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Constitution – II (Federalism and Government)

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Article 29 & 30 – Constitution of India – Notes

The purpose of both the article is to protect the interest of minorities but the scope of articles is different.

  • While article 29(1) is not confined to minorities, but all sections of citizens who have a distinct language, script or culture article 30(1) is applicable only to the minorities.

St Xavier College v State of Gujarat

  • Gujarat University imposed following conditions on every college affiliated to university

o   One nominee in governing body by vice chancellor of university
o   If college takes any action against any teacher, suspend or remove, no such action can be taken by any member of staff except for approval of vice chancellor
o   If any dispute arises between the management of college and teaching staff such dispute shall be referred to arbitration and the adjudicator will be the nominee of vice chancellor

  • Court held that these provisions are inapplicable to a minority institute rights. However minority institutes under Article 30(1) were not free from regulation and regulatory measures necessary to ensure orderly, efficient and sound administration. The court decided that the minority institute possess the following rights:-

o   Right to choose the personnel of the members of Governing Body
o   Right to admit students of their choice
o   Right to appoint teachers
o   Right to take disciplinary action against the staff and students
o   Right to use property and assets for the benefit of the institution.

  • The court also held that minority institutes are subject to the following:-

o   Regulations relating discipline, health, sanitation, morality, public order, observance of labour standards, syllabi, courses of study, qualification of teachers are permissible as they promote the excellence of the institution.
o   Minority institutions can also be required to follow general laws relating to contract, industrial laws, norms of natural justice and norms of fair employment.

  • Court also held that no regulations could be imposed on minority institutions on grounds of national interest.

Frank Anthony Public School Employees Association v Union of India

  • Frank Anthony Public School was governed by Delhi education act, Section 12 of which had provision regarding service conditions of the teachers
  • Pay and allowances given to teachers of private schools whether aided or unaided shall not be less than their counterparts in government schools.
  • Frank Anthony Public School Employee Association sought revision of their salary so as to seek parity in income; also all teachers teaching for same work should get same salary on basis of equality enshrined in Article 14
  • Respondent contended that they are a reputed school and charge very less fee and hence cannot afford to pay the same salary and they will have to shut if they have to pay same salary
  • Court held that right of employees to get equal salary was violated and payment of salary to a teacher was not part of administration and hence article 30 was not violated

Kerala Education Bill Re. (1957)

  • The right conferred on minorities to establish education institutions of their choice doesn’t mandate that religious minorities need to establish schools that impart teaching of their religion, or linguistic minorities schools that teach their language.
  •  It leaves the choice up to the minorities to determine what kind of schools they need in order to preserve their religion, language, or culture, and in order to give a thorough general education to their children.
  • Establishment can also involve recognition and affiliation of an educational institution. Affiliation and recognition cannot be denied or subjected to conditions that would rob the minorities’ right under Art. 30(1) of its substance.
  • An institution established by a minority and receiving aid from the state would not lose its minority character by admitting members of any other community.
  • The right conferred on religious and linguistic minorities to administer educational institutions of their choice, though couched in absolute terms, is not free from regulation.

St. Stephen’s College v University of Delhi

  • St. Stephen had admission procedure different from Delhi University and used to conduct an oral interview
  • Further seats were reserved for Christians in the college
  • Delhi Students Union filed a writ petition contending that as the college was state aided college it cannot deny students on basis of religion (Article 29(2))
  • Court acknowledged that St Stephens is a minority institution and right to administer institute includes right to admit students of own preference
  • Court also took into consideration that St. Stephens was also takes funding from government and since it is an aided institute it cannot deny students admission to non-minority student on basis of religion
  • Court then held that St. Stephens can reserve seats for minority students not exceeding 50%

TMA Pai Foundation v. State Of Karnataka

  • Held education is an occupation under Article 19(1)(g) of constitution
  • Under article 26 every religious denomination has the right to establish educational institution since education is a charitable organization
  • Minority has an additional right under Article 30(1) to establish an educational institution of their choice
  • Unaided private schools (minority or not) cannot be compelled to follow reservation policy of the state
  • Unaided institute can have any reasonable fee structure and state cannot interfere with it
  • Defined Minority – Minorities would constitute numerically less than 50% of the population of a State. Minority to be determined on basis of population in a state and not whole of nation
  • Regulations can be framed in national interest and such regulations should equally apply to minority institutions.
  • Rights of Unaided Minority Institutes:-

o   These institutions may have their own admission procedure but such method or procedure should not tantamount to mal-administration.
o   Such institutions have right to admit students without interference of the State so long as it is on transparent basis and merit is adequately taken care of.
o   In such institutions regulations are permissible only for ensuring educational standards and maintenance of academic excellence. Qualifications may be prescribed for appointment of teachers.
o   Such institutions have to comply with the conditions of recognition and affiliation
o    State cannot interfere in appointment of teachers and other staff. However, a rational procedure should be adopted for selecting teachers by the management itself. There cannot be any external controlling agency in this matter as they pertain to the autonomy of the minority institution.
o   For redressing the grievances of employees in case of punishment or termination of services a tribunal has to be evolved to be presided over by a judicial officer of the rank of District Judge.
o   These institutions can have their own reasonable fee structure, Fees to be charged by an unaided minority institution cannot be interfered with by the State but capitation fee cannot be charged’

  • Rights of Aided Minority Colleges:-

o   Such institutions can admit minority students as well a reasonable number of non-minority students for balancing the rights under Article 30(1) and 29(2).
o   The State government shall notify the percentage of non-minority students to be admitted. Inter-se merit amongst the applicants belonging to minority groups should be ensured. Common Entrance Test (CET) by State agency for both minority and non-minority students for admission to professional Colleges should be held.
o   Regulations governing service conditions of teachers and other staff can be framed by the State but without interfering with overall administrative control of management of the minority over the staff.
o   Appropriate Tribunal to be presided over by a Judicial Officer of the rank of District Judge for deciding disputed between management and employees should be established.
o   All citizens have right to establish and administer educational institutions under Article 19(1) (g) and 26 (a) subject to conditions of Article 19(6) and 26 but the minorities have additional right under Article 30(1)

  • Not Good law –  Article 15(5) (Inserted by 93rd Amendment) – State by law can provide for reservation in  private (aided or unaided) institutions but minority unaided institute can refuse to provide reservation

Secretary,  Malankara Syrian Catholic College v T. Jose

  • Article 30 is itself representative of the national interest. Any law or state action that overlooks the rights of the minorities cannot be deemed in the national interest.
  •  If a regulation in the name of national interest completely extinguishes the minority’s right to establish and administer their own institution, then their rights under 30(1) will triumph. There should be a balance between national interest and rights of the minorities and national interest cannot be used to wipe out minority rights.

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Article 28 – Constitution of India – Notes

D.A.V. College v State of Punjab (1971)

  • Section 4 of the Guru Nank University Act, which enjoined the State to make provisions for the study and research on the life of Guru Nanak, was questioned on the grounds that the University was maintained wholly out of State funds and therefore should not be instituting religious instruction.
  • The Court taking an opposite view held that the Act enjoined the State to fund academic study of the life and teachings of Guru Nanak, not promote religious instruction. Held that the Act did not violate Article 28 as it did not encourage religious instruction or worship; it was wholly an academic study.

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Article 27 – Constitution of India – Notes

Article 27 prohibits the levying of a tax the proceeds of which are meant specifically for payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Jagannath Ramanuj Das v State of Orissa (1954)

  • Orissa Hindu Religion Endowments Act, 1939, passed for the better administration and government of certain religion endowments, imposed on every math having an annual income exceeding Rs 250 an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him.
  • A tax is a common a burden which results in a common benefit. A fee is a payment for some special services rendered for the benefit of those from whom the payment is received. Fees have an element of quid pro quo that taxes lack. Also, the Constitution has made distinct fees from taxes; it has created various lists for legislative purposes all of which identify fees and separate from taxes.
  • The SC held that the annual contribution was a fee and not a tax because the money was levied for specific purpose of paying Commissioner which was part of the machinery set up for the administration of religious affairs within the matha (temple) . The collections were not merged into the general public revenue, nor were they distributed in the manner laid down for appropriation of expenses for other public purposes.

K. Raghunath v. State (1974)

  • Expenditures from the State fund for the reconstruction of the religious and educational places damaged during riots was upheld notwithstanding the fact that the damaged places belonged to any one religion.

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Article 25 & 26 – Constitution of India – Notes

Indian secularism is not anti-religious (wall of separation in USA – American version of secularism erects a strict wall of separation between the state and religion.) but is equal treatment of all religions

  • This was done so as to reform evil practices prevalent in Indian society such as devdasi, untouchability, Sati etc.
  • This freedom seeks to bring social equality
  • Religion need not be theistic. Eg – Buddhism, Jainism
  • Religion is system of belief and doctrines which are regarded as those who profess that religion to be conducive to their wellbeing. It also includes rituals, ceremonies, observances and modes of worship.  It thus also includes religious practices.
  • Religion consists of essential and non-essential practices. Article 25 & 26 protect only those practice which are essential and integral to that religion.
  • The State can regulate secular or temporal matters associated with religion but not essential religious practices.
  • What constitutes essential or integral part of his religion is a matter for court to decide with reference to the doctrines of a particular religion and includes practices regarded by community as part of religion.
  • Indian secularism does not follow equidistance but principled approach.
  • Essential Features of Secularism in India:-

o   Freedom of practice, profess and propagate religion. (Article 25)
o   Right of every religious denomination to manage its own affairs in matters of religion. (Article 26)
o   Right against taxation proceed of which goes towards benefit of any religion. (Article 27)
o   Right against religious education in state institutions. (Article 28)
o   State shall have no official religion.
o   There should be no discrimination on the ground of religion. This has been ensured by Articles 14, 15(1) and (2), Articles 16(2) , 29(2) and 325.

o   Secularism part of basic structure. (SR Bommai v. Union of India)

  • Every denomination has the right to set up religious institutions subject to certain provisions. (Article 26)
  • Denomination is a collection of individuals, classed together under the same name.
  • Characteristics of Denominations (SP Mittal v Union of India):

o   Common faith
o   Common organization
o   Designation by distinctive name

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt

  • The constitutionality of Madras Hindu Religious and Charitable Endowments Act, 1951 was challenged on the ground of infringement of Article 26. The legislation was enacted for the purpose of acquiring control over the ‘secular’ activities of the Religious Endowments, namely.
  • Many provisions of the enactment were struck down by Court on different counts, it upheld the inspection of accounts and even inspection of temples by the State authorities since, according to the court; it did not interfere with the essential aspects of religion.
  • Court defined the scope of ‘secular’ activities using ‘essential principles test’. It was held that for defining social welfare content the judiciary can distinguish essential from the non-essential activity.
  • “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself”

Bijoe Emmanuel v State of Kerala

  • Three children belonging to Jehovah’s Witness refused to sing the National Anthem. They refrained from actual singing but only because of their aforesaid honest belief and conviction and used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung.The school expelled them for not singing the national anthem.
  • The court held that refusal to sing the anthem did not constitute an offence under Prevention of Insults to National Honor Act 1971 as they had not shown any disrespect to national anthem.
  • The court held that not singing the national anthem was an aspect of free speech under Article 19(1) (a) which includes the freedom of silence which could be curtailed only under the grounds mentioned under Article 19(2).

Commissioner of Police v Jagdishwarananda Avadhut

  • The Commissioner of Police, Calcutta imposed a ban on Tandava Dance performed in public place and streets.
  • Commissioner’s order was challenged by the followers of Anand Marga as infringing their rights under Article 25 and 26. The Court went through the origins of Ananda Marga and found that Tandava dance performed by carrying trident, snakes,damroo, lathi, and human skull in public is not an essential part of Anand Marga.

M Ismail Faruqui v Union of India

  • Constitutionality of an Act which temporary vested in the Central Government the disputed and adjacent land in Ayodhya where Babri Masjid existed.
  • The court apart from holding that the act was not ultra vires to the constitution also held:

o   Right to practice, profess and propagate religion does not include the right to acquire, own and dispose of property.
o   The State has power to a acquire Mosque/ Temple or other religious places.
o   Right to freedom of religion does not extend to the right to worship at any and every place of worship.
o   A mosque is not an essential part of practice Islam and Namaz can be offered anywhere even in open.

Sheshamal v State of Tamil Nadu

  • An act was passed which made certain hereditary religious offices non-hereditary and prescribed certain qualifications for them irrespective of caste, creed or race. The Act was passed with an object of social reform measure, and was challenged on the ground of violation of Article 25(1) and 26 (b).
  • Petitioner contended that under the law a trustee could appoint any one as priest if he possessed requisite qualifications irrespective of his being a Savaite or Vaisnavite which constituted a violation of freedom of religion.
  • The Court held that the appointment of a priest was a secular act and appointment of priest on hereditary principle despite its religious usage was not an integral part of religion. The Court upheld the validity of the law.

Rev Stanislaus v State of MP

  • State of Madhya Pradesh and Orissa passed laws prohibiting conversion by force, fraud or inducement. These laws were challenged as violative of Article 25 of the Constitution.
  • The apex court held that the right to propagate religion guaranteed by Article 25(1) includes right to propagate but does not guarantee a right to convert another to one’s own religion.

Lily Thomas v Union of India

  • Husband, while still married to his first wife, converted to Islam in order to marry another woman. When first wife sued under bigamy, husband claimed that his conversion, under right of freedom of religion (Art 25), was valid and his new religion allowed multiple wives.
  • Court held that one cannot convert so as to take advantage of a personal law.
  • Freedom of religion is not violated by a law to punish a Hindu convert to Islam for bigamy if he contracts another marriage while the first marriage subsists.

Church of God v. KKR Majestic Colony Welfare Association

  • The court justified the Environment Protection Rules (1986), which prohibits noise pollution, on the grounds that loud preaching is not an essential or integral part of the religion.
  • Further even if loud preaching is deemed to be essential and integral practice of a religion, the loud preaching would violate a person’s liberty to not hear something they didn’t want to.
  •  Court held that freedom of religion cannot violate any of the other fundamental rights.

Sri Adi Vishashwara of Kashi Vishwanath v State of UP

  • A law providing for board of trustees for the management of Kashi Vishwanath Temple after taking over from temple priests was held not to interference in matters of religion but only a regulation of the administration of the temple which was in an awful condition.

Atheist Society of India v. State of Andhra Pradesh (1992)

  • Petitioner wanted to stop practices such as Bhoomi Pujan, and chanting of mantras by the government in its official functions
  • Court held that these practices are cultural and not religious, done to invoke blessing of god
  • Judgment much criticised as this affect atheist’s right to conscience

Mohd. Ahmed Khan v. Shah Bano Begum

  • Woman filed for maintenance under §125 of CrPC
  • Court held that even if personal law does not allow for maintenance then also maintenances can be sought under the central law

Saifuddin Saheb v State of Bombay

  • The Bombay government enacted a law called Prevention of Excommunication Act to prohibit ex-communication on the ground of religion prevalent in Dawood Bohra sect of Muslims.
  • The Supreme Court held the Act was unconstitutional on the ground that the power of the head of Dawood Bohra community to excommunicate was absolute and an essential part of religion and the State could not interfere in the matter of religion.
  • Here there was a conflict between the individual’s right to freedom of religion and religious denomination’s right to manage its affairs in matters of religion. The court gave primacy to the right of religious denomination over the right of the individual. This judgment was another example of legal positivism of the Indian Supreme Court.

Mohd Hanif Quareshi v State of Bihar

  • Constitutionality of a legislation prohibiting cow slaughter was challenged as infringing the rights of Muslims to sacrifice cows on Bakr-Id day.
  •  After going through the Islamic scripture Koran, the Supreme Court held that sacrifice of cow on Bakr Id day was not an essential part of Islam because there was an option of a cow, a camel or six goats to be sacrificed on this day. Therefore slaughtering of cows could be restricted by legislation.

T.M.A. Pai Foundation v State of Karnataka

  • Prior to this case, it was undecided whether right to establish and maintain religious institutions for charitable purposes under 26(a) would also cover the establishment of institutions for general education. However, the Court in TMA finally established that religious denomination do have the right under 26(a) to establish and maintain institutions for general education, recognizing education as charity. (The right cannot be claimed or defended is the education is not being provided as a charity)

Commissioner H.R.E. v Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt

  • Section 56 of the Madras Hindu Religious and Charitable Endowments, Act 1951 empowered the Commissioner, at any moment, to deprive the ‘mahanta’, of his right to administer the property even if there was no negligence or maladministration.
  • Although the State’s right under 25(2)(a) will generally trump the denomination’s rights under 26(c)(d), the court held that the state’s ability to encroach upon the denomination’s rights should be reasonable. The state can regulate but not completely take away a denomination’s right to own and administer property. In this case section 56 was held as violating Article 26(c)(d) as it completely extinguished the denomination’s right under 26(b).

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Article 21 + 32 – Evolution of Rights through PIL

One can invoke court’s jurisdiction just by writing a letter or sending a telegram. This has been termed epistolary jurisdiction.

  • Only a person acting bona fide and having sufficient interest in the proceedings of PIL has a locus standi
  • a person cannot file PIL for personal gain or private profit or political motive or any oblique consideration
  • PIL proceedings entail new forms of fact finding such as appointment of socio-legal commissions of inquiry and handing over the investigation to the National Human Rights Commission or CBI
  • The grant of interim relief in PIL cases does not preclude the aggrieved person to claim damages from a civil court
  • The human rights of prisoners subjected to torture,victims of police excesses, inmates of protective homes and mental asylums, bonded and child labour, victims of sexual harassment and earthquake victims and many others have been protected by the Supreme Court.
  • In environmental cases the court has addressed the issues of environmental degradation such as vehicular pollution, leakage of oleum gas from a factory,  danger to the Taj Mahal from Mathura refinery, degradation of Ridge area in Delhi,  pollution caused by shrimp farming, tanneries and chemical industries and so on
  • The most abiding contribution of PIL has been the emergence of new human rights such as right to speedy trial, right against torture, right against bondage, right against sexual harassment, right to shelter and housing, right to dignity, right to clean environment, right to education, right to legal aid, right to health care and so on.
  • Compensation jurisprudence for custodial violence is a positive achievement of PIL but compensation award appear to be arbitrary and look more like a charity. The Court has not laid down the criteria or yardsticks to measure the amount of compensation to be given for violation of human rights.

PIL

  •  Identifying Features of PIL
  • PIL Movement and Rights of the Poor and the Oppressed
  • Rights against Custodial Injustice
  • Right against Sexual Harassment
  • Right against Bondage
  • Rights of the Child
  • Right to Food
  • Right to Primary Education

 S.P. Gupta v. Union of India

  •  Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right
  •  such person or determinate class of person by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief
  •  any member of public can maintain an application for appropriate direction under article 32 or 226

Hussainara Khatoon v. State of Bihar

  • first reported case of PIL seeking relief to the undertrial prisoners languishing in jails.
  • The PIL proceedings in this case resulted in the release of nearly 40,000 undertrial prisoners languishing in Bihar jails

Anil Yadav v. State of Bihar

  • 33 suspected criminals were blinded by the police in Bhagalpur jail in Bihar through putting acid into their eyes and then eyes were burnt
  • condemned the police barbarity in strongest terms and directed the Bihar government to bring the blinded persons to Delhi for medical treatment at the state’s expense.

D.K. Basu v. State of West Bengal

  • the Supreme Court acted upon a letter petition in August 1986 by the chairman of the Legal Aid Services, West Bengal which referred to the increasing incidents of custodial deaths in West Bengal
  • The Court issued extensive directions to be followed by the police upon the arrest of a person and the minimum facilities available to such person.
  • Award of compensation for established infringement of indefeasible rights guaranteed under Article 21 is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved.

Nilabati Behera v. State of Orissa

  • The compensation jurisprudence was most clearly articulated by the Supreme Court in this case
  • In response to a PIL alleging death of a boy of 22 years in police custody the Court evolved the principle of public law doctrine of compensation for violation of human rights.
  • According to this doctrine, liability of the state for violation of human rights is absolute and admits of no exception such as sovereign immunity. In this case the court awarded Rs. 1,50,000 to the mother of the boy as compensation for custodial death.

Delhi Domestic Working Women’s Forum v. Union of India

  • The PIL arose out of indecent sexual assault by seven army personnel against six domestic servants traveling in train from Ranchi to Delhi. The Supreme Court, with a view to assisting rape victims, has laid down various broad guidelines.
  • These guidelines include the legal assistance, anonymity, compensation and rehabilitation to rape victims. The National Commission for Women was directed to evolve a scheme for providing adequate safeguards to these victims

Vishaka v. State of Rajasthan

  • the Supreme Court declared that sexual harassment of women at workplace constitutes violation of gender equality and right to dignity which are fundamental rights.
  • Taking note of the fact that the existing civil and penal laws in India did not provide adequate safeguards against sexual harassment at work place, the court laid down 12 guidelines to be followed by every employer to ensure prevention of sexual harassment.
  •  Most importantly, the court ruled that all courts in India must construe the contents of fundamental rights in the light of international conventions so long as such conventions were not inconsistent with fundamental rights

Bandhua Mukti Morcha v. Union of India

  • The action was brought for the identification, release and rehabilitation of hundreds of bonded labour working in the stone quarries of Haryana. The court issued 21 directions to Haryana government.
  • In 1992 the court recounted the history of the case and was shocked to note that there was not the slightest improvement in the conditions of the workers of the stone quarries. The litigation ended up with one more warning to the government to be responsive to judicial directions

Sanjay Suri v. Delhi Administration

  • Another PIL exposed the inhuman conditions of children in Tihar Jail, Delhi

SCLAC v. Union of India

  • The court again issued directions to every district judge to report to the court as to the exact position of juveniles in jails, setting up of juvenile homes, special homes and observation homes. In this case, the court expressed its satisfaction that except in Andaman and Nicobar, a Union Territory, no state had kept the children in jails.

People’s Union For Civil Liberties v. Union Of India

  • the petitioners sought a direction for the enforcement of Famine Code and immediate release of food grains lying in the stocks of the Government of India.
  • Directions were also sought requiring the Government to frame fresh schemes of Public Distribution for the Scientific and Reasonable Distribution of food grains.
  • The Court expressed its deep concern that despite the fact that plenty of surplus food grains was lying in the stocks of the Union of India or drought affected areas, people were dying of starvation.
  • The Court gave several directions to the Central and state government to implement centrally sponsored poverty alleviation schemes.

Unnikrishnan v. State of Andhra Pradesh

  • Court declared that every child in the country has a fundamental right to free and compulsory education and this right flowed directly from right to life under Article 21.
  • Beyond 14 years the right to education was subject to limits of economic capacity of the State. Here the directive principle in Article 45 was read into the right to life contained in Article 21 of the Constitution.
  •  The court clarified that it was not transferring the directive principle in article 41 to fundamental rights chapter but was merely relying on article 41 to illustrate the content of right to education flowing from Article 21 and that the limits of economic capacity was a matter within the subjective satisfaction of the State.

Society for Unaided Private Schools Rajasthan v Union of India

  • the Supreme Court upheld the provision in the RTE Act 2009 that makes it mandatory for all schools (government and private) except private unaided minority schools to reserve 25% of their seats for children belonging to weaker sections and disadvantaged group.
  • The Court’s majority held that the Act shall apply to (a) government controlled schools, (b) aided schools (including minority administered schools), and (c) unaided non-minority schools.
  •  The Court ruled that Article 21A makes it obligatory on the State to provide free and compulsory education to all children between 6 and 14 years of age. However, the manner in which the obligation shall be discharged is left to the State to determine by law.

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Article 21 – Constitution of India – Notes

Content of Right to Life

  • Francis Coralie v Union Territory of Delhi (1981) – Right to life includes the right to live with human dignity and all that goes along with it, namely bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
  • Right to means of livelihood is  a part of right to life  (Olga Tellis v Bombay Municipal Corporation (1985)
  • Right to Food  (PUCL v Union of India (2001)
  • Right to Dignified life of the prostitutes (Gaurav Jain v Union of India (1997)
  • Right to primary education (Unnikrishnan v State of Andhra Pradesh (1993)
  • Right to Shelter ( Gauri Shanker v Union of India (1994)
  • Right to potable drinking water ( Narmada Bachao Andolan v Union of India (2000)
  • Right to seek a ban on injurious drugs to protect health of citizens ( Vincent Punikurlangara v Union of India (1987)
  • Right to life does not include right to commit suicide or die.( Gian Kaur v State of Rajasthan (1996)
  • Active Euthanasia and assisted death are offences but non-voluntary euthanasia is permissible subject to certain conditions and safeguards Aruna Ramchandra Shanbaug v Union of India (2011)

Evolution of Personal Liberty

  • A K Gopalan v. State of Madras:

o   Petitioner was detained under the harsh preventive detention act
o   Petitioner alleged that procedure is not just
o   Court stated that due process of law and procedure is not part of Indian constitution
o   When person lawfully deprive of his right under Art.21 or 22 then he cannot ask for other fundamental rights (14 & 19)
o   Law means enacted law by the government so protection available is against executive action
o   Personal liberty means from physical restrain

  • Kharak Singh v State of UP:

o   Police notification which allowed for untimely intrusion in house of suspects.
o   Unauthorized intrusion into a person’s home and disturbance caused to him is a violation of personal liberty.
o   Court held that unauthorized entry into home by police and disturb sleep could be deprived by procedure established by law but since this was administrative action without backing of law is unconstitutional.

  • Govind vs State Of Madhya Pradesh:

o   Police notification backed by statutory acts which allowed for untimely intrusion in house of suspects.
o   Personal liberty includes right to privacy but the Court upheld the violation of right to privacy as the regulations had statutory backing.

  • R.Rajagopal v State of Tamil Nadu:

o   Every citizen has the right to be let alone and the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others.
o   No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.

  • State of Maharashtra v Prabhakar Pandurang:

o   Right of a prisoner to write and publish a book a part of right to personal liberty. A prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed.

  • Satwant Singh v Assistant Passport Officer:

o   Right to travel is included within the expression ‘personal liberty’ and therefore no person can be deprived of his right to travel except according to the procedure established by law.
o   Every citizen has the Right to go abroad.

  • Maneka Gandhi v Union of India:

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

  • Naz Foundation v Govt of NCT (2009):

o   Case concerned with constitutionality of §377 of Indian Penal Code. Petitioner contended that the provision was violative of right of privacy of homosexuals.
o   Delhi HC held that it was unconstitutional.

  • Selvi v State of Karnataka:

o   Involuntary subjection to tests such as polygraph examination, narco-analysis and BEAP violates right to privacy.

  • Hussainara Khatoon v State of Bihar:

o   Right to speedy trial is a part of fair just and reasonable procedure and thus protected by Article 21.

  • Bandhua Mukti Morcha v Union of India (1984):

o   Right of bonded labor to be released and rehabilitated is  a part of right to life and personal liberty and right to live with dignity.

From Procedure Established By Law to Due Process of Law

  • A K Gopalan v State of Madras: Took a strict interpretation of procedure established by law and rejected due process of law. Case discussed in detail above.
  • ADM, Jabalpur v Shivkant Shukla:

o   Article 21 was the sole repository of the right to life and personal liberty against its illegal deprivation by the executive and in case enforcement of Article 21 was suspended by a presidential order under Article 359, the Court could not enquire whether the executive action depriving a person of his life or personal liberty was authorized by law.

  • Maneka Gandhi v Union of India:

o   Maneka’s passport seized under 10(3)(c) of Passport Act, 1967 which empowered authority to do so in public interest.
o   Article 21 does not exclude Articles 19 and 14. A law prescribing a procedure for depriving a person of his life and personal liberty will have to meet the requirement of Article 19 as well the principle of reasonableness embodied in Article 14.
o   Principle of reasonableness an essential element of equality and non-arbitrariness pervades Article 14 and must equally apply to procedure in Article 21.
o   Hence procedure depriving a person of his life or personal liberty must be fair, just and reasonable and not arbitrary, fanciful or capricious or oppressive.
o   The case implanted procedural due process and not substantive due process.

  • Sunil Batra v Delhi Administration (1978):

o   Krishna Iyer, J: True our Constitution has no ‘due process’ clause but after Cooper and Maneka Gandhi, the consequence is the same
o   Desai J: the word law in the expression ‘procedure established by law’ in Article 21 has been interpreted to mean in Maneka Gandhi Case that the law must be right, just and fair, and not arbitrary, fanciful or oppressive

  • Bachan Singh v State of Punjab:

o   The Supreme Court upheld the validity of section 302 of IPC dealing with death penalty as not violating Article 14, 19, and 21.
o   Justice Bhagwati in his dissenting opinion for the first time declared a substantive law as unreasonable and thus unconstitutional law.(Substantive Due Process). He held that Section 302 read with Section 354 Cr PC was unconstitutional and thus void.

  • T Sareetha v T Venkata:

o   Andhra Pradesh High Court held Section 9 of Hindu Marriage Act providing for restitution of conjugal rights to be barbarous and savage remedy violating Article 21 right to privacy and human dignity. The Court held that after Maneka Article 21 is no longer confined to procedural reasonableness but extends to substantive reasonableness.
o   Case was overruled in Saroj Rani  v Sudarshan Kumar Chadha.

  • Selvi v State of Karnataka:

o   The Court held that Article 20(3) forcing an individual to undergo lie detection test violated standards of substantive due process.

  • Naz Foundation v. State of Delhi NCT:

o   Delhi High Court held that Article 21 incorporates substantive due process and struck down Section 377 as violating Articles14,15 and 21 of the Constitution and therefore unconstitutional.
o   Case was overruled in Suresh Kumar Koushal v Naz.

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Article 20 – Constitution of India – Notes

 Article 20(1) – Retrospective penal law is prohibited.

  • Article 20(1) -A law cannot change the punishment and make it greater and apply it to previous offences.
  • Article 20(2) – Double Jeopardy – No person shall be prosecuted and punished for the same offence more than once.

o   Proceedings must be before a court or judicial tribunal
o   A person fined under Customs Act can still be prosecuted under FERA because custom authority is not a court or judicial tribunal.

  • Protection against self-incrimination.

Nandini Satpati v P L Dhani

  • The Supreme Court held that protection against self-incrimination under Article 20 extends to suspects also.

Selvi v. State of Maharashtra

  • The court held that evidence procured through narco-analysis, polygraph. is not admissible in court.
  • The only case not overruled so far which states that substantive due process is part of the basic structure.

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Article 19 – Constitution of India – Notes

  • The freedom given under Article 19 could only be restricted on the grounds mentioned in the article itself.

Grounds of Restriction

  • Security of State and Public order – Public order means public peace, safety and tranquility.
  • Sovereignty and integrity of India – This is the restriction which legitimizes the law of sedition. Was added by 16th Amendment Act based on the recommendations made by the Committee on National Integration and Regionalism. Targets individuals or organizations promoting secessionist tendencies or ideas of disintegration.
  • Friendly relations with foreign states
  • Incitement to an offence
  • Contempt of Courts
  • Decency or morality

Constitution (First Amendment) Act, 1951

  • Added ‘public order’, ‘friendly relations with foreign states’ and ‘incitement to an offence’ as grounds for restriction.
  • Nehru introduced these for the following reasons:-

o   The moral problem posed by irresponsible journalism.
o   Telangana problem

Freedom of Press

Brij Bhusan v State of Delhi (1950)

  • Direction was issued under Section 7(1)(c) of the East Punjab Public Safety Act to editor and publishers to submit for scrutiny in duplicate all communal matters, news and views about Pakistan.
  • This was struck down as violation of Article 19(1)(a) as imposing unreasonable restriction not justified under 19(2).
  • Provided freedom from pre-censorship on publication

Romesh Thapar v Madras (1950)

  • Petitioner contended that banning of his journal ‘Crossroads’ in Madras is violative of the fundamental right granted under Article 19(1)(a).
  • Court held that order is outside the purview of Article 19(2) and cannot be sustained.
  • Provided the right to liberty of circulation.

Sakal Papers v Union of India (1962)

  • Order was passed, fixing number of pages and size which a newspaper could publish at a price.
  • The court held that restriction not justified by the grounds under 19(2).
  • The effect was to reduce circulation or volume of newspaper.

Bennett Coleman & Co. v. Union of India

  • The import of news print policy provided several restrictions such as that that there will be rigid limit of 10 pages for a newspaper, there will bar on starting new newspapers or magazines by common ownership unit etc.
  • The government justified the restriction as regulation on the supply of newsprint quota to papers.
  • Court gave Effects Test – Object not important. If the effect of excessive and prohibitive.  Thus, the object of the newspaper restrictions of controlling the availability of newsprint or foreign exchange cannot be sustained as long as it effects circulation of newspapers.
  • Court held that liberty of press includes not only in volume of circulation but also in the volume of news and views. It includes right to free propagation and free circulation without any previous restraint.

Express Newspaper v. Union of India

  • The validity of Working Journalists Act was challenged which was enacted to regulate conditions of services (such as number of working hours, number of leaves, fixation of wages, etc) of persons employed in newspaper industry .
  • Act was challenged on the ground that it will adversely affect the economic conditions of newspaper and consequentially will affect their circulation and thus was violation of Article 19(1)(a).
  • The court held that the press was not immune from laws of general application or ordinary forms of taxation, or law of industrial relation. Therefore, the court upheld the constitutionality of the act.

Secretary Ministry of Information and Broadcasting v Cricket Association of West Bengal (1995) AIR WAVES CASE

  • Petitioner wanted to telecast cricket matches organized by it through frequency not owned or controlled by government of India but owned by a foreign satellite agency.
  • Petitioner sought permission from Doordarshan to uplink the signals created by its own camera and the earth station. Doordarshan rejected the permission on the ground that it enjoys monopoly by virtue of Telegraph Act 1885 and that frequencies available in India are in limited number.
  • Board argued that game of cricket provided entertainment to public and was a form of speech and expression under 19 (1) (a) which included a right to telecast the matches and broadcast it to the public.
  • The Court held that Freedom of speech and expression includes the right to acquire information and to disseminate the same. The right to communicate therefore means right to communicate through any media that is available whether print or electronic or audio-visual such as advertisements, articles, speech etc. it includes freedom to communicate and circulate one’s views.
  • The right to freedom of speech and expression includes right to educate, right to inform, and to   entertain and also right to be educated, informed and entertained. The former is the right of the telecaster and the latter the right of the viewers.
  • The right to impart and receive information is a species of the right to freedom of speech and expression. A citizen has a right to use the best means of imparting and receiving information.

Tata Press Ltd v MTNL (1995) (Right to Commercial Speech)

  • Petitioner wanted to publish a telephone directory. Respondent claimed exclusive right to publish telephone directory under Telegraphs Act 1885.
  • The Court held that commercial advertisement is a form of speech and expression as they disseminate information through advertisement.
  • Since the restriction was not part of Article 19(2) it cannot be sustained.

KA Abbas v Union of India

  • Petitioner’s movie ‘A Tale of Four cities’ was denied U (Universal) certificate for its screening. Petitioner dissatisfied from the rating challenged the validity of Cinematograph Act itself on the ground of violation of Article 19(1).
  • The Central government will grant authority to competent persons who can impose restriction. And the board appointed should draw a line and put reasonable restrictions. And also classification according to age groups and their suitability for unrestricted exhibition is considered as valid in the interests of public morality and thus won’t offend freedom of speech and expression.
  • The Court held that pre-censorship is justified because it is done in the interest of the society thus restriction is fine if it is reasonable but if it isn’t and goes outside the purview of Article 19(2) then the abuse of power can be questioned.

Union of India v. Association for Democratic Reforms (Right to Know)

  • Every voter has a right to know the antecedents of the candidates at election. Right to know is included in 19(1)(a).

Bijoe Emmanuel v State of Kerala (1986) – Right to remain silent

  • Three students belonging to Jehovah Witness refused to sing the anthem on basis of their religious affiliation but stood respectfully while the national anthem was being sung.
  •  Court held that they had not insulted the national anthem and the government circular cannot violate article 19(1)(a), which includes in itself the right to remain silent.

Right to Demonstration

Kameshwar Prasad v State of Bihar(1962)

  • Court held that demonstration being visible representation of ideas would be protected as a form of speech provided they are not violent and disorderly.

OK Ghosh v Ex Joseph (1963)

  • Article 19(1) (a) included a right to demonstration provided it is not violent or disorderly.

Freedom to Form Association or Union

Jamaat-E-Islami Hind v. Union of India

  • The Central government imposed a ban on Jamaat e Islam under the unlawful activities prevention act.
  • The court held that there should be a sufficient cause for declaring the association unlawful. The procedure to be followed is that when the central government declares any association unconstitutional it should approach the tribunal and when the tribunal looks into it and confirms then it becomes unconstitutional.
  • Also if the Central government thinks it is not credible to give or disclose information to the public as it will disturb the public peace then it shouldn’t but the tribunal can look into the information and see if it is correct and then can declare it unconstitutional.
  • Thus a test of factual existence should be followed and this test should determine the meaning and content of the adjudication by the tribunal of the existence of sufficient cause for declaring the association to be unlawful.

Test of Reasonability

  • O. K. Ghosh v. Ex. Joseph  – The restriction imposed should be reasonable and be rationally proximate and in nexus with public interest.
  • Virendra v. State of Punjab – Absence of provision for review makes the provisions unreasonable.
  • Municipal Corporation of Thecity v. Jan Mohd. Usmanbhai – The reasonableness should be determined in an objective manner and from the angle of the general public’s interest and not from the viewpoint of the person upon whom the restriction are imposed.

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Article 15 & 16 – Constitution of India – Notes

Pradeep Jain v Union of India

  • Residence requirement of medical college inconsistent with unity and integrity of India
  • Though given circumstance reservation on basis of residence could be justified but it should not exceed 50% of the total seats
  • No reservation permissible on basis of residence for post graduate courses such as M.S. and M.D.
  • Also allowed up to 50% reservation in higher courses for student of same institute seeking admission in post graduate course in the institute itself

Government of A.P. v. P.B. Vijaykumar

  • Andhra Pradesh government allowed for reservation of women in following ways:-

o   Preference for women in jobs better suited for them
o   Preference upto 30% for women in jobs for which they are equally suited with man;
o   Direct recruitment to posts reserved exclusively for women was upheld.

  • Court held that Article 15(3) is broad enough to cover any special provisions for women including reservation in jobs.

Issues of Reservation

State of Madras v. Champakam Doraijan

  • Madras government passed an order which had fixed the proportion of students of each community that could be admitted in the state medical and engineering colleges.
  • The government contended that it had a duty under Article 46 to protect people from social injustice.
  • The court held that the directive principles of state policy have to conform to and run as subsidiary to the chapter of fundamental rights.

M. R. Balaji v. State Of Mysore (1962)

  • Considered the validity of reservation for OBC for the first time and answered its validity in affirmative
  • Matter of national efficiency need to be considered and thus reservation should be less than 50% – Article 335, Constitution
  • Caste can be one of criteria with other criteria such as poverty, place of habitation etc.
  • The court also held that since Article 15(4) is an exception to 15(1) the reservation cannot exceed 50% as then the rule will eat the exception.
  • Since Mysore scheme was entirely based on caste it was struck down

T.Devadasan v. The Union Of India (1964)

  • Carry forward rule (vacancies which remained unfilled due to non-availability of reserved category candidates be carried forward to the next year) was implemented for SC and ST
  • Reservation thus reached 64% in a particular year and was struck down
  • Court reiterated Balaji that reservation should be less than 50%

Mandal Commission Report

  • Mandal Commission recognized 4000 classes eligible for reservation
  • They wanted proportional reservation for OBC ie 52% and thus a total of 74% reservation (22% for SC & ST)
  • Balaji judgment was a hindrance in implementing this

P. Rajendran v State of Madras

  • Court determined the test of backwardness which was predominantly based on caste.
  • Reservation based only on caste without taking into account social and educational backwardness of the caste in question would be violative of Article 15 (1).
  • Caste is also a class of citizens and if the caste as a whole is socially ad educationally backward, reservation can be made in favour of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Article 15(4).

State Of Kerala v. N. M. Thomas (1975)

  • Developed difference between substantive and formal equality
  • Rule 13A which was introduced sometime later, gave temporary exemption from passing the departmental tests for a period of two years. The rule also provided that an employee who did not pass the unified departmental tests within the period of two years from the date of introduction of the test would be reverted to the lower post and further said that he shall not again be eligible for appointment under this rule. Proviso 2 to this rule gave temporary exemption of two years in the case of Scheduled Castes and Scheduled Tribes candidates.
  • Found valid as per nexus test, object being removal of backwardness
  • As long as legal classification (social, financial, educational backwardness) is valid preference to any extent is valid till goal is achieved (even upto 100%)
  • The majority of the court rejected that article 15(4) or 16(4) is an exception to article 15(1) or 16(1). The court asserted that article 16(4) and 15(4) are emphatic assertions and directions to the State to take effective affirmation steps to enforce the concept of equality as lay down in article 14, 15 and 16.

Indra Sahwney v. Union of India (1992)

  • Mandal Commission report was not challenged but VP Singh  & Narsimha Rao  government’s memo was challenged
  • Concept of ‘creamy layer’ advanced section of OBC to not get reservation was implemented
  • Creamy layer not there for SC and ST
  • Caste cannot be sole factor but important factor.
  •  Caste is a Predominant Test of backwardness among Hindus. While classification on the basis of caste was forbidden by 16(2), the use of caste was permissible for identifying backward classes.
  • Reservation impermissible in promotion

o   Analogy was given – a medical student even if he gets seat from reservation still need to pass exam

o   Also reservation for class and in case of promotion it would work for individual rather than class (Certain individual who have already received benefit of reservation will get the benefit of this scheme)

  • Reservation cannot exceed 50%
  • Reservation cannot be given on exclusively economic state

____________

  • Post Indra Sahwney, constitution was amended [Article 16(4)(a)] and reservation in promotion for SC & ST was allowed
  • Article 16(4)(a) was again amended in 2001 to have retrospective effect
  • Article 16(4)(b) was inserted in 2000 so as to remove 50% rule for ‘carry forward’ rule of filling backlog vacancies of SC & ST
  • Also Balaji was focused more on education and Indra Sahwney was focused on jobs

Ajit Singh (II) v. State of Punjab (1999)

  • Court discarded the consequential seniority for SC & ST
  • Court said a person getting promotion due to reservation cannot get the benefit of seniority as it will lead to double benefits.
  • This was nullified by parliament through an amendment made to Article 16(4)

TMA Pai Foundation v. State of Karnataka (2002)

  • Unaided private educational institution asserted their right under Article 19(1)(g) [right to occupation] to choose student of their own choice and claimed that state cannot impose restriction on the same
  • The court upheld their contention
  • This case was upheld in P.A. Inamdar  v. State Of Maharashtra (2005)
  • This case was nullified by inserting Article 15(5) through an amendment to the constitution
  • Aided or unaided will have to provide reservation if a law is made under Article 15(5) now

M.Nagaraj & Others v. Union Of India (2006)

  • Amendment made to constitution (Article 16(4)(a) & (b)) were challenged on ground that they went against concept of efficiency given in Article 335 of constitution and basic structure of constitution
  • Court stated that Kesavananda held that fundamental rights could be abridged but not destroyed and these amendments were abridging fundamental rights so as to promote substantive equality through affirmative actions.
  • Also held that each time State provides reservation under Article 16(4)(a) it must present quantifiable data regarding backwardness of class

Ashoka Kumar Thakur v. Union of India (2008)

  • Upheld Indra Sahwney
  • Creamy layer to be excluded for OBC
  • Those who have achieved economic advancement also need to be excluded as then they have achieved social advancement.
  • Poverty nexus is map for reservation in jobs and educational institutions

U.P.Power Corp.Ltd. v. Rajesh Kumar (2012)

  • No quantifiable data was shown regarding backwardness and the fact that efficiency won’t be affected wasn’t proved (Article 335)
  • 17th Constitution Amendment Bill 2012, seeks to do away with this quantifiable data test of Nagaraj

State of Tripura & others v. Jayanta Chakraborty (2017)

  • The three-Judge bench made a reference to the Chief Justice under Article 145(3) to constitute a Constitution Bench to decide whether the M. Nagaraj’s judgment needs reconsideration.
  • The contention is that a re-look of M. Nagaraj is required on the ground that test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney judgment.

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