Rahul’s a blue print of success

THE INDIAN PENAL CODE, 1860 and CONSTITUTION

HINTS

Ans. 1. The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must exercise a reasonable degree of care. Negligence is a case
where the person concerned had a duty towards the others and he has committed a
breach of that duty. To prove that an act is negligent, it is necessary to prove all the
elements, namely duty to care, and breach of the duty resulting in damage.
The issue to be determined in the given factual matrix is whether the act done by the
doctor was rash and negligent and caused any harm to the patient intentionally/
voluntarily?
A medical practitioner faced with an emergency ordinarily tries his best to redeem the
patient out of his suffering. A surgeon with shaky hands under fear of legal action
cannot perform a successful operation. Medical profession in Indian criminal law has
invariably placed the medical professionals on a pedestal different from ordinary
mortals. Indian Penal Code, 1860 (for brevity IPC) set out few provisions in this context.
Section 92 IPC which is a part of the general exceptions chapter of IPC, provides for
exemption for acts done in good faith for the benefit of a person without his consent
thought the act caused harm to a person and that person has not consented to such
harm. There are four exception listed in this section which categorically provides that if
the causing of death is intentional, if there is knowledge involved that the act will cause
death or grievous hurt, if voluntarily causing of hurt is involved and fourth exception is
not of concern in respect of the issue involved.
to impose criminal liability under section 304A 'IPC' it is necessary that
1. There was a rash and negligent act
2. That act not amounting to culpable homicide
It is pertinent to see that the death of a person should have been the direct
result of rash and negligence done by the accused, it must be causa causans.
The facts provided state that the patient was not in the position to give consent and
the doctor opted for the procedure that had a greater chance of success though the
procedure involved higher elements of risk and the act was done for the benefit of the
patient in good faith because the doctor had no means to obtain the consent of the
person therefore he continued with the procedure which was for the benefit of the
patient does not mean that there was intention to cause death of the patient.
In Jacob Mathew v. State of Punjab &Anr. 2005 SC. The Hon'ble Court observed
that to make a doctor liable negligence has to be much greater than normal
negligence, case of gross negligence has to be proved that it
A. The doctor is not skilled in the particular procedure he adopted, eg. a

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 General physician doing surgery
B. The doctor is skilled but did the wrong treatment eg. No reasonable
doctor would have treated that way
C. The doctor is skilled but refuses to exercise the skill, eg refuses to do the
treatment.
— The usual practice prevalent is to obtain the consent of the patient or the
person in charge of the patient if the patient is not in a position to give
consent before adopting a given procedure. So long as it can be found that
the procedure that was adopted was acceptable to medical science as on
that date, the medical practitioner cannot be held negligent merely because he
chose to follow one procedure and not another and the result was a failure.
In Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre and ors.
2010 SC the Hon'ble Supreme Court held that medical professional is
often called to adopt the procedure which involves a higher element of risk
but which he believes is to provide a greater chance of success. Just
because a professional looking at the gravity of illness has taken higher
elements of risk to redeem the patient out of his suffering and did not yield the
desired result may not amount to negligence.
In the light of the decision above mentioned of the Hon'ble Supreme Court, it is
clear that the doctor did not do any rash and negligent act and he had
no Intention to kill the patient and there seems no gross negligence on his part
thus the doctor committed no offence and will get the benefit of section 92 IPC and
issue is decided in negative.
Ans. 2. The purpose of Section 304B of the Indian Penal Code (for brevity IPC) is to
curb the mischief and menace of dowry and eradicate this from the society.
The core issue to determine in the given facts is whether there was any live link of
cruelty soon before the death that was a reason for the commission of suicide of W.
To decide the liability of H essentials of section 304B IPC together with the
presumption under Section 113B Indian Evidence Act,1872 (for brevity IEA) has to be
seen that says
1. Death of a woman either by any burn or bodily injury or unnatural death is
caused
2. Death must be within 7 years of her marriage
3. It was revealed that soon before her death she was subjected to cruelty or
harassment by her husband or any other relative of her husband
4. in connection with the demand for the dowry then it will be
considered dowry death and such husband or relative shall be deemed
to have caused her death. We must also look Into the provision of
section 498A IPC as the purposive interpretation has to come

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 into play in case of such nature, section 498 A
elaborates on cruelty which says that

1. any conduct which is of the nature as is likely to drive the women to

commit suicide
-
2. To cause any injury or danger to the life, limb or health mental or physical of
the women
3. for any unlawful demand of property or valuable security.
In the given factual matrix H and W got married in 2020 and death is caused within 7
years of marriage and it is unnatural as W committed suicide. From the given facts it
is proved that H used to harass and torture W and also threw her out of his house in
demand of dowry this fact can be proved by the fact that H promised in a panchayat
that he would not torture W further fulfilling essential of Section 304B IPC.
W has expressed her unwillingness to go back to H due to constant
harassment and dowry demands and how the panchayat attempted to mediate
the dispute and then W committed suicide with the thought of going back with H, it is not
wrong to say that W was tortured and harassed by H to such an extent that she
preferred committing suicide instead of going back with H creating a live link
between cruelty she suffered and her suicide
Though cruelty was committed 6 months before the death of W the cruelty was
of such nature that it was still fresh in her mind that she committed suicide in her
parent's house the same night H came to take her back, all these facts fulfilled the
ingredients of Section 498A and Section 304 B IPC
In Rajinder Singh vs. State of Punjab 2015 SC, the Hon'ble Court observed that the
interpretation of the words 'soon before' is important. The question is how soon
before? The Court observed that this would depend on the facts and circumstances of
the case. Cruelty and harassment differ from case to case. Cruelty can be physical as
well as mental and mental cruelty has different shades. Therefore soon before is a
relative term, time lag may differ from case to case.
While deciding the phase 'soon before her death' has to be established, the
circumstances showing the existence of cruelty or harassment to the deceased
are not restricted to a particular instance but normally refer to a course of conduct.
Such conduct may be spread over a period of time.
In Satbir Singh vs. State of Haryana 2021 SC, the Hon‟ble Court observed that the
phase soon before cannot be construed to mean immediately before.
In the light of the decided Judgment mentioned above, the issue is decided in
affirmative, it is proved that there was a causal link between the cruelty and the suicide
committed by W, therefore H will be convicted under Sections 304 B and 498A IPC.

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Ans. 3. The defence under Section 84 Indian Penal Code,1860 (for brevity IPC) is
based on the maxim actus non facit reum nisi men sit rea- person who is of unsound
mind cannot form the guilty mind to commit an offence. To constitute
an offence the intent and the act must concur, but in the case of insane persons,
no culpability is fastened on them as they have no free will (furios is nulla voluntas
est).
Every mentally diseased person, is not ipso facto exempted from criminal responsibility.
Section 84 IPC provides that
1. At the time of doing an act
2. The accused was incapable to understand
3. The nature of the act committed by him,
The burden of proof rests on an accused to prove his insanity, which arises by virtue of
Section 105 of the Indian Evidence Act, 1972 (for brevity IEA). In Dahyabhai Chhagon
Bai Thakkar vs. State of Gujarat 1964 SC 3 judges bench held that to prove the
elements of section 84 IPC, an accused has to to prove the pre
ponderenace of probabilities from which court can reasonably infer that the accused is
unsound.
The core issue to be decided are-
1. Whether the accused at the time of doing the act was incapable of
knowing the nature of the act.
2. Whether the state of mind was due to medical unsoundness or pre existing
medical unsoundness
With respect to first issue the fact that accused aggressively attacked A and X with
lathis which ultimately resulting in X's death, the action of Z hitting X several times and
thereafter burning the house with X's body indicates that Z was very well aware of his
act. The post-mortem examination of X shows multiple head
injuries and burn injuries suggest that X was subjected to severe physical
violence before his death. Therefore the answer to issue no.1 is negative.
In regard to second issue, the accused has the burden of proving that he has some
medical unsoundness by some treatment the accused was taking/undergoing or some
certificate which Z failed to produce any such certificate nor there is any
evidence of him being treated for medical unsoundness, it is essential that
medical unsoundness should be the reason for legal unsoundness in order to take the
defence of Section 84.
In Hari Singh Gond vs. State of M.P. 2007 SC, The Hon'ble Court observed
that Mere abnormality of mind or partial delusion, irresistible impulse, or
compulsive behavior affords no protection under Section 84.
The act of Z burning the house after killing x shows he wants to hide the reson of x‟s
death and that z was very well aware of what he was doing and he knew the nature of
the act committed by him.

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 Z failed to establish his medical insanity or any defence in his favour, therefore the
defence of Section 84 IPC can't be given to Z. and Issue no.2 is also decided in
negative.
Ans. 4. The right of private defence is an aspect of basic human right of an individual it
is a primary right of an individual as well as duty of an individual to protect oneself.
Section 96 of Indian Penal Code,1860 (for brevity IPC) mentions that nothing is an
offence which is done in the exercise of the private defence. Self preservation is the
basic human instinct and is duly recognised by the criminal jurisprudence. A person is
presumed to know the nature and consequence of his act. There are some exceptions
to this.
Provisions related to the right of private defence can be found in Sections 96-
106 of the Indian Penal Code (for brevity IPC). The core issue in the given
factual matrix is to decide whether A will get the benefit of private defence under
Section 100 IPC.
Essentials of the section are-
1. Person exercising the right of private defence must be free from fault in
bringing about the encounter
2. There must be present an impending peril of life or bodily harm so
apparent as to create belief of immense danger
3. There must be no safe or reasonable mode of escape
4. There must be necessity for taking the life.
One of the circumstances enumerated in Section 100 IPC justifies the
voluntarily causing death subject to the restrictions of Section 99
1. Assault causing the apprehension of death
2. Assault causing apprehension of grievous hurt
In case of apprehension of death or grievous hurt the accused has to prove the
reasonable apprehension in his own mind, the burden of proof will not be as strict
because reasonable apprehension can be formed in the mind of a person at times even
by slightest gesture of the opposite party.
In the given facts sudden fight turned into physical confrontation between A and B. A
reasonably believed that he was under imminent threat of bodily
harm from B during this initial phase of the fight, as B took out the knife and here A was
entitled to use force in self-defense. However, the level of force used must be
proportionate to the threat according to Section 99(4) IPC, Taking the knife from the
floor during the struggle may be seen as an attempt to defend himself as A felt
apprehension of death or grievous hurt. When B began
strangulating A, it presented a grave threat to A's life. In this situation, A's response was
to use the knife and deliver three blows to B, resulting in B's death.
To claim the right to private defence extended to voluntarily causing death the accused
must show that there were circumstances giving rise to reasonable grounds for

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apprehending either death or grievous hurt would be caused to him. The law of private
defence does not require a person facing apprehension of an assault must run away for
safety. It entitles him to defend himself and law gives him right to private defence.
In Raj Singh vs. State of Haryana 2015 SC Hon'ble Court observed that
Section 99(4) IPC has to be read with liberal construction. The test will be that of a
reasonably prudent person acting in the same circumstances would
have used, held A person can use force to defend themselves if the force used is
proportionate to the threat faced.
In omkarnath Singh & ors. Vs. State of UP 1974 SC, the Hon'ble Court
observed that a right of private defence given by the penal Code is essentially
one of defence and not a right of reprisal or punishment. It is subject to the
restrictions of Section 99 IPC which are as important as the right itself.
In the given factual matrix A's assault with knife was made on the
apprehension of death as B was strangulating him, B's act of taking out weapon like
knife can be eminent for a reasonable person acting in the same situation. A person
cannot be expected to be acting perfectly and weighing things in golden scale when
there is an eminent danger to body. Therefore in the light of above discussion all
elements of Section 100 are fulfilled and the decision of the issue is in affirmative.
Ans. 5. Although cruelty is a common thread
existing in both the offences, however, the ingredients of each offence are distinct and
must be proved separately by the prosecution.
Section 304 IPC deals with the offence of dowry death. According to this section, if a
woman dies under unnatural circumstances within seven years
of her marriage and it is shown that she was subjected to cruelty or harassment
related to dowry, her death is considered a dowry death. The provision specifies that
the cruelty or harassment must have been committed by her husband or his
relatives. Section 304B is a primarily concerned with cases where the woman's death is
a result of dowry-related harassment.
Section 498A IPC deals with the offence of cruelty towards a married woman. This
section is broader in scope and encompasses acts of cruelty or harassment inflicted on
a married woman by her husband or his relatives. Cruelty can include physical or
mental abuse, harassment for dowry, or other
forms of ill-treatment that make her life unbearable. Section 498A IPC can apply to
situations where the woman has not died but has suffered cruelty during her marriage.
In essence, while Section 304B specifically deals with dowry deaths and their
implications, Section 498A encompasses a wider range of offences related to cruelty
and harassment in the context of a marriage. These sections can be
applied separately or simultaneously based on the circumstances of a particular
case.

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For example, if a woman dies under unnatural circumstances within seven
years of her marriage and evidence suggests dowry harassment, both
Section 304B (dowry death) and Section 498A (cruelty) may be invoked. Section
498A can be used to address the ongoing cruelty leading to her death, and if the death
is established as a dowry death, Section 304B can also be applied.
Explaining the difference between offences under Section498A and Section 304B
IPC, the Court note of the judgment in Kamesh Panjiyar v. State of Bihar,
(2005) SC wherein it was held, It is true that cruelty is a common essential to both the
sections and that has to be proved. The Explanation to Section
498A gives the meaning of 'cruelty' In Section 304B there is no such
explanation about the meaning of cruelty. But having regard to the common background
to these offences it has to be taken that the meaning of cruelty or harassment is the
same as prescribed in the Explanation to Section 498A IPCunder which cruelty by itself
amounts to an offence. Under Section 304B
IPC it is 'dowry death' that is punishable and such death should have occurred
within
seven years of marriage. No such period is mentioned in Section 498A iPC. If the
case is established, there can be a conviction under both the sections.”
Therefore, both are not mutually exclusive rather, they complement each other in
addressing different aspects of crimes related to dowry harassment and cruelty
towards married women.
Ans.6. Abetment by conspiracy and criminal conspiracy are related legal concepts
under the Indian Penal Code (for brevity IPC), but they serve different
purposes and involve distinct elements. Here's an explanation of the differences
between the two:
Abetment is mentioned under Section 107-120 of Indian Penal Code (for brevity IPC)
Abetment is a fundamental concept in criminal law and involves aiding, encouraging, or
instigating another person to commit a criminal act. Abetment is not the act of
committing the crime itself but providing support or assistance to the primary offender.
Explanation 5 of section 108 IPC mentions that it is sufficient if the abettor engages in
the conspiracy in pursuance of which the offence is committed. Abetment by conspiracy
occurs when individuals conspire to commit an
unlawful act, and one or more of them engage in acts that constitute
abetment. It involves the agreement or plan to commit an offence and actively
contributing to its commission.
To establish abetment by conspiracy, it is essential to prove that there was a
conspiracy to commit a specific offence, and one or more members of the
conspiracy actively abetted the commission of that offence.

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 In the case R v. Siraj 1947 the Privy Council held that the conviction of a person for
abetment by conspiracy requires evidence of a clear agreement to commit a crime and
active involvement in its commission.
Criminal conspiracy, as defined under Section 120A IPC, focuses on the
agreement or plan itself. It involves two or more individuals coming together to agree to
commit an unlawful act or legal act by illegal means. The agreement itself is a
criminal offence, regardless of whether the underlying offence is ever carried out. To
establish criminal conspiracy, it is sufficient to prove that there was a deliberate and
illegal agreement between two or more individuals to commit an offence. The
agreement itself is the crux of the crime.
In the case of State of Punjab v. Dalbir Singh 2012 SC The Hon'ble Supreme
Court emphasized that criminal conspiracy is a separate and distinct offence, and the
agreement to commit a crime is punishable even if the primary offence is not
committed.
Difference between the two are -
A. Abetment by conspiracy focuses on aiding and actively contributing to the
commission of an offence after an agreement is made and Criminal
conspiracy focuses on the illegal agreement or plan itself, regardless of
whether the underlying offence is committed.
B. Abetment by conspiracy involves aiding the commission of an offence
and is related to the principal offence whereas, Criminal conspiracy
involves the offence of conspiring itself, separate from the principal
offence.
C. Abetment by conspiracy requires evidence of both the conspiracy and
active abetment and in the case of Criminal conspiracy necessitates
evidence of a deliberate and illegal agreement, without the need to prove
subsequent criminal acts.
It can be concluded that Abetment by conspiracy and criminal conspiracy are
distinct legal concepts. Abetment by conspiracy involves aiding and actively
contributing to the commission of an offence after an agreement, while
criminal conspiracy is centered around the illegal agreement itself,
irrespective of the subsequent commission of the offence.
Abetment by conspiracy is more focused on the specific crime being abetted,
whereas criminal conspiracy is broader and pertains to the general agreement
to engage in unlawful activities. Abetment by conspiracy may involve one or more
individuals conspiring to commit a particular offence. In contrast,
criminal conspiracy requires two or more individuals to agree to
engage in any unlawful act. Both concepts are essential in the legal
framework to address different aspects of unlawful conduct and participation in criminal.

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Ans.7. Purpose of criminal conspiracy is to nip the things in the bud. The policy
behind creating the offence of criminal conspiracy is to prevent immoderate power
which a person may gain by accommodation of many people. A person may not be able
to commit the offence himself alone but if he enters into an agreement with others, the
others may give him the support to commit that offence.
In the factual matrix of the case the core issue to be decided is whether the agreement
to kill Mr. Q amounts to an offence under section 120B Indian Penal Code, 1860 (for
brevity IPC).
Section 120 IPC defines criminal conspiracy as;
1. There should be an agreement between two or more persons who are
alleged to conspire The agreement should be to do or cause to be done
a. An illegal act, or
b. An act which may not itself be illegal by illegal means.
In the given scenario, 'A' and 'B' conspired to commit the offence of murder
against Mr. Q and took specific actions towards this goal. Although they were
apprehended by the gatekeeper before they could carry out their intended
act, they still committed the offence of criminal conspiracy mentioned under
Section 120A IPC.
A and B Conspired to commit the offence of murder against Mr. Q. The term common
intention in Section 120 A IPC is implicit in the term agreement i.e, meeting of
minds or prior concert to commit an offence. For Section 120 B IPC a mere
agreement is sufficient even though the murder did not occur, the agreement to
commit the offence is itself punishable under the law. As it is main ingredient of
Sections 120 A IPC is proved. A and B will be charged with criminal conspiracy as per
Section 120B IPC.
In the case of State v. Nalini 1999 SC, the Hon'ble Court held that the
agreement between two or more persons to do an illegal act amounts to
criminal conspiracy. Court observed that this is not necessary to establish this
offence all the conspirators need not take active part in the commission
of the offence. This section deals with individuals who are part of a conspiracy. In
the given scenario, both A and B will be liable under Section 120B IPC.
Ans. 8. The concept of Abetment says, that he who has helped the criminal or
provided him with any assistance in any form can also be held to be liable.
In the given factual matrix A abetted B to commit theft, and B ended up causing
harm to K while attempting to commit the theft. The issue no.1 is to decide the
liability of A as an abettor under section 108 Indian Penal Code (for brevity IPC).
Issue no. 2 is to decide if B will get the benefit of private defence?
Abetment as provided under Section 107 Indian Penal Code 1860, (for brevity
IPC). A person abets doing of a thing when he,
1. Instigates a person to commit an offence

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 2. Engages with one or more persons in a conspiracy to commit an offence
3. Intentionally aids a person by any act or illegal omission to commit an
offence.
Section 108 IPC provides to constitute an offence of abetment a stated in Section
107 IPC, three things are essential
1. There must be an abettor
2. He must abet
3. Abetment must be an offence or an act which would be an offence of
committed by a person capable in law of committing the offence with the
same intention or knowledge as that of abettor.
As far as Issue no. 1 is concerned 'A' abetted 'B' to commit theft, which means 'A'
encouraged or assisted 'B' in committing the theft fulfilling the ingredients of Sec.
107 IPC and Section 108 IPC, the abettor is not excused from the liability simply
because the abettor himself was not present at the time of commission of an offence.
Section 109 IPC provides for liability of a person when an abetted offence is
committed in consequence of the abetment, to invoke this section following ingredients
are required
1. There must be abetment of an offence
2. Act abetted must have been committed in consequence of abetment
3. There must be no express provision for punishment of such abetment.
In the given scenario B committed an act abetted by A by entering the house of K at
night this making A and B liable for the offence of abetment.
Further Section 111 IPC provides for one act abetted but different act done, it is
not required to prove that the abettor had the knowledge of the other act being a
probable consequence of the abetment, however the implications of this is the
prosecution does not have to prove the knowledge regarding the probable
consequence, rather the court has to examine objectively that the other offence
committed was a probable consequence of the act abetted.
Section 112 IPC elaborates further that if the act for which the abettor is liable
under section 111 IPC is committed in addition to the act abetted and constitutes a
distinct offence, the abettor is liable to punishment for each of the offences.
Section 113 IPC is complimentary to section 111 IPC and extends the liability of an
abettor to a situation wherein the act done causes a different effect from that intended
by the abettor.
In the given factual matrix In the given factual matrix B entered the house of K at night
fulfils the essentials of Section 108, 109 IPC and K attacking B with lathi is a probable
consequence of the act abetted by A and therefore 'A' can be held liable for abetment
to commit theft under Sec. 109 IPC read with section 111 IPC.
In the case Ramesh Kumar v. State of Chhattisgarh 2001, the Hon'ble
Supreme Court held that the liability for abetment is established when it is

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proved that the accused intentionally encouraged or instigated the
commission of a crime.
for Issue no. 2 in the given factual matrix 'B' claims that he acted in self-defence when
'K' attempted to attack him with a lathi. In Indian law, private defence is given if a person
uses force to protect themselves from unlawful violence or harm. To claim the benefit
of private defence, 'B' must establish that his response to 'K's attack was proportionate
to the threat he faced. This means that the force used by 'B' should not exceed
what is necessary to protect himself from the immediate danger as per Section99(4)
IPC. Stabbing 'K' with a knife is excessive force against the attack by lathi. The
proportionality of the response is crucial in determining the legitimacy of the claim of
private defence. 'B' is liable for causing grievous hurt or culpable homicide if his actions
resulted in 'K's death.
In Chacko vs State of Kerala 2000 SC, The Hon‟ble Supreme Court held that aggressor
cannot claim right of private defence and in the given factual matrix of the case B was
aggressor as he entered K‟s house in the night time. Therefore issue no.2 is negative
Ans. 9. The statement "One who sins when drunk should be punished when he is
sober" reflects that individuals should be held accountable for their actions even if
they committed a wrongdoing while under the influence of alcohol or any other
substance. Section 85 and 86 of Indian penal code (for brevity IPC) deals with defence
in case of intoxication. section 85 IPC can be given as a defence when it is proved that
intoxication was involuntary and without the knowledge of the accused
this also means that there was active resistance on the part of accused and
still intoxication was administered to him. Section 86 IPC is presumption that the
person who is voluntarily intoxicating himself
is supposed to know the consequences of his act caused by such
intoxication.
In basdev vs State of Pepsu 1956 SC held that presumption of Sec 86 is used when
Intention can not be proved.

Ans. 10. Section 34 and 149 Indian Penal Code,1860 (for

brevity IPC) both provides for the concept of joint liability, but they are substantially
different.
To create a liability under section 34 IPC, it is mandatory that the accused with a
common intention shall aid each other in commission of the offence by complementary
actions.
However, to impose a liability under section 149 IPC, complementary actions by all the
accused persons is not necessary, the accused persons shall have a common object.
Those who stand and wait with a common object can also be held liable under section
149 IPC.

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An accused person may be charged for the commission of offence under Section
302 IPC read with section 149 IPC, when at the stage of charge framing there is a
prima facie case that the accused shared common object
with the other accused persons who actually committed the murder.
However, there is no prima facie evidence of complementary aiding in murder by
the accused.
Now after the conclusion of trial if there are sufficient evidence that the accused
with the common intention murdered the victim by actually aiding the other accused
in commission of murder, then he shall be convicted under
section 302 read with section 34 of IPC.

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 THE CONSTITUTION OF INDIA
Ans. 11 the purpose of parliamentary privileges is to help maintain the dignity of the
members of the house and also to give them chance to do their duties effectively. In
the Indian legal framework, parliamentary privileges and fundamental rights are
both vital components of the Constitution of India. Parliamentary privileges are
essential for the smooth functioning of the legislative body,
while fundamental rights protect the individual rights and freedoms of citizens.
When a conflict arises between these two, it becomes necessary to determine which
takes precedence.
Fundamental rights are defined under part III of the constitution of India.
Parliamentary privileges are special rights, immunities and exemptions
enjoyed by the two Houses of Parliament, their committees and their
members. Articles 105 and 194 of the constitution of India, 1960 define
parliamentary privileges. The members of Parliament are exempted from any civil
liability for any statement made or act done in the course of their duties. The freedom of
speech and expression guaranteed to a citizen under Article
19(2) is different from the freedom of speech and expression provided to a member
of the parliament under Article 105(1) of the Indian constitution.
However, freedom is subject to rules and orders which regulate the
proceedings of the parliament. The members enjoy freedom from arrest in any civil
case 40 days before and after the adjournment of the house and also when the
house is in session. No member can be arrested from the limits of the parliament
without the permission of the house to which s/he belongs so that
there is no hindrance in performing their duties. If the detention of any members
of the parliament is made, the chairman or the speaker should be informed by the
concerned authority, of the reason for the arrest.
The judiciary plays a crucial role in interpreting and harmonising the Constitution's
provisions, including the resolution of conflicts between
parliamentary privileges and fundamental rights. The Hon'ble Court in Keshav
Singh v. Speaker, Legislative Assembly 1965 held that while
parliamentary privileges are essential for the functioning of the legislative
body, they are not absolute and must be consistent with the fundamental rights
enshrined in the Constitution.
In the state of Kerala vs. k. Ajith 2021 SC Hon'ble Supreme Court observed that The
privilege/immunity under Articles 105 and 194 cannot be extended to persons who
have desecrated the sanctum sanctorum of democracy. The privileges cannot be
understood as the privilege to commit criminal acts.
The courts aim to interpret parliamentary privileges in a manner that respects and
upholds fundamental rights. This means that parliamentary privileges

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should not be exercised in a way that violates or abridges fundamental rights. The
reason for this is that fundamental rights are considered sacrosanct in the Indian
Constitution and are intended to protect the individual rights of citizens.
In the event of a conflict between parliamentary privileges and fundamental
rights, fundamental rights take precedence. The judiciary has consistently
upheld the importance of fundamental rights and their protection, ensuring that
parliamentary privileges do not infringe upon these rights. The doctrine of
harmonious construction is used to ensure that both sets of provisions can
coexist, but in cases of irreconcilable conflict, fundamental rights are
paramount. This approach helps strike a balance between the functioning of the
legislative body and the protection of individual rights and we must not forget that the
purpose of giving the privileges to the members in not to place them above the law.
Ans.12 The Preamble of the Constitution of India outlines the fundamental principles
and objectives that guide the Constitution and the nation. It reflects the major
commitments and ideals upon which the Constitution is based. While the
Preamble itself is not enforceable in a court of law, it serves as a key to
understand the Constitution's core values and goals. The commitments of the
Constitution of India as incorporated in the Preamble, along with relevant case
laws and landmark judgments that have reinforced these commitments are as follows -
1. The term "sovereign" signifies that India is a self-governing and
independent nation. The preamble starts with “We the people of India “
indicating the ultimate sovereignty of India.
2. Socialist -The term reflects the commitment to social and economic
justice and the welfare of the people. In Minerva Mills Ltd. v. Union of
India (1980), the Hon'ble Supreme Court emphasised the importance of a
"socialist" state, ensuring that economic power is not concentrated in the
hands of a few.
3. The term "secular" was added in parliament by the 42nd Amendment of
1976, which signifies the state's impartiality in religious matters and its
commitment to treating all religions equally.
In S.R. Bommai v. Union of India (1994), the Hon'ble Supreme Court upheld
the secular nature of the Constitution, ensuring that religion and politics
remain separate.
4. Democratic: The term "democratic" emphasises the commitment to a
government of the people, by the people, and for the people. In the
landmark judgement of Indira Gandhi v. Raj Narain (1975), the Hon'ble
Supreme Court upheld the principles of democracy, ensuring fair and free
elections.
5. Republic: The term "republic" signifies that India is not a monarchy, and
the head of the state is elected by the people.

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 In Keshav Singh v. Speaker, Legislative Assembly (1965) emphasised the
republican nature of the Indian Constitution.
6. Justice: The Preamble mentions "justice" to highlight the commitment to
social, economic, and political justice.
In the case of Maneka Gandhi v. Union of India (1978), the Hon‟ble Supreme
Court reaffirmed the importance of justice, including natural justice.
It comprises of three elements social justice, economic justice and political
justice
7. Liberty: the Preamble reflects the commitment to personal freedoms and
civil liberties. In Maneka Gandhi v. Union of India (1978), the Hon'ble
Supreme Court emphasised the significance of individual liberty.
8. Equality - The term reflects the commitment to ensuring equality before
the law and equal protection of laws.
In State of West Bengal v. Anwar Ali Sarkar (1952), the Hon'ble Supreme
Court upheld the importance of equality before the law.
9. "Fraternity" signifies the spirit of brotherhood and the need to promote a
sense of unity and harmony among the citizens. The Supreme Court has
often emphasised the need for social and communal harmony to fulfil the
objectives of the Preamble.
The commitments of the Constitution of India, as incorporated in the
Preamble, Through the Berubari case, the Court stated that „Preamble is the
key to open the mind of the makers‟ but it can not be considered as part of
the Constitution. Therefore it is not enforceable in a court of law.
In the case of Kesavananda Bharati v. State of Kerala (1973), The Hon'ble
Supreme court Court held that:
The Preamble of the Constitution will now be considered as part of the
Constitution. The Preamble is not the supreme power or source of any restriction
or prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution.
These principles have been reiterated and reinforced in numerous judgments by the
Indian judiciary, ensuring that they remain the cornerstone of the Indian legal and
political system.
15
Ans.13. The concept of secularism in the Indian context means that the state
maintains a position of neutrality in matters of religion and separation of religion from
political, economic, social and cultural aspects of life. Secularism keeps India united in
non religious fronts. It doesn't eliminate God but ensures that religion and
religious practices are not given undue preference or interference by the state. Several
provisions of the Constitution of India reflect this principle. Article 25 guarantees
individuals the freedom to profess, practice and propagate their religon.

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In Shirur Mutt v. Commissioner, Hindu Religious and
Charitable Endowments (1954), The Hon'ble Supreme Court upheld the rights of
religious institutions to manage their own affairs, subject to public order, morality, and
health.
Article 26 grants right to manage their religious affairs, including the right to establish
and maintain institutions for religious and charitable purposes. In Durgah Committee,
Ajmer v. Syed Hussain Ali (1961) case emphasised the autonomy of religious
denominations in managing their own affairs.
Freedom from Taxation for Promotion of Religion Article 27 ensures that no person
can be compelled to pay taxes for the promotion of a particular religion.
This principle was affirmed in the case of Bijoe Emmanuel v. State of Kerala
(1986) where students from the Jehovah's Witnesses faith were not required to sing the
national anthem, as it was against their religious beliefs.Article 28 ensures that
no religious instruction is provided in educational institutions wholly maintained by
the state. The case of T.M.A. Pai Foundation v. State of Karnataka (2002) highlighted
the importance of maintaining a secular
environment in educational institutions, even when they are privately managed.
Article 15(2) Non-Discrimination on Religious Grounds, prohibits
discrimination on the grounds of religion, race, caste, sex, or place of birth.
Article 15(4) allows the state to make special provisions for the advancement of socially
and educationally backward classes. In Indra Sawhney v. Union of India (1992) case it
was reaffirmed that the state's commitment to ensuring equality and preventing
discrimination on religious grounds.
The Uniform Civil Code under Article 44 of the Constitution recommends the
enactment of a Uniform Civil Code to promote secularism. While the implementation of
a Uniform Civil Code is still under debate, it reflects the objective of having a common
set of laws for all citizens, irrespective of their religious beliefs.
The goal of the Indian Constitution is to maintain a harmonious and equitable society
where individuals can practice their religion freely, and the state does not discriminate
based on religious beliefs.
Ans.14. in order to safeguard the rights of the citizens and freedom of the individuals
protection from state is important and therefore constitution is defines state and Part III
of the Constitution of India, which contains the fundamental rights, uses the term
"State" to describe the entities bound by the obligations to protect and respect these
rights. The term "State" in this context primarily refers to the government, its
instrumentalities, and agencies. However, The Hon'ble Supreme Court has expanded
the scope of "State" by including "other authorities" not explicitly mentioned in the
Constitution. This expansion
ensures that fundamental rights are not violated by non-governmental
entities that perform public functions. Article 12 of the Constitution defines the term

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"State" in the context of Part III. It includes the government and its instrumentalities.
However, it does not explicitly mention "other authorities."
The expansion of "State" to include "other authorities" is based on the functional
test. Entities, whether governmental or non-governmental, that perform functions that
are traditionally performed by the government and significantly affect the public are
subject to fundamental rights. The aim is to ensure that fundamental rights remain
meaningful and are protected against all forms of power
and authority, regardless of the entity exercising that power.
In the case of R.D. Shetty v. International Airport Authority (1979) The
Hon'ble Supreme Court held that government corporations or bodies that perform
public functions are "other authorities" and can be considered as part of the "State"
under Article 12. The Court emphasised the need to protect
fundamental rights against such entities. The Court concluded that the
following standards can be employed in an illustrative sense to establish whether a
body or agency is a government instrumentality. Hon'ble Justice P.N. Bhagwati
administered a 5-point test. This is a test to see if a body is a government agency or
instrumentality, and it goes like this:
A. The government‟s financial resources are the primary source of funding for
such an organization, as the government owns the whole share capital of the
corporation.
B. The existence of a deep and extensive state control system.
C. Such an organization or agency‟s functions are of public importance and are
closely tied to government functions.
D. That is to say, such functions should be primarily governmental in nature.
E. A government department was turned over to a company.
F. The agency‟s status, whether monopoly or not, is bestowed and
safeguarded by the state.

After considering the powers and functions bestowed upon the International
Airport Authority, the Supreme Court determined that the Authority fell within the
concept of State.
In another case, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
(2002) The Hon'ble Court clarified that even non-government entities
receiving substantial funding from the government could be considered "State"
and subjected to fundamental rights obligations.
The Court in Zee Telefilms Ltd. V. Union of India 2005 SC held that
organizations with substantial public functions, like conducting examinations and
providing education, could also fall under the category of "State" and be bound by
fundamental rights.

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 The Supreme Court's expansion of the term "State" to include "other
authorities" has played a vital role in safeguarding fundamental rights in
India. This expansion recognizes the importance of protecting rights against
all entities that wield power and perform public functions, whether
governmental or non-governmental, and it ensures that fundamental rights remain
meaningful and enforceable in a dynamic and evolving society.
Ans. 15. The purpose of the Fundamental Rights is to preserve individual liberty and
democratic principles based on equality of all members of society. Dr Ambedkar
said that the responsibility of the legislature is not just to provide fundamental rights but
also and rather, more importantly, to safeguard them.
in the Preamble of the Constitution of India its mentioned a solemn resolve is made to
secure to all its citizen, their liberty of thought and expression‟. The
exercise of this right is, however, subjected to reasonable restrictions for some
purposes being imposed under Article 19(2) of the Constitution of India.
The issue in the given factual matrix is whether the school has committed a violation of
fundamental right by expelling a student from the school.
A fundamental right guaranteed by the Indian Constitution, specifically under
Article 19(1)(a), is the right to freedom of speech and expression. This includes
the right to remain silent.
The Hon'ble Supreme Court in Bijoe Emmanuel v. State of Kerala (1986), recognized
that individuals have the right to remain silent as an expression of their freedom of
speech and expression. The court upheld the students' right to remain silent as a form
of freedom of speech and expression.
While the right to remain silent is protected, showing respect to the National Anthem
and other national symbols is also a fundamental duty of every citizen of India, as
per Article 51A of the Constitution.
In Shyam Narain Chouksey v. Union of India (2016), the Supreme Court
emphasised the importance of showing respect to the National Anthem.
In the given factual matrix, the school authorities, in accordance with state rules,
have prescribed a rule that mandates the compulsory singing of the
National Anthem. In light of the case laws discussed above expelling a student
for not singing the National Anthem but standing in respect is an infringement on the
student's fundamental rights of speech and expression and school has violated the
fundamental right of the student expelling him from the school therefore issue is
decided in affirmative.
Ans. 16. „Nemo debet bis vexari,‟ which means “a man must not be put in peril twice
for the same offence.” the principle of double jeopardy is embodies in Article
20(2) of the Indian Constitution protects an individual from being prosecuted
or punished more than once for the same offence. The word „double jeopardy‟
comes from the English common law rule „Nemo bis punitur pro eodem delicto,‟ which

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means “no one should be punished twice for the same offence. The constitutional
prohibition against double jeopardy was designed to protect an individual from being
subjected to the hazards of trial and possible conviction more than once for an alleged
offence. The underlying idea is that the state with all its resources and power should not
be allowed to make repeated attempts to convict an individual for an alleged offence
thereby subjected him to embarrassment, expense, and ordeal and compelling him to
live in continuing state of anxiety and insecurity and as well as infringing his right to life
and personal liberty.
In the given factual matrix A was being tried for the same offence twice. As per
Article 20(2) of the constitution of India, it is a violation of fundamental rights and is
unconstitutional.
Article 20 of the Constitution deals with the protection from criminal
convictions. There are three safeguards available for an accused person
from being convicted, namely, ex post facto law Article 20(1), double jeopardy
Article 20(2), and self-discrimination Article 20(3).
In R. v. Governor of Brixton Prison, ex parte Lewis (1968) This case,
although not Indian, was cited in various Indian judgments. It emphasises that
"double jeopardy" means being tried again for the same offence and not merely for the
same acts or facts.
In Abhinandan Jha v. Dinesh Mishra (1968) the Honble Supreme Court held that the
second complaint involving the same set of facts and circumstances amounted to an
abuse of the process of law. The Court quashed the second complaint.
In another case of Supreme court S.A. Venkataraman v. State (2000) it was
emphasized that the provisions of Article 20(2) must be respected, and the principle of
double jeopardy should be upheld.
In the light of the above mentioned case laws, A can obtain relief in the form of
quashing the second complaint as it is an abuse of process of law and it violates the
principle of double jeopardy as enshrined in Article 20(2) of the Constitution.
Ans.17. The Directive Principles of State Policy are enshrined in Part IV , Article 37 of
the Indian Constitution provide guidelines to the government on achieving social and
economic justice, ensuring a welfare state, and promoting the well-being of the
citizens. These principles, although not legally enforceable, are essential in shaping
government policies and legislative actions.
Fundamental rights, on the other hand, are guaranteed under Part III of the
Constitution. These rights are justiciable and can be enforced by individuals through
legal remedies.
While fundamental rights protect individual liberties and freedoms, directive principles
emphasise the duties of the state to promote the welfare of the people. This balance
is crucial for a just and equitable society.

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 In the landmark judgment of Keshvananda Bharati v. State of Kerala (1973), The
Hon'ble Supreme Court held that the directive principles and fundamental rights are
intertwined, and the doctrine of pith and substance allows for balancing these
principles.
In Champakam Dorairajan V. State of Madras 1951, Hon‟ble Supreme Court ruled that
in case of conflict between the Fundamental Rights and Directive Principle thr formar
will prevail., Directive Principles have to conform to run as subsidiary to the
Fundamental Rights.
In Minerva Mills Ltd. v. Union of India (1980) The Hon‟ble Supreme Court
emphasized on the importance of a harmonious construction of Part III
(fundamental rights) and Part IV (directive principles) of the Constitution. It held that
the directive principles should be used to interpret fundamental rights.
The Hon‟ble Supreme Court in Indra Sawhney v. Union of India (1992) judgment
upheld the reservation policy as a means to implement the directive principles of
social justice.
In Maneka Gandhi v. Union of India 1978 The Supreme Court reiterated that
fundamental rights and directive principles are not antagonistic but complementary.
We can conclude that the directive principles of state policy are integral to
the Indian Constitution, and they play a crucial role in overall well-being of the
people. They are considered equally important as fundamental rights because they
help strike a balance between individual liberties and the collective social welfare,
which is essential for a welfare state.
Ans. 18. Article 14 of the Constitution of India, which is part of the Fundamental
Rights, guarantees the right to equality before the law and the equal protection
of the law. Article 14 states that the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.

In Maneka Gandhi v. Union of India (1978) The Hon‟ble Court, in this case,
emphasized that the reasonableness of classification under Article 14 should satisfy the
"test of fairness and justice."
In E. P. Royappa v. State of Tamil Nadu (1974) This case introduced the concept of
arbitrariness in classification. The Court stated that a classification would be invalid if it
was arbitrary and did not have a rational nexus with the object of the law.
The test of reasonable classification ensures that different treatment is permissible if
there is a reasonable and justifiable basis for it.
The purpose of the law and the classification should be legitimate, and the
classification should serve that purpose in a rational manner.
While the test of reasonable classification provides flexibility, it also guards against
arbitrariness and discrimination.

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 To pass the test of reasonable classification, there must be an intelligible differentia,
which means that there must be a clear and rational basis for the
classification. The differentia should distinguish those who are grouped together
from those who are left out.The differentia must have a rational nexus with the object
sought to be achieved by the law. In other words, there should be a logical connection
between the classification and the purpose of the law. It is utmost important that the
classification should not be arbitrary or discriminatory. It should ensure that individuals
or objects that are similarly situated are treated alike.
In Kedar Nath Bajoria v. State of West Bengal (1953) the Supreme Court held that
the classification for taxation purposes must be based on intelligible differentia having a
rational relation to the object of the law.
The test of reasonable classification is a critical component of Article 14, which
guarantees the right to equality.

Ans. 19. Write a short note on -

(A) The doctrine of prospective overruling is a judicial tool used by higher courts to
limit the retroactive application of a judgement. It allows courts to pronounce a
decision while specifying that it will have prospective effect, protecting parties that
relied on the previous legal position. However, it's primarily a tool for the
higher judiciary (Supreme Court) rather than the High Courts. It's not used across all
branches of law, as its applicability is
determined by the specific circumstances of a case and the
pronouncements made by higher courts.

The power of the Governor to grant pardons and remit sentences is an important
aspect of the criminal justice system and is subject to the Constitution and judicial
scrutiny. On the other hand, the doctrine of
prospective overruling is a tool primarily employed by higher courts,
especially the Supreme Court, and is not used uniformly across all branches of
law; its application depends on the specific circumstances and the pronouncements
made by the higher judiciary.
(B) The power of the Governor to grant pardons and remit sentences is an essential
aspect of the criminal justice system in India. This power provides the head of the state
government the authority to show mercy and leniency in appropriate cases. Article 161
confers the power of the Governor to grant pardons, reprieves, respites, or remissions
of punishment or to suspend, remit, or commute the sentence of a person
convicted of any offence against any law relating to matters to which the
executive power of the state extends.

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The Governor can pardon a convicted person, which completely exempts the person
from the punishment. The governor can also respite the punishment, commute the
punishment and also reprieves a sentence .
In the case of Maru Ram v. Union of India (1980) The Hon'ble Supreme
Court emphasized that the power of the Governor under Article 161 is a constitutional
power and is not absolute but subject to the advice of the Council of Ministers.
(C) Executive and Legislative Powers of the President of India
as the head of state the President of India, is granted certain executive and
legislative powers under the Constitution of India. These powers are essential for
the functioning of the Indian democratic system.
● Article 53 of the Constitution establishes the executive power of the Union and
vests it in the President. The President exercises this power directly or through
officers subordinate to him.
● Article 74 of the Constitution deals with the Council of Ministers and their
responsibilities. It establishes the concept of the Council of Ministers headed by the
Prime Minister to aid and advise the President in the exercise of his functions.
● The President appoints the Prime Minister of India, who is usually the leader of
the majority party in the Lok Sabha and on the advice of the Prime Minister the
Council of Ministers collectively forms the executive
branch of the government.

● Article 111 The President has the power to grant or withhold assent to bills passed
by Parliament, except in cases where the Constitution mandates that he must
give his assent.
● Article 83, The President has the authority to dissolve the Lok Sabha on the advice
of the Prime Minister, which leads to the general elections.
● Article 239 the President can appoints speaker, deputy speaker of Lok
Sabha, chairman and deputy chairman of Rajya Sabha
In S. R. Bommai v. Union of India (1994)
The Hon'ble Supreme Court held that the exercise of the President's powers,
particularly in relation to dissolving state assemblies, should be in accordance with
the provisions of the Constitution.
The President of India plays a crucial role in the executive and legislative branches of
the government. While his powers are largely symbolic, they are essential for the
functioning of the Indian democratic system and are subject to the constitutional
framework.

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