Constitution Law

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Chapter -I CONSTITUTION What is Constitution: Constitution is a tuning organism of functioning institutions, A Constitution is a replication and reflection of the aspirations of the people, It is a document having a special legal sarrctity which sets out the trame work and principal of organs of government of state and declares the principles governing the operation of those organs, In a nutshell the constitut ion is the work within which a system of government operates, Constitution IS the fundamental law of the land and is paramount law of the state, It is an organic document which defines powers and functions of various organs of state and inter se relationships. It represents the vision and values of its founding fathers, The word constitution may be defined as a body of fimdamental principles and acts by which state is governed, In a Nutshell the constitution is the frame work within which a system of government operates under the fundamental law of land. DI<:F'INTIIONS: According to Lord Bryce "a constitution is those rules or laws which determine the form of the government and respective rights and duties of government towards citizens and of citizens towards government", A word Constitution means "a writers organic instrument, under which governmental powers are both conferred and circumscribed, This stress up an grant and limitation of authority is tundamenta L Dr, Wheare in his modern constitution opines that the word constitution IS commonly used in two different senses, IL describe the whole of of a country a collection of rules which establish and regulate and govern Lhe government, Constitution describes nut only the collection of rules but rather a selection of them which usually been em bodied in one document Or in few loosly related documents. It is a selection of legal rules which govcrn the government of country which haw been embodied in constitution, Wade & Philips in their constitution says thal a constitution means "a document having a special legal sanctity, which sets out the frame work and principal forms of the various organs of the government of state and declares principles the operation of those organs. TI,e Constitution of a country lays down the basic structure of the politkal under which its people are to be governed, 11 establishes the main of the leg"""llil executive and judiciary, it defines their powers their responsibilities and re!sulatt:s their relationships with each other and with people, Constitution Types: Written, Unwritten, Federal unitary Written: It is onc which is written down in form of constitutional document, A wrillon constitution is tormal source of all constitutional law in the country" It is as supreme fundamental law of land, It controls and permits each institution ill the c;vumry, every organization in the country must act in accordance with constitution. The courts thus play much more creative role under written constitution. The Courts not only interpret ordinary laws, also meaning to the cold letter of the Constitutiol1, Indicial review has to be regarded as guardian of the constitution, A 'P':C1HI procedure to amend cOl1stir.ution is required.

Transcript of Constitution Law

Page 1: Constitution Law

Chapter - I CONSTITUTION

What is Constitution IITRO]UCnO~ Constitution is a tuning organism of functioning institutions A Constitution is a replication and reflection of the aspirations of the people It is a document having a special legal sarrctity which sets out the trame work and principal of organs of government of state and declares the principles governing the operation of those organs In a nutshell the constitut ion is the work within which a system of government operates Constitution IS the fundamental law of the land and is paramount law of the state It is an organic document which defines powers and functions of various organs of state and inter se relationships It represents the vision and values of its founding fathers

The word constitution may be defined as a body of fimdamental principles and acts by which state is governed In a Nutshell the constitution is the frame work within which a system of government operates under the fundamental law of land

DIltFINTIIONS According to Lord Bryce a constitution is those rules or laws which determine the form of the government and respective rights and duties of government towards citizens and of citizens towards government A word Constitution means a writers organic instrument under which governmental powers are both conferred and circumscribed This stress up an grant and limitation of authority is tundamenta L Dr Wheare in his modern constitution opines that the word constitution IS commonly used in two different senses IL describe the whole of of a country a collection of rules which establish and regulate and govern Lhe government Constitution describes nut only the collection of rules but rather a selection of them which usually been em bodied in one document Or in few loosly related documents It is a selection of legal rules which govcrn the government of country which haw been embodied in constitution Wade amp Philips in their constitution says thal a constitution means a document having a special legal sanctity which sets out the frame work and principal forms of the various organs of the government of state and declares principles the operation of those organs TIe Constitution of a country lays down the basic structure of the politkal under which its people are to be governed 11 establishes the main of the legllil executive and judiciary it defines their powers their responsibilities and resulatts their relationships with each other and with people

Constitution Types Written Unwritten Federal unitary Written It is onc which is written down in form of constitutional document A wrillon constitution is tormal source of all constitutional law in the country It is as supreme fundamental law of land It controls and permits each institution ill the cvumry every organization in the country must act in accordance with constitution The courts thus play much more creative role under written constitution The Courts not only interpret ordinary laws also meaning to the cold letter of the Constitutiol1 Indicial review has to be regarded as guardian of the constitution A PC1HI procedure to amend cOl1stirution is required

A written constitution independent judiciary with powers of judicial review the doctrine rule of law and separation of powers free elections to legislature democratic Government fundamental rights of tho people federalism are some of principles and norms which promote constitutionalism in a eOlmrtrv

In the written constitution Parliament cannot claim unlimited for Parliament function under a written constitution Thus the written constitution may seek to put formal restraints upon the abuse of power

Indian Constitution consists of 395 Articles under 22 parts and IX Schedules 1 Written Constitutionalism deals with organization and structure of central GoV and

also States 2 Indian ConstitutlOn has detailed norms 3 Written Constitution has principle collective responsibility of the

Parliamentary procedure etc 4 To remove mutual distrust among them it has detailed provisions on fundamental

safeguards to minorities Scheduled tribes Scheduled Backward classes 5 It contains fundamental principles of governance but also administrative details

regarding citizenship official language government services electoral machinery etc

Constitution and COllstitntionalism Constitutionalism A Country may have a constitution but not necessarily Constitutionalism Ex- A Country with dictatorship where dictators word in law can be said constitutIon but not consti tutional ism The Constitution out not merely to confer powers on various organs of Govt but also seek to restrain those powers Constitutionalism recognizes the need for Govt but insists upon lImitations being placed upon Govt powers Constitutionalism envisages checks and balances and the powers legislature and executive under some restraints and not making them uncontrolled and arbitrary constitutionalism should have some in built restrictions on the powers conferred by it on Govt organizations Constitutionalism cannot in essence limited Govt or limitation on Gov It is antithesis to arbitrary powers ie despotism Constitutionalism in India is to be understood and elevated in the context of octal political and economic conditions prevailing in India Keshavananda Judgment contributed-

I Substantially to the development of constitutionalism The Theory of basic structure constitution beyond the amending power of Parliament is an example of Constitutionalism

2 Expansion of area of Natural jnstice by Supreme Conrt of India is another dimension of constitutionalism

3 Challenge to proclamation of emergency is touchstone offaith in constitutionalism 4 Preservation of rule of law which is the whole some of constitutionalism

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Chapter- II Federal Characteristic of Constitution

India is a member of family of federations The Indian Constitution provides for a good deal of centralization The central Government has a large sphere of action of each level of government by devising any elaborate scheme of distribution of legislative administrative and financial powers between State and Centre According to Dr Wheare federal principle is the method of dividing powers so that general and regional governments are each within a sphere coordinate and independent Existence of coordinate authorities independent of each other is lhe gisl of federal principle In federal form of Govt the dual polity is placed that is central and state Gov Neither or which is subordinate to the other but are coordinate and independent within the spheres allotted to them

The Constitution which embodies a federal system has normally has following character I Distribution of Powers 2 Supremacy 3 Written Constitution 4 Rigidity authority of coLItis

1 Distribution of Powers An essential feature of every lederal constitution is the distribution of powers between control Govt and governments of the several units forming the federation Federation means the distribution of power of state among a number of coordinate bodies each originating in and controlled by the constitution 2 Supremacy of Constitution The stale and union Govt are not In a position to override the provIsIons of constitution relating to the power and status which each is to enjoy Supremacy authority is accorded only to the provisions relating to division of power 3 Writtcu Constitution Must necessarily be a written constilution 4 Rigidity It written constitution is considered as rigid constitution It means that it cannot be changed as easily as the un written constitution It simply means that the power of amending constitution so tar at least as concerns those provision of constitution which regulate the status and powers of federal Gov

Authority of Courts There must be some authority which can prevent federal and state Govt from encroaching upon each others powers and declare laws made by them are as unconstitutional ie through Judicial review

fhe Indian Constitution is nothing striclly federal characters in all the aspects in some of provisions of the constitution are unitary

1 Single Citizenship 2 Single judiciary 3 Uniformity in Fundamental laws civii and criminal laws 4 Common All India Services

In our Constitution HC and SC form a single integrated Judiciary baving jurisdiction over all cases arising under various laws union state constitutional civil and criminal LO

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eliminate diversity of laws of civil criminal law are placed in the concurrent list to maintain uniformity in administration

The following matters of the constitutional provlSlOns proves the point that Indian constitution is not strictly federal

I Parliament make laws with respect to any matter enumerated in the state list if the upper House ofljnion Parliament and Council of States passes a resolution supported by ~3 maiority under Art 249

2 During emergency under Art 353 354 358 359 union Parliamenl can make laws in relation to matters in slate list give directions 10 the states as to how they should exercise their executive authority

3 Proclamation of rulemiddotmiddot When there is failure of constitutional machinery financial stability under Art360

4 Union Govt is empowered to issue administrative direction to stales in relations to matter under Art ~56 amp 257

5 Parliament may increase or diminish the area of any state or alter the boundaries of state Or aller the name of any state under Art 3

6 Some of laws passed state legislature may be reserved for the consideration of the Presidcm and some of them cannot even introduced in state legislature withoul the previous sanction of President Art200 201 288(2) 304

7 Governors of State are appointed the President under Art 155 156 163 These are the provisions on the hases of which it is asserted that Federal polity the central and state Govt are functioning under coord inate authorities each independent within its own sphere is so greatly modified in the relationship Hence Indian Constitution cannot be considered as called a federal constitution

8 India was governed as unitary state and uniform of laws had been established in may areas like CPC CrPC crimes evidence transfer of property marriage divorce inheritance These subjects are placed in concurrent list so that uniformity may be preserved in these laws

Because of these features Indian Constitution characterized as QuasifedEral according to Dr Wheare Though the centre in India is strong and utmost inter-governmental co-operations is sought to be promoted within constitutional framework yet the states are not agents the centre and not at sufferance oftlle centre The enjoy large amount of autonomy in normal times their powers urc derived from the constitution and federal constitution Can be amended not unilaterally by centre alone but only with co-operative ofthe centre and states Hence this is a cooperative tederalism It is considered that Union is a federation but flexible federation In Rajasthan Vs lnion Inda 1977 case SC observed thc constitution as Amphibian as it can move lederal or unitary It was argued on behalf of Stales that India is federation and so only governed under Art 174 can dissolve the legislature prematurely

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Chapter - III FUNDAMENTAL RIGHTS

Part - III Art 12-35 It is a great character of Libeliy It has made our constitution sublime by guaranteeing against the state interference certain rights vital to the freedom and well being of the people These rights are manifests of mans inviolable and fimdamental freedoms The fundamental rights are calculated to protect the dignily of individual and create conditions in which every human being can develop his personality to the fllliest extent The people of England after suffering under the despotic power ofthe king secured from king John the Magna Calta ie great charter in 1214 This character guaranteed freedom from arbitrary arrest It was confirmed by successive English Kings In 1628 in the petition of Right It was prayed that no one shall be imprisoned or detained except by the due process of law This concession has made by king James in famous Bill of Rights of 1689 The French revolution gave an impetus to recognition of certain basic rights of man as inalienable natural rights sacred rights This was reflected into declaration of Rights of man and citizen 1789 It was in US that an attempt was first made to limit legislative power by putting certain Fundamental Rights beyond its reach The Americans were first to give Bill of rights a constitutional status The inclusion of a chapter of Fundamental Right in Constitution of India is in accordance with the trend of modern democratic thought the idea being to preserve that indispensable condition of a free society The aims of Declaration of FRs is elementary rights such as right to life liberty freedom of speech fieedom of faith and so on They are the limitations upon all the powers If the gO(rIfileni legislative executive they are essential for the preservation of public and private rights Not withstanding the representative character of political instruments The movement for the FR cu[minacieci in the universal declaration of Human rights by General Assembly of UN on 10-02-1948 They are set for in 28 Article this also a source for Basic human rights Indian constitution guarantees to the people certain basic human rights fieedom equal protection of laws freedom of speech expression worship religion assembly associates to make trade occupation reside and settle anywhere in lndia

Justiaciability A person can claim Fundamemal Rights against state subjected to restriction imposed b)shystate in interest of social control They constitute an legislative and executive organs of state No law or executive action which infringes Fundamental Right can be regarded valid

Significance lncorporation of these rights is due to consciolls of massive minority religion past experience Gandhian Ideals international opinions Fundamental Rights are conceived as liberal spirit and seek to draw a reasonable balance between individual fimiddoteedom and social control Fundamental Rights were deemed essential to protect the fights and liberties of the people against the encroachment of power delegated by them to their Government The limitations upon the Government legislative as well as executive are essential for the preservation of public and private rights Fundamental in governance of the country Morai precepts welfare society no justifiable guidelines for the state They are instructions to legislature and executive

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Spedal feature of FUlldamelltal Rights I A person cannot Vaive any of the FRs conferred upon him by the constitution in part

HL 2 In case oflhe infringement of the FRs special remedy has been proided under Art32

which itself is a FR The person can also approach the HC under Art 226 These rights are vital for the development of the individual promote his dignity and welfare

4 These rights are justifiable and be enforced through courts against the state not the indiiduaL These rights are classified into 6 categories right to property

has been eliminated from the list by the 44h Amendment in 1979 ) They are more sacrosanct than rights granted by the ordinary laws 6 The FRs in Part nr of constitution which are available only to the citizens are 16

1929 and 30 7 The other FRs are lable to citizens and also to non citizens 8 Most of the FR s are available against tbe Slate 9 Only 15(2) 17 23 (I) and 24 are available against the state as well as against the

private individuals also 10 The Fundamental Rights can be suspended during a National emergency Article

358 359 and also Article 31A lIB 31C D tor the purpose of public policy constitutional provision

II Certain Fundamental Rights granted the constitution are not available to certain sections of populations viz armed forces and police are not permitted to make use of their political rights

2 The Fundamental Rights arc both positive and negative which confer certain privileges on citi7ens are positivc the which prevent the state liom conlerring certain special privileges or titles are negative

13 They are not absolute and arc subjected to reasonable restrictions

Role of Judiciary Constitution accords a dignified significant crucial position Is very broad - can issue writs for enforcing Fundamental Rights It can hear appeals advisory juris It dispenses not only between person but also between state and citizens It acts as a guardian by keeping all authorities legislative executive administrative judicial within bounds right to protect supervises the administrative process of country It acts as balance wheel of Federalism

lnterpretatioll ofFnmlamental Rights [n Menaka Gandhis case held that the provisions of Part 1JI should given widest possible interpretations Menaka Gandhi Vs Union oflndia J Bhagwatimiddot held that These Fundamental Rights represent the basic values cherished by the people of this county India since the Vedic times and they are calculated to protect the dignity the individual and create conditions in which every human being can develop his personality to the fullest eXlent They weave a pattern of guarantee on the basic structure of human rights impose negative obligations on the state not to encroach on individual liberty in its variolls dimensions The object is to estabJisb a government of law and not of men A governmental sYstem where the tyranny of majority does not oppress lhe minority It is to establish the rule of law and to provide security and equality of citizenship of be people living in this land and helping the nation building to provide cel1ain standard of conduct citizenship justice and lair play

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CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

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Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

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Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

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amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

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DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 2: Constitution Law

A written constitution independent judiciary with powers of judicial review the doctrine rule of law and separation of powers free elections to legislature democratic Government fundamental rights of tho people federalism are some of principles and norms which promote constitutionalism in a eOlmrtrv

In the written constitution Parliament cannot claim unlimited for Parliament function under a written constitution Thus the written constitution may seek to put formal restraints upon the abuse of power

Indian Constitution consists of 395 Articles under 22 parts and IX Schedules 1 Written Constitutionalism deals with organization and structure of central GoV and

also States 2 Indian ConstitutlOn has detailed norms 3 Written Constitution has principle collective responsibility of the

Parliamentary procedure etc 4 To remove mutual distrust among them it has detailed provisions on fundamental

safeguards to minorities Scheduled tribes Scheduled Backward classes 5 It contains fundamental principles of governance but also administrative details

regarding citizenship official language government services electoral machinery etc

Constitution and COllstitntionalism Constitutionalism A Country may have a constitution but not necessarily Constitutionalism Ex- A Country with dictatorship where dictators word in law can be said constitutIon but not consti tutional ism The Constitution out not merely to confer powers on various organs of Govt but also seek to restrain those powers Constitutionalism recognizes the need for Govt but insists upon lImitations being placed upon Govt powers Constitutionalism envisages checks and balances and the powers legislature and executive under some restraints and not making them uncontrolled and arbitrary constitutionalism should have some in built restrictions on the powers conferred by it on Govt organizations Constitutionalism cannot in essence limited Govt or limitation on Gov It is antithesis to arbitrary powers ie despotism Constitutionalism in India is to be understood and elevated in the context of octal political and economic conditions prevailing in India Keshavananda Judgment contributed-

I Substantially to the development of constitutionalism The Theory of basic structure constitution beyond the amending power of Parliament is an example of Constitutionalism

2 Expansion of area of Natural jnstice by Supreme Conrt of India is another dimension of constitutionalism

3 Challenge to proclamation of emergency is touchstone offaith in constitutionalism 4 Preservation of rule of law which is the whole some of constitutionalism

2

Chapter- II Federal Characteristic of Constitution

India is a member of family of federations The Indian Constitution provides for a good deal of centralization The central Government has a large sphere of action of each level of government by devising any elaborate scheme of distribution of legislative administrative and financial powers between State and Centre According to Dr Wheare federal principle is the method of dividing powers so that general and regional governments are each within a sphere coordinate and independent Existence of coordinate authorities independent of each other is lhe gisl of federal principle In federal form of Govt the dual polity is placed that is central and state Gov Neither or which is subordinate to the other but are coordinate and independent within the spheres allotted to them

The Constitution which embodies a federal system has normally has following character I Distribution of Powers 2 Supremacy 3 Written Constitution 4 Rigidity authority of coLItis

1 Distribution of Powers An essential feature of every lederal constitution is the distribution of powers between control Govt and governments of the several units forming the federation Federation means the distribution of power of state among a number of coordinate bodies each originating in and controlled by the constitution 2 Supremacy of Constitution The stale and union Govt are not In a position to override the provIsIons of constitution relating to the power and status which each is to enjoy Supremacy authority is accorded only to the provisions relating to division of power 3 Writtcu Constitution Must necessarily be a written constilution 4 Rigidity It written constitution is considered as rigid constitution It means that it cannot be changed as easily as the un written constitution It simply means that the power of amending constitution so tar at least as concerns those provision of constitution which regulate the status and powers of federal Gov

Authority of Courts There must be some authority which can prevent federal and state Govt from encroaching upon each others powers and declare laws made by them are as unconstitutional ie through Judicial review

fhe Indian Constitution is nothing striclly federal characters in all the aspects in some of provisions of the constitution are unitary

1 Single Citizenship 2 Single judiciary 3 Uniformity in Fundamental laws civii and criminal laws 4 Common All India Services

In our Constitution HC and SC form a single integrated Judiciary baving jurisdiction over all cases arising under various laws union state constitutional civil and criminal LO

3

eliminate diversity of laws of civil criminal law are placed in the concurrent list to maintain uniformity in administration

The following matters of the constitutional provlSlOns proves the point that Indian constitution is not strictly federal

I Parliament make laws with respect to any matter enumerated in the state list if the upper House ofljnion Parliament and Council of States passes a resolution supported by ~3 maiority under Art 249

2 During emergency under Art 353 354 358 359 union Parliamenl can make laws in relation to matters in slate list give directions 10 the states as to how they should exercise their executive authority

3 Proclamation of rulemiddotmiddot When there is failure of constitutional machinery financial stability under Art360

4 Union Govt is empowered to issue administrative direction to stales in relations to matter under Art ~56 amp 257

5 Parliament may increase or diminish the area of any state or alter the boundaries of state Or aller the name of any state under Art 3

6 Some of laws passed state legislature may be reserved for the consideration of the Presidcm and some of them cannot even introduced in state legislature withoul the previous sanction of President Art200 201 288(2) 304

7 Governors of State are appointed the President under Art 155 156 163 These are the provisions on the hases of which it is asserted that Federal polity the central and state Govt are functioning under coord inate authorities each independent within its own sphere is so greatly modified in the relationship Hence Indian Constitution cannot be considered as called a federal constitution

8 India was governed as unitary state and uniform of laws had been established in may areas like CPC CrPC crimes evidence transfer of property marriage divorce inheritance These subjects are placed in concurrent list so that uniformity may be preserved in these laws

Because of these features Indian Constitution characterized as QuasifedEral according to Dr Wheare Though the centre in India is strong and utmost inter-governmental co-operations is sought to be promoted within constitutional framework yet the states are not agents the centre and not at sufferance oftlle centre The enjoy large amount of autonomy in normal times their powers urc derived from the constitution and federal constitution Can be amended not unilaterally by centre alone but only with co-operative ofthe centre and states Hence this is a cooperative tederalism It is considered that Union is a federation but flexible federation In Rajasthan Vs lnion Inda 1977 case SC observed thc constitution as Amphibian as it can move lederal or unitary It was argued on behalf of Stales that India is federation and so only governed under Art 174 can dissolve the legislature prematurely

4

Chapter - III FUNDAMENTAL RIGHTS

Part - III Art 12-35 It is a great character of Libeliy It has made our constitution sublime by guaranteeing against the state interference certain rights vital to the freedom and well being of the people These rights are manifests of mans inviolable and fimdamental freedoms The fundamental rights are calculated to protect the dignily of individual and create conditions in which every human being can develop his personality to the fllliest extent The people of England after suffering under the despotic power ofthe king secured from king John the Magna Calta ie great charter in 1214 This character guaranteed freedom from arbitrary arrest It was confirmed by successive English Kings In 1628 in the petition of Right It was prayed that no one shall be imprisoned or detained except by the due process of law This concession has made by king James in famous Bill of Rights of 1689 The French revolution gave an impetus to recognition of certain basic rights of man as inalienable natural rights sacred rights This was reflected into declaration of Rights of man and citizen 1789 It was in US that an attempt was first made to limit legislative power by putting certain Fundamental Rights beyond its reach The Americans were first to give Bill of rights a constitutional status The inclusion of a chapter of Fundamental Right in Constitution of India is in accordance with the trend of modern democratic thought the idea being to preserve that indispensable condition of a free society The aims of Declaration of FRs is elementary rights such as right to life liberty freedom of speech fieedom of faith and so on They are the limitations upon all the powers If the gO(rIfileni legislative executive they are essential for the preservation of public and private rights Not withstanding the representative character of political instruments The movement for the FR cu[minacieci in the universal declaration of Human rights by General Assembly of UN on 10-02-1948 They are set for in 28 Article this also a source for Basic human rights Indian constitution guarantees to the people certain basic human rights fieedom equal protection of laws freedom of speech expression worship religion assembly associates to make trade occupation reside and settle anywhere in lndia

Justiaciability A person can claim Fundamemal Rights against state subjected to restriction imposed b)shystate in interest of social control They constitute an legislative and executive organs of state No law or executive action which infringes Fundamental Right can be regarded valid

Significance lncorporation of these rights is due to consciolls of massive minority religion past experience Gandhian Ideals international opinions Fundamental Rights are conceived as liberal spirit and seek to draw a reasonable balance between individual fimiddoteedom and social control Fundamental Rights were deemed essential to protect the fights and liberties of the people against the encroachment of power delegated by them to their Government The limitations upon the Government legislative as well as executive are essential for the preservation of public and private rights Fundamental in governance of the country Morai precepts welfare society no justifiable guidelines for the state They are instructions to legislature and executive

5 Fina ~Ullt- j 6-3 middot0) ddL

3

Spedal feature of FUlldamelltal Rights I A person cannot Vaive any of the FRs conferred upon him by the constitution in part

HL 2 In case oflhe infringement of the FRs special remedy has been proided under Art32

which itself is a FR The person can also approach the HC under Art 226 These rights are vital for the development of the individual promote his dignity and welfare

4 These rights are justifiable and be enforced through courts against the state not the indiiduaL These rights are classified into 6 categories right to property

has been eliminated from the list by the 44h Amendment in 1979 ) They are more sacrosanct than rights granted by the ordinary laws 6 The FRs in Part nr of constitution which are available only to the citizens are 16

1929 and 30 7 The other FRs are lable to citizens and also to non citizens 8 Most of the FR s are available against tbe Slate 9 Only 15(2) 17 23 (I) and 24 are available against the state as well as against the

private individuals also 10 The Fundamental Rights can be suspended during a National emergency Article

358 359 and also Article 31A lIB 31C D tor the purpose of public policy constitutional provision

II Certain Fundamental Rights granted the constitution are not available to certain sections of populations viz armed forces and police are not permitted to make use of their political rights

2 The Fundamental Rights arc both positive and negative which confer certain privileges on citi7ens are positivc the which prevent the state liom conlerring certain special privileges or titles are negative

13 They are not absolute and arc subjected to reasonable restrictions

Role of Judiciary Constitution accords a dignified significant crucial position Is very broad - can issue writs for enforcing Fundamental Rights It can hear appeals advisory juris It dispenses not only between person but also between state and citizens It acts as a guardian by keeping all authorities legislative executive administrative judicial within bounds right to protect supervises the administrative process of country It acts as balance wheel of Federalism

lnterpretatioll ofFnmlamental Rights [n Menaka Gandhis case held that the provisions of Part 1JI should given widest possible interpretations Menaka Gandhi Vs Union oflndia J Bhagwatimiddot held that These Fundamental Rights represent the basic values cherished by the people of this county India since the Vedic times and they are calculated to protect the dignity the individual and create conditions in which every human being can develop his personality to the fullest eXlent They weave a pattern of guarantee on the basic structure of human rights impose negative obligations on the state not to encroach on individual liberty in its variolls dimensions The object is to estabJisb a government of law and not of men A governmental sYstem where the tyranny of majority does not oppress lhe minority It is to establish the rule of law and to provide security and equality of citizenship of be people living in this land and helping the nation building to provide cel1ain standard of conduct citizenship justice and lair play

6

CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

7

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 3: Constitution Law

Chapter- II Federal Characteristic of Constitution

India is a member of family of federations The Indian Constitution provides for a good deal of centralization The central Government has a large sphere of action of each level of government by devising any elaborate scheme of distribution of legislative administrative and financial powers between State and Centre According to Dr Wheare federal principle is the method of dividing powers so that general and regional governments are each within a sphere coordinate and independent Existence of coordinate authorities independent of each other is lhe gisl of federal principle In federal form of Govt the dual polity is placed that is central and state Gov Neither or which is subordinate to the other but are coordinate and independent within the spheres allotted to them

The Constitution which embodies a federal system has normally has following character I Distribution of Powers 2 Supremacy 3 Written Constitution 4 Rigidity authority of coLItis

1 Distribution of Powers An essential feature of every lederal constitution is the distribution of powers between control Govt and governments of the several units forming the federation Federation means the distribution of power of state among a number of coordinate bodies each originating in and controlled by the constitution 2 Supremacy of Constitution The stale and union Govt are not In a position to override the provIsIons of constitution relating to the power and status which each is to enjoy Supremacy authority is accorded only to the provisions relating to division of power 3 Writtcu Constitution Must necessarily be a written constilution 4 Rigidity It written constitution is considered as rigid constitution It means that it cannot be changed as easily as the un written constitution It simply means that the power of amending constitution so tar at least as concerns those provision of constitution which regulate the status and powers of federal Gov

Authority of Courts There must be some authority which can prevent federal and state Govt from encroaching upon each others powers and declare laws made by them are as unconstitutional ie through Judicial review

fhe Indian Constitution is nothing striclly federal characters in all the aspects in some of provisions of the constitution are unitary

1 Single Citizenship 2 Single judiciary 3 Uniformity in Fundamental laws civii and criminal laws 4 Common All India Services

In our Constitution HC and SC form a single integrated Judiciary baving jurisdiction over all cases arising under various laws union state constitutional civil and criminal LO

3

eliminate diversity of laws of civil criminal law are placed in the concurrent list to maintain uniformity in administration

The following matters of the constitutional provlSlOns proves the point that Indian constitution is not strictly federal

I Parliament make laws with respect to any matter enumerated in the state list if the upper House ofljnion Parliament and Council of States passes a resolution supported by ~3 maiority under Art 249

2 During emergency under Art 353 354 358 359 union Parliamenl can make laws in relation to matters in slate list give directions 10 the states as to how they should exercise their executive authority

3 Proclamation of rulemiddotmiddot When there is failure of constitutional machinery financial stability under Art360

4 Union Govt is empowered to issue administrative direction to stales in relations to matter under Art ~56 amp 257

5 Parliament may increase or diminish the area of any state or alter the boundaries of state Or aller the name of any state under Art 3

6 Some of laws passed state legislature may be reserved for the consideration of the Presidcm and some of them cannot even introduced in state legislature withoul the previous sanction of President Art200 201 288(2) 304

7 Governors of State are appointed the President under Art 155 156 163 These are the provisions on the hases of which it is asserted that Federal polity the central and state Govt are functioning under coord inate authorities each independent within its own sphere is so greatly modified in the relationship Hence Indian Constitution cannot be considered as called a federal constitution

8 India was governed as unitary state and uniform of laws had been established in may areas like CPC CrPC crimes evidence transfer of property marriage divorce inheritance These subjects are placed in concurrent list so that uniformity may be preserved in these laws

Because of these features Indian Constitution characterized as QuasifedEral according to Dr Wheare Though the centre in India is strong and utmost inter-governmental co-operations is sought to be promoted within constitutional framework yet the states are not agents the centre and not at sufferance oftlle centre The enjoy large amount of autonomy in normal times their powers urc derived from the constitution and federal constitution Can be amended not unilaterally by centre alone but only with co-operative ofthe centre and states Hence this is a cooperative tederalism It is considered that Union is a federation but flexible federation In Rajasthan Vs lnion Inda 1977 case SC observed thc constitution as Amphibian as it can move lederal or unitary It was argued on behalf of Stales that India is federation and so only governed under Art 174 can dissolve the legislature prematurely

4

Chapter - III FUNDAMENTAL RIGHTS

Part - III Art 12-35 It is a great character of Libeliy It has made our constitution sublime by guaranteeing against the state interference certain rights vital to the freedom and well being of the people These rights are manifests of mans inviolable and fimdamental freedoms The fundamental rights are calculated to protect the dignily of individual and create conditions in which every human being can develop his personality to the fllliest extent The people of England after suffering under the despotic power ofthe king secured from king John the Magna Calta ie great charter in 1214 This character guaranteed freedom from arbitrary arrest It was confirmed by successive English Kings In 1628 in the petition of Right It was prayed that no one shall be imprisoned or detained except by the due process of law This concession has made by king James in famous Bill of Rights of 1689 The French revolution gave an impetus to recognition of certain basic rights of man as inalienable natural rights sacred rights This was reflected into declaration of Rights of man and citizen 1789 It was in US that an attempt was first made to limit legislative power by putting certain Fundamental Rights beyond its reach The Americans were first to give Bill of rights a constitutional status The inclusion of a chapter of Fundamental Right in Constitution of India is in accordance with the trend of modern democratic thought the idea being to preserve that indispensable condition of a free society The aims of Declaration of FRs is elementary rights such as right to life liberty freedom of speech fieedom of faith and so on They are the limitations upon all the powers If the gO(rIfileni legislative executive they are essential for the preservation of public and private rights Not withstanding the representative character of political instruments The movement for the FR cu[minacieci in the universal declaration of Human rights by General Assembly of UN on 10-02-1948 They are set for in 28 Article this also a source for Basic human rights Indian constitution guarantees to the people certain basic human rights fieedom equal protection of laws freedom of speech expression worship religion assembly associates to make trade occupation reside and settle anywhere in lndia

Justiaciability A person can claim Fundamemal Rights against state subjected to restriction imposed b)shystate in interest of social control They constitute an legislative and executive organs of state No law or executive action which infringes Fundamental Right can be regarded valid

Significance lncorporation of these rights is due to consciolls of massive minority religion past experience Gandhian Ideals international opinions Fundamental Rights are conceived as liberal spirit and seek to draw a reasonable balance between individual fimiddoteedom and social control Fundamental Rights were deemed essential to protect the fights and liberties of the people against the encroachment of power delegated by them to their Government The limitations upon the Government legislative as well as executive are essential for the preservation of public and private rights Fundamental in governance of the country Morai precepts welfare society no justifiable guidelines for the state They are instructions to legislature and executive

5 Fina ~Ullt- j 6-3 middot0) ddL

3

Spedal feature of FUlldamelltal Rights I A person cannot Vaive any of the FRs conferred upon him by the constitution in part

HL 2 In case oflhe infringement of the FRs special remedy has been proided under Art32

which itself is a FR The person can also approach the HC under Art 226 These rights are vital for the development of the individual promote his dignity and welfare

4 These rights are justifiable and be enforced through courts against the state not the indiiduaL These rights are classified into 6 categories right to property

has been eliminated from the list by the 44h Amendment in 1979 ) They are more sacrosanct than rights granted by the ordinary laws 6 The FRs in Part nr of constitution which are available only to the citizens are 16

1929 and 30 7 The other FRs are lable to citizens and also to non citizens 8 Most of the FR s are available against tbe Slate 9 Only 15(2) 17 23 (I) and 24 are available against the state as well as against the

private individuals also 10 The Fundamental Rights can be suspended during a National emergency Article

358 359 and also Article 31A lIB 31C D tor the purpose of public policy constitutional provision

II Certain Fundamental Rights granted the constitution are not available to certain sections of populations viz armed forces and police are not permitted to make use of their political rights

2 The Fundamental Rights arc both positive and negative which confer certain privileges on citi7ens are positivc the which prevent the state liom conlerring certain special privileges or titles are negative

13 They are not absolute and arc subjected to reasonable restrictions

Role of Judiciary Constitution accords a dignified significant crucial position Is very broad - can issue writs for enforcing Fundamental Rights It can hear appeals advisory juris It dispenses not only between person but also between state and citizens It acts as a guardian by keeping all authorities legislative executive administrative judicial within bounds right to protect supervises the administrative process of country It acts as balance wheel of Federalism

lnterpretatioll ofFnmlamental Rights [n Menaka Gandhis case held that the provisions of Part 1JI should given widest possible interpretations Menaka Gandhi Vs Union oflndia J Bhagwatimiddot held that These Fundamental Rights represent the basic values cherished by the people of this county India since the Vedic times and they are calculated to protect the dignity the individual and create conditions in which every human being can develop his personality to the fullest eXlent They weave a pattern of guarantee on the basic structure of human rights impose negative obligations on the state not to encroach on individual liberty in its variolls dimensions The object is to estabJisb a government of law and not of men A governmental sYstem where the tyranny of majority does not oppress lhe minority It is to establish the rule of law and to provide security and equality of citizenship of be people living in this land and helping the nation building to provide cel1ain standard of conduct citizenship justice and lair play

6

CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

7

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 4: Constitution Law

eliminate diversity of laws of civil criminal law are placed in the concurrent list to maintain uniformity in administration

The following matters of the constitutional provlSlOns proves the point that Indian constitution is not strictly federal

I Parliament make laws with respect to any matter enumerated in the state list if the upper House ofljnion Parliament and Council of States passes a resolution supported by ~3 maiority under Art 249

2 During emergency under Art 353 354 358 359 union Parliamenl can make laws in relation to matters in slate list give directions 10 the states as to how they should exercise their executive authority

3 Proclamation of rulemiddotmiddot When there is failure of constitutional machinery financial stability under Art360

4 Union Govt is empowered to issue administrative direction to stales in relations to matter under Art ~56 amp 257

5 Parliament may increase or diminish the area of any state or alter the boundaries of state Or aller the name of any state under Art 3

6 Some of laws passed state legislature may be reserved for the consideration of the Presidcm and some of them cannot even introduced in state legislature withoul the previous sanction of President Art200 201 288(2) 304

7 Governors of State are appointed the President under Art 155 156 163 These are the provisions on the hases of which it is asserted that Federal polity the central and state Govt are functioning under coord inate authorities each independent within its own sphere is so greatly modified in the relationship Hence Indian Constitution cannot be considered as called a federal constitution

8 India was governed as unitary state and uniform of laws had been established in may areas like CPC CrPC crimes evidence transfer of property marriage divorce inheritance These subjects are placed in concurrent list so that uniformity may be preserved in these laws

Because of these features Indian Constitution characterized as QuasifedEral according to Dr Wheare Though the centre in India is strong and utmost inter-governmental co-operations is sought to be promoted within constitutional framework yet the states are not agents the centre and not at sufferance oftlle centre The enjoy large amount of autonomy in normal times their powers urc derived from the constitution and federal constitution Can be amended not unilaterally by centre alone but only with co-operative ofthe centre and states Hence this is a cooperative tederalism It is considered that Union is a federation but flexible federation In Rajasthan Vs lnion Inda 1977 case SC observed thc constitution as Amphibian as it can move lederal or unitary It was argued on behalf of Stales that India is federation and so only governed under Art 174 can dissolve the legislature prematurely

4

Chapter - III FUNDAMENTAL RIGHTS

Part - III Art 12-35 It is a great character of Libeliy It has made our constitution sublime by guaranteeing against the state interference certain rights vital to the freedom and well being of the people These rights are manifests of mans inviolable and fimdamental freedoms The fundamental rights are calculated to protect the dignily of individual and create conditions in which every human being can develop his personality to the fllliest extent The people of England after suffering under the despotic power ofthe king secured from king John the Magna Calta ie great charter in 1214 This character guaranteed freedom from arbitrary arrest It was confirmed by successive English Kings In 1628 in the petition of Right It was prayed that no one shall be imprisoned or detained except by the due process of law This concession has made by king James in famous Bill of Rights of 1689 The French revolution gave an impetus to recognition of certain basic rights of man as inalienable natural rights sacred rights This was reflected into declaration of Rights of man and citizen 1789 It was in US that an attempt was first made to limit legislative power by putting certain Fundamental Rights beyond its reach The Americans were first to give Bill of rights a constitutional status The inclusion of a chapter of Fundamental Right in Constitution of India is in accordance with the trend of modern democratic thought the idea being to preserve that indispensable condition of a free society The aims of Declaration of FRs is elementary rights such as right to life liberty freedom of speech fieedom of faith and so on They are the limitations upon all the powers If the gO(rIfileni legislative executive they are essential for the preservation of public and private rights Not withstanding the representative character of political instruments The movement for the FR cu[minacieci in the universal declaration of Human rights by General Assembly of UN on 10-02-1948 They are set for in 28 Article this also a source for Basic human rights Indian constitution guarantees to the people certain basic human rights fieedom equal protection of laws freedom of speech expression worship religion assembly associates to make trade occupation reside and settle anywhere in lndia

Justiaciability A person can claim Fundamemal Rights against state subjected to restriction imposed b)shystate in interest of social control They constitute an legislative and executive organs of state No law or executive action which infringes Fundamental Right can be regarded valid

Significance lncorporation of these rights is due to consciolls of massive minority religion past experience Gandhian Ideals international opinions Fundamental Rights are conceived as liberal spirit and seek to draw a reasonable balance between individual fimiddoteedom and social control Fundamental Rights were deemed essential to protect the fights and liberties of the people against the encroachment of power delegated by them to their Government The limitations upon the Government legislative as well as executive are essential for the preservation of public and private rights Fundamental in governance of the country Morai precepts welfare society no justifiable guidelines for the state They are instructions to legislature and executive

5 Fina ~Ullt- j 6-3 middot0) ddL

3

Spedal feature of FUlldamelltal Rights I A person cannot Vaive any of the FRs conferred upon him by the constitution in part

HL 2 In case oflhe infringement of the FRs special remedy has been proided under Art32

which itself is a FR The person can also approach the HC under Art 226 These rights are vital for the development of the individual promote his dignity and welfare

4 These rights are justifiable and be enforced through courts against the state not the indiiduaL These rights are classified into 6 categories right to property

has been eliminated from the list by the 44h Amendment in 1979 ) They are more sacrosanct than rights granted by the ordinary laws 6 The FRs in Part nr of constitution which are available only to the citizens are 16

1929 and 30 7 The other FRs are lable to citizens and also to non citizens 8 Most of the FR s are available against tbe Slate 9 Only 15(2) 17 23 (I) and 24 are available against the state as well as against the

private individuals also 10 The Fundamental Rights can be suspended during a National emergency Article

358 359 and also Article 31A lIB 31C D tor the purpose of public policy constitutional provision

II Certain Fundamental Rights granted the constitution are not available to certain sections of populations viz armed forces and police are not permitted to make use of their political rights

2 The Fundamental Rights arc both positive and negative which confer certain privileges on citi7ens are positivc the which prevent the state liom conlerring certain special privileges or titles are negative

13 They are not absolute and arc subjected to reasonable restrictions

Role of Judiciary Constitution accords a dignified significant crucial position Is very broad - can issue writs for enforcing Fundamental Rights It can hear appeals advisory juris It dispenses not only between person but also between state and citizens It acts as a guardian by keeping all authorities legislative executive administrative judicial within bounds right to protect supervises the administrative process of country It acts as balance wheel of Federalism

lnterpretatioll ofFnmlamental Rights [n Menaka Gandhis case held that the provisions of Part 1JI should given widest possible interpretations Menaka Gandhi Vs Union oflndia J Bhagwatimiddot held that These Fundamental Rights represent the basic values cherished by the people of this county India since the Vedic times and they are calculated to protect the dignity the individual and create conditions in which every human being can develop his personality to the fullest eXlent They weave a pattern of guarantee on the basic structure of human rights impose negative obligations on the state not to encroach on individual liberty in its variolls dimensions The object is to estabJisb a government of law and not of men A governmental sYstem where the tyranny of majority does not oppress lhe minority It is to establish the rule of law and to provide security and equality of citizenship of be people living in this land and helping the nation building to provide cel1ain standard of conduct citizenship justice and lair play

6

CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

7

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 5: Constitution Law

Chapter - III FUNDAMENTAL RIGHTS

Part - III Art 12-35 It is a great character of Libeliy It has made our constitution sublime by guaranteeing against the state interference certain rights vital to the freedom and well being of the people These rights are manifests of mans inviolable and fimdamental freedoms The fundamental rights are calculated to protect the dignily of individual and create conditions in which every human being can develop his personality to the fllliest extent The people of England after suffering under the despotic power ofthe king secured from king John the Magna Calta ie great charter in 1214 This character guaranteed freedom from arbitrary arrest It was confirmed by successive English Kings In 1628 in the petition of Right It was prayed that no one shall be imprisoned or detained except by the due process of law This concession has made by king James in famous Bill of Rights of 1689 The French revolution gave an impetus to recognition of certain basic rights of man as inalienable natural rights sacred rights This was reflected into declaration of Rights of man and citizen 1789 It was in US that an attempt was first made to limit legislative power by putting certain Fundamental Rights beyond its reach The Americans were first to give Bill of rights a constitutional status The inclusion of a chapter of Fundamental Right in Constitution of India is in accordance with the trend of modern democratic thought the idea being to preserve that indispensable condition of a free society The aims of Declaration of FRs is elementary rights such as right to life liberty freedom of speech fieedom of faith and so on They are the limitations upon all the powers If the gO(rIfileni legislative executive they are essential for the preservation of public and private rights Not withstanding the representative character of political instruments The movement for the FR cu[minacieci in the universal declaration of Human rights by General Assembly of UN on 10-02-1948 They are set for in 28 Article this also a source for Basic human rights Indian constitution guarantees to the people certain basic human rights fieedom equal protection of laws freedom of speech expression worship religion assembly associates to make trade occupation reside and settle anywhere in lndia

Justiaciability A person can claim Fundamemal Rights against state subjected to restriction imposed b)shystate in interest of social control They constitute an legislative and executive organs of state No law or executive action which infringes Fundamental Right can be regarded valid

Significance lncorporation of these rights is due to consciolls of massive minority religion past experience Gandhian Ideals international opinions Fundamental Rights are conceived as liberal spirit and seek to draw a reasonable balance between individual fimiddoteedom and social control Fundamental Rights were deemed essential to protect the fights and liberties of the people against the encroachment of power delegated by them to their Government The limitations upon the Government legislative as well as executive are essential for the preservation of public and private rights Fundamental in governance of the country Morai precepts welfare society no justifiable guidelines for the state They are instructions to legislature and executive

5 Fina ~Ullt- j 6-3 middot0) ddL

3

Spedal feature of FUlldamelltal Rights I A person cannot Vaive any of the FRs conferred upon him by the constitution in part

HL 2 In case oflhe infringement of the FRs special remedy has been proided under Art32

which itself is a FR The person can also approach the HC under Art 226 These rights are vital for the development of the individual promote his dignity and welfare

4 These rights are justifiable and be enforced through courts against the state not the indiiduaL These rights are classified into 6 categories right to property

has been eliminated from the list by the 44h Amendment in 1979 ) They are more sacrosanct than rights granted by the ordinary laws 6 The FRs in Part nr of constitution which are available only to the citizens are 16

1929 and 30 7 The other FRs are lable to citizens and also to non citizens 8 Most of the FR s are available against tbe Slate 9 Only 15(2) 17 23 (I) and 24 are available against the state as well as against the

private individuals also 10 The Fundamental Rights can be suspended during a National emergency Article

358 359 and also Article 31A lIB 31C D tor the purpose of public policy constitutional provision

II Certain Fundamental Rights granted the constitution are not available to certain sections of populations viz armed forces and police are not permitted to make use of their political rights

2 The Fundamental Rights arc both positive and negative which confer certain privileges on citi7ens are positivc the which prevent the state liom conlerring certain special privileges or titles are negative

13 They are not absolute and arc subjected to reasonable restrictions

Role of Judiciary Constitution accords a dignified significant crucial position Is very broad - can issue writs for enforcing Fundamental Rights It can hear appeals advisory juris It dispenses not only between person but also between state and citizens It acts as a guardian by keeping all authorities legislative executive administrative judicial within bounds right to protect supervises the administrative process of country It acts as balance wheel of Federalism

lnterpretatioll ofFnmlamental Rights [n Menaka Gandhis case held that the provisions of Part 1JI should given widest possible interpretations Menaka Gandhi Vs Union oflndia J Bhagwatimiddot held that These Fundamental Rights represent the basic values cherished by the people of this county India since the Vedic times and they are calculated to protect the dignity the individual and create conditions in which every human being can develop his personality to the fullest eXlent They weave a pattern of guarantee on the basic structure of human rights impose negative obligations on the state not to encroach on individual liberty in its variolls dimensions The object is to estabJisb a government of law and not of men A governmental sYstem where the tyranny of majority does not oppress lhe minority It is to establish the rule of law and to provide security and equality of citizenship of be people living in this land and helping the nation building to provide cel1ain standard of conduct citizenship justice and lair play

6

CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

7

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 6: Constitution Law

3

Spedal feature of FUlldamelltal Rights I A person cannot Vaive any of the FRs conferred upon him by the constitution in part

HL 2 In case oflhe infringement of the FRs special remedy has been proided under Art32

which itself is a FR The person can also approach the HC under Art 226 These rights are vital for the development of the individual promote his dignity and welfare

4 These rights are justifiable and be enforced through courts against the state not the indiiduaL These rights are classified into 6 categories right to property

has been eliminated from the list by the 44h Amendment in 1979 ) They are more sacrosanct than rights granted by the ordinary laws 6 The FRs in Part nr of constitution which are available only to the citizens are 16

1929 and 30 7 The other FRs are lable to citizens and also to non citizens 8 Most of the FR s are available against tbe Slate 9 Only 15(2) 17 23 (I) and 24 are available against the state as well as against the

private individuals also 10 The Fundamental Rights can be suspended during a National emergency Article

358 359 and also Article 31A lIB 31C D tor the purpose of public policy constitutional provision

II Certain Fundamental Rights granted the constitution are not available to certain sections of populations viz armed forces and police are not permitted to make use of their political rights

2 The Fundamental Rights arc both positive and negative which confer certain privileges on citi7ens are positivc the which prevent the state liom conlerring certain special privileges or titles are negative

13 They are not absolute and arc subjected to reasonable restrictions

Role of Judiciary Constitution accords a dignified significant crucial position Is very broad - can issue writs for enforcing Fundamental Rights It can hear appeals advisory juris It dispenses not only between person but also between state and citizens It acts as a guardian by keeping all authorities legislative executive administrative judicial within bounds right to protect supervises the administrative process of country It acts as balance wheel of Federalism

lnterpretatioll ofFnmlamental Rights [n Menaka Gandhis case held that the provisions of Part 1JI should given widest possible interpretations Menaka Gandhi Vs Union oflndia J Bhagwatimiddot held that These Fundamental Rights represent the basic values cherished by the people of this county India since the Vedic times and they are calculated to protect the dignity the individual and create conditions in which every human being can develop his personality to the fullest eXlent They weave a pattern of guarantee on the basic structure of human rights impose negative obligations on the state not to encroach on individual liberty in its variolls dimensions The object is to estabJisb a government of law and not of men A governmental sYstem where the tyranny of majority does not oppress lhe minority It is to establish the rule of law and to provide security and equality of citizenship of be people living in this land and helping the nation building to provide cel1ain standard of conduct citizenship justice and lair play

6

CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

7

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 7: Constitution Law

CONCLUSION - FUNDAMENTAL RIGHTS Amendment of Fundamental Rights Shankari Prasad 1951 Sc455 Article 31-A 31-B was challenged to abridge the eIghts conferred by Part II was void according to Article 13(2) It was argued the law includes ordinary law not the include constitution amendment in Article 368 it is valid even It takes away Fundamental Rights has to clarify Sajjan Singh Vs Rajasthan Extended the scope of Article 3J-A (amendment 1965 SC845)

9thamp schedule to protect agrarian reform SC held amend of the constitution means amendment of all the provisions ofthe constitution Golaknath Vs Punjab 17 amendment SC Over ruled both the above cases and held parliament has no power to amend part 1IJ of constitution Article J 3(2) law includes every kind of law Statutory and constitutional - prospective 24h amend was restored the amending power of parliament validity of 24 amendment was challenged in Keshavananda Bharathi Fundamental Rights case 1973 he petitioner challenged the 24th amendment What was the extent of amending power of368 The SC held that there are inherent or implied limitations on tbe amending power of parliament and Article 368 does not confer power to amend the constitutioll So as to damage or destroy the essential elements or basic features or framework of constitution There are implied limitations on the power of amendment article 368

42d amendment 1976middotmiddotmiddotmiddot Keshavanada case has been overruled by lvlinerva mills case Clause 4 amp 5 added to 368 to make it clear that no constitution amendment can be called in question in any court on any ground The validity of this amendment has been challenged It have been held Clause 4 amp 5 have been held to be void as they are against the basic feature theory

Criticism of fundamental rights - we earn right because duties we pertl1lm rhe list of FR included in our constitution is far from complete Jt does not contain the right to security as given in the soviet constitution Another defect pointed out bv the critics is that the constitution has played a trick with the citizens what is given with one hand it taken away with the other - Too many restrictions have been placed on enjoyment of Fundamental Rights Too many exceptions have rendered the rights sound bollow and meaningless The right of the legislature to decide finally the amount of compensation for the property acquired by the state is a serious cut in people rigbt to property

Chapter - IV PREAMBLE

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 Political Liberty - of thought expression belief faith amp working Equality - Status and opportunity and to promote among them aiL

Fratenity assuring tbe dignity of the individual and tbe unity an integrity of nation On Jan 22 J 974 Constituent Assembly adopted objectives Resolutions drafted by Nebru shy

rhe preamble is a guiding light in the interpretation of the constitution I embodies and expresses the hopes and aspirations ofthe people

7

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

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utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

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_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

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Page 8: Constitution Law

Significance The preamble specitied the source authority a system of government the objectives to be attained by political system and of the adoption and enactment of the constitution rt is not emforceable in the court onaw It is considered as part of tIle constitution it provides a key to the understanding and interpretation of the constitution It has been described as the soul ofthc constitution Sovereign The word sovereign means absolute power and uncontrolled power In the words of Cooley

state is Sovereign where thcre resides within itself a supreme and absolute power acknowledging no superior

people of India are not subordinate to any external autbority Socialist Indian Socialism means bettering the life of people ofindia The word socialism was not mentioned in the original constitution but it is implicit in preamble and this term not defined in the constitution It gives the expression to resolve of securing economic justice to the citizens and equal opportunity The term socialism envisaged in constitution does not mean abolition of property or nationalization of all means of production DS Vs Union of India SC held that the basic frame work of emu is to provide standard of life to the working people and provide security from eradle to grave our socialism is not communist form Democratic socialism In the directive principles of state policy a numher of provision dealing Wilh the preamble and are intended to hring about a socialist order of society in 3940 and 41 for example

Secularism The term secular means Non spiritual baving no concern with religious or spiritual matters anything which is distinct opposed to or not connected with religion or class things temporal as opposed to spiritual or ecclasiastical According to Eric S Water hOllse Secularism is an idealogy which provides a theory of life and conduct as against one ptovided by a religion The State is not going to make any discrimination whatsoever on the ground of rcligion or comlllunity against any person professing any particular form of religious faith State will not patronage or endow any religinn State will not have any preferential treatment on the grounds of religions Secular means nOll recognition of any stare religion state is neither religiou3 nor irreligious nor anti-religious but is wholly detached from religions dogmas and activities and thus neutral in religious matters The term secular was also inserted in the preamble in 1976 This term into defined in the constitution India always a secular state it constitutes many in a country such vast size and of culture and religion The State has no of its own tbe operative meaning may be drawn from the different provisions of constitution Constitution

full OPPOl1ullity to all persons to profess practice and propagate thc religion of their choice Constitution not only guarantees persolls freedom of religion and conscience But also assure equality to all irrespect of religion State does not uphold any pal1icular religion as state religion and it restrains the state from making any discrimination on the grounds of religion The important component of secularism afe under Art 14151619 amp 212528 44-48 which are intended to ensured establish Secularism

Secular means a republic in which is equal respect for all religions

Democratic Democracy is the partICIpatIOn of the people directly or indirectly Tbe constitution represents parliamentary democracy Preamble envisages not only poliitical democracy but also social economic democracy The electorate choose their representatives who carryon government The adult citizen of the country have right to choose the constitutional head

8

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 9: Constitution Law

Republic India is not a dominion Head of state is not monarch It is a republic epublic derives powers directly or indirectly from the people that is sovereignty vests with people and the head of the state is a person elected by the people and its form of govt Which gets its authority from the will of the people The electorate that is adult above the 18 years have a right to vote

Objectives of Enshrined in the Preamble To secure all its citizens-Justice - Social economic and political Social Justice implies that there should not be any discrimination on the basis of bilth caste creed sex religion - all citizens should enjoy equal opportunities in matter of public appointment An analysis of Ithe provisions of constitution reveals that Art 14 15 16 to equality of status and opportunity Art18 38 amp 39 referes Economic Justice - Removal of poverty is to be achieved by making equal distribution of national wealth and resources The state should try to secure an adequate means of livelihood distribute ownership and control over resources to subserve the common good to reduce concentration of wealth ensure equal pay for equal work Art 39 (a) a constitutional right Political Tustice- That all citizens should have equal opportunity to participate in political system One person one vote irrespective of caste sex religion but also of proprietary or educational qualifications Liberty - of thought expression belief faith worship Equality of status and opportunity to ensure for all to enjoy these rights social economic Public places are open to all citizens titles of honour are abolished untouchability abolished equality befclre law amp equal protection of laws exploitation of group or individual is removed Art 25 26 27 to freedom of belief faith and worship Fraternity- Spirit of brotherhood of oneness - sense of belonging to the land Strengthening the unity and integrity Dr Ambcdkar said Fraternity is the principle which gives unity and solidarity to social life Fraternity is only possible when dignity of each individual preserved and protected Pluralism is the key stone of Indian culture and religious tolerance is the bed rock of Indian Secularism Valsamma Paul Vs Cochin University 1996middotmiddotmiddot SC I 0 II

Basic structure theory - Vhat is basic structure Basic structure of Constitution These objectives which enstrined in the preamble are considered as the basic structure of the constitution It was held by the Supreme Coun in various cases-Whether (basic structure) preamble of constitution can be amended was raised for the first time before SC in Keshavanand Bharatis case

Preamble creates an implied limitation on the power of amendment As Preamble contains basic elements of our constitution Consequently amending power cannot be used so as to destroy or damage these basic features It was also argued that preamble is not a part of constitution Hence it cannot be amended

Bernbari Case - SC held that preamble was not part of the constitution later III

Keshvananda Bharati Case held that it was a part ofthe Constitution SH Bommar Vs Union of India - 199~ - 3 SC

In Sajian Singh Vs Rajasthan- Sankari Prasads case it was held amendment of Ithe constitution means amendment of all the provisions of constitution

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

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amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

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Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 10: Constitution Law

But in Golaknath Vs State of Punjab SC held that Fundamental Rights embodied the Part 11 had been given a transcandenla position so no authority under connecting constitution exercise power under Art 368 In Keshavananda Bharati it was held that preamble is the basic structure of constitution and it cannot be amended

42nd Amendment has inserted socialism secularism and integrity

In Excel Wear Vs Union India DS lakara Vs Union of India Supreme Court held that larism is the basic structure of Constitution

It was held the 5ecularisrn is the basic feature of constitution In SR Bommai Vs Union of India Socialism is the basic structure of constitution it was held by Suprem Court in DS Nakaras casc

Chapter - V ARTCLE -13

Laws inconsistent with or in derogation of Fundamental Rights

All Laws in force in the territory of India immediately before the commencement of this constitution in so far as they are in consistent with provision of this part shall to the extent such inconsistency be void State shall not make any law whieh takes away or abridge the rights conferred by this part and any law make in contravention of this clause shall to the extent of such contravention be void In this Article unless the context otherwise requires Nothing in this Article shall apply to any amendment of this constitution made under the Article 368 The term law in Article 13 been given a wide connotation so as to law include any ordinance order by law rule regulation notilication custom or usage having the force of law Article 13 is a key provision as it makes Fundamental Rights justifiable It conters a power and imposes an obligation on the courts to declare a law void jf it is in consistent with a Fundamental Right SC has figuratively characterized this role of judiciary as that of a sentinel on the qui vive Doctrine of Eclipse 13(1) is prospective not retrospective that is the pre-constitutional law inconsistent with Fundamental Right becomes void only after the commencement of the constitution it effective only with respect to the enforcement of and liabilities in the post constitution period The prospective nature of Article 13( I) has given rise to the doctrine of eclipse A legal provision awaited in 1948 authorising the state government to exclude all private motor transp0l1 business became inconsistent with Article J9(l)g when constitution came into force in 1950 In 1951 19(1)g bas amended so as to permit state government [0 monopolise any business

In Bikaji Vs [vlP-1955 enunciated the doctrine of eclipse A pre constitution law in consistent with a Fundamental Right was not wiped out altogether hom the statute book After the commencement of the constitution as it is continued to exist in respect of rights and liabilittes which had accrued before the date of constitution Keshava Kadbava Menan Vs Bombay 1951 therefore the law in question will be regarded as having been eclipsed for the lime being by relevant Fundamental Rights It was in a Dormant or Moribund condition for the time being Such law was not dead for all purposes ICthe relevant Fundamental Right is

10

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 11: Constitution Law

amended then the would be to remove the shadow and make the impugned Act free from all blemish or infirmity The law would then cease to be unconstitutional and became revivified and enforceable This is applicable only to pre-constitutional laws

A reference may be made here to Hari Singh Vs Military oakers DelhI The Punjab Public premises Act was declared void by the as being inconsistent with Article 14

At1icle 13(2) Post constitutional - generally it does not apply to post constitutional laws Deepchand 1959 UP Transport Service came into force on 23-04-1955 Il empowered state to lationalise MOTOr Transport This contravened Article 31 of Constitution Not provided for proper compensation Still born law Eclipse is applicable only pre constitution nOt post constitution But in Vs Ambica Mill- SC modified post constitution Violating Fundamental Right is not nullity is not a universal rule and there may exceptions to it They are operative to non

The eclipse should not be applied (0 post constitution statutes Wanchoo observed The law made in contravention of the prohibition contained in Article

Exception post constitution laws infringing rights under Article 19 are governed by doctrine of eclipse In Deepchand and Mahendra Lal Jain case lhere was clear distinction from its inception but only from the date of commencement 0 the constitution the voidness of a post constitutional law is from its very inception and such law cannot be therefore exist tor any purpose

Article 13(3) (a) Law includes any ordinance order by law rule regulation notiiications custom or usage having in the territory of India the force of law Law in fore includes laws passed or made by legislature or other competent authority in the territory of India before commencement ofthis constitution

Article 13(4) - Nothing in this Article shall apply to any amendment constitution made under Article 368

Since any law which violates the Fundamental Right is void - then what is law It is necessary to denne law Enactments of legislature are of course laws Delegated legislation made by executive ego Notification by executive in the official middotpttp

Rules and regulation made under the statutory powers order and la5 of mUnicipal bodies etc Ordinance promolgamated by President and Governor All even when constitution came into force is called laws in force kept alive But they cannot override Fundamental Personal law is beyond the scope oftenn law ill Article 13 In Amina case it has been observed that personal law arc law law in under AI1icie 13 of constitution of India and are enforceable in courts subject lO the provision of

are are

constitlltion and not otherwise Even customs and usage havn found inconsistent with any of the fundamental Righl guaramtcu

law are void if It

could not be the intention of the founding fathers of cO1stituti to create any immunity in favour of personal laws

II

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 12: Constitution Law

DOCTRINE OF SEVERABILITY According to Article 13 - a law is void on Iy to the extent of the inconsistency or contraventions with Fundamental Right This means the Act may not be void as a whole only a part of it lTlay be void and if that palt is severable from the rest then the rest may continue to stand and remain operative The Act willlhcn be read as if the valid portion was not there It is not possible to be separated the valid frolTl the invalid position then the whole statute will have to go SC has laid down the propositions to that

I The intension of the is rhe determine factor whether valid parts separable from invalid parts to determine the intent the legislation its object title preamble to it

2 If the valid and invalid provisions inextricably mixed up that cannot be separated from one another then the Act will be invalid

If it is independent and remain in itself a complete code and also object and structure is not changed then the Act will be upheld

4 Even if the valid provisions are distinct and separate from the invalid provisions but if they are all form part of single scheme which is intended to operate as a whole Then invalidity of a part will result in failure of the whole

5 If the left part the invalid portion is so this truncated as to be in substance different hom what was when it emerged Out ofiegislatllre it will be in

its entirety 6 If the valid action is expunged from the statute what remains cannot be enforced

withOLt making alterations and modifications then the whole of it must be struck down as void

It is validity does not depend whether the provisions are in the same section or different section It is not the form it is the substance of material

RMDC Case The prize competition act was proad enough to include competitions of gambling nature as well as those involving skill under 19(1)g parliament could restrict prize competitions Only

a gambling nature but not those involving skill The act could be restricted to gambling the COllli stated that the parliament would have still enacted the law to regulate competitions of gambling nature not did it restrict the Act to this kind of competitions affect its texture Or colour the provision the act were thus held severable

The difference between the two classes of competitions namely those that are gambling in nature and those in which Success depends on skill was clear cut and had been recognized in legislative practice

Chapter - VI RIGHT TO EQUALITY

Article 14- 18 Anicle 14 -- Guarantees equality before law to all person Article 15 - Prohibits discrimination on such grounds as religion race caste sex or place of hirth Article 16- Guarantees to citizens equality of 0ppol1unity in matters of public employment Article J7 Abolishes untouchability Article 18 ibolishcs tittles other than military or academic distinction

Fmill coml-jj--[)9d(~12

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 13: Constitution Law

Man-kind has striven continuously towards the ideals of equality for all It was a struggle for social and political freedom the urge for equality and liberty has been the motive [ClrCe of many revolutions The real and effective democracy cannot be achieved unless equality in all spheres of life is a distant ideal to be realized only by march of humarity along the long ardous path of economic social amp political progress under Art 14 - Right to equality affords protection not only against discriminatory laws passed by legislature but also prevents arbitrary discretion being vested in executive

Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded Art 14 Assures equality to a[1 persons before law the expression equality before law means the absence of any privilege in favour of any person

Equal protection of laws It means the same law will apply to all persons placed in similar situations It prohibits discrimination But equal protection does not means the same law will apply to all persons

Among equals law will be equally administered This is rule of law 1 Among equals law will be equally administered 2 This protection is available to both in respect of substantive as well as procedure law 3 It also protects trom administrative order also 4 This protection tends to citizens and aliens to natural persons as well as legal persons 5 The guarantees of equal protection of law is available against state action only If

cannot be invoked against private individuals 6 It is also not available to judicial discretion

Article 14 ensures equality among equals Its aim is to protect persons similarly place against discriminatory treatment A person seeking up a grievance of denial of equal treatment by law must establish that between person simihrly circumstanced some were treated to their prejudice Western Fabric Co Vs UP- If any person challenges law as voilative of 14 The Burden is on the person to prove that the law voilative

Universal declaration of Human Rights 1948 In Article 7 All are equai before law anel are entitled without any discrimination to equal protection of tbe law This has been adopted from Irish Constitution Section 40(1) of the constitution of Eire 1937 All citizens shall as human persons be held equal before law Republican of Germanymiddotmiddotmiddotmiddot 1948 Article 3( I) All persons shaU be equal before the law

Lord Jennings in his law and the constitution It enshrines basic principles of republicanism

Article 14middot The state shall not deny to any person equality before the law or equal protection of laws within the Territory of India Citizen non-citizen natural and legal persons Jennings equality before law means the Among the equals law should be equal and be equally administered like should be treated alike lt=J Edward coke against crown I I~a is supreme 2equality bd()re law Right flnw frcm COUr1S

Rule of law Dicey Y No man is above [aw Menaka Gandhi Vs Union of India J Bhagvati It is founding faith of constitution It is the pillar on which rests securely of our democratic republic It must not be subjected to the narrow pedantic or lexico graphic

Fmal C()I]L- 0_3_09 doshy

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 14: Constitution Law

approach Equality is dynamic concept with many aspects and dimensions and cannot be imprisoned within the traditional doctrinaire limits

The varying needs of different classes or section of people require differential and separate treatment Underlining principle of equality is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges and liabilities

Amongst tbe equals the law should be and like should be tre(lted alike-

Tcst for valid classification I classification Should 110t be arbitrary artiflcial law should be based on intelligible

differentia some reaJ and substantial distinction which distinguishes persons or things groups together in others left out of it

2 The differentia adopted as a basis for classifled must be rational and reasonable relationship to the object to the achieved by statement in guestion there must be U)UWi basis for and that there should be a nexus between basis of classification and object of statute under consideration

Whether a classification adopted by law is reasonable or not is a matter for the courts to The tests are flcxible Ex S 11 of Indian Contract Act 1972 - Minority as

restriction to enter into contract adults amp minors section groups - minors amp adults separately and regrouping has a rational relation with capacity to contract Suppose classification is black hair may contract - it may fail becaose no relation

The society is composed of unequals and welfare state has to strive by both executive and action to help the fortunate and to improve their conditions so that social and

economic unequality in the may be bridged This would require the law to be made applicable to that group in to ameliorate their lot

Chiranjit Ral Chowdary Union of Indiamiddot In interpreting the scope of equal protection laws the Sc held

(a) Equal protection means equal protection under eqaal circumstances (b) The State can make reasonable classiflcations for the purpose of legislation (e) Presumption of reasonableness is in favour of legislation and (d) rhe Burden of proof is on those who challenge the legislation

To manage that situation the court evolved to the doctrine classification But this Doctrine of classification must court that

(I) Classification is reasonable (2) It is being founded on intelligible differentia

It is not necessary that for a classification to be valid Its basis must always appear on the of the law to flnd out the reasons and justifications for the classification the COUft lllliy

reCcr to relevant matters eg objects and reasons appended to a Bill Parliamentary debates affidavits of common knowledge background circumstances leading to of Act affdavits ofthe parties

Legislative classification between persons amp persons and things made by law persons classified them group each may be treated differently if there is a reasonable basis for difference

14

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 15: Constitution Law

Indian statute book is full of instances of special legislation applying only to a parlicular classes or groups lawyers Doctors Money Lenders Landlords Drivers of motor cars insurance Co minors and indeed most other classes are subject to special legislation SlIch classification undoubtedly deferentiates between persons belonging to one class and others but thought by itself does not make the legislation obnoxious to Article 14

Art 14 is now linked to reasonbleness and principles of natural justice Madan J Thus Art 14 becomes a potent weapon in the hands of the judiciary for testing state actioll legislative or executi ve on the touchstone of reasonableness and striking down infairness and arbitrariness wherever they may show their visage This way rule of law becomes firm Iy embedded in Ollr constitution Basic structure of constitution cannot be destroyed by amending Ali 365 class legislation forbidden permits classification

Directive principles of state policy prevail over Fundamental rights when there is contlict (42d amendment restricted the scope of Article 14) Art 31-C added state for implementing the DPs contained in clause (b) or (c) of Arl 39shycannot be evolved on the grounds that they are voilative of Art 14

Sanjeev Coke Mfg Co Vs Bharat Cooking Coal Ltd 1983 14725 amendment 1971 - added Art 3J-C which provides that a law giving effect to DP contained 39 (b) (c) -- for promotion amp distribution of ownership of material resources or prevention of concentration of wealth Is not void not inconstant with Ali 14 Identical treatment is unequal circumstances would amount to inequality - Hence a reasonable

Scope of pennissible c1assilIcation 1 Single individual may be treated as class in itself himself 2 Burden is upon him who attacks it - transgression of constituting principles

3 Court may take considerations common knowledge can matters report history of times and assume every state of fuct

4 Classification need not be scientifically perfect or logically complete 5 Assessing its overall effect and not by picking up exceptional cases - classifIcation

made is just in all aspect 6 Court look beyond the ostensible [obvious - apparent) classification amp to the purpose

of law and apply test of palpable arbitrariness in COiicxl need of times 7 There can be no right to equality in illegal acts obtained by illegal of benefit 8 Classification may be on different basis eg- geographical or according to objects or

objects or occupation or the like matters 9 There can be discrimination both in the substantive as well as procedural law to both

Chiranjit Lal Vs Union of India -- Sholapur Spinning and Wearing Co Ltd due to mismanagement the management threatened to close down the mill the Govt of India passed sholarur spinning and wearing co (emergency provision act) empowering Govt to take over the control and management of the com pany and its properties by appointing their own directors Act was challenged by a share holders saying that the act was with reference to a particular co and its shareholders and their right manage the company was infringed where the other company was not meted with same manner SC held act valid

Single individual can be treated as class itself unless it is shown that there are others who are similarly circumstanced Mismanagement of co itself prejudicially affected the production of essential commodity which are essential to the community and had caused a serious unemployment amongst labours

IS Final o[ls~-l63-09 dec

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 16: Constitution Law

Kishore V s Deb Orissamiddot 1964 A sPecial law passed lor Shri Jagannath Temple washeld valid for the temple held a unique position amongst Hindu temples so it could be provided a special treatment

The PM is allowed to use of an Indian Air Force aircraft for non official purposes (induding election where as others not allowed so political parties This is not discriminatory because Minser officc is a class by himself

Taking over of Aurovilk institution Nationalising 12 sugar ullits of Ul was held oeCailse of misusing

2 Burden is upon the person who attacks the arbitrariness of the (law) classification Onus to prove the infirmity

The person must produce necessary facts and t1gures to establish that he has not only been treated differently from other but he has been trealed from persons similarly situated and coircLlmstanced without any reasonable basis and that has been ul~ustitlably

If person fails to adduce sufficient evidence is suppOIt of his challenge to law in state can loan in initial presumpti90n of validity of law SC explained

underlying this rule as follows Presumption in favour consideration of statute allegation is that impugned procession is discriminatory as it singles outs Petitioner for hostile treatment amongst others who are situated and belong to same petitioner

Whether there are other persons who are situated similarly as the petitioner is a question of fact Whether petitioner is subjected to hostile discrimination is also a question of

of which burden to establish on the petitioner Ex-LIC employees were exempted hom lD Act by Parliament law amp they challenged

as discriminatory SC held that the burden to establish hostile discrimination was on petitioners No material had been produced before the court for the purpose_

However discrimination is with large on the of legislation the burden may shift to

the state to suslain the of legislation 3 Discrimination based on adequate grounds Not intended to help or discriminate not

envisaged or contemplated with a pre conceived notion basis to help a class group but if It is required should be able to raise to the expectation or aspiration of the group or individual who is seeking remedy or c(gt(1r11

4 Classification may combine the restriction to those cases where need is deemed to be the clearest It must be presumed that legislature understands and correctly appreciates the needs

its our people laws are directed to the problems The agricultural debtor form a separate category because of poverty economic

backwardness miserable lands and law enacted to relief to agricultural indebtedness is valid Pathusma V s Kerala 1978 Kerala locations Act 1961 5 The Court may take consideration of common knowledge common matter report

history of times and assume every state of fact

In order to sustain constitutionality the COUlt may COUlt may take into consideration of matters of common knowledge matters of reporl history oftimes every state of facts at the time of legislation

Matters of common knowledge - It is valid to exempt military and naval messes and canteens from restriction on use of consumption of liquor for military_ As it has it ollr tradition amp mode of life Differentiation made by prohibition law between Indians amp foreigners staying in India tor short time is valid But different in treat in prison is not valid

16

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 17: Constitution Law

Matter of history of times - State law made with a view to preserve amp improve the stock permitted the killing of buffaloes sheep and goats but killing of cows bulls calves these are impOIiant for agricultre and much utility as draught or Millen animals Each categories being susceptible occupation production society

Ex- Matters of report like Mandai Commission report - reservation 6 Need not be scientifically perfect or logically complete 7 Classification must be over effective not by picking up exceptional cases shy

classification made is just in all aspects 8 COUli may look beyond the ostensible (obvious reason) classification and to the

purpose of law and apply tests of palpable arbitrariness in contents need of times and social exigencies

9 Not right to equality illegal acts obtained by illegal benefit 10 Classification may be on different basis Eg Geographical or according to objects and

occupation or the likes I L There can be discrimination both in substantive as well as procedural law to both

Supreme Court has challenged the concept of equality based on reasonable classification In EP Royappa Vs Tamil Nadu concept of equality according to l BhagaVati l Krishna lyer is Equality is a dynamic concept with many as put and dimensions and it cannot be cribbed cabined and confined with the traditional doctrinaire limits Equality is antithesis to arbitrariness

DS Nakara Vs Union of India- Classification made retirement before particular date and after particular date Central Services (Pension) Rules 1972 was unconstitutional as it Vas not based any rational principle Hence it was that it is voilative of Art 14

Mithu Vs State of Punjab S303 of IPC prescribes that if a person under sentence of life imprisonment in jail commits murder he must be awarded death sentence But under S302 of IPC if a person commits Murder he may be awarded either the death sentence or life imprisonment It held that this difference is not based on any rational principle hence it was held as unconstitutional

KA Abbas Vs Union of India - The validity of cinematograph Act J 952 was challenged as classification of films into U film and A film are not valid It was held that motion picture is a from that of other forms of art and expression motion pictures verbality realism picture is able to stir up emotions more deeply them any other product of Art Therefore the classification of pictures into A amp U held as a valid classification

AIR India Vs Nargesh Meerza - Court held that termination of service pregnancy was manifestly unreasonable and arbitrary Hence Indian Airlines Regulations 011 retirement under 46 was held as unconstitutionaL

Principles of Natural Justice are implicit in Art 14 audi altteram partem (ie hear the othersidel Terminating the service of the permanent employee without mentioning the reasons and without giving any opportunity of hearing is arbitrary and unreasonable and voilative of article 14

Case Central Inland Water Transport Corporation Vs Brojo Nath Kumaran MandaI Vikas Nigam Ltd Vs Girija Shanker Panth

It has been held that legislative action plenary or subordinate is not subject to natural justice rulesmiddot- Madras city Wine Merchants Association Vs State ofTN

Fmal canst 16-3-09 uo~17

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 18: Constitution Law

Revathi Vs Union of India - Constitutional validity of S 198 CrPC - IPC Right to PCCUICC the adultery is only to the husband of the adultress but has not given to wife of adulterer is not voilative of ArL14

Vishaka Vs Rajasthan - Supreme Court had laid down exhaustive guideline to prevent sexual harrasement of working women in places of their work

LV Chinnaiah Vs State of AP -- Sub classification of scheduled castc for reservation is voilative of An 14

Chapter shy

Article- 20 Protection in respect of conviction for offences I No person shall be convicted tor any offence except for violation of law inforce at the

time of commission of an act 2 -10 person shall be prosecuted and punished for the same offence more than ones 3 No person offence shall be compelled to be a agaiIbi himself

Article 20 forbits retrospective criminal obligation

Art II Clause 2 of universal declaration of human rights 1948 provides that no one shall be held guilty of an penal offence an account of any act or omission which did not constitute a penal offence under the national or international law at the time when it was committed No law shall have a heavier penality imposed than one applicable at that time when the criminal offence was committed

Article -20 I art 20 oflodian says that no person shall be convicted any offence except violation of law inforce at the time of the commission of an act charged an offence nor subjected to a penalty greater than that which might have been inflicted under the law inforce at the commission of offence No person shall be convicted of an offence except of violation of law inforce at the time of the commission of act charged as offence nor be subjected to be a penalty greater than which might have been inflicted under the law infmco at the time of the commission of offence ex post facto law that means law made after the OCCUrrence Every law the takes away or impair a vested right is retrospective and every ex law is necessarily retrospective

Art 20 Clause I has two parts Part-I No person is to be convicted of an oflence except for violaling a law in force This article provides an immunity to a person from being tried an acl under future law or previous law that means when an act is committed if it is not an offence at that date it cannot be considered as offence on subsequent date

Part-II The penality cannot be greater than which might have subjected to at the time of commission of That means enhanced punishment is not applicable to the previous act

Art 20 clause I has imposes a limitation on the law making power of the legislature ie Legislature cao make prospective as well as retrospective laws Art 20 prohibits the legislature to make retrospective criminal laws but this prohibition is only civil liability This prohibition is just for convictions and sentence only and not for prosecution and trial under retrospeetive law That is an act which was innocent when done crime is made greater than when it was committed punishment increased than the

18

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 19: Constitution Law

punishment when it was committed If an act is not an offence at date of the commencement it cannot be an offence the subsequent to its commission

Kedarnath Vs West Bengal 1953 An accused committed an offence 1947 which is punishable by imprisonment and tine or both The act was amended in 1949 which enhanced the punishment for the same ottence The question of the punishment whether the amended act is applicable to punish the accllsed Supreme court held that the enhanced punishment could not be applicable to the act committed by accused in 1947 Under this article the accused can take advantage of the beneficial provision of the ex post facto laws If there is mitigation punishment is applicable not to the previous acts middotfhis is applied to mitigate that is to reduce the sentence the previous law This principle is based on both sound and common sense

Case Shiva Bahadur Vs Vindhy Pradesh Minister for Industries prosecuted in 1947 for bribing IPC was applied only on 1949 to Vindhya Pradesh accused cannot be prosecuted tor what had a law on 1949

Section 304 clause (b) of [PC was inserted in the courl on 10-11-1986 creating a distinct offence of dowry death and providing a minimum sentence of 7 years imprisonment This section does not applied to such deaths caused before the insertion of the section ie death before 1986 because of Art 20 clause L The protection under art 20 is not available for the following matters

1 Incase of preventive detention as there is no conviction and sentence and the question of penalty does not arise

2 This art is not available incase of entc)rcement and imposition of tax law ie Civil liability

3 This protection is not granted to disciplinary proceedings

Art 20 Clause 2 It say no person shall be prosecuted and punished for the same offence more than once This is protection against Double Jeopardy This clause embodies the common rule Nemo Debet Vis Vexari means no one shall be punished twice in the peril for the same offence more than once If a person is vindicated again for the same offence in the court he can plea as a complete defense his formal acquittal or conviction ie

a) The proceeding should amount to a prosecution before a court of law b) Prior proceedings should result in punishment middotThe technical expression is he can

take a plea of Autre Fois convict (formerly convicted) but not autre fois acquit the accused cannot take the plea of protection under this art for his formal acquittal

The following essential for the application of double jeopardy I Person must be accused of an offence 2 Proceeding or prosecution must be taken place before a cOUli or judicial

tribunal 3 Must have been prosecuted and punished 4 Offence must be same for which he has prosecuted and punishment in

previous proceedings

Prosecution and punishment should coexist for Art 20(2) A prosecution without punishment would not plead within this art If a person has been prosecuted for an offence but acquainted then he can be prosecuted tor the same offence again and punished like appeal on acquittal at lower courts

19 fllJI ollS(_16_middotL)C) ~0C

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 20: Constitution Law

If one and the same act of person constitutes two different offences then the punishment for One otlence does not bar prosecution and punishment for the offence ex-conspiracy to commit a crime is an offence separate trom crime itself

Punishment for one does nol bar punishment for the other though both the offences may arise from the same

Case Ghaseeta Vs Haryana 1997 Sentenced to imprisonment for life for offences S302 amp 149 of IPC while serving the sentence which serving sense in the provision made an attempt with other to escape from jai L He as sent t()[ trial for various for the second otlence and convicted agalO Before the i udgement and sentence on the second offence was pronounced by the court the sup of jail imposed the punishment of forfeiture of remissions of 23 months earned by him Imposition of punishment by the court and also by jail Superintendent for the same offence amounted to imposition of punishment The awarded punishment of the supreme indent of jail was quashed

Failure first prosecution on Same technical grounds ould not bar a second prosecution on the same would not bar a second prosecution and punishment in the first instance The principle of rule of double jeopardy would not be attracted to criminal proceedings under IPC in view of the earlier proceedings and for dept punishment

Acquittal criminal case deptartmental proceedings on same facts are maintainable A person was convicted under S40 of [PC criminal breach of trust His later prosecution on the sallle under S105 of Insurance Act would not be barred under Art 20(2) Ingredients the offences were different

Continuing offence means that where an act or commission constituting the offence is continued from day to day fresh ofjence is committed every day and each offence can be punished separately

Another limitation (prosecution) cr are of er Nature must be court of Of judicial tribunal required by law to decide maters in controversy judicially on evidence and oath which it must be authorized by law to administer and not before tribunal which entertains a dept or administrative enquiry even though setup by a statute (but not required to proceed on legal evidence given on oath)

Inquiry is no prosecution Breach of permit rules under Influence from Pakistan Control Act punishment through a direction of Gov of India do not constitute DJ-Art 20(2) does not bar proceedings before a civil court for disobedience of an injunction

with cr as former 3re not in the nature of er proceedings

Art 20(3) The Privilege incriminatioll is a cannon - (rule) common law criminal jurisprudence the characteristic features of which are that accused is presented to be innocent that it is for the prosecution to establish his guilt and that the accused need nol make any statement against his stilL

These preposition emanate from an apprehension that if compulsory examination of an accused were to be permitlcd thus t~rce and torture may be used against him to entrap him into fatal contradictions

The privilege against self ineremination thus enable the maintenance of human privacy and observance of civilized standard in tbe enforcement of cr Justice

20

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 21: Constitution Law

Types of in criminating evidence covered by Art 20(3 J The privilege applies to teslimonial compulsion Bombay Vs Kathi Kalu ghad - SC held self incrimination must mean conveying information upon the personal knowledge of the person information

Art 20(3)- Provides thnt no person accused of any Aftonp I be eom pc lied to be witness against himself In a criminal is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt It cannot coerce the accused to produce evidence against him self

The accused can refuse to answer any question that is put to him when the answer is likely to incriminate him No adverse inference can be drawn against him in such a case for it is his constitutional privilege of silence which he is invoking In fact any evidence obtained by violating this rule will be rejected by courts as admission It recognizes the privilege of an

accused perSOn to guard himself against setfincrimination The privilege against self incrimination thus enables the maintenance of human privacy and observance of civilized standard in enforcement of cr Justice

Art 20(3) will be found to contain the following componems I It is a right available to a person accused of an offence 2 It is compulsion to be witncss

a It is a against such compulsion resulting is n his giving evidence against himself (both in and out court) incriminating testimony falling within theprohibitionof art 20cl(3) to be of a character that by itself it should havea tendency of incrimininating the accused if not actually doing so It should be a statementwhich the case against the accused person at least probable considered by itself

3 Accused person means a person against whom a formal accLisation relating to commission of 8n offence has been leveled which normal course may result In

prosecution and conviction 4 What is iorbidden under art20cl(3)is compel a person to say something from his

personal knowledge to charge against him 5 To be a witness means to Indian Evidencc dumb finger

impressions or specimen handwriting of an accllsed is within meaning of art20(3) 6 Several types of evidence is excluded from purview arr20(J)sign thumb

impression impression of palm or fool exposing a part of his body by an accus~d lor the purpose of does not amount to compel evidence against himself

7 S9lof Crpc authorizes toproduce document by court or police compelling accused 10 stand up showing medical examination to detennine and to record his observation could 110t be regarded as evidence by compulsion taking urine or blood samples Case Parshad vs Up Clothes of deceased accused stating to in police station and giving them was accepted as (Corpus delictio)

8 What is compulsion Compulsion may take many forms itmay be Physical or mental torture Nandini Satpathy vs Dani it was held by SC that compulsions means not merely physical threat or violence but also psychic torture atmospheric pressure environmental coercion turning interrogative prolixity over bearing intimidating methods

9 Search warrant seizure does not fall within art 20(3) 10 Alt20(3) is not applicable to administrative investigation

21

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 22: Constitution Law

9

Distinction (Comparison) between Art 19 and 21

Article 19 Article 21 I Avai led to c itizens only I Avai lable to both citizens and non

c itizens 2 Freedom of movement 2 Freedom from arrest and detentions 3 It IS restrictive and applies to a 3 It says liberty of phys ica l body and also

particular species or attributes of all varieties of rights which go to make up that freedom of movement the personal liberty other than Art 19

4 4It is narrow and restricted to Th is Art IS wide and comprehensive freedoms on ly which includes personal liberty consisting

of freedom of movement and locomot ion 5 Art 19 cannot be enjoyed without 5 Art 2 1 is a precondition to enjoy Art 19

Art ensuring of Art21 6 While 19 affords protection against 6 It guarantees deprivation of tota l loss of

the unreasonable restriction which is personal liberty only partial control on the ri ght of movement

7 The expression personal liberty in Art 2 1 connotation of freedom This a rticle deals with restricted 7

is a widest amplitude and covers var iety of rights which go to constitute personal liberty of man and some of them have

i raised to the statute of distinct r--shy

8 Fundamental rights are given 8 Freedom from Physical restraint additional protection to Art 19 Freedom guaranteed under Art can Word liberty is a comprehensive word if be imposed by citizen only when he

9 interpreted if capable of including rights

is a free man and not if his personal mentioned in Art19 liberty is deprived under the law

10 Art 19 is a spec ies 10 Art 21 it is genus During emergency thi s article can be Art 2 1 cannot be suspended during suspended durin a the emeraency

II II emeroency

Personal liberty means residue of freedom after deducting the various aspects of freedom dealt with in Art19

Summation

I Prepositions regarding Art21 and 19 2 Article 21 is of the widest amplitude covering a variety of rights 3 Article 19 been given add itiona l protection 4 The law com ing under Art2 1 must also satisfy the requirements of Art 19

Art 14 19 and 21 are inter linked and also they sustain the strengthen and nourish each other

Final consl- 16middot3middot09 do22

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 23: Constitution Law

Chapter - VIII RlGHT TO LIFE

Article 21 - Protection of life and personal liberty this right is most important of all and it also most difficult to define It occupies the hottest place in the constitution The spirit of man is at the root of Article 2]- J Krishna lyef

This cannot be confined to guarantee against taking away life It mLlst have a wider application It is qualified right circumscribed by possibly of risk of being lost averted to protected

Blackstone in his commentaries on laws of England as follows Personal liberty consists in the power of locomotion of changing situation or moving ones person to whatsoever place ones own inclination may direct without imprisonment or restraint unless by course of law The right of personal security consists in persons legal and uninterrupted enjoyment of his life his limbs his body his healthy and his reputation

According to dicey personal liberty means Personal right not to be subject to imprisonment arrest or other physical coercion in any manner that does not admit legal justification

The concept of lite got a more meaningful definition The right to life includes the right to live with human dignity and are necessities of life such as adequate nutrition clothing and shelter - facilities for reading writing and expressing one self in diverse formsmiddot Francis Coralie Vs Administrator Union rerritory of Delhi

rhis Article remains one of the famous clauses of Magna Carta No person shall be taken or imprisoned or out lawed or existed or in any way destroyed the same by the law of land Art25 cl(1) of universal declaration of Human Rights declares that everyone has the nght standard of living adequate for the health and well being of himself land his family it includes Food clothing housing med ical care and necessary social services

In Munn Vs Illinois 94 US 113 Life is something more is meaning than mere animal existence The inhibition against its deprivation extends to all those limbs and faculties by which lite is enjoyed The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or putting out of an eye or destmction of any other organ of body through which soul communicates with the outer world

Constitution provides that Art 21 No person shall be deprived of his life and personal liberty except procedure established by law

The word law was used in the sense of lex State made law but not jus justice

A law in Art 21 means not only state law but a Reasonable law - The reasonability should be in the context of principles of natural justice

Procedure established by law must means procedure prescribed by the law of state That means Art 21 does not impose limitations upon the legislature but it serve as checks on exercise of executive power as well In the matter of depriving a man of his personal liberty checks or high handedness of the executive in shape of presenting them from taking any step which is not in accordance with law

The scope of Art 21 has been challenged and procedure established by law arose in tamous AK Gopalans case

23 Final ~Oflll-6-3-09 doc

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 24: Constitution Law

The petitioner challenged the validity and reasonableness preventive detention Act Gopalans case- Reasonableness PDA has been challenged was put in preventive detention under the preseventive action act of 1950 lnder that Act the libeliy of person could be taken aW2Y and he would be preventively detained the Govt was satistied about the need for preventively the defence from acting in a manner prejudicial to the of state or maintenance or order supplies and services essential to the people In this caSe it was held as law means only law made by legislature

As voilative under Art 19(I)d which is very essence of Art 21 His contention waS restriction under Art 21 His contention was restriction under Art 21 also justified and reasonable

Supreme Court held that there was no guarantee in Ollr constitution against arbitrary legislature Makes law providing that a person may be deprived of his libe11y in certain circumstances and in a certain manner the validity of law could not be challenged in a court of law on the ground that the law is unreasonable unfair unjust SC propounded the view that by adopting the expression procedure established by law the most important fundamental is at the mercy of legislature

This view was criticized as water lllark of legal positivislll Courts approach was strict and purely determined and too much of positivism Or imperative theory of law It was not for the of Judge whether the law provided fair or reasonable procedure or not

Since the GopaJan Case - This case major 2 points of AJ121 L Art 19 21 and 22 were mutually exclusive and 19 was not to apply to a law affecting

personalliberry 2 The law effecting personal libeJ1Y could not be declared unconstitutional merely

because it lacked principles of Natural justice or due procedure

Manaka Gandhis case - Over ruled the AK Gopalans case - In this case passport of petitioner was impounded by an order Govt of lndia under 510(3) of passport Aet 1967 SC held that the Government was not justified in withholding the passport (petitioner from going abroad)

The court laid down great stress on procedural safeguards the procedure must satisfy the requirement of Natural justice that is it must be just 111ir and reasonable Not arbitrary fanciful or oppressive the order with holding reasons for impounding the passport was therefore not only in breach of statutory provision but also in violation of Rule of law

Procedure established by law should be understood in corresponding provision of the Us Constitution Due process of law

It was recognized that this clause operates a check both upon the executive and upon the legislature Life liberty or property was taken away by a law which does not confirm to reasonable norms of procedure such as giving notice before action is mken providing a hearing an impm1ialjudge and do an act would be repugnant to due process clause

Any law depriving a person of his personal liberty should be developed for the following purpose

I The word law does not mean merely enacted law but incorporates the principles of Natural Justices so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these ptinciples in the procedure laid down by it

2 reasonableness of law of preventive detention ought to be judged under Article 19

24

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 25: Constitution Law

3 The expression procedure established by law enables the courts to see whether the law fu]fils the requisite elements ofa reasonable procedure

Art2l derives its breath from directive principles of state policy particularly Art39 d e f Art4l and Art42 which includes protection of health strength

I Right to life guaranteed in any civilized society implies right to food water decent and health environment education medical cure shelter Right to life also means the live with human dignity not merely animal existence hence it should be free from exploitation

Is Right to life included to right to die under Art 2] - S309 of IPC deals with attempt to commit suicide as a penal oJlence This has been challenged as unreasonable SC in Gian Kaur Vs State of Punjab held that right Ide does not include Right to die Because right to life is a Natural right and that existence of that lite has to be lived with human dignity upto the end of natural liJe End of Natural life means till death Death is inclusive of decent burial - that means Right to life has to considered as protection hom cradle to grave and from womb to tomb

The Court seems to have found it dittlcult to enunciate any objective test in interpreting this Articles During the eighties and nineties through its many decisions has incorporated the concepts of natural justice human rights public health public interest social justice legal aid environmental protection rights of prisoners and like within the ambit of Art 21

II In the Jollowing cases Supreme Court succeeded in interpreting the Art21 Ramachandran Vs Union of India - Right to life includes all that gives meaning to mans life including his tradition culture and heritage and protection of that heritage in its full measure shy

Right to livelihood - Orga Tellis Vs Bombay municipal Corp - Popularly known pavements dwellers case - In this case SC held eviction of the pavement dwellers directed the corporation to frame a scheme for demarcating hawking and non hawking zones and give license for serting their goods in hawking zones Important faces of that right is right to livelihood because no person can live without means of livelihood

Asiad case Non payment of minimum wages to the workers employed Asian projects was a denial to them of their right to life Hence Vlilative of Art 21

Right to food Peoples Union Civil Liberties Vs Union of India (PUCL) SC directed to make surplus food grains lying in godowl1s available to all of them who are staring because of their inability to purchase food grains have right to food under Art 21 It should be free of cost to those aged intirm disable destitute pregnant lactating foodgrains lying ill god owns available to all of them immediately through PDS shops to avoid starvation and mal-nourishment

Right lite includes right to work also if the person are not able to earn the live]ihood then state is under obligation to provide the work to person that is where employment guarantee programme is under implementation

Right to Shelter Ciwmeli Singh Vs State of UP- Right to lite as a human being is not ensured by meeting only animal needs of man Shelter for human being is not mere protection of his lik and limb It is home where he had opportunities to grow physically mentally intellectually and spiritually Right to shelter therefore includes adequate living place sate and decent structure clean and decent surroundings sufficient light pure aIr water electricity

Inal COilS 1- 16--3--09 dOl25

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 26: Constitution Law

sanitation and other civil amenities like roads etc So as 10 have easy access to his daily avocation

Right to education 1ohini Jain Vs State of Karnataka Unnikrisbnan Vs State of AI- In these case Sc held that right to education directly Hows from right to life the dignity of individual cannot be ssllrrd unless it is accompanied by the right to education Right to education is at all level is Fundamental right of citizen under Art 21 constitution 86 amendment Act 2002 has added a new Art 2 r A has made education for all children of age of 6 to 14 a flmdamental right

Right to get pollution free water and air Protection of ecology and enVironmental poJiution is one of the basic human right

MC Mehta case Indian Council for enviro legal protection in all these case SC directed to shift the tanneries which were polluting Ganga river so that pollution caused by tanneries and by live stone quarries leakage of chlorine chemicals and gases posing danger to health and lite ofworkmen and people

And also directed to establish Green Bench to deal with environmental pollution cases and coul1 also fixed liability On the responsible who posed threat and spoiled polluted the environment costs remedial measure has to he ~arried by enterprises only Under the principle ofpolluter to pay Coun directed the polluters to provide

a Health insurance b One compensation - Health record - upto 40 years c Membrane filter test d Health coverage To be provided under environmental protection

Right to health and Medical assistance Paramananda Katara Vs Union ofIndia Art21 of constitution costs the obligation on the state to preserve lite It is the obligation of those who are in the health of the community to preserve lite The obligation being total laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot he sustained and therefl)re procedural lacuna should be given away

Right to Pollutiou free water air and environment- Shriram fertil izers Me Mehta Rural litigation and entitlement kind Indian council for enviro-Iegal action In all the above cases Sc held that though are of vital importance to the country development but they cannot allowed to destroy the ecology degrade the environment pose a health hazard and cannot be permitted to continue their operation unlers they set lip pollution control deceases provisions for the treatment of trade effluent Howing out of the factories

Mnreli S Deora Vs Union of India - Sc order for banning smoking in public places to protect the life of health passive smokes to help the victims of AIR Pollution

Prisoners Rigbt- The convicted persons to freedoms like the right to move freely thoughout or to practice the profession may deprived but not other freedom like right to acquire hold and dispose of property for existence of which detention can be no impediment

Art 14 19 amp 21 ore not mutually exclusive and they sustain strengthen and nourish each other and Art21 is available to prisoners as well as the men prison walls do not keep out fundamental rights and person under the sentence of death may also claim of Fundamental Rights

Right to free legal aid speedy trial is also pan or of An 21 Sunil Batra Vs Delhi Administration- Keeping under trials with convicts as under lrial unlimited 100 years as also otlended the test of reasonableness Art J 9 amp fainer in Art2

26

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 27: Constitution Law

Hand should be resorted to only when there is clear and present danger of escape Not merely on assumption If the there is no such danger- exercise of such pmer is infair and unreasonable and violative of Art21

Right against delayed execution Right against public hanging It has been held that extcultion of death sentence by public hanging is barbaric and violation of Art21 Attorney General of India Vs Lachma Devi- Courts started compensating the victims whose fundamental rights have been violated as a matter of rehabilitation or interims relief to the helping hand to the dependents of victims or to victim themsclves fur rape or death of the person

Right to privacy Art 21 Right to lite and inclusive of Right 10 privacy Art 12 of Universal Declaration Righls Art 17 of International covenant and political rights I also recognise the privacy as basic human right Privacy means described as the of a person to be let alone - Thomas Looley Privacy means the State solitude or small group of intimacy - Prof Allan Westin The right to privacy is the of individual to decide for himself how much he will share with others his thoughts and with others his thoughts his fecling and facts of his personal life Rep0l1 by a panel by Presidents Offlce - 1967

Chllpter - IX

The freedom enumerated in Art J 9(1) are those and basic rights which are recognized as the natural rights in statutes of a citizen

Art 19( I) (a) - Guarantees freedom of speech and expression The Freedom of Speech and expression means the right to express one 5 convictions and opinions iieely by word of mouth writing printing pictures or any other mode any communicating through gesture signs I ike ex Freedom of speech and expression is an indispensable in a democracy A democratic attaches great importance to this right because without freedom of speech appeal to reason which is the of democracy canllot be made

The freedom of expression has four broad special purposes to serve I It helps an individual need fOr self fulfillment 2 To assist in discovery of truth 3 It strengthens the capacity of an individual in participating in decision making 4 It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change The freedom enumerated in Art 19(1) are those great and basic rights which are recognized as the natural rights These rights are not absolute and uncontrolled Each is liable to be cllrtailed by laws made or to be made by state to the excellenl mentioned in clauses of the Articles under Art 19 once the invasion of right is exfacie proved the state must prove that in its cases under clauses 2-6 Art 19 The onus of proving to the satisfaction COllrt that the restriction is reasonable is upon the state

Right to vote commercial advertisement Freedom of press Telephone Publication of document demonstration or picketing and to be silent is also considered as freedom of speech and expression

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 28: Constitution Law

In all these issues SC held that freedom of speech expression must be broadly construed to include treedom to circulate ones views by word of mouth or in writings or through audio visual instrumentalities Right to propagatc views through printing or through any other communication like radio TV Magazines etc

FREEDOVJ OF PRESS Al1 19(1)(a) does not expressly mentioned the liberty of press (Freedom of speech and expression includes the freedom of propagation of Ideas and this teedom is ensured by of prim publish circulation without fJrevious pcrmission

It is guaranteed not only in volume of circulation but also in the volume of new advertises The fundamental principle involved here is peoples right to know

Prabbu Dutt Vs Union of India- SC Has held that the right to know news and information regarding administration of Govt is also included in the freedom Freedom of Information Act 201J2

Thus in Sakal News V Union of India AIR 1962 SC305 restrictions on price page and advertisements WaS hdd to unconstitutional and similarly in Bennet Coleman V Union of India 1973 SC 1(6 restraint on the number pages of the newspaper to control the import trade of newsprint was held to be unconstitutional and violative of freedom of expression In Express ewspapcrs V Union of India AIR 1986 Sc515 a increase of import duty on newsprint was held unconstitutional as it stined freedom of expression In Express Newspaper VUnion of India AIR 1986 SC872 ciosure of the Express Buildings by Delhi Administration on the ground of breach of the conditions of lease of the of the buildings was held unconstitutional as violative ArL]9 as it infringed freedom of the press and of Ali 14 as it as arbitrary

Freedom of speech amp Expression 19(1) (a)

Exceptions I Freedom of press Legislative privilege under Art 105 amp 194 are unavoidable Art 19

cl( I) sub cl(a) is subjected to Alt 105 amp 194 priv liege of legislature prevails over the Right of speech and expression In the case of MSM Sharma Vs Sri Krishna It was held that under the scheme of constitution of India legislature have the right and privilege to prohibit absolutely the publication of report of debates and proceeding of the t100r of the houses

2 A word used with the intention of out raging the feeling of any class of citizens is an offence under S295-A IPC State of Mysore Vs Henry In this case insulting the religion and belief about virgin Mary Truth of statement cannot be taken as mitigation of the mischief

Right to information Act has been enacted in July 2005 The object of these act arc to promote openness transparency and accountability in administration

Even though advertisement is undoubtedly protected But when the advertisement takes the commercial form is no longer protected by Art 19(1) a - One prohibiting an obnoxious advertisement cannot be protected

Union oflndia Vs Association for democratic reforms 19( I )(a) includes the right to casting of vote and the right to know antecedents including criminal past ofthe candidate to be elected as a Member of Parliament or state assembly Hamdard Dawakhana Vs Union oflndia Strike is also not considered as Form of expression Tamil adu Vs Employees

fwl wllft-J6-J-09dolt

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 29: Constitution Law

M Hasan Vs Govt oLP Danial jail authorities to JOurnalist and videographer to interview the condemned lwltnI1P

in jail amounts to deprivation Freedom of speech and expression under Art 19(1)

The reasons lor refusing permission for interviewing sentenced to death

L It will give opportunity to public to campaign for reducing their sentence 2 It may lower the position of court 3 Prisoner not expressed their desire for interview 4 Interview cannot be allowed for salety and security reason The court held that their

restriction are not reasonable

jJreedom of Speech and expression is it inclnsive of Right to be silent National anthems case Biji Emmanuel Vs Kemla Three students expelled from School for their refusal to sing national anthem as according to them it was against their religious faith which do not permit them to join rituals except the prayer to Ielova For refusing to was held expulsion from school was violation of their fundamental right under A1119(l a which also includes freedom of silence 19(1j is not an absolute freedom neither the individual is a[jowed to enlOY his liberty unfettered 19(2j contains the grounds on which restrictions on freedom of speech and expression call be imposed

GROUNDS OF RESTRICTION Pathumma Vs State of Kerala ease JustiJe Murtaza Fazal Ali laid down the following guidelines to determine reasonable of restrictions

L The Court has to bear in mind the principles of state 2 The Restriction must not be arbitrary or of an excessive nature so as to go beyond the

requirements of interest of general public 3 No abstract or general pattern can be laid dovvn The pattern wilJ vary from case to

case 4 A just balance has to struck between the restrictions imposed and social control

envisaged by the relevant clauses 5 There must be direct nexus Or reasonable connection between the restrictions imposed

and the object which is sought to be achIeved 6 It must be observed prevailing social values whose needs are satisfied by restrictions

meant to protect socia I wei fare 7 Nature of reasonableness should be viewed from point of view of citizen and also

object to achieved by legislature

a Security of state b Friendly relations with foreign states c Public order d Decency of morality e Contempt of court f Defamation g Incitcment of m offence h and integrity of state

a Secllrity of State SClWIlV of state may well be endangered by crimes of violence intended to over (hrow

the Gov like waging war rebellion against Gov external or war etc All

29

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 30: Constitution Law

utterances intended or calculated to have the above may properly be restrained in the interest of security of state Serious and aggravated form of public disorder are within the expression of security of slHte Incitement to commit violent crimes like murder would endanger the security of state Ramesh Thappar Vs State of Madras Court held that S144offthc CrPC does not violate provisions of the constitution in CI(2) of 19

b Friendly relations with foreign state Unrestrained maliciolls propaganda against foreign friendly state may jcoparadise the maintenance of goods and relations It is a recognized principal of International law that states in their relation with other states arc responsible for acts committed by persons within thcirjurisdicliol1 Foreign relations Act 1932 Xl of provides punishment for libel by Indian citizens against foreign dignitaries

c Decency and morality Decency carmOles the same as lack of obscenity It illustrates well the clash between the right of individuallO freely express his opinions and duty of state to safeguard the morals

The right to freedom of speech cannot permitted to deprieve and corrupt community SS 292-296 of IPC these sectiolls prohibit the sale of distribution Or exhibition or doing acts or singing or uttering of obscence words in public places Writing or painting used for bonafide religious purpose in any temple are exceptions to IPC Morality differs from time to place 10 place Family Planning- Contraceptives encouraged by and subsidized by state and state sponsored condoms fur prevention of AIDS

Treating with sex in a manner offensive to decency and morality judged by our national standards and considered likely to ponder lascivious prurient or sexually precious minds must determine the resultc held by court in Ranjit D Udeshi Vs )1aharashtra

Pre-censorship nffilms In the case ofKA Abbas Vs Union of India SC in this case held that motion picturies must be treated differently from other forms of art and expression as thcy appeal both to the ear and eyes Hence classification of motion pictures as A for adults only U for universal exhibition was valid

d Public Order State tranquility which prevails political institution which guarantees life and liberty and development which are enforced through internal regulations public leads to disturbance of the current of the life entire community

Law and Order It is state of breach of law arising as a result of anti social Criminal activities there is a definite violation of law in law and order Individual affected without disturbance of the

ity of society

Case Superintendent Central Prison Vs Rammanohar Lohia SC invalidated of 4[ special powers Act which punished a person even if he incited a single person not to payor defer the payment of Gov dues because there was no proximate nexus between speech and public order

Sc we cannot accept agreement of learned not to pay tax or dues is spark which may in long run ignite revolutionary movement destroying public order Sadhu Shamsha Singh Vs State of Pepsu _ Accessing or attack on judge is not having a case with maintenance of law and order Public order means absence of violence orderly state public peace Public order is public peace internal and external

30

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 31: Constitution Law

Togodia says there should be nexus between the restriction and which restra inment of public

Public Order I Affects the political soc ial in stitution and currents of com munity It is broad

Law and Order I When there is vio lation of breach of law leading to disturbance in o rde r is ground and indivisib le [t is distinct

2 There is need a vio lat ion of law 2 There is definite vio lation of law 3 If invo lves enti re gamut of human society

3 Individual group IS affected w ithout disturbing tranquility of society

4 Public Order includes peace safety and tranquility ordinary state of affairs

4 ft IS violation of law or resulting In di sturbance of tranquility mere criticism of Govt not necessary disturbance of public order

e Art215 Contempt of Court C ivil amp Cri minal Civil Contempt willful diso bedi ence to any judgment decree direction order wit or other process of court or will breach of an undertaking given to court Criminal Contempt means publication by words spoken or written or by signs or by visible representation otherwise scandeli se or tends to scanda lize or lower or tends to interfere with or obstructs or tends to obstructs the administration ofjustice in any other manner No person is permitted 10 distort o rders of the court and deliberately give a stal1 to its proceedings which have the tendency to scanda li ze the court or bring it to ridicule

Medha Patkar - 6 months o r 2000 or both Innocent publicati on and distribution of any matte r fa ir cr itic ism co mplaint against presiding office in good faith is not contempt of court if the person prove is good faith

f Defamation A statement which injures a man reputation amounts 10 defamation It is a punishable offe nce unde r S499 of IPC and a lso as a tort in c ivil law Defamation may be s lander and libel

g Incitement to an offence through speech and express ion if any perso n is insulting other people to commit an offence Then to restric t such speech and expression w ill be a va lid and reasonab le restriction

h Integrity and sovereignty India - By freedom of speech and expressio n a threat is caused to the integrity and sovereignty of state then restriction can be imposed 16th amendment Act 1963 - [PC 124A - Sedition means in citement leading to violence and to disturb the tranquility of state Freedom of expression in corporate both right to rece ive and to express ideas and information and secrecy of private communications

Fi llnl CCl IlSl- 16-1-WI do~31

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 32: Constitution Law

Examine relative importance of FR8 amp DPs

Directive principles of Stale policy The Directive principals of state policies are the reiteration of the ideals in preamble They are intended to serve as instructions to govt of the state by centre to act in a way 10 promote fraternity and equality and guarantee justice and liberty to the people According to Dr Ambedkar They are like the instruments of instructions

These principles are ambitions and aspirations ofthe constitution makers They are drawn from lrish constitution onee they were found in Spain Indonesia Nepal Thailand State shall treat and prompt social order in the field of social economic political are the principJe and basis of welfare state

In simple they arc considered as Beacon to the administration and to courts It also means they are accepted as guiding principles fur the state to make policies to achieve the social Justice equality They have sanctity and as well as constitutional force

Former CJ Kanid observed DP represent not a temporary will of majority in legislation but deliberate wisdom of a nation exercised while settling the paramount and permanent lav of country_

According to Sir Ivor Jennings as pious aspiration These principles form sociaeconomic political ideas of nation It is a sacred duty of the courts to protect them Irom whxxx of different political parties

Directive principles form an essential background for all state actions

Implementations of DPs 1 Importance and utility of DPs can be Judged fiom the fact that earnest attempts made

by the previous Govt to translate the ideals into action Ex Abolition of Zamindari in order to active welfare state

2 ationalisatilln of Industries was done to prevent the concentration of wealth in the hands of people Economic justice equality to remove the disparities of rich land poor to achieve socialism

3 5 years plans have launched to standard living 4 Considerable lacilities to the oppressed and Backward class people like (SC amp ST) to

remove socioeconomic in equalities

These principles are fundamental in governance of the country state is under duty to apply these principles while applying laws

DPs are 110t enforceable by courts

Directive principles of state policies are classified into the following grounds are L Socio and Economic Charter 2 Social security Charter 3 Community welfare

32

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 33: Constitution Law

_middotmiddotmiddotmiddot~middotmiddotmiddot~~=_~middotmiddotso-cio-ECODOill=iC_---_middot__middotmiddotmiddot_-ILmiddot--middotmiddotmiddotmiddot_--SoclO-SeciiriiY~m_~ __gom ill II oily Welfare A38 Social order based on AA3A workers participation Uniform civil code Art 44

WIxst~~~al remunerati-o-n-to-n-len ~i~~ne~~~~educaijonandt()rganiSaiTOnof ~~aggiiricclI Ilttuureej and women public assistance in certain and animal husbandry

l cases Art 4 L AA8A -E=q-u-a--I-p-y-e-q-ual work Just and humanconditions of Protection and improvement

work Art42 of Forests and wild life

_~_---~---__ A A 8A-Yo protect ----C------ ~--V~01middot~t-e-r~A~43--ICP-r-)-tect-io-n--of-monu-m-e~rii

of workers places of national

~~~mclDilldren ---IFr~middotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddotmiddot~~~~~i--J~~JPQ~~~A4~9bull~~I r nrl Separation

m__~bullbullbullbullbull nd-fre-l~atIdn-D~t~~~middot~~e-t~~tal1dlrais)j Executive ASOEqual justice and of of International to economically backward living and improvement of peace and security A51 classes A39A health A47

Panchayat Raj Promotion of educational and Organisation economic interest of weaker panchayas A40

L ______~~Lsectio=ns_Prt46__

Directives contained in other of constitutions Art350A state and every local authority within state has to provide adequate jaeilities for instruction in mother tongue

Alt 351 To promote spread of HindI language as medium ofexpressiol1 Art 355 Deals with to maintain deficiency in admintstration

Comparison between FRs and OFs

Fundamental I FR are

They are vital for and development of Individual promotes dignity land welfare and prevents him political justice DFs are nreltnnl~ from exploitation FRs are

IS

country a insructions to provide social

FRs Negative to stale and posltlve to individual FRs are sought individua I interest

7 FR enjoy supremacy over of state directive principles community oriented They envisaged

Greatest good of greatest lumber DP are to FR

are

33

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34

Page 34: Constitution Law

I

to resources

r-1Theym~uspei1dedo-casonabICl~U~- -~~-=-=-~DP cannot be suspended DP realization of Hence DPs limited by resources

and level

In Unni Krishnan V s AP- Sc held the Directive Principles of State policy amp RRs are supplementary to and complimentary to each other

They are not antithetical to each other they strike a balance between part II and IV which is no much essential for protecting rights prcv~l1tion of exploitation to keep the light of rule of law Part III is the bed rock Part IV is the heart and soul DP are also relevant to consider what are restrictions under Art 19 In case of Balsara Vs Bank - SC held a restriction which promotes any objective embodied in the judiCial review considered reasonable by court

Criticism According to wheare Directives principles are little more than manifesto of aims and aspirations))

Sri Nasiruddin as member of constitutioll Assembly called them no better than New years greetings They are high sounding but small of cheap publicity DP are in nature as hoywishes They are just superfluous political philosophy They arc meant to befool and overall ignorant and credulous people of India

They are high sounding but cmply promises In practice some of the principles have not yielded satisfactory results

According Sril1ivasan They are hardly be considered inspiring It is both and repetitive neither properly classified nor logica Ily arranged Based on purely On sentiment and preiudice

34