment”, the views of the
members of the Constituent Assembly can be summarized mainly as supportive of the Directive Principles
of State Policy. Their main points of disagreement over these provisions were, that they were not
enforceable, and that that they did not go far enough in establishing a socialist state, an ideology common
in post-imperialism India.[xvi]

But why did the Assembly decide that the DPSPs should not be justiciable? Despite the initial
disagreements over the non-enforceable nature of the DPSPs, the Assembly decided on the Directives in
their present form for mainly two reasons- firstly, the changing times could put them out of date, and
secondly, India did not possess the adequate resources at the time of Independence to enforce all the
DPSPs, and thus, it was left to the future Governments to follow them voluntarily.
Should DPSPs be made enforceable?
making the Directives enforceable is futile, since a large number of laws and policies are already in place for
the implementation of these DPSPs. For example, the provision of Panchayati Raj (Article 40) was
introduced through an Amendment to the Constitution in 1992. Today, there are 2,27,698 Gram
Panchayats, 5906 Intermediate Tiers, and 474 Zila Panchayats in the country.[xviii] For raising the
standard of living (Article 47), a number of programs are in place, namely Integrated Rural Development
Program (IRDP)[xix], Integrated Tribal Development Program (ITDP), and Pradhan Mantri Gram Sadak
Yojna. For implementing Article 39(a) (provision of adequate means of livelihood) the Mahatma Gandhi
National Rural Employment Guarantee Act (MNREGA) is in place. For preventing exploitation of children
(Article 39(g)) legislations such as the Child Labour (Prohibition and Regulation) Act 1986 have been
enforced. Since the governments have been working towards the creation of a welfare state and have
implemented most of the Directives by the way of legislations that are enforceable, the need to make the
DPSPs justiciable themselves is not crucial.

Another argument against enforcing the DPSPs is that their provisions are not very secular. Though it calls
for the implementation of a Uniform Civil Code, it also directs the state to ban the slaughter of cows, a cause
that is primarily Hindu. Regarding this provision contained in Article 48, Austin Granville says, “Article 48
shows that Hindu sentiment predominated the Constituent Assembly.”[xx] This sentiment predominated
the Constituent Assembly, but it does not predominate the national sentiment today. Recently,
Maharashtra and Haryana have banned beef (cow’s meat). This Act has drawn the ire of the country, as it
has been considered a move aimed to establish India as a Hindu nation. Similar reactions will follow if ban
on cow slaughter is enforced nationwide according to DPSPs.

The Directive Principles also try to impose morals on the citizens, something that is inarguably outside the
scope of law. The Directives contain a provision that calls for the ban on alcohol. Though it has never been
enforced on a national level, this provision certainly tries to impose certain morals on the people. This can
become disastrous for the nation, as the American Prohibition has proven. Thus, Allen was right when he
said that, “A little too much law, and you turn a moderate drinker into a dipsomaniac, an agnostic into a
blaspheme, the enlightened employer into a gradgrind, and a flirt into a dipsomaniac.”

Implementation of DPSPs

6.6.1 Since the commencement of the Constitution, there have been a number of legislations to implement
the DPSPs. In fact, the very first Amendment Act was for implementing land reforms. It was followed by the
4th, 17th, 25th, 42nd and 44th Amendment Acts.

6.6.2 The 73rd Constitution Amendment Act (1992) is in pursuit of implementing Art. 40.

6.6.3 In 1990, the bill to make the right to work an FR was introduced but the government of the day did
not survive and the Bill fell through.
6.6.4 The 86th Constitution Amendment Act (2002) was enacted to provide Right to Education until the
age of fourteen years.

6.6.5 There have been several factory legislations to make the conditions of work humane for the workers.

6.6.6 Promotion of cottage industries has been one of the main aspects of the economic policy of the
government and there exists the Khadi and Village Industries Commission for the purpose.

6.6.7 In 1990, there was an attempt by the Parliament to bring about workers’ participation in management
but the Bill fell through with the fall of the then government.

6.6.8 The government’s position as regards the uniform civil code (UCC) is that the matter being sensitive
in the country, unless the religious groups concerned come forward and voluntarily seek the enforcement of
the UCC, it is not desirable to implement the code. The Supreme Court, in 1995, held that the UCC must be
implemented, and ‘directed’ the Union Government to report to it on the progress made in the
implementation of the UCC.

6.6.9 The policy of preferential treatment in education, administration and economy for the weaker sections
including women, SCs, STs and OBCs has been a consistent plank of the government welfare policy, the
most recent being the implementation of the Mandal Commission Report, for which judicial clearance was
given by the Supreme Court in 1992.

6.6.10 Many schemes like the Integrated Child Development Services, midday meal scheme and the policy
of prohibition followed by some states (Andhra Pradesh in 1993, for example) are in pursuance of Art. 47.

6.6.11 In pursuit of Art. 48, the Green Revolution and the research in biotechnology are aimed at
modernizing agriculture and animal husbandry, among other things.

6.6.12 The Environment Protection Act, 1986: The Wild Life Act: The National Forest Policy, 1988 are some
of the steps taken for the implementation of Art. 48A. In 1995, the Union Government established the
National Environment Tribunal.

6.6.13 The Archaeological Survey of India (ASI) is entrusted with the work of protection of monument like
the Taj Mahal. The ASI took up the work of protecting the Puri temple from dilapidation in late 1992.

6.6.14 The amendments made to the Criminal Procedure Code to divest the executive of certain judicial
powers at the district level are in pursuit of Art. 50.

5.6.15 The efforts of India to secure international peace are many like participating in the peace keeping
operations of the UN (Somania in 1992-93; Sierra Leone in 2000); pioneering and leading the Non-aligned
Movement and so on.

PROTECTION OF JUVENILES
Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to
their age or strength (Article 39(e))
Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity and guaranteed protection of childhood and youth against exploitation and against moral and
material abandonment (Article 39 (f))
Right to early childhood care and education to all children until they complete the age of six years
(Article 45) The Supreme Court in the
Asiads Case People’s Union for Democratic Rights v. Union of India , (1982) 3 SCC has held that those
rights which are provided in Part IV of the Constitution can be read into the fundamental rights provided
under Part III of the Constitution and in that way they can be enforceable in courts. For example, Article 45
provides for free and compulsory education for children until they complete the age of 14 years. However,
the Supreme Court in its liberal interpretation of life and liberty guaranteed under Article 21 held that the
term liberty not only includes livelihood but also the right of human beings to live with dignity, and such
dignity is not possible without literacy, and therefore the Right to Education is a fundamental right coming
within the meaning of Article 21A of the Constitution of India.
Right to Health
Article 38 of Indian Constitution impose liability on State that states will secure a social order for the
promotion of welfare of the people but without public health we cannot achieve it. It means without public
health welfare of people is impossible. Article 39(e) provides that the health and strength of workers, men
and women, and the tender age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength. Article 39(f) stated that children are given
opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 41 imposed duty on State to public assistance basically for those who are sick and disable. Article 42
makes provision to protect the health of infant and mother by maternity benefit.
In the India the Directive Principle of State Policy under the Article 47 considers it the primary duty of the
state to improve public health, securing of justice, human condition of works, extension of sickness, old age,
disablement and maternity benefits and also contemplated. Further, State’s duty includes prohibition of
consumption of intoxicating drinking and drugs are injurious to health. Article 48A ensures that State shall
Endeavour to protect and impose the pollution free environment for good health.
Article 47 makes improvement of public health a primary duty of State. Hence, the court should enforce this
duty against a defaulting authority on pain of penalty prescribe by law, regardless of the financial resources
of such authority.
Under Article 47, the State shall regard the raising of the level of nutrition and standard of living of its
people and improvement of public health as among its primary duties.
None of these lofty ideals can be achieved without controlling pollution inasmuch as our materialistic
resources are limited and the claimants are many.
EQUAL PAY FOR EQUAL WORK
The state has been directed Article 38
"To promote the welfare of the people by securing and protecting as effectively as it may a social order in
which justice, social, economic and political shall inform all the institutions of national life. Article 39 of the
Constitution relating to the directive principles is more specific and comprehensive in nature. This article
specifically requires the state to strive for securing equal pay for equal work of both men and women.
(Article 39(d))
Article 39(d) of the Constitution
The concept of social justice consists of diverse principles essential for the orderly growth and development
of personality of every citizen. It is a dynamic devise to mitigate the sufferings of the poor, weak and
deprived persons of the society and so elevate them to the level of equality to live a life with dignity of
person. The aim of social justice is to attain substantial degree of social, economic and political equality,
which is the legitimate expectation and constitutional goal. Social justice and equality are complementary to
each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social
justice to bring about equality Air India Statutory Corporation vs. United Labour Union, AIR
1997 SC
The principle of "equal pay for equal work" is not expressly declared by our constitution to be a
fundamental right, but it certainly is a constitutional goal. The directive principle under Article 39(d) of the
constitution proclaim "equal pay for equal work" for both men and women means equal pay for equal work
for every one and as between the sexes. Directive Principles have to be read into the fundamental rights as a
matter of interpretation. Article 14 enjoins the state not to deny to any person equality before the law or the
equal protection of laws and Article 16 declares that there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the state Article 39 deals with certain
principles of policies to be followed by the state.
It has been laid down that "equal pay should be given to men and women doing equal work". This article,
which apparently envisages equality of pay for men and women, has been applied to enforce equality of pay
generally.
In Randhir Singh vs. Union of India, AIR 1982 SC the Supreme Court held that the principle of
"equal pay for equal work" though not a fundamental right is certainly a constitutional goal and, therefore,
capable of enforcement through constitutional remedies under article 32 of the constitution.
Daily Rated Casual Labour vs. Union of India, (1988) SCC The doctrine of equal pay for equal work
is equally applicable to persons employed on daily wage basis. They are entitled to the same wages as other
permanent employees in the department employed to do the identical work.
In Jeet Singh’s case Jeet Singh vs. Municipal Corporation of Delhi, (1986) where Supreme Court
invalidating the differences of pay scales of drivers in Delhi Police Force and Delhi Administration and
Central Government, the court has relied on Article 39(d).

Supreme Court Employees Welfare Association vs. Union of India, (1989) 4 SCC Thus, workers
under different establishments and managements cannot automatically claim parity of payment.
Similarly, Mewa Ram Kanojia vs. A.I.L.M.S. (1989) 2 SCC pay scales may differ on the basis of
educational qualifications.
Jagdish Prasad vs. M.C.D. (1993) Supp (2) SCC Equally, differences in housing facilities under
different employers may not be unjustified and the court may not issue mandamus to allot houses to low
income employees in an establishment because such facility is available in another establishment or that the
state is a social welfare state
The doctrine of "equal pay for equal work" cannot be put in a strait jacket. This right, although find place in
Article 39, is an accompaniment of equality clause enshrined in Articles 14 & 16 of the Constitution.
Reasonable classification, based on intelligible criteria having nexus with the object bought to be achieved is
permissible.

Accordingly, it has been held in State of U.P. vs. J.P. Chaurasia, AIR 1989 SC by the
Supreme Court that different scale of pay in the same cadre of person doing similar work can be fixed if
there is a difference in the nature of work done and difference as regards reliability and responsibility.

In State of A.P. vs. V.G. Sreenivasa Rao, (1989) 2 SCC the Supreme Court has held that giving higher
pay to a junior in the same cadre is not illegal and violative of Article 14, 16 and 39(d) if there is rational
basis for it.

In State of Haryana vs. Rajpal Sharma, AIR 1997 SC it has been held that the teachers employed in
privately managed aided schools in State of Haryana are entitled to same salary and dearness allowances as
is paid to teachers employed in government school.

In Federation of A. I. Custom and Central Excise Stenographers (Recog.) vs. Union of India,
AIR 1988 SC the Supreme Court has emphasized that equal pay must depend on the "nature of the work
done" and not "mere volume of work" as "there may be qualitative difference as regard reliability and
responsibility." "Functions may be the same but the responsibilities make a different". The Court has
further observed:
"The same amount of physical work may entail different quality of work, some more sensitive; some
requiring more tact, some less, it varies from nature and culture of employment. The problem about equal
pay can't always be translated into a mathematical formula”.
Besides, the principle of gender equality in the matter specifically embodied in the Article 39(d), the
'Supreme Court has extracted the general principle of equal pay for equal work by reading Article 14, 16
of the Constitution of India.
The Supreme Court has emphasized in Randhir Singh, referring to Article 39(d), that the principle of
"equal pay for equal work" is not an abstract doctrine but one of substance. Though, the principle is not
expressly declared by the constitution to be a fundamental rights yet it may be deduced by construing
Article 14 and 16 in the light of Article 39(d). The word 'socialist' in the preamble must at least mean "equal
pay for equal work".
The Supreme Court has observed in Grih Kalyan Kendra vs. Union of India: AIR 1991 SC
"Equal pay for equal work is not expressly declared by the Constitution as a fundamental rights but in
view of the directive principle of state policy as contain in Article 39(d) of the Constitution "equal pay for
equal work" has assume the status of Fundamental Rights in service jurisprudence having regard to the
constitution mandate of equality in Article 14 and 16 of the constitution."

The Directive Principles may be said to contain the philosophy of the constitution. The idea of directives
being included in the constitution was borrowed from the constitution of Ireland. As the very term
“Directives” indicate, the Directive principles are broad directives given to the state in accordance with
which the legislative and executive powers of the state are to be exercised.

As Nehru observed, the governments will ignore the directives “Only at their own peril.” As India seeks to
secure an egalitarian society, the founding fathers were not satisfied with only political justice. They sought
to combine political justice with economic and social justice.

Directives contained in other parts (Important)

Besides the directives contained in Part IV, there are certain other directives addressed to the state in
other part of the Constitution. These directives are also non-judicial. There are:
1. Article 350 A enjoins every state and every local authority within the state to provide adequate
facilities for instruction in the mother tongue at the belonging to linguistic minority groups.
2. Article 351 enjoins the union to promote the spread of Hindi and to develop it so that it may serve as a
medium of expression of all the elements of the composite culture of India.
3. Article 335 enjoins that the claims of the members of the Scheduled Castes and Scheduled Tribes shall
be taken into consideration, consistently with the maintenance of efficiency of administration, in the
making of appointments to services and posts in connection with the affairs of the union or a state.
Though the Directives contained in Article 335, 305A and 351 are not included in Part IV, courts have
given similar attention to them on the application of the principle that all part of the Constitution should
be read together.
Criticism:

 Can lead to ‘situations of conflict’ between the center and the states o If the Parliament passes a law
to enforce DPs, even if it is beyond the fiscal reach of the states to implement the laws, failure to do
so will be subject to art 256 (state governments are supposed to exercise their executive powers in
accordance with the laws passed by the Parliament). If the state does not follow 256, then by art 365
(if the state does not follow the mandates of the Parliament, then the President can deem this to be a
‘breakdown of constitutional machinery’)
 Social values combined with sentimental values – prevention of cow-slaughter and alcohol
consumption combined with principles of social and economic justice (39b, 39c)!
 It is said they imbibe the spirit of Fabian socialism – which is now losing relevance o The ideas of 5
year plans, setting up large and diversified public sector and nationalization of key industries came
from erstwhile USSR o However, unlike USSR, India became a democracy with a Fabian aim of
socialism – that is – achieve socialism through evolution, not revolution (e.g. Bolshevik Revolution
of 1917)
 These are Non-justiciable – then how can the courts monitor their implementation. Although, the
courts, especially since the 1990s, have started giving significance to the DPs through ‘judicial
activism’.

 No proper classification is done – the segregation into Socialist, Gandhian, Liberal and International
principles was not there in the Constitution.
  Some Directive Principles are not practicable – strict nation-wide ban on alcohol can never be
practically enforced.

 No mention of methods to implement these – no time frame, no process, no agencies prescribed.

Importance of DPs Lay down the foundation of Economic Democracy Measuring rods to judge the
achievements of the Govt They establish welfare state These are Fundamental in the Governance of
the country. These Principles supplement Fundamental rights Guiding Principles for courts They
bring stability and continuity in State

FUNDAMENTAL DUTIES

The Chapter of Fundamental duties was inserted in our Constitution by 42nd Amendment of the
Constitution in 1976. By 42nd Amendment after Part-IV of Constitution, Part IVA and Article 51-A is
inserted in the Constitution which lays down Fundamental Duties of the citizens.

Fundamental Duties was added on the recommendation of Swaran Singh Committee. These are non-
justifiable i.e their compliance cannot be enforced by law, but serves as moral responsibility on the citizens.
Originally 10 Fundamental Duties, 11th Fundamental Duty was added by 86th Amendment in 2002. At
Present we have 11 Fundamental Duties .Fundamental rights and Fundamental duties are correlated. Either
of them cannot be ignored. To create a general awareness of the provisions of fundamental duties amongst
the citizens on the lines recommended by the Justice Verma Committee in 1999. India borrowed the
concept of Fundamental Duties from USSR.

Fundamental Duties of the Indian Citizens

(a) It is the duty of every citizen to abide by the constitution and respect its ideal and institutions, the
National Flag and the National Anthem.

(b) It is the duty to cherish and follow the noble ideals which inspired our national struggle for freedom.

(c) It is the duty to uphold and protect the sovereignty, unity and integrity of India.

(d) It is the duty of every citizen to defend the country and render national service when called upon to do.

(e) It is the duty to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to
the dignity of women.

(f) It is the duty of every citizen to value and preserve the rich heritage of our composite culture.

(g) It is the duty to protect and improve the natural environment including forests, lakes, rivers and wild life
and have compassion for living creatures.
(h) It is the duty of the citizen to develop the scientific temper, humanism and the spirit of inquiry and
reform.

(i) It is the duty of every citizen to safeguard public property and to abjure violence.

(j) It is the duty of every citizen to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and achievements.

(k) Who is a parent or guardian, to provide opportunities for education to his child, or as the case may be,
ward between the age of six to fourteen years.

(This fundamental duty has been added to the Constitution of India by the 86th constitutional amendment
in 2002)

Legal Provisions Regarding Fundamental Duties

1. In order to ensure that no disrespect is shown to the National Flag, Constitution of India and the
National anthem, the Prevention of Insults to National Honour Act, 1971 was enacted.
2. The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted soon after
independence, inter alia, to prevent improper use of the National Flag and the National Anthem.
3. In order to ensure that the correct usage regarding the display of the National Flag is well
understood, the instructions issued from time to time on the subject have been embodied in Flag
Code of India, which has been made available to all the State Governments, and Union territory
Administration (UTs).
4. There are a number of provisions in the existing criminal laws to ensure that the activities which
encourage enmity between different groups of people on grounds of religion, race, place of birth,
residence, language, etc. are adequately punished. Writings, speeches, gestures, activities, exercise,
drills, etc. aimed at creating a feeling of insecurity or ill-will among the members of other
communities, etc. have been prohibited under Section 153A of the Indian Penal Code (IPC).
5. Imputations and assertions prejudicial to the national integration constitute a punishable offence
under Section 153 B of the IPC.
6. A Communal organization can be declared unlawful association under the provisions of Unlawful
Activities (Prevention) Act 1967.
7. Offences related to religion are covered in Sections 295-298 of the IPC (Chapter XV).
8. Provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability (Offences) Act
1955).
9. Sections 123(3) and 123(3A) of the Representation of People Act, 1951 declares that soliciting of vote
on the ground of religion and the promotion or attempt to promote feelings of enmity or hatred
between different classes of citizens of India on the grounds of religion, race, caste, community or
language is a corrupt practice. A person indulging in a corrupt practice can be disqualified for being
 a Member of Parliament or a State Legislature under Section 8A of the Representation of People Act,
1951.

DRAWBACKS – The fundamental duties are not precisely defined. Their ambiguity and vagueness
confound the citizens as to what they are supposed to do.

1. Most significantly. They are merely moral postulates and do not have justifiability. They are not
enforced by Law.
2. Place in the constitution: It has been added in the Part IVA i.e. after Part IV (Which belongs to the
Directive Principles of State Policy which are non-enforceable even with the court of law). It has
given the Fundamental Duties a nature of non-obligation. Instead it should have been placed as the
Part IIIA i.e. after Part III (it belongs to the Fundamental Rights). It should have been given power
at par with Fundamental Rights.
3. Fundamental Duties prescribe duties for the citizens and not for the Government for better life and
social progress.
4. Another point of criticism is that some Fundamental Duties are vague and it is not possible for an
average man to understand them. For example, the duties pertaining to upholding the noble ideals
of the freedom struggle or the development of a “scientific temper and humanism and spirit of
enquiry and reform” are not understood by the ordinary citizens.
5. Another drawback of the Fundamental Duties lies in their incorporation in Part IV of the
Constitution. Without appropriate legal sanctions, the Fundamental Duties are mere pious wishes.
6. There is overlapping and repetition in description of Fundamental Duties.
7. Fundamental duties miss some important duties such as cast vote, pay taxes, family planning etc.

However, the Supreme Court, in Surya vs Union of India (1992) case, ruled that fundamental duties are not
enforceable through judicial remedies by court.

However, these duties can be used for interpreting ambiguous statutes as decided in the Headmaster vs.
Union of India, 1983.

In MC Mehta vs Union of India, the Sucpreme Court has held that under Art 51-A(g) it is the duty of the
Central Government to introduce compulsory teaching of lessons at least for one hour in a week on
protection and improvement of natural environment in all the educational institutions of the country.

In Chandra Bhawan Boarding vs State of Mysore, the Supreme court made the following observation prior
to the insertion of Article 51-A: “It is a fallacy to think that our Constitution, there are only rights and no
duties. The provisions in Part IV enables the legislature to build a welfare society and that object may be
achieved to the extent the Directive Principles are implemented by legislation.”
In Vijoy Immanuel vs State of Kerala (1987), the Supreme Court overruled the decision of Kerala High
Court and decided that though to Constitution provides it to be the duty of citizen to respect the National
Anthem, it does not provide that singing of the National Anthem is part of such respect.
Even a person, while standing during the singing of National Anthem (without himself singing it) can show
respect to the National Anthem.

In AIIMS Student’s Union vs AIIMS, a three-Judge Bench of the Supreme Court made it clear that
fundamental duties, though not enforceable by a writ of the court, yet provide valuable guidance and aid to
interpretation and resolution of constitutional and legal issues. speaking about the importance of
Fundamental Duties enriched in Article 51-A while striking down the institutional reservation of 33% in
AIIMS coupled with 50% reservation discipline wise as violative of Article 14 of the Constitution, the
Supreme Court said that they are equally important like fundamental rights.

In Aruna Roy vs Union of India, the validity of National Curriculum Framework for School Education was
challenged on the ground that it was violative of Art. 28 of the Constitution and anti-secular. It provides
imparting of value development education relating to basics of all religions.

In Mohan Kumar Singhania vs Union of India, a governmental decision to give utmost importance to the
training programme of the Indian Administrative Service selectees was upheld by deriving support from
Article 51-A (i) of the Constitution.

In Rural Litigation and Entitlement Kendra vs State of Uttar Pradesh, a complete ban and closing of mining
operation carried on in Mussoorie hills was held to be sustainable by deriving support from the
fundamental duty as enshrined in Article 51-A (g) of the Constitution.

GOVERNMENT OF INDIA V. GEORGE PHILIP AIR 2007 SC 705:-

In this case the respondent has challenged his compulsory retirement from service. He was granted leave by
the department to pursue advanced research training. He was granted leave by the department to pursue
advance research training. He was granted leave for two years. He overstayed in a foreign country in spite of
repeated reminders come and join his duty after the expiry of his leave. An inquiry was instituted against
him and the charge of overstaying in a foreign country was proved. He was compulsorily retired from
service. The tribunal and the high court granted him remedy of joining his service without back wages. The
Supreme Court set aside the order of the high court. The Supreme court held that art.51A (j) imposed a duty
on citizen to strive towards excellence in all sphere and it cannot be achieved unless employees maintain
discipline and devotion to duty. The courts should not pass orders which instead of achieving underlying
spirit and object of part IV A of the Constitution has tendency to negate or destroy the same. Overstay of
leave and absence from duty by government employee and granting him six month’s time to join duty
amount to not only giving him premium to indiscipline but wholly subversive of work cultures in
organization.

Dr. Dasarathi Vs. State of Andhra Pradesh (AIR: 1985 AP 136):-

It was held that under article 51A (j) of the Constitution, we all owe a duty to ourselves to strive towards
excellence in all spheres of individual and collective activity so that this nation may constantly rise to higher
levels of Endeavour and achievement. When the State undertakes to promote excellence, it can do so only
through the methods which our Constitution permits to adopt. Rewarding of sycophancy only helps to
retard the growth of efficiency and excellence.
Union of India v. Naveen Jindal AIR 2004 SC Supreme Court observed that "for the purpose of
interpretation of the constitutional scheme and for the purpose of maintaining a balance between the
fundamental/ legal rights of a citizen vis-a-vis, the regulatory measures/ restrictions, both Parts IV and
IV-A of the Constitution can be taken recourse to".
Thus merely because a rule is not backed by sanctions on disobedience, it does not mean it is of lesser
importance. It is still regarded a rule of law that is expected to be followed. Flag Code is not a statute;
thereby the Fundamental Right under Article 19(1) (a) is not regulated. But the guidelines as laid down
under the Flag Code deserve to be followed to the extent it provides for preservation of dignity and respect
for the national flag. The right to fly the National Flag is not an absolute right. The freedom of expression
for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is
that the duty to respect the flag must be strictly obeyed. The pride of a person involved in flying the Flag is
the pride to be an Indian and that, thus, in all respects to it must be shown. The state may not tolerate
even the slightest disrespect.
Every right is coupled with a duty. Part III of the Constitution of India although confers rights, duties and
regulations are inherent thereunder. Such reasonable regulations have been found to be contained in the
provisions of Part III of the Constitution of India, apart from clauses 2 to 4 and 6 of Article 19 of the
Constitution of India. Thus, this right is subject to certain restrictions which can be read from Chapter IV
A. Article 51A(c) reads as under:
"(c) to uphold and protect the sovereignty, unity and integrity of India."
The question as to whether Article 51-A is not justiciable or enforceable thus takes a backseat.In Indian
Handicraft Emporium and Others vs. Union of India and Others [JT 2003 (7) SC 446], it was
held : "The provisions of the statute are also required to be considered keeping in view Article 48-
A and Article 51A(g) of the Constitution of India which are in the following terms:
"48-A. Protection and improvement of environment and safeguarding of forests and wild life.-- The State
shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the
country."
"51-A. Fundamental duties. -- It shall be the duty of every citizen of India --
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creatures;"
We cannot shut our eyes to the statements made in Article 48-A of the Constitution of India which enjoins
upon the State to protect and improve the environment and to safeguard the forests and wild life of the
country. What is destructive of environment, forest and wild life, thus, being contrary to the Directive
Principles of the State Policy which is fundamental in the governance of the country must be given its full
effect. Similarly, the principles of Chapter IVA must also be given its full effect. Clause (g) of Article
51A requires every citizen to protect and improve the natural environment including forests, lakes, rivers
and wild life and to have compassion for living creatures. The amendments have to be carried out keeping
in view the aforementioned provisions.
In Vishaka & others Vs State of Rajasthan AIR 1997 SC 3011, the court found it necessary and
expedient for employers in work places as well as other responsible persons or institutions to observe
certain guidelines to ensure the prevention of sexual harassment of women and set an classical example of
its law making power under Article 141 of the Constitution. And these guidelines were the most effective
measures for enforcement of the Fundamental Duties; in particular to renounce practices derogatory to
the dignity of women – a Fundamental duty enshrined in clause (e) of Art 51-A in the effectuation of that
duty.