17-04-2023

WEEK 2- CITIZENSHIP (ARTICLE 5-11)

1. Assam Public Works v. Union of India, Writ Petition (Civil) No. 274 of 2009- section
6 a of the citizenship act 1955 lays down the criteria to recognise migrants in assam as
citizens. Assam accord- before 1 January 1966- C +Vote, after 1 January 1966 but
before March 1971- C+ cannot vote till ten years, After 25 march 1971- illegal
immigrants, expelled.
2. Sarbananda Sonowal v. Union of India, Writ Petition (Civil) 13 of 2000- when the
parent act is in force and applicable, it is not open to the authority concerned to nullify
the direction of SC by way of subordinate legislation by making an order applicable in
a particular state.
WEEK 3: CONCEPT OF ‘STATE’ (ARTICLE 12)
1. Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857-'other authorities' would
include all authorities created by the constitution or statute on whom powers are conferred by
law.
2. Sukhdev v. Bhagatram, AIR 1975 SC 1331- statutory bodies are authority within the ambit
of article 12.
3. R.D. Shetty v. Airport Authority, AIR 1979 SC 1628- if a body is government agency or
instrumentality then it is state.
4. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487- individual, corporation, society be
instrumentality of state. 6th test, whether the department of government has been transferred
to the corporation.
5. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111-
functionality test- administrative, financial and managerial/funtional qualities.
6. Zee Telefims v. Union of India, (2005) 4 SCC 649- monopoly status there but not state pkb
7. Rupa Ashok Hurra v. Ashok Hurra, (2002) 3 SCC 388
8. Board of Cricket Control of India v. Cricket Association of Bihar and others, (2015) 3 SCC
251-can come under article 226 as it performs public functions but not under article 12.
9. Janet Jeyapal v. SRM University, 2015- public function of imparting education hence state.

Other-
1. All Statutory bodies are state- Sukhdev V bhagatram
2. Non statutory
(RD Shetty, Ajay Hasia)- instrumentality- 5, either or test
(PK Biswas) good law-1Functionality- SRM
Zee tele films, BCCI-not state, good law
WEEK 4: DEFINITION OF “LAW” UNDER ARTICLE 13, THE BASIC
STRUCTURE DOCTRINE & THE CONCEPT OF JUDICIAL REVIEW (ARTICLE
32)

1
Law laid down
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1. Keshava Madhav Menon v. State of Bombay, AIR 1951 SC 128 (Retrospective Effect)
2. State of Bombay v. F.N. Balsara, AIR 1951 SC 318 (The rule of severability)
3. Bhikaji Narain Dhakras v. State of M.P., AIR 1955 SC 781 (The rule of eclipse)-pre
constitution law + prospective operation only + Only when tested, from that year onwards
will the validity be checked, till then it is valid.
4. State of Gujarat v. Shri Ambika Mills, (1974) 4 SCC 656 (Future Laws)
5. Basheshar Nath v. CIT, AIR 1959 SC 149 (Waiver of Fundamental Rights)
Are constitutional amendments law? (Optional)
6. Shankari Prasad v. Union of India, AIR 1951 SC 458
7. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
8. Golaknath v. State of Punjab, AIR 1967 SC 1643
9. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
Basic Structure (Optional)
10. I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861
11. M. Nagaraj v. Union of India, (2006) 8 SCC 212
12. Madras Bar Association v. Union of India, (2014) 10 SCC 1
WEEKS 5 TO 7: ARTICLE 14,15,16,17
1. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
2. Kathi Raning Rawat v. Saurashtra, AIR 1952 SC 123
3. Maganlal Chhaganlal Ltd. v. Municipal Corporation of Greater Bombay, (1974) 2 SCC 402
4. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404
5. Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016
6. Rajbala v. State of Haryana, (2016) 1 SCC 463
Article 14 and the principles of reasonableness, non-arbitrariness and manifest arbitrariness
7. Maneka Gandhi v. Union of India, AIR 1978 SC 597
8. Joseph Shine v. Union of India (Adultery Judgemen), AIR 2018 SC 4898
9. Shayara Bano & Others v. Union of India & Others, AIR 2017 SC 4609
Gender
10. Anuj Garg v. Hotel Association of India, AIR 2008 SC 663
11. Air India v. Nergesh Meerza, AIR 1981 SC 1829
12. Indian Young Lawyer’s Association v. The State of Kerala, MANU/SC/1094/2018
13. Secretary, Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469
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14. Lt. Col. Nitisha v. Union of India, 2021 SCC Online SC 261 (permanent commission of
women in army)
Reservation
15. Indra Sawhney v. Union of India, AIR 1993 SC 477
16. M. Nagaraj v. Union of India, (2006) 8 SCC 212
17. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1
18. Ram Singh v. Union of India, MANU/SC/0283/2015
19. Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396
20. Dr Jaishree Laxmanrao Patil v. The Chief Minister, (2021) 8 SCC 1
21. Janhit Abhiyan v. Union of India, Writ Petition (Civil) No. 55 OF 2019 (EWS Judgement)
WEEK; ARTICLE 19
1. Romesh Thapar v. Union of India, AIR 1950 SC 124.
2. Ram Manohar Lohia v. State of Bihar, AIR 1960 SC 633
3. Kedarnath Singh v. State of Bihar, AIR 1962 SC 955
4. Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
5. Bennet Coleman v. Union of India, AIR 1973 SC 106
6. S. Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574
7. Shreya Singhal v. Union of India, AIR 2015 SC 1523
8. N. Radhakrishnan v. Union of India (UOI) and Ors., AIR 2018 SC 4154
9. Indibily Creative Pvt. Ltd v. Govt. of West Bengal, Writ Petition (Civil) No. 000306/2019
WEEKS 10 & 11: ARTICLE 21& 21A
1. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494
2. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
3. Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746
4. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
5. Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, MANU/SC/1246/2008
6. Justice K.S.Puttaswamy (Retd) v. Union Of India, (2019) 1 SCC 1
WEEK 12: PUBLIC INTEREST LITIGATION AND SOCIAL RIGHTS
JURISPRUDENCE
1.Public Interest Litigation, Oxford Handbook on the Indian Constitution
2. State Of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402
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3. Gopal Subramaniam, “Contribution of Indian Judiciary to Social Justice Principles

Underlying The Universal Declaration Of Human Rights.” Journal of the Indian Law Institute
50, no. 4 (2008): 593–605. http://www.jstor.org/stable/43952179.
4. AIIMS Student Union v. AIIMS, AIR 2001 SC 3262 (Fundamental duties as a tool to
interpret the provisions of the Constitution)
WEEK 13: RIGHT TO FREEDOM OF RELIGION (ARTICLES 25 TO 28)
1. The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
2. Sardar Syedna Taher Saifuddin v. State of Bombay, 1962 AIR 853
3. Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11
4. N. Adithayan v. Travancore Devasvom Board, (2002) 8 SCC 106
5. Commr. Of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770
6. Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615
7. Rev. Stanislaus v State of M.P., AIR 1977 SC 908
8. Ismail Faruqui v. Union of India, AIR 1995 SC 605
9. Shayara Bano & Others v. Union of India & Others, AIR 2017 SC 4609
10. Indian Young Lawyer’s Association v. The State of Kerala, MANU/SC/1094/2018
11. M. Siddiq v. Mahant Suresh Das and Others, (2019) 4 SCC 656
WEEK 14:(ARTICLES 29 & 30)
1. T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355
2. P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3236

Article 15&16
Start with article 14.
SC/ST- Schedule 1, W&C, Socially and educationally backward-OBC
Socially and educationally backward-OBC- Caste, economic, educationally, socially cannot
be individually the only criteria. AND test applies, read together.

Indra Swahney/ only obc- CG whether education or job has to have a job of 50% cut off
cannot be exceeded. SG can exceed this limit.
Only one of the conditions cannot be the indra swahney criteria, not either or, only AND test.
Creamy layer only to obc. Even though you are backward, but you are no longer
economically backward then you will not get reservation. This only applies to OBC not to
SC/ST.
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Article 21
Right to life
If question is there on 14, 19, 21- These case laws will apply.
Due process and procedure established by law.
◦ Article 21 is one article which has been so transformed by the Supreme Court that it
now encompasses all conceivable human rights within its ambit. On a plain
reading it is a directive to the State to refrain from infringing the right to life or
personal liberty of a person. The courts have taken a very liberal view and
transformed the negative injunction to a positive mandate to do all things which will
make life worth living.
◦ It is now well-settled that Art. 21 has both negative and affirmative dimension. After
the Maneka Gandhi’s decision, Art. 21 now protects the right of life and personal
liberty not only from the executive action but from the legislative action also.
◦ Prior to it, the State could interfere with the liberty of citizens if it could support its
action by a valid law. The right guaranteed in Art. 21 is available to citizens as
well as non- citizens (Chairman, Railway Board v Chandrima Das AIR 2000 SC
988).

1. Sunil Batra V Delhi Administration

Facts- Admitted in Tihar jail and claimed poor living conditions and questionable
treatment of inmates in jail. Brutal assault and torture by head warden.
Held- Supreme court held that under art 32 and 226, they have a right to intervene and
restore rights of the prisoners. It was made clear that during the prisoner’s time in jail, the
jail authorities do not have any rights to punish, torture or in any way discriminate
against them without the explicit permission or orders of the court. Only the court
had that right. Moreover Section 30(2) of the Prison Act, the power to keep a prisoner in
a separate cell, this provision was not to be misinterpreted as a right or freedom to torture
inmates. This is because the prisoner still possesses the right to life and liberty. Hence
violative of article 21. The Court also found that Section 30(2) not to be in violation of
Article 14, as prisoners under death sentence may run the risk of being a danger to other
prisoners and jail authorities. As such, keeping them in separate cells was seen as
necessary. The Supreme Court also held that a prisoner under a death sentence does not
come under the ambit of Section 30(2) when there are still chances of getting the decision
of the court reversed. If a Death sentence given to any prisoner is final and irreversible,
then and only then can the said prisoner be kept in a separate cell under the provisions of
Section 30(2).
Even if a person has been convicted in a prison, he cannot be deprived of art 14 and 21.
Article 19 may not apply.
Held- Prisoners also have a right to life and liberty.
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2. Olga Telli V Bombay Municipal Corporation- Right to Livelihood (Right to Work)

Facts- State of Maharashtra and the Bombay Municipal Council decided to evict all
pavement and slum dwellers from the city of Bombay.
Issue- Home in the city allowed them to attain a livelihood, would evictions violate the
right to life.
Held- Right to livelihood comes under Article 21 of the Constitution. Because the State
is obligated to secure to citizens an adequate means of livelihood and the right to
work, it would be sheer pedantry to exclude the right to livelihood from the content of the
right to life.
However, the right to a livelihood was not absolute and deprivation of the right to
livelihood could occur if there was a just and fair procedure undertaken according to law.
While the residents were clearly not intending to trespass, they found it was reasonable
for the government to evict those living on public pavements, footpaths, and public roads.
Procedure to be followed for the evacuation- The Court declined to hold that evicted dwellers
had a right to an alternative site but instead made orders that: (i) sites should be provided to
residents presented with census cards in 1976; (ii) slums in existence for 20 years or more
were not to be removed unless land was required for public purposes and, in that case,
alternative sites must be provided; (iii) high priority should be given to resettlement.

3. Francis Coralie Mullin v. Union Territory of Delhi

Facts- British national, was arrested and detained in the Central Jail, hence it was
necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an
interview with her since it required many prior appointments for interview and should be
in the presence of some specific person mentioned. The petitioner was thus effectively
denied the facility of an interview with her lawyer and even her young daughter, 5 years
old, could not meet her except once in a month as per Section 3(b)(ii). She was detained
on attempting to smuggle hashish out of the country and hence for her defence,
interview with her lawyer was of extreme importance.
In Francis Coralie v Delhi Administration (AIR 1981 SC 746), the validity of the
provisions of the COFEPOSA which provided that a detenu (a person placed under
preventive detention) can have interview with his lawyer only after obtaining
permission of the District Magistrate, and that too, in the presence of the custom
officer, and, permitted interview of the family members only once in the month, were
challenged on the ground that they are arbitrary, unreasonable and violative of Arts.
Held- The Court held that the Sub-clause (i) of Clause 3 (b) of COFEPOSA Act which is
regulating the right of the petitioner to have an interview with a legal adviser of his choice
is violative of Articles 14 and 21 of the Constitution of India and must be held to be
unconstitutional and void. The court finds it reasonable that if the Petitioner were to be
entitled to have an interview with his legal adviser at any reasonable hour during the day
after taking an appointment from the Superintendent of the Jail, which appointment
should be given by the Superintendent without any delay. The interview- if the required
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officer can be conveniently secured at the time of the interview without involving any
postponement of the interview. If not, then any other Jail official may, if thought
necessary, watch the interview but not so as to be within hearing distance of the detenu
and the legal adviser.
The court allowed the writ petition and granted relief to the petitioner.

4. Bandhua Mukti Morcha v. Union of India

Facts- PIL to take steps to end child labour. The industry largely employed minor children
under 14 years, and that many experienced physical abuse.
The Court discussed the importance of protecting children’s rights to education, health,
and development in ensuring India’s progress as a democracy. Even though immediate steps
for the same cannot be taken, but they do have right under article 21.
Enforcement of the Decision and Outcomes: the Court required that periodic reports of
progress regarding the implementation of the decision be submitted to the Registry of the
Court. In addition, as regards enforcement, a supplemental, if not consequential outcome of
this case, along with other relevant public interest litigation cases, was that that National
Commission for Protection of Child Rights (NCPCR) in 2006 framed the NCPCR rules
constituting the National Child Rights Commission. This Commission was entrusted with
assessing compliance with the Convention on the Rights of the child and thus by extension
monitoring the provision of free primary education for all children in the country and the
protection of children against economic exploitation.
In its judgment, the Court discussed the importance of protecting children’s rights to
education, health, and development in ensuring India’s progress as a democracy. While
recognizing that child labor could not be abolished immediately due to economic necessity,
the Court found that pragmatic steps could be taken to protect and promote the rights of
children in the poverty-stricken and vulnerable populations of Indian society. In support
of its conclusion, the Court referred to various fundamental rights and directive principles of
the Indian Constitution including, Article 21 (the right to life and personal liberty), Article 24
(prohibits employment of children younger than 14 in factories, mines, or other hazardous
industries), Article 39 (e) (prohibits forcing citizens into vocations unsuited for their age or
strength), Article 39(f) (describes the State’s duties to protect children from exploitation and
to ensure children the opportunities and facilities to develop in a healthy manner), and Article
45 (mandates the State to provide free compulsory education for all children below 14 years).
The Court also noted India’s obligations under the Universal Declaration of Human Rights
(UDHR) and the Convention on the Rights of the Child to provide free primary
education for all children in the country, and to protect children against economic
exploitation.
The measures ordered to abolish child labor set out in an earlier case, M.C. Mehta v. State of
Tamil Nadu & Ors. [[(1996) 6 SCC 756] were referenced by the Court and incorporated in
orders to the States of Uttar Pradesh and Bihar.
The orders included, directing the States to take steps to frame policies to progressively
eliminate the employment of children below the age of 14; provide compulsory education to
all children employed in factories, mining, and other industries; ensure that the children
receive nutrient-rich foods; and administer periodic health check-ups.
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5. Justice K.S.Puttaswamy (Retd) v. Union Of India, (2019) 1 SCC 1

Issue- The case was brought by 91-year old retired High Court Judge Puttaswamy against the
Union of India (the Government of India) before a nine-judge bench of the Supreme Court
which had been set up on reference from the Constitution Bench to determine whether the
right to privacy was guaranteed as an independent fundamental right following
conflicting decisions from other Supreme Court benches.
Facts- The latest case had concerned a challenge to the government’s Aadhaar scheme (a
form of uniform biometrics-based identity card) which the government proposed
making mandatory for access to government services and benefits. The challenge was
made before a three-judge bench of the Supreme Court on the basis that the scheme violated
the right to privacy. However, the Attorney General argued on behalf of the Union of India
that the Indian Constitution does not grant specific protection for the right to privacy. He
based this on observations made in the case of M.P. Sharma v. Satish Chandra (an eight-
judge bench) and Kharak Singh v. Uttar Pradesh (a five-judge bench). However, a
subsequent eleven-judge bench found that fundamental rights were not to be construed as
distinct, unrelated rights, thereby upholding the dissenting view in Kharak Singh. This also
formed the basis of later decisions by smaller benches of the Supreme Court which expressly
recognized the right to privacy.
It was in this context that a Constitution Bench was set up and concluded that there was a
need for a nine-judge bench to determine whether there was a fundamental right to privacy
within the Constitution.
The Petitioner argued before the nine-judge bench that this right was an independent right,
guaranteed by the right to life with dignity under Article 21 of the Constitution. The
Respondent submitted that the Constitution only recognized personal liberties which may
incorporate the right to privacy to a limited extent.
The Court considered detailed arguments on the nature of fundamental rights, constitutional
interpretation and the theoretical and philosophical bases for the right to privacy as well as
the nature of this right.
Held- The nine-judge bench of the Supreme Court unanimously recognized that the
Constitution guaranteed the right to privacy as an intrinsic part of the right to life and
personal liberty under Article 21. The Court overruled M.P. Sharma, and Kharak
Singh in so far as the latter did not expressly recognize the right to privacy.
The right to privacy was reinforced by the concurring opinions of the judges in this case
which recognized that this right includes autonomy over personal decisions (e.g.
consumption of beef), bodily integrity (e.g. reproductive rights) as well as the protection
of personal information (e.g. privacy of health records). The concurring judgments
included specific implications of this right, some of which are illustrated below:
 J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer): this
opinion stated that privacy was not surrendered entirely when an individual is in
the public sphere. Further, it found that the right to privacy included the negative
right against State interference, as in the case of criminalization of homosexuality,
as well as the positive right to be protected by the State. On this basis, the Judges
held that there was a need to introduce a data protection regime in India.
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 J. Chelameswar: in his opinion, the Judge said that the right to privacy implied a
right to refuse medical treatment, a right against forced feeding, the right to
consume beef and the right to display symbols of religion in one’s personal
appearance etc.
 J. Bobde: The Judge observed that consent was essential for distribution of
inherently personal data such as health records.
 J. Nariman: in this concurring opinion, the Judge classified the facets of privacy into
non-interference with the individual body, protection of personal information
and autonomy over personal choices.
 J. Sapre: The Judge said that, in addition to its existence as an independent right, the
right to privacy included an individual’s rights to freedom of expression and
movement and was essential to satisfy the constitutional aims of liberty and
fraternity which ensured the dignity of the individual.
 J. Kaul: The Judge discussed the right to privacy with respect to protection of
informational privacy and the right to preserve personal reputation. He said that
the law must provide for data protection and regulate national security exceptions
that allow for interception of data by the State.
The Court also recognized that the right was not absolute but allowed for restriction
where this was provided by law, corresponded to a legitimate aim of the State and was
proportionate to the objective it sought to achieve.

6. ADM Jabalpur vs Shivkant Shukla, 1976 (2) SCC 521

This case pertained to the time when the emergency was proclaimed by the ruling
government of Indira Gandhi who issued a Presidential Order when the court declared her
Prime Ministerial election as illegal. The case arose out of the contention that whether a
person has a right to approach the High Court or not when its Fundamental Rights are being
violated, especially Article 21 which relates to Right to Life and Liberty and also Article 14
which relates to Right to Equality.
The net result that came from the judgement was really harsh, as it was established that a
person’s right to approach High court under Article 226 for writ of Habeas Corpus or
any other writ for challenging the legality of an order of detention at the time of
proclamation of emergency will remain suspended.
Moreover, the person cannot move to High Court in order to seek remedy or justice.
This was the main reason for considering ADM Jabalpur as the darkest spot in the history of
Supreme Court.
The judgment came in the ration of 4:1, Chief Justice A. N. Ray, M.H. Beg. J, Y.V
Chandrachud. J and P.N. Bhagwati. J were for the majority of the judgment and whereas the
H.R. Khanna J. was for the dissent. The four judges except Justice Khanna were of the
opinion that during the time of emergency if any action is taken by the government whether it
is arbitrary or illegal, its actions cannot be questioned. This is because in such circumstances
the government safeguards the life of the nation by using its extraordinary powers, and
which are provided to them as emergency is also an extraordinary factor. Therefore, as
liberty is a gift of law, it can also be forfeited by law.
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The purpose and objective of Article 359 (1) was to prevent the enforcement of any
Fundamental Right mentioned in the Presidential order, should be suspended during the
emergency. Even the application for Habeas Corpus under Article 491 of Code of Criminal
Procedure cannot be filed simultaneously before the High Court. Another purpose of Article
359(1) was not only to limit the actions of legislative domain but also the actions of the
executive branch.

7. Kharak Singh v. State of U.P., AIR 1963 SC 1295

Facts
The petitioner, Kharak Singh, had been charged with violent robbery as part of an armed
gang in 1941. He was released due to lack of evidence, but a ‘history sheet’ was opened in
regard to him under the Uttar Pradesh Police Regulations. These regulations provided for
surveillance powers, including powers of domiciliary visits, for habitual offenders or people
likely to become criminals.
Based on these provisions, the police would often visit Singh’s house at odd hours, waking
him up when he was sleeping. The petitioner argued that these regulations were in
violation of his right to life with dignity under Article 21 of the Indian Constitution,
which includes the right to privacy. He also argued that the measures violated personal
liberties guaranteed under Article 19 of the Indian Constitution.
Case Summary and Outcome
The Supreme Court of India declared the relevant provisions that allowed police to make
domiciliary visits to ‘habitual criminals’ or individuals likely to become habitual criminals as
unconstitutional. The police would visit Kharak Singh’s house at odd hours, often waking
him up from his sleep. The Court reasoned that the visits infringed the petitioner’s right
to life, which can only be restricted by law and not executive orders such as the Uttar
Pradesh Police Regulations. However, the Court rejected the petitioner’s claim that the
shadowing of habitual criminals infringed his right to privacy because this right was not
recognized as a fundamental right under India’s Constitution.
The six-judge bench of the Supreme Court gave concurring opinions, striking down the
relevant provisions of the Uttar Pradesh Police Regulations as unconstitutional.
Chief Justice Sinha and Justices Imam and Mudholkar joined in Justice Ayyangar’s opinion.
He observed that the regulations provided for several surveillance powers, including secret
picketing of the house; domiciliary visits; and inquiring into and shadowing so-called
“history-sheeters” in order to keep records of their movements and the persons they contact.
He rejected the argument that the psychological effect of the picketing curtailed freedom of
movement under Article 19(1)(d), finding that the concerned person or persons visiting the
house would not be aware of the picketing.
Next, he considered the question of domiciliary visits. He held that this impacted on the
right to life, protected under Article 21 of the Constitution, which implied the right to life
with human dignity – and not mere animal existence. He considered that the power to enter
someone’s house in the middle of the night to confirm their presence ran contrary to this
right. This plainly violated Article 21 since the right to life could only be restricted by ‘law’;
and the executive regulations of the Uttar Pradesh Police did not fall within the definition of
‘law’.
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Finally, he considered that shadowing of the “history-sheeters” did not cause any hindrance
to their movement, and that any effect on privacy was irrelevant as the right to privacy was
not a fundamental right. He therefore held that the regulations should be struck down only
with respect to domiciliary visits.
Justice Shah joined in with Justice Subba Rao’s opinion. They agreed with the majority in
so far as the provision for domiciliary visits was unconstitutional. However, Justice Subba
Rao considered that the Regulations in their entirety violated the right to freedom of
movement and the right to life and were therefore unconstitutional. Justice Subba Rao
held that the right to life and personal liberties under Article 21 provided protection against
any encroachments on personal liberties, whether direct or indirect. He considered that the
right to privacy was to be considered a fundamental right under Article 21, even though
the Constitution did not expressly provide for it. He argued further that the supervision
of one’s private life as provided in the regulations clearly violated this right. Since the
regulations could not be “law”, it followed that they violated Article 21.
Furthermore, Justice Subba Rao considered that the infringement of the right to privacy
prevented a person from expressing his or her innermost thoughts. He found, therefore,
that the regulations also violated the right to freedom of expression, as protected under
Article 19(1)(a) of the Constitution. Furthermore, Justice Subba Rao held that the right to
freedom of movement, protected under Article 19(1)(d), had been violated as this right
included not just freedom from physical obstructions to movement but also the right to move
freely, without undue restrictions. He considered that shadowing by the police constituted a
restriction on this freedom of movement. Justice Subba Rao therefore considered that
the regulations in their entirety violated fundamental rights and were unconstitutional.

8. HUSSAINARA KHATOON V Home Secretary, STATE OF BIHAR, 1979 AIR

1369- speedy trial and free legal aid
A writ petition habeas corpus was filed before the court under Article 32 of the Indian
Constitution. This writ petition was also filed before the court. because it was for the release
of 17 under trial prisoners. It depicted a sorrowful picture of the administration of justice
within the state of Bihar. an outsized number of persons which even included mainly the
categories like women, children, and other deprived categories of poor section and that they
all were locked behind the bars and were seeking for the trial as well as their release. Thus,
the State of Bihar was advised to file a revised chart which was focused in clearly mentions
the year- wise break- from the under- trial prisoners after segregating the prisoners into two
categories that is ones charged with minor offences and others who have been charged with
major offences, but although this direction was not carried by the state. The petition
acknowledged that the under- trial prisoners who have done minor offences as they were
imprisoned for quite 10 years. Those people were considered to the poorest strata who
weren't even able to afford an advocate and also, they were refused to grant bail.
The issues raised in this case were:
 Whether the supply of free legal aid be enforced by law?
 Whether right to speedy trial come within the ambit of Article 21?
 what's the essence of speedy trial under criminal justice?
The court observed the above case and also directed that the under -trial prisoners whose
name and particulars were filed by Mrs. Hingorani should be released. it had been because
17-04-2023

imprisonment like false imprisonment were considered to be an illegal and also violative
of their Fundamental Rights enshrined under Article 21 of the Indian Constitution. The
court also mandated that in the time of charging bailable offences, they need to be produced
before the Magistrate on remand dates. The government ought to name a legal advisor at
their own expenses for making an application for bail. A quick trial is much required for
securing justice. The court also ordered both the government as well as High Court to display
the particulars regarding the location of the courts of magistrate and court of sessions in the
State of Bihar along with the cases pending in each court on 31st December, 1978. They were
also asked to state the rationale of pendency of cases.
On next remand dates the under- trial prisoners should be produced before the court in order
that the state government must ought to designate a lawyer of its own expense. The state
cannot avoid its constitutional obligation to supply speedy trial to the accused by the way of
pleading. Free legal service to the poor and therefore the needy people is an essential
elementary factor of legal aid.
Another direction by the honorable court was to supply the under- trial prisoners charged
with bailable offences, free legal aid by the state, on their next remanded dates before the
Magistrates. The court further observed that detaining them for any long would be illegal and
is clearly against the elemental rights under Article 21 as these prisoners are behind the bars.
Although nowadays human rights are being demanded for everyone in this world but are
these under- trial prisoners not to be protected from such harm or even torture, in fact they
too are human rights hence their rights must not be denied. Equal access to justice must be
central point which has to be given due recognition.
As per Article 21 of the Indian Constitution states that "no person shall be bereft of his life or
liberty except in accordance with the procedure established by law which ought to be
reasonable, fair and just". Here the State cannot deny the constitutional rights even all the
humans do have their own human rights to be preserved. Article 39A may be a constitutional
directive that stress upon free legal service. it's depicted as an inalienable element regarding
reasonable, just and fair procedure. within the absence of, it'll result in denial of justice
among the poor sections of the society.
The court realized the plight of under- trial prisoners whose denial of rights. Court gave stress
upon unable to interact a lawyer and disregarding human rights were the main issues which
have focused and also to be solved. The court realized the denial and disregarding nature
of private liberty. The court also found that the under - trial prisoners of whose list which
was filed before the court, they need been in jail for a longer period. Even the period of time
was too long enough than the prescribed time range that they could have been sentenced to
jail if convicted.
The court recommend the State also as Central Government, by directing them to list out the
entire number of cases, location of courts of magistrates and courts of session. Mainly the
Articles include Article 14, Article 39A and Article 21. Honorable Supreme Court of India
held that the State cannot deny the constitutional right of speedy trial and equal access
to justice shouldn't be denied on any grounds. This, case motivated various lawyers to
boost their voice against the denial of rights which are fundamental in nature.

9. A.K. Gopalan v State of Madras

17-04-2023

In A.K. Gopalan v State of Madras (AIR 1950 SC 27), the petitioner challenged the validity
of his detention under the Preventive Detention Act, 1950, on the ground that it was
violative of his right to freedom of movement under Art. 19(1)(d) which is the very essence
of personal liberty guaranteed by Art, 21
The court took the view that since the word ‘liberty’ is qualified by the word 'personal’,
which is a narrower concept and so it does not include all that is implied in the term ‘liberty’
(i.e. all the freedoms). Thus, personal liberty’ only means ‘liberty relating to or concerning
the person or body of the individual.’
Fazal Ali, J., however, in his dissenting opinion, gave a wide and comprehensive meaning to
the words 'personal liberty’ as consisting of freedom of movement and locomotion. Thus, any
law which deprives a person of his personal liberty must satisfy the requirements of Arts 19
and 21 both.

in Maneka Gandhi case, the Supreme Court has given the widest possible interpretation to the
word personal liberty'. A valid law interfering with personal liberty must satisfy a ‘triple test
It must prescribe a procedure.
The procedure must withstand the test prescribed in Art. 19
It must not infringe Art. 14. Thus, the procedure must be just, fair and reasonable.

10. Maneka Gandhi V Union Of India,

Facts- In this case, the petitioner’s passport was impounded by the Central Government
under Sec. 10(3)(c) of the Passport Act, 1967. The Act authorised the Government to do so
if it was ‘necessary in the interest of general public’. Though sub clause (5) of this section
required the passport authority to record reasons for impounding passport and furnish to the
holder of the passport a copy of the same; but this sub sec, further provides that if passport
authority is of the opinion that it will not be in the interest of sovereignty and integrity of or
security of India, or in the interest of general public, it may decline to furnish a copy, and
which was done so in the present case.
Issue- The petitioner challenged the validity of the said order on the following grounds:
 Sec. 10(3)(c) was violative of Art. 14 as conferring an arbitrary power since it did not
provide for a hearing of passport holder before impounding passport.
 Sec. 10(3)(c) was violative of Art. 19(1)(a) and (g) since it permitted imposition of
restrictions not provided in clause (2) or (6) of Art. 19.
 Sec. 10 (3)(c) was a violation of Art. 21 since it did not prescribe ‘procedure’
within the meaning of Art. 21. The reason for the order was, however, disclosed in the
affidavit filed on behalf of the Government which stated that the petitioner’s presence
was likely to be required in connection with the proceedings before a Commission of
Inquiry.
Observations - Various issues considered in the present case, were as follows: (a) Inter-
relation of Arts. 14, 19 and 21 - In Gopalan's case, the Supreme Court held that Art. 19
had no application to laws depriving a person of his life and personal liberty enacted
under Art. 21.
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It was held that Arts. 19 and 21 dealt with different subjects. Thus, so long as a saw of
preventive detention satisfied the requirements of Art. 22, it would not be required to
meet the challenges of Art. 19.
This view proceeded on the assumption that certain articles in the Constitution exclusively
deal with specific matters. Thus, Art. 22 is a self-contained code.
The judgment’s most important feature was the interlinking it laid down between the
provisions of Articles 19, 14 and 21. Through this link, the supreme court made these
provisions inseparable and into a single entity. Now, any procedure has to meet all the
requirements mentioned under these three articles to be held valid. As a result, this
judgement enlarged the scope of personal liberty significantly and preserved the
fundamental & constitutional right to life.

3. R. C. Cooper Case
In R.C. Cooper v Union of India (AIR 1970 SC 564), the doctrine of exclusiveness was
seriously questioned. It was held that each freedom has different dimensions and there
may be overlapping between different fundamental rights and therefore it is not a valid
argument to say that the expression ‘personal liberty’ in Art. 21 must be so interpreted
as to avoid overlapping between that Article and Art. 19(1).
In the present case, the Court overruled Gopalan’s view, and held that Art. 21 is controlled by
Art. 19 i.e. it must satisfy the Art. 19 requirements also. Art. 21 does not exclude Art. 19, and
even when there is ‘no infringement of fundamental rights under Art, 21, such a law in so far
as it abridges or takes away any right under Art. 19, would have to meet the challenges of Art.
19, and ex-hypothesis of Art. 14.
In Francis Coralie v Delhi Administration (AIR 1981 SC 746), the validity of the provisions
of the COFEPOSA which provided that a detenu (a person placed under preventive detention)
can have interview with his lawyer only after obtaining permission of the District Magistrate,
and that too, in the presence of the custom officer, and, permitted interview of the family
members only once in the month, were challenged on the ground that they are arbitrary,
unreasonable and violative of Arts.

Right to dignity
In Maneka Gandhi case, the court held that the right to live is not merely confined to physical
existence, but it includes within its ambit the right to live with human dignity. In Francis
Coralie case, held that the right to live includes the right to live with human dignity and all
that goes along with it, namely, the bare necessities of life, such as adequate nutrition,
clothing and shelter, and facilities for reading and writing, freely moving about and mixing
with fellow human being.
In P.U.D.R. v UOI (AIR 1982 SC 1473), held that non-payment of minimum wages to
workers employed in various Asiad Projects in Delhi was a denial to them of their right to
live with basic human dignity and violative of Art. 21. Rights and benefits conferred on the
workmen under various labour laws are “clearly intended to ensure basic human dignity to
workmen and if they are deprived of these rights and benefits that would clearly be a
17-04-2023

violation of Art. 21." Thus, non-implementation by the private contractors and non-
enforcement by the State authorities of the provisions of various labour laws violate the
fundamental right of workers to “live with human dignity”.
In Vishaka v State of Rajasthan (AIR 1997 SC 3011), the Apex Court’s attention was focused
on prevention of sexual harassment of working women in all workplaces. Held that it
resulted in violation of the fundamental rights of “Gender Equality” and the “Right to Life
and Liberty" enshrined in Arts. 14, 15 and 21. It was also held to be a violation of the victim's
fundamental right under Art. 19(1 )(g) to practice any profession or to carry on any
occupation, etc. as a “safe” working environment is needed for that. The court observed:
“Gender equality includes protection from sexual harassment and right to work with dignity,
which is a universally accepted basic human right. In the absence of suitable domestic
legislation in this sphere, international conventions/norms, so far as they are consistent with
the constitutional spirit, can be relied on, viz. Convention on the Elimination of All Forms of
Discrimination against Women.”
The court laid down some guidelines/ norms to be strictly observed by the
employers/responsible persons in workplaces and other institutions, until a suitable
legislation was enacted to occupy the field. The guidelines are to be applicable to both the
public and private sector.
Right to privacy
• In Kharak Singh v State of U.P (AIR 1963 SC 1295) the court held that the term life
as used in Art. 21 meant something more than mere animal existence. The inhibition
against its deprivation extends to all those limits and faculties by which life is
enjoyed.
• An unauthorised intrusion into a person's home (by way of domiciliary visits of
policemen) and the disturbance caused to him is the violation of personal liberty of
the individual.
• But, in Govind v State of M.P. (AIR 1975 SC 1379), the court held that Police
Regulations authorising domiciliary visits were constitutional. As regards the
right of privacy, the court said that right to privacy would necessarily have to go
through a process of case-by-case development.
• In Malak Singh v State of Punjab (AIR 1981 SC 760), the right of privacy of a citizen
as a fundamental right was emphasised by the court. In State of Maharashtra v
Madhulkar Narain (AIR 1991 SC 207), held that the right to privacy is available even
to a woman of easy virtue and no one can invade her privacy.
• In a landmark judgment (The Hindustan Times, 3.12.93), the Madras High Court held
that a minor girl had the right to bear a child. In this case, a 16-year-old minor girl
became pregnant and wanted to have the child against the opposition from her father.
The public prosecutor, on behalf of the girl, argued that she had the right to bear the
child under the broader right to privacy. Even a minor had a right to privacy under
Art. 21. The Constitution does not make any distinction between minor and
major in so far as fundamental rights are concerned. The court held that in the
case of a mature and understanding minor, the opinion of parent/guardian was not
relevant.
In Mr. 'X' v Hospital ‘Z’ (Dr. Tokugha Yepthomi v Apollo Hospital) (AIR 1999 SC 495), the
appellant (Mr. ‘X’, a doctor) was to marry a girl, but the marriage was called off on the
17-04-2023

ground of blood test conducted at the respondent's hospital (‘Z’) in which the appellant was
found to be HIV positive. The appellant moved the Supreme Court for violation of his ‘right
of privacy’. The court rejected the appellant’s contentions by holding that the right to
privacy is not absolute. It may be lawfully restricted for the prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others
in the instant case, another person (appellant’s would-be-bride) was saved in time by the
disclosure (‘right to be informed’).
Moreover, where there is a clash of two fundamental rights, namely, the appellant’s
right to privacy as part of right to life and his fiancee’s right to lead a healthy life which
is her fundamental right under Art. 21, the right which would advance the public
morality or public interest, would alone be enforced through the Process of court, for the
reason that moral considerations cannot be kept at bay and the Judges are not expected to sit
as mute structures of clay in the hall known as courtroom, but have to be sensitive, “in the
sense that they must keep their fingers firmly upon the pulse of the accepted morality of the
day.”
Right to Food
• In PUCL v Union of India [2000 (5) SCALE], the Supreme Court recognizing the
right to food’ has held that the people who are starving because of their inability to
purchase food grains have right to get food under Art. 21 and therefore they ought to
be provided the same free of cost by the States out of surplus stock lying with the
States The people entitled in such situation are those who are aged, infirm, disabled,
destitute women/men, pregnant and lactating women and destitute children.

Right to Shelter and Legal Aid

• In Chameli Singh v State of U.P. (1996) 2 SCC 549, it was held that the right to
shelter is a fundamental right under Art. 21. Right to live guaranteed in any civilized
society implies the right to food, water, decent environment, education, medical care
and shelter. These are basic human rights known to any civilized society.
• Art. 22(1) of the Constitution provides that no person who is arrested shall be denied
the right to consult a legal practitioner of his choice. Further, the State is under a
constitutional mandate (as implicit in Art. 21) to provide free 'legal-aid’ to an indigent
or poor person (a detainee or an accused person). The right of the arrested person to
have a counsel of his choice is fundamental and essential to fair trial.
• In Hussainara Khatoon v Home Secy., State of Bihar (1980) 1 SCC 98, the Supreme
Court observed: “The right to free services is dearly an essential ingredient of
‘reasonable, fair and just' procedure for a person accused of an offence and it must be
held implicit in the guarantee of Art. 21.”
Right to Clean Environment
• Similarly, while interpreting Art. 21, in Ganga Pollution (Tanneries) Case (AIR 1988
SC 1037), Justice Singh justifying the closure of polluting tanneries observed:' “We
17-04-2023

are conscious that closure of tanneries may bring unemployment, loss of revenue, but
life, health and ecology have greater importance to the people"
• Also in Shriram Gas Leak Case (AIR 1987 SC 1086), the court evolved the principle
of absolute liability of compensation through interpretation of the constitutional,
provisions relating to right to live and to the remedy under Art. 32 for violation of
fundamental rights. The premises on which the decision is rendered is clear and
unambiguous - the fundamental right to a clean and healthy environment The court
said that the State had power to restrict hazardous industrial activities for the purpose
of protecting the right of the people to live in a healthy environment. Further, the right
to live contains the right to claim compensation for the victims of pollution hazards.
Right to Education [Art. 21A]
• In Mohini Jain v State of Karnataka (AIR 1992 SC 1858), the two-judge bench of the
Supreme Court held that every citizen has a ‘right to education’ under the constitution.
The framers of the Constitution made it obligatory for State to provide education for
its citizens. The right to education is concomitant to the fundamental rights. Thus,
right to freedom of speech and expression cannot be fully enjoyed unless a citizen is
educated and conscious of individualistic dignity. Without education, dignity of the
individual can’t be assured. Art. 21 includes the right to live with human dignity and
all that goes along with it. The 'right to education’ flows directly from the right to life
because of its inherent fundamental importance (in the life of an individual).
• The court further observed: The State is under a constitutional mandate to provide
education at all levels and thus establish educational institutions at all levels
(including professional education like medicine, engineering) for citizens (either State
owned or State-recognised). The ‘Capitation fee' (charging amount beyond what is
permitted by law i.e. in excess of prescribed fee) brings to the fore a clear class basis,
and makes the availability of education beyond the reach of poor. Admission of non-
meritorious students by charging capitation fee strikes at the very root of the
Constitutional scheme and our educational system. Education in India has never been
a commodity for sale.
• In Unni Krishnan v State of A.P. (“Capitation Fee Case”) (AIR 1993 SC 2178), the
five- judge bench, by 3-2 majority held that admission to all recognised private
educational institutions particularly medical and engineering, shall be based on merit,
but 50% of seats in all professional colleges be filled by candidates prepared to pay a
higher fee.
• The system devised by us, the court said, would mean correspondingly more financial
burden on affluent students; whereas in the system prevalent in Andhra Pradesh, the
financial burden is equally distributed among all the students, as a result of which a
poor meritorious student often unable to pay the enhanced fee prescribed by the
government for such colleges. This is unjust and violation of Art. 14.

Golden triangle/basic structure- article 14, 19, 21.

Week 11 and 12
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Evaluate article 32 in greater detail. It is because now it has been expanded so that its
scope

Writs- You can argue for anybody in the court of law. You enforce fr under them.
Relationship between FR and DPSP. To what extent can dpsp be used to enforce FR.

Discussing writs, article 32 is a right in itself. The ability to appear before sc when
violation is there is under art 32(2)

Habeas corpus- This writ is in the nature of an order calling upon the person who has
detained another to produce the latter before the Court, in order to let the Court, know on
what ground he has been confined and to set him free if there is no legal justification for the
confinement. In Rudul Sah v. State of Bihar added a new dimension to judicial activism and
raised a set of vital questions, such as, liability of State to compensate for unlawful
detention, feasibility of claiming compensation from the State under Article 32 for wrongful
deprivation of fundamental rights, propriety of the Supreme Court passing an order for
compensation on a habeas corpus petition for enforcing the right to personal liberty.
The General Principle: The principle on which Habeas Corpus function is that a person
illegally detained in confinement without legal proceedings is entitled to seek the remedy of
habeas corpus.
Nature of Writs: While deciding whether Habeas Corpus writs are civil or criminal in nature,
it was held in Narayan v. Ishwarlal that the court would rely on the way of the procedures
in which the locale has been executed.
1. An application for habeas corpus can be made by any person on the behalf of the
prisoner/detenu as well as the prisoner/detenu himself.
2. Even a letter to the judge mentioning illegalities committed on prisoners in jail can be
admitted. In Sunil Batra v. Delhi Administration., a convict had written a letter to one of
the Judges of the Supreme Court alleging inhuman torture to a fellow convict. The late justice
Krishna Iyer treated this letter as a petition of habeas corpus and passed appropriate orders.
3. Courts can also act Suo motu in the interests of justice on any information received by
it from any quarter/source.

Mandamus; locus standi- Meaning: “A writ issued by a court to compel performance of a

particular act by lower court or a governmental officer or body, to correct a prior action
or failure to act.” It is used for enforcement of various rights of the public or to compel the
public statutory authorities to discharge their duties and to act within the bounds. It may be
used to do justice when there is wrongful exercise of power or a refusal to perform duties.
17-04-2023

The rule of Locus Standi is strictly followed in while issuing writ of mandamus. The
petitioner has to prove that he has a right to enforce public duty in his favour. The
mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty
is in nature of public duty and it especially affects the right of an individual, provided there is
no more appropriate remedy.”
There ought to be a legal right of the applicant for the performance of the legal duty.
The nature of the duty must be public. In The Praga Tools Corporation v. C.V. Imanual,
and Sohanlal v. Union of India, the Supreme Court stated that mandamus might under
certain circumstances lie against a private individual if it is established that he has colluded
with a public authority.
On the date of the petition, the right which is sought to be enforced must be subsisting.
The writ of Mandamus is not issued for anticipatory injury. But Anybody who is likely to
be affected by the order of a public officer is entitled to bring an application for mandamus if
the officer acts in contravention of his statutory duty.
Alternate Remedy: Mandamus is not refused on the ground that there is an adequate
alternative remedy where the petitioner complains that his fundamental right is infringed. In
Rashid Ahmad v. Municipal Board, it was held that in relation to Fundamental Rights the
availability of alternative remedy cannot be an absolute bar for the issue of writ though the
fact may be taken into consideration.

Prohibition is during the pendency of the judgment. Meaning: A writ of prohibition, also
known as a ‘stay order’, is issued to a lower court or a body to stop acting beyond its powers.
The Purpose: The basic purpose is to secure that the jurisdiction of an inferior court or
tribunal is properly exercised and that it does not usurp the jurisdiction which it does not
possess. Thus, writ of prohibition is available during the pendency of the proceedings and
before the order is made.
The Principle: Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is
better than cure’.
The writ of prohibition can be issued on the following grounds:
Absence or Excess of jurisdiction
Violation of the principles of natural justice
Unconstitutionality of a Statute
Infraction of Fundamental Rights.

Certiorary- only quash after the judgement is passed. Meaning: The writ of certiorari issued
to quash a decision after the decision is taken by a lower tribunal while prohibition is
issuable before the proceedings are completed. The law has always been, that a writ of
certiorari is issued against the acts or proceedings of a judicial or quasi- judicial body
conferred with power to determine question affecting the rights of subjects and obliged to act
judicially.
17-04-2023

The Purpose: of the writ of certiorari is not only negative in the sense that it is used to quash
an action, but it contains affirmative action as well. It is preventive as well as curative in
nature. The power of judicial review is not restricted where glaring injustice demands
affirmative action.

Meaning: The writ of Quo Warranto (by what warrant) is issued to inquire about the legality
of a claim by a person or authority to act in a public office, which he or she is not entitled
to. The writ of Quo Warranto is a mode of judicial control in the sense that the proceedings
review the actions of the administrative authority which appointed the person.
The writ is issued to the person ousting him from holding a public post to which he has no
right. It is used to try the civil right to a public post. Accordingly, the use of the writ is made
in cases of usurpation of a public office and removal of such usurper. Conversely, it protects
citizen from being deprived of public office to which he may have a right. A petition for the
writ of Quo Warranto can be filed by any person though he is not an aggrieved person.
The conditions necessary for the issue of a writ of Quo Warranto are:
1. The office must be public and it must be created by a statute or by the constitution
itself. In the case of Jamalpur Arya Samaj v. Dr D. Ram , the writ was denied on the ground
that writ of quo warranto cannot lie against an office of a private nature. And also, it is
necessary that office must be of substantive character.
2. The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.
3. There has been a contravention of the Constitution or a statute or statutory instrument, in
appointing such person to that office.
4. The claim should be asserted on the office by the public servant i.e. respondent. The court
issues the Writ of Quo Warranto in the following cases:
1. When the public office is in question, and it is of a substantive nature. A petition against a
private corporation cannot be filed.
2. The office is created by the State or the Constitution.

Due process of law- article 14, procedure established by += test of arbitrariness, just because
a law exists does not mean it is arbitrary.
Procedure established by law.
PIL can be filed by anybody- In the hands of the Supreme Court PIL in India has taken a
multidimensional character. The deep-rooted ill-disposed framework has been given a pass
by. With the coming of legal activism, letters, paper reports, dissensions by open lively
people, social activity bunches conveying to the notice of the Court in regard to infringement
of major rights were managed regarding them as writ petitions and the alleviation of pay was
additionally allowed through writ jurisdiction.
Article 32 gave to the subjects are the incredible powers with prompt impact. Furthermore,
the writs are generally summoned against the state and are issued when PILs are recorded.
17-04-2023

The Writ Jurisdictions which are presented by the Constitution, however, have privilege
controls and are optional in nature but then they are unbounded in its breaking points. The
carefulness, in any case, is practiced on legitimate standards.
Hence, obviously immense forces are vested with the Judiciary to control a managerial
activity when it encroaches fundamental privileges of the subjects or when it goes past the
soul of Grundnorm of our nation i.e Constitution of India. It guarantees the Rule of Law and
appropriate check and equalizations between the three organs of our vote-based framework.
The rationality of writs is very much synchronized in our Constitutional arrangements to
guarantee that privileges of nationals are not smothered by a self-assertive authoritative or
Judicial activity.

DPSP wrt PIL

Unlike Fundamental Rights, the Directive Principles of State Policy (DPSP) are non-
justiciable which means they are not enforceable by the courts for their violation.
However, the Constitution itself declares that ̃these principles are fundamental in the
governance of the country and it shall be the duty of the state to apply these principles in
making lawŝ. Hence, they impose a moral obligation on the state authorities for their
application.
Many times, the question arises that whether an individual can sue the state government or
the central government for not following the directive principles enumerated in Part IV. The
answer to this question is in negative.
The reason for the same lies in Article 37 which states that:
The provisions contained in this Part shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall
be the duty of the State to apply these principles in making laws.

 The question that whether Fundamental Rights precedes DPSPs or latter takes
precedence over former has been the subject of debate for years. There are
judicial pronouncements which settle this dispute of Madras vs. Champakan (AIR
1951 SC 226), the Apex Court was of the view that if a law contravenes a
Fundamental right, it would be void but the same is not with the DPSPs. It shows that
Fundamental rights are on a higher pedestal than DPSPs.
 In I. C. Golaknath & Ors vs. State Of Punjab & Anr. (1967 AIR 1643), The Court was
of the view that Fundamental rights cannot be curtailed by the law made by the
parliament. In furtherance of the same the Court also said that if a law is made to give
effect to Article 39(b) and Article 39(c) which come under the purview of DPSPs and
in the process, the law violates Article 14, Article 19 or Article 31, the the law cannot
be declared as unconstitutional and void merely on the ground of said contravention.
 In Keshavnanda Bharati vs the State of Kerala (1973) 4 SCC 225), The Apex Court
placed DPSPs on the higher pedestal than Fundamental Rights. Ultimately in the case
of Minerva Mills vs. Union of India (AIR 1980 SC 1789), the question before the
court was whether the directive principles of State policy enshrined in Art IV can have
primacy over the fundamental rights conferred by Part III of the Constitution. The
17-04-2023

court held that the doctrine of harmonious construction should be applied because
neither of the two has precedence to each other. Both are complementary therefore
they are needed to be balanced.

State of Uttaranchal V Balwant Singh chaufal-

Guidelines because there were many unnecessary pil filed to the court.
This case was an appeal from the decision of the High Court of Uttarkhand in a public
interest litigation. The High Court had directed the state government to decide whether
appointment of an Advocate General for the state of Uttaranchal beyond the age of 62
years, was valid or not. The law on this issue is settled that there is no upper limit on age for
a person to be appointed to the constitutional post of an Advocate General. The appeal was
allowed.
But the importance of the judgment lies on the fact that it raises certain interesting issues
about the need to regulate the field of public interest litigations. The filing of
indiscriminate petitions creates unnecessary strain on the judicial system and consequently
leads to inordinate delay in disposal of genuine and bona fide cases.
The courts contribution in helping the poorer sections by giving a new definition to life and
liberty and in protecting ecology, environment and forests is extremely significant. However,
the Bench said, unfortunately, of late, such an important jurisdiction, which has been
carefully carved out, created and nurtured with great care and caution by the courts, is being
blatantly abused by filing some petitions with oblique motives.
In order to preserve the purity and sanctity of the PIL, the Supreme Court has laid down
guidelines to be followed by courts:
(1) The courts must encourage genuine and bona fide PIL and effectively discourage and
curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public
interest litigation, it would be appropriate for each High Court to properly formulate rules
for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed the rules, should
frame the rules within three months. The Registrar General of each High Court is directed to
ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of
this court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining
a P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents of the
petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before
entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest, gravity
and urgency must be given priority over other petitions.
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(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of
genuine public harm or public injury. The court should also ensure that there is no
personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and
ulterior motives must be discouraged by imposing exemplary costs or by adopting similar
novel methods to curb frivolous petitions and the petitions filed for extraneous
considerations.

AIIMS Student Union v. AIIMS, AIR 2001 SC 3262 (Fundamental duties as a tool to
interpret the provisions of the Constitution) In AIIMS Students Union v. AIIMS 2001, it
was held by the Supreme Court that fundamental duties are equally important like
fundamental rights.
Though fundamental duties are not enforceable like fundamental rights they cannot be
overlooked as duties in Part IV A.
They are prefixed by the same word fundamental which was prefixed by the founding fathers
of the Constitution to ‘right’ in Part III-
You need to use Fundamental duties to interpret. Cannot put reservation that hampers
meritocracy, goal is to promote excellency.
For this situation, the AIIMs led an assessment for admission to PG courses. The outline in
September 1995 proclaimed that determination will be on merit. In any case, 1/third of the
seats was held for in-house up-and-comers of the organization. Not just 33% of the accessible
PG seats were saved for the establishment’s in-house up-and-comers, however, there was
likewise one more resulting reservation which was given to reservation for in-house
applicants of half seats discipline insightful, subject of a general reservation of 33%.
Three understudies of overflowing knowledge and with a longing to secure greatness in the
clinical field turned out to be a piece of this entire grand undertaking of seeking after such in
the most regarded clinical school of the country. In any case, they were presented before
Delhi High Court after having documented a writ request that grumbled about the entire
arrangement of reservations, trailed by the establishment, that allocated seats to the
understudies not founded on their benefits however considering the level of the held seats.
This, according to the applicants, brought about non-determination of up-and-comers who
turned out to be undeniably more praiseworthy than the ones who were getting chose.

Held- The judgment put together its last decision with respect to the ramifications of the
different precepts of equity with regards to schooling and reservation which likewise turns
out to be a region that is continually going through frugality and pressures occasionally. The
purpose for the presence of the booking models has been properly advanced in the judgment
when it specifies that the State’s obligation is to protect the privileges of each resident of
the country who are coming from the more fragile segments of the general public and
assist them with achieving accomplishment at standard with the residents who have had
advantages in their lives that remained as a benefit in the field of procuring in great
wholes. This genuine expectation of the arrangement of reservation gets upset when a
booking, for example, institutional coherence is presented.
17-04-2023

The judgment took the insight into past decisions that examined comparative cases like the
instance of Municipal Corporation of Greater Bombay and Ors. v Thukral Anjali where it was
appropriately settled that any inclination that does not fulfil the requirement for legitimacy is
infringing upon article 14 of the Constitution.
The judgment of AIIMS Student’s Union v AIIMS and Ors. has featured the significance of
principal obligations that all residents ought to maintain and give equivalent significance
to equivalent to contrasted with the major rights. The judgment has prevailed with regards
to making a solid base of seeing such a significance by organizing its contentions in the
correct way by putting together something very similar with respect to different points of
reference regarding the comparative issue of institutional progression and major rights and
the precept of uniformity. The judgment set forth the genuine pith of the obligation of the
State to keep up with genuine legitimacy, particularly on the grounds of general wellbeing, by
despite the thought behind the arrangements of reservation which has been depicted in the
Indian Constitution and nothing that is discretionary or is infringing upon the Constitution. A
reservation ought to never be mistaken for the demonstration of giving simple advantage and
favour to understudies who are in substantially less need of them than the ones battling to
discover a spot in the general public.

Week 12

Secular- no religion of its own. You can further your religion.

However, state recognises what a religion is.
Consciences is having your own thought.
17-04-2023

Limitation of the right- The right to religion under Article 26 is subject to certain limitations
and not absolute and unfettered. If any religious practice is in contravention to any public
order, morality or health then such religious practice cannot claim the protection of the state.

Prohibition of religious instruction in the State-aided Institutions (Art. 28)

Article 28 prohibits:
Providing religious instructions in any educational institutions that are maintained wholly out
of the state funds.
The above shall not apply to those educational institutions administered by the states but
established under endowment or trust requiring religious instruction to be imparted in such
institution.
Any person attending state recognized or state-funded educational institution is not required
to take part in religious instruction or attend any workshop conducted in such an institution or
premises of such educational institution.
Unless parents have given consent, you cannot be forced to participate in religious functions
in a convent school.

1. The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt- article 25-28.
Facts- The Math, known as Shirur Math, of which the petitioner(swami/sanyasi) was the
superior or Mathadhipati, was one of the eight Maths situated in Karnataka. Besides this eight
maths, there was one another math at – known as- ‘Shri Krishna Devara Math’. There was no
Mathadhipati or Superior of this Shri Krishna Devara Math, and the superiors of other 8
Maths managed its affairs in turns. The petitioner’s turn had come in 1931 and he had
taken over management of Shri Krishna Math. He had to borrow huge money in order
to fulfil his duties as Mathadhipati for celebrating an upcoming famous festival.
The Hindu Religious Endowments Boards asked Swami to appoint a manager for the affairs
of Math. This manager started acting on his own and paid no regard to the wishes of
Swami. Swami when wished to terminate him, asked for all the accounts and cash he holded.
The manager on this questioned Swami’s authority to terminate him. Swami filed the case in
court as for recovery of account books from manager and restraining the manager from
interfering with the affairs of the math. As the suit was still in court, the Board, which was
functioning under the earlier act, stated that a scheme should be framed for the administration
of the math since the endowments(money donated to math) of math were being mismanaged.
While the petitions, were still pending, earlier act was replaced by the new act and thus the
petitioner was allowed to challenge the validity of the new act as well.
Swami filed a petition in the court contending that –
In matters of religion, the Board cannot form a scheme which interfered with the
management of the Math – and therefore, this act of the Board violates the rights given under
Article 19 (1)(f), Article 26, and Article 15.
Issue-
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1. Whether the respondent as Mathadhipati has a right to property, in the religious

institution and its endowments, which would enable him to claim the protection of
Article 19(1)(f)? (19(1)(f) –has been omitted by 44thAmendment, 1978)
2. Whether Article 25, which protects the religious freedom, can be invoked in favour of
an institution? (Article 25 says, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate religion.)
3. Whether the math has the protection of Article 26 (d) which says that the religious
denominations have the right to administer the acquired movable and immovable
property in accordance with the law?- Yes, subject to rules as formulated by the
parliament from time to time.
4. Does the annual contribution levied on the religious institutions violate the rights
given under Article 27 of the Constitution.
ERP- In 1954, a seven-Judge Bench of the Supreme Court held that “[w]hat article 25(2)(a)
contemplates is not regulation by the State of religious practices as such, the freedom of
which is guaranteed by the Constitution except when they run counter to public order, health
and morality, but regulation of activities which are economic, commercial or political in their
character though they are associated with religious practices.” The Court rejected a
suggestion by the Advocate General of Madras which proposed that only “essential” practices
of a religion be given constitutional protection, pointing out that “what constitutes the
essential part of a religion is primarily to be ascertained with reference to the doctrines
of that religion itself.”

Held- 2. Whether the word ‘persons’ here means individual only or includes corporate
bodies as well.
LAW observed regarding Article 25 of the Constitution: “Institutions, as such cannot practise
or propagate religion; it can be done only by individual persons and whether these persons
propagate their personal views or the tenets(believes) for which the institution stands is really
immaterial for the purpose of Article 25. It is propagation of belief that is protected, no matter
whether the propagation takes place in a church or monastery, or in a temple or a parlour
meeting.”
Held : The court held that Article 25 cannot be invoked in favour of Institutions but,
since, Madhadhipati was not a corporate body or institution, and therefore, any law
preventing him from carrying on his beliefs, practices and duties as that of the head of
Math will violate Article 25.

Article 27
In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu
Religious and Charita Endowment Act, 1951 and contributions were levied under the Act. It
was contended by the petitioner that the contributions levied are taxes and not a fee and the
state of madras is not competent to enact such a provision. It was held by the Supreme
Court that though the contribution levied was tax but the object of it was for the proper
administration of the religious institution.
17-04-2023

The court therefore held, that since, Article 27 of the Constitution, prohibits the state to
provide the amount received from tax for meeting the expenditures for the promotion of
any particular religion, and as stated above there was no co-relation between the
amount received from contributions from religious institutions and the money spent on
the services by government, which means- that the State was not providing any funds
from the contributions received for any kind of promotion of any particular
religion, Article 27 was not attracted to the given facts and Section 76 of the Act was
upheld.

In 1954, a seven-Judge Bench of the Supreme Court held that “[w]hat article 25(2)(a)
contemplates is not regulation by the State of religious practices as such, the freedom of
which is guaranteed by the Constitution except when they run counter to public order, health
and morality, but regulation of activities which are economic, commercial or political in their
character though they are associated with religious practices.”
The Court rejected a suggestion by the Advocate General of Madras which proposed
that only “essential” practices of a religion be given constitutional protection, pointing
out that “what constitutes the essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself.”

2. Emmanuel v. State of Kerala

Refused to stand up for the national anthem, three children belonged to Jehovah a sect, who
worshipped jevoh and refused to sing national anthem. They said it was against the tenets of
their religious practice. These children stood for the national anthem but did not sing. The
school expelled them.
SC held that the headmistress’s action of expelling the children was wrong. It is violative of
their freedom of religion under 19(1) (a) and article 25.
With respect to the alleged violation of the right to freedom of religion under Article 25 of
the Constitution, the Court reiterated its jurisprudence that when the right to freely practice or
profess a religious belief is invoked, the offending act at issue “must be examined to discover
whether such act is to protect public order, morality and health, whether it is to give effect
to the other provisions of Part III of the Constitution or whether it is authori[z]ed by a law
made to regulate or restrict any economic, financial, political or secular activity which may
be associated with religious practice or to provide for social welfare and reform.” [p. 11]
According to the Court, the determination of whether a particular religious belief is
protected under Article 25 is dependent on “whether the belief is genuinely and
conscientiously held as part of the profession or practice of religion.” [p. 12] Having
concluded that the children truly and conscientiously believed in their religious
conviction, the Court found their expulsion unconstitutional under Article 25 on the
ground that is was based on mere departmental instructions.

3. Aruna Roy V Union of India- Not in course manual

Facts-In this case PIL was filed under Article 32 wherein it was contended by the petitioner
that the National Curriculum Framework for School Education (NCFSE) which was
17-04-2023

published by the National Council of Educational Research and Training is violative of

the provisions of the constitution.
It was also contended that it was anti-secular and was also without the consultation of the
Central Advisory Board of Education and hence it should be set aside. NCFSE provided
education for value development relating to basic human values, social justice, non-violence,
self-discipline, compassion, etc.
The court ruled that there is no violation of Article 28 and there is also no prohibition to study
religious philosophy for having value-based life in a society.
In this landmark case, the supreme court held that secularism as under the Indian
constitution should be understood with a positive meaning that is developing,
understanding, and respect towards different religions. In this case, the new education
policy, 2002 that provides for value-based education to school children based on basis of all
religions, was questioned. It was alleged that the same policy is violative of Article 28 of the
Indian Constitution and is thus anti-secular. And focusing on the positive meaning of
secularism, the court held that it is not compulsory that the idea of secularism could be
implemented only by way of neutral approach but can also be followed by way of
making one section of a religious group understand and respect religion and faith of
another section of people. And thus, the court in its judgment upheld the validity of the New
education policy, 2002.

4. Ismail Faruqui v. Union of India, AIR 1995 SC 605

6 December, riot happened, demolition of the mosque.
If something is considered is an essential religion practice only then part III can protect them.
Offered in open and adverse possession hence no right to religion.
ERP can be tested for part III for the constitution.
Facts- Dr Ismail Faruqui had filed a petition challenging the validity of the Acquisition of
Certain Area at Ayodhya Act, 1993, by which the Centre acquired 67.703 acres of land in and
around the Babri Masjid.
A five-judge Bench, in a majority, upheld the acquisition, saying “any step taken to arrest
escalation of communal tension… can, by no stretch of argumentation, be termed non-
secular… or against the concept of secularism — a creed of the Indian people embedded in
the ethos.”
In their order, they declared that namaz could be offered anywhere. The judges said,
“(Mosque) is not an essential part of the practice of the religion of Islam and namaz
(prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition
is not prohibited by the provisions in the Constitution of India”.
The bench also allowed the Centre to include the 2.77 acres (on which the Babri Masjid once
stood) in the 67.7 acres of land to be acquired under the Acquisition of Certain Area at
Ayodhya (ACAA) Act, 1993.
17-04-2023

In the subsequent hearing in the Ayodhya land dispute case, in 2010 the Allahabad High
Court had referred to this judgment to apportion one-third of the land to Hindus, one-third to
Muslims and one-third to Lord Ram, the diety.
The Hon’ble Supreme Court has held that the Right to Practice, Profess and Propagate
Religion guaranteed under Article 25 of the Constitution does not extend to the Right of
Worship at any and every place of worship so that any hindrance to worship at a
particular place per se may infringe the religious freedom guaranteed under Articles 25
and 26 of the Constitution of India.
The protection under Articles 25 and 26 is to religious practice which forms integral part of
practice of that religion. While offer of prayer or worship is a religious practice, its offering at
every location where such prayers can be offered would not be an essential or integral part of
such religious practice unless the place has a particular significance for that religion so as to
form an essential or integral part thereof.
Places of worship of any religion having particular significance of that religion to make it an
essential or integral part of the religion stand on a different footing and have to be treated
differently and more reverentially.
The Hon’ble Supreme Court held that a mosque is not an essential part of the practice of
the religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in
open. The Right to Worship is not at any and every place so long as it can be practiced
effectively, unless the Right to Worship at a particular place is itself an integral part of
that right. Relying on said ratio of law it is submitted that without offering prayer at Sri
Ramjanamsthan described as Babri mosque in the plaint it can be practiced somewhere else
but offering prayer instead of Sri Ramjanamsthan at any other place cannot be practiced
because the merit which is obtained by worshiping at the birth place of Sri Ram cannot
be obtained by doing so at other places and it will be contrary to the holy Divine Sacred
Scripture of the Hindus and will cause extinction of a most sacred shrine of the Hindus.
It has been contended that a mosque enjoys a particular position in Muslim Law and once a
mosque is established and prayers are offered in such a mosque, the same remains for all time
to come a property of Allah and the same never reverts back to the donor or founder of the
mosque and any person professing Islamic faith can offer prayer in such a mosque and even if
the structure is demolished, the place remains the same where the namaz can be offered. As
indicated hereinbefore, in British India, no such protection was given to a mosque and the
mosque was subjected to the provisions of statute of limitation thereby extinguishing the right
of Muslims to offer prayers in a particular mosque lost by adverse possession over that
property.
The correct position may be summarized thus. Under the Mahomedan Law applicable in
India, title to a mosque can be lost by adverse possession. If that is the position in law, there
can be no reason to hold that a mosque has a unique or special status, higher than that of the
places of worship of other religions in secular India to make it immune from acquisition by
exercise of the sovereign or prerogative power of the State. A mosque is not an essential part
of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered
anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the
Constitution of India. Irrespective of the status of a mosque in an Islamic country for the
purpose of immunity from acquisition by the State in exercise of the sovereign power, its
status and immunity from acquisition in the secular ethos of India under the Constitution is
the same and equal to that of the places of worship of the other religions, namely, church,
temple etc. It is neither more nor less than that of the places of worship of the other religions.
17-04-2023

Obviously, the acquisition of any religious place is to be made only in unusual and
extraordinary situations for a larger national purpose keeping in view that such acquisition
should not result in extinction of the right to practice the religion, if the significance of that
place be such. Subject to this condition, the power of acquisition is available for a mosque
like any other place of worship of any religion. The right to worship is not at any and
every place, so long as it can be practiced effectively, unless the right to worship at a
particular place is itself an integral part of that right”.

5. Sardar Syedna Taher Saifuddin V State of Bombay, ERP upheld

ERP test read based on facts, differs from facts to facts.
The Supreme Court applied the ERP test to determine whether the Bombay Prevention of
Excommunication Act, 1949 violated the fundamental rights und`er Articles 25 and 26
of the Dawoodi Bohra Community. The Head Priest of this community was vested with
certain powers, one of which included the power of excommunication, which was to be
exercised in accordance with the tenets of the community.
Such power, it was argued, was integral to the religious faith and beliefs of the Dawoodi
Bohra Community which was a religious denomination under Article 26 of the Constitution.
With a 4:1 majority, the 5 Judge Bench of the Supreme Court upheld the right and power of
excommunication bestowed upon the Head Priest of the Dawoodi Bohra Community.
It was further observed that what constitutes an essential practice is to be gathered from the
texts and tenets of the religion. The legislature, the Court added, was not permitted to reform
a religion out of existence or identity.
By. s. 3 of the Bombay Prevention of Excommunication Act, 1949 (Bom. 42 of 1949), it is
provided that "Notwithstanding anything contained in any law, custom or usage for the time
being in force, to the contrary, no excommunication of member of any community shall be
valid and shall be of any effect."
The preamble to the Act state, inter alia, that in keeping with the changing times and in the
public interest, it was expedient to stop the practice of excommunication prevalent in certain
communities and the definition of the word "community" contained in s. 2 of the Act
included the included the religious denomination of Dawoodi Bohras.
The petitioner, who was the religious head of the Dawoodi Bohra community and trustee of
its property, challenged the constitutional validity of the Act on the ground that it violated its
fundamental rights guaranteed by Arts. 25 and 26 of the Constitution. Reliance was placed on
behalf of the petitioner on the decision of Judicial Committee of the Privy Council in Hasan
Ali v. Mansoor Ali, (1947) L. R. 75 I.A. 1, to which he was a party, as recognising his right as
the 51st Dai-ul-Mutlaq of the community to excommunicate any of its members under
prescribed limits.
Held, (Per Sarkar, Das Gupta and Mudholkar, JJ., Sinha, C. J., dissenting), that the
impugned Act violated Arts. 25 and 26 of the Constitution and was, therefore, void. It
was evident from the religious faith and tenets of the Dawoodi Bohra community that the
exercise of the power of excommunication by its religious head on religious grounds formed
part of the management of its affairs in matters of religion and the impugned Act in making
even such excommunication invalid infringed the right of the community under Art. 26(b) of
the Constitution.
17-04-2023

It is well settled that that Arts. 25 and 26 of the Constitution protect not merely religious
doctrines and beliefs but also acts done in pursuance of religion and thus guarantee
rituals and observances, ceremonies and modes of worship which are integral parts of
religion. What is essential part of a religion or what its religious practice has to be
judged in the light of its doctrine and such practices as are regarded by the community
as a part of its religion must also be included in them.
The fundamental right under Art. 26(b) is not subjected to preservation of civil rights and its
only limitations are those expressly mentioned by the Article itself i.e. public order,
morality and health and those mentioned by cl. 2 of Art. 25 as has been held by this court.
The fact that in the instant case civil rights of an excommunicated person would be affected
by the exercise of the fundamental right under Art. 26(b) can, therefore, be of no consequence
nor could it be said that excommunication was prejudicial to public order, morality and
health.
The impugned Act did not fall within Art. 25(2)(a) nor could it be said to be a law "providing
for social welfare and reform" within the meaning of Art. 25(2)(b) of the Constitution. It
barred excommunication even on religious grounds and could not be said to promote social
welfare and reform even though it sought to prevent consequent loss of civil rights.
Dissenting judgement- Per Sinha, C. J.-It was not correct to say that the Privy Council in
Hasanali v. Mansoorali, held that the right of the Dai-ul-Mutlaq to excommunicate a member
of the community was a purely religious matter. The Dai was not merely the head of a
religious community but also the trustee of its property. While his actions in the purely
religious aspect could be no concern of the Courts, those touching the civil rights of the
members of the community were justiciable and liable to interference by the legislature and
the judiciary.

The majority judgment held that not only could the Syedna expel members from the
religious life of the community, but that the loss of some civil rights of the
excommunicated member was acceptable as a "necessary consequence of
excommunication." The court further held that "the fact that civil rights of a person are
affected by the exercise of the fundamental right under Article 26(b) is of no
consequence."
In his strong and correct dissent, Chief Justice Sinha noted: "The right of excommunication is
not a purely religious matter. The effect of the excommunication or expulsion from the
community is that the expelled person is excluded from the exercise of rights in connection
not only with places of worship but also from burying the dead in the community burial
ground and other rights to property belonging to the community, which are all disputes
of a civil nature and are not purely religious matters.
Court upheld the right and power of excommunication bestowed upon the Head Priest
of the Dawoodi Bohra Community. It was further observed that what constitutes an
essential practice is to be gathered from the texts and tenets of the religion. The
legislature, the Court added, was not permitted to reform a religion out of existence or
identity.

6. Rev. Stanislaus v State of M.P., AIR 1977 SC 908- conversion laws challenged.
17-04-2023

The constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968,
was challenged in the High Court of Madhya Pradesh and the constitutional validity of the
Orissa Freedom of Religion Act, 1967 was challenged in the High Court of Orissa. The two
Acts prohibit forcible conversion and make the offence punishable. The Madhya Pradesh
High Court upheld the validity of the Act. The Orissa High Court held that Art. 25(2) of the
Constitution guarantees propogation of religion and conversion is a part Christian religion;
that the State Legislature has no power to enact the impugned legislation which in pith and
sub- stance is a law relating to religion; and that entry 97 of List I would apply.
Upholding the validity of both the Acts.
(1) Article 25 guarantees to all persons right to freedom and conscience and the right freely to
profess, practice and propagate religion subject to public order, morality and health. The word
'propagate' has been used in the Article as meaning to transmit or spread from person to
person or from place to place. The Article does not grant right to convert other person to
one's own religion but to transmit or spread one's religion by an exposition of its tenets.
The freedom of religion enshrined in Art. 25 is not guaranteed in respect of one religion only
but covers all religions alike which can be properly enjoyed by a person if he exercises his
right in a manner commensurate with the like freedom of persons following other religion.
What is freedom for one is freedom for the other in equal measure and there can,
therefore, be no such thing as a fundamental right to convert any person to one's own
religion.
(2) The Madhya Pradesh Act prohibits conversion from one religion to another by use of
force, allurement or fraudu- lent means and matters incidental thereto. Similarly, the
Orissa Act prohibits conversion by the use of force or by inducement or by any fraudulent
means. Both the statutes, therefore, clearly provide for the maintenance of public order
because if forcible conversion had not been prohibited that would have created public
disorder in the States. The expression "public order" has a wide connotation.
(3) If an attempt is made to raise communal passions, e.g. on the ground that someone has
been forcibly converted to another religion it would in all probability give rise to an
apprehension of a breach of the public order affecting the community at large The impugned
Acts therefore fall within the purview of Entry 1 of List II of the Seventh Schedule as they
are meant to avoid disturbance to the public order by prohibiting conversion from one
religion to another in a manner reprehensible to the conscience of the community. The two
Acts do not provide for the regulation of religion and do not fall under Entry 97 of List I.

7. Seshammal & Ors v State of Tamil Nadu

Questioning the validity of the Tamil Nadu Hindu Religious and Charitable Endowments
(Amendment) Act, 1970, the petitioners claimed a violation of Articles 25 and 26 of the
Constitution.
The Court disagreed. It was held that the purpose of the Act was to regulate secular functions
like management and administration, which included the appointment of the Archaka.
It did not however aim to regulate or change the rituals and ceremonies followed in the
temples. The Court however clarified that while the appointment of Archakas was a secular
function, the sect or denomination from which they were to be appointed was to be in
accordance with the Agamas as that was essential to and firmly embedded in the religion.
17-04-2023

The Court however clarified that while the appointment of Archakas was a secular
function, the sect or denomination from which they were to be appointed was to be in
accordance with the Agamas as that was essential to and firmly embedded in the
religion.
observed that the appointment of Archaka could not be in contravention to the constitutional
principles, referring to equality and freedom from caste discrimination.
However, they acknowledged the claims of the appellants insofar as Archaka appointments
could not be made in contravention to diktats imposed by the Agamas, the religious scriptures
that governed a Hindu temple.

Ananda marga- The Court observed that in order to determine whether or not a particular
practice is an essential part of religion, the test must be whether the absence of the practice
itself fundamentally alters the religion.

Shayara Bano- Rejecting the argument that the practice of Triple Talaq was an essential
practice under Islam, the Supreme Court held that it was not an essential practice and could
not be offered constitutional protection under Article 25. The Court held that it was against
the basic tenets of the Quran and thus violative of the Shariat. A practice that is merely
permitted or not prohibited by a religion cannot be considered an essential or positive tenet
sanctioned by that particular religion. Triple Talaq is only a form of talaq which is
permissible in law, but at the same time, stated to be sinful by the very Hanafi School which
tolerates it. Therefore, this would not form part of any essential religious practice as the
fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes,
will not change without this practice.

Definition of law
17-04-2023

Article 13- Fundamental rights exist from 26th January 1950.

Article 13(1) talks about pre constitutional laws. Since FR came into existence, these laws
should be consistent with FR or else they will be declared void to the extent that they are
inconsistent. Moreover, it is prospective in nature and not retrospective which means it is
ineffective only with respect to enforcement of rights and liabilities in post constitution.

1. Keshav madhav menon V state of Bombay- Article 13 not retrospective in nature

Facts- the petitioner published a pamphlet according to the pre- constitutional laws in 1949
but as the Indian constitution came in effect from 1950 it gave the freedom of speech and
expression under article 19 of the Indian constitution, therefore the apex court said that the
petitioner's trial must go on as the benefit of article 13 would not be given to him because
article 13 is not retrospective in nature.
Contended that the act was inconsistent with FR and hence void. It was held that Art. 13(1)
could not apply to him as the offence had been committed before the enforcement of the
Constitution and, therefore, the proceedings against him were not affected.
Held-Article 13(1) cannot apply to his case as the offence was committed before the
constitution came into force and therefore the proceedings initiated in 1949 would not
be affected.
By Justice Saiyid Fazal Ali and Justice B.K. Mukherjea:
Though Art. 13(1) has no retrospective operation, and transactions of the past which are
closed and rights which have already vested will remain untouched, with regard to
inchoate matters which were still not determined when the Constitution came into force,
and as regards proceedings which were pending at the time of the enforcement of the
Constitution and not yet prosecuted to a final judgment, a law which has become void
under Art. 13(1) of the Constitution cannot be applied. What has to be looked at is the
state of the law at the time when the question arises as to whether a person has committed an
offence, and if it is found that the law which made the act an offence has become completely
ineffectual and nugatory, then neither can a charge be framed, nor can the accused person be
convicted.
Reasoning- If it were against the Constitution’s spirit to continue proceedings under such a
void law, then it would also be against the spirit of the Constitution that other men who
were convicted under the said law before the Constitution came into force continue to
rot in jail.
Article 13 (1) did not make the existing laws inconsistent with the fundamental rights
void ab initio or for all purposes. On the contrary, it provided that all existing laws, in
so far as they are inconsistent with the fundamental rights, shall be void to the extent of
their inconsistency.
A citizen must possess a fundamental right before he can pray to the court to declare a
law that is inconsistent with it void.
17-04-2023

But the procedure through which rights and liabilities were being enforced in the pre-
Constitution era is a different matter. A discriminatory procedure becomes void after the
commencement of the Constitution and so it cannot operate even to enforce the pre-
Constitution rights and liabilities, Lachmandas v. State of Maharashtra.
A law inconsistent with a Fundamental Right is not void as a whole. It is void only to the
extent of inconsistency. This means that the doctrine of severability has to be applied and
the offending portion of the law has to be severed from the valid portion thereof, Sub-
Inspector Rooplal v. Lt. Governor.

Doctrine of Severability- An Act may not be void as a whole; only a part of it may be void
and if that part is severable from the rest which is valid, then the rest may continue to stand
and remain operative. The Act will then be read as if the invalid portion was not there. If the
valid portion is so closely mixed up with invalid portion that it cannot be separated without
leaving an incomplete or mingled remainder the court will declare the entire Act void.

2. R.M.D.C. v. Union of India

The Supreme Court has explained the doctrine as follows “When a legislature whose
authority is subject to limitations aforesaid enacts a law which is wholly in excess of its
powers, it is entirely void and must be completely ignored. But when the legislation falls in
part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter;
but does it on that become necessarily void in its entirety? The answer to this question must
depend on whether what is valid could be separated from what is invalid, and that is a
question which has to be decided by the Court on a consideration of the provisions of the
Act”.

4. State of Bombay v FN Balsar

F.N .Balsara prayed High Court for a writ of mandamus against the State of Bombay and the
Prohibition Commissioner to forbid them from enforcing against him the provisions of
the Prohibition Act. The Petitioner prayed to allow him to exercise his rights to possess,
consume and use certain articles i.e whisky, brandy, wine, beer, medicated wine, eau-de-
colonge etc, and to import and export across the Customs frontier and to purchase, possess,
consume and use any stock of foreign liquor, eau-de-cologne, lavender water, medicated
wines and medicinal preparations containing alcohol.
Issue- Whether the Bombay Prohibition Act, 1949 was valid.
Held- The power accorded to the State Legislature under Entry 31 of List II to prohibit the
keeping, selling and using intoxicating alcohol is indisputable. Decision declaring some of
the provisions of the Act to be invalid does not affect the validity of the Act as it remains.
17-04-2023

Doctrine of Eclipse
The doctrine of eclipse envisages that a pre-Constitution law inconsistent with a Fundamental
Right was not wiped out altogether from the statute book after the commencement of the
Constitution as it continued to exist in respect of rights and liabilities which had accrued
before the date of the Constitution.
Therefore, the law in question will be regarded as having been ‘eclipsed’ for the time being
by the relevant Fundamental Right. It was in a dormant or moribund condition for the time
being. Such a law was not dead for all purposes. If the relevant Fundamental Right is
amended, then the effect would be “to remove the shadow and to make the impugned Act free
from all blemish or infirmity”.
3. Bhikaji v. State of Madhya Pradesh – Doctrine of eclipse
Facts- A legal provision enacted in 1948, authorising the State Government to exclude all
private motor transport business, became inconsistent with Art. 19(1)(g) when the
Constitution came into force in 1950. In 1951, Art. 19(1) (g) was amended so as to permit
the State Government to monopolise any business.
Issue- What was the effect of the constitutional amendment of 1951 on the law of 1948?
Whether the law having become void was dead once for all and so could not be revitalised by
a subsequent constitutional amendment without being re-enacted, or whether it was revived
automatically?
Held- It was to solve this problem that the Supreme Court enunciated the doctrine of eclipse.
Reasoning- The doctrine of eclipse has been held to apply only to the pre-Constitution
and not to the post- Constitution laws. The reason is that while a pre-Constitution law
was valid when enacted and, therefore, was not void ab initio, but its voidity supervened
when the Constitution came into force, a post-Constitution law infringing a
Fundamental Right is unconstitutional and a nullity from its very inception. Therefore,
it cannot be vitalised by a subsequent amendment of the Constitution removing the
infirmity in the way of passing the law.
The most important case which was responsible for articulating and propounding the doctrine
of eclipse was Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh (1955). In this
case, the petitioners challenged the constitutional validity of the C.P. & Berar Motor Vehicles
(Amendment) Act, 1947 which amended the Motor Vehicles Act, 1939. The petitioners
contended that the passing of the Indian Constitution rendered the Amendment Act void as it
violated Article 19(1)(g) or the freedom to practise any profession or to carry on any
occupation, trade or business. The Amendment had allowed the Provincial Government to
establish a monopoly over the motor transport business in the state, which the petitioners
stated was violative of the fundamental rights enshrined in the newly minted Indian
Constitution of 1950.
The respondents contended that although the Act was initially violative of the Indian
Constitution, after the passing of the Constitution (First Amendment) Act,
1951 andConstitution (Fourth Amendment) Act, 1955, the inconsistencies were removed
through the addition of Article 19(6) and the C.P. & Berar Motor Vehicles (Amendment) Act
was functional again. The petitioners in response categorically stated that the Act had become
void pursuant to Article 13(1) and was considered dead unless re-enacted again.
17-04-2023

The petitioners’ claims were however rejected and the arguments of the respondents were
accepted.
The following are certain key points from the judgement of the Bhikaji case-
For starters, the judgement relied on the Keshava case. Further, it stated that the term
“void” in Article 13 meant void to the extent of inconsistency with fundamental rights.
This implied that the entire operation of the Act did not get stopped. The true effect of Art.
13(1) was to render an Act, inconsistent with a fundamental right, inoperative to the extent
of the inconsistency. It is overshadowed by the fundamental right and remains dormant
but is not dead.
This is the doctrine of eclipse. The inconsistency with the fundamental right eclipses the
Act until the inconsistency, hence the eclipse, is removed.
With the Constitution (First Amendment) Act, 1951 and changes in Clause 6 of Article 19,
the provisions of the impugned Act were no longer inconsistent therewith and the result was
that the impugned Act began to operate once again from the date of such an amendment.

Is constitutional Amendment a law? - no

The question whether the word “law” in clause (2) of Art.13 also includes a ‘Constitutional
amendment’ was for the first time considered by the supreme court in Shankari Prasad Singh
Deo v. Union of India the Constitutional (1st Amendment) Act, 1951, which amended the
fundamental rights guaranteed under the constitution, which was challenged on the ground
that since the amendment has the effect of abridging the fundamental rights it was not valid
law within the meaning of clause (2) of Article 13.
The contention was rejected by the apex court and held that the word ‘law’ in clause (2) did
not include a law made by the Parliament under Article 368 amending the constitution.
It was said that the word ‘law’ means the “the rules and regulations enacted by
legislatures” and not the “constitutional amendments made in exercise of constituent
powers.”
Therefore, this judgment was followed by majority of judgments such as in Sajjan Singh v.
State of Rajasthan.
However, in the case of Golak Nath v. State of Punjab, the apex court by 6:5 majority held
that the word ‘law’ in Article 13 (2) included the amendment of the constitution and as a
consequence, if an amendment abridged or took away fundamental rights guaranteed under
Part III of the Constitution of India, the amending Act itself will become void and ultra vires.
Subsequently, in the case of Kesavananda Bharati v. State of Kerala, the Supreme Court of
India overruled the Golak Nath case and unanimously held that the Constitution (24th
amendment) Act, 1971, which inserted clause (4) in Article 13 and clause (3) in Article 368
was valid. Therefore, all the judges agreed that the amended Article 368, all the provisions
including those enshrining fundamental rights (Part III) could be amended.
1. Kesavananda Bharti V. State of Kerala
17-04-2023

In this case, the 24th and 25th Amendment Act of 1971 was challenged. A Judge Bench of 13
Judges was constituted. With the ration of 7:6 held that:
Power to amend the constitution is to be found in Article 368. It is hard to believe that it lies
in residuary power.
There is a difference between ordinary law and constitutional amendment.
Parliament can’t destroy or amend the basic structure of the constitution.
CJI Sikri gave the list of the Basic structure though not exhaustive.
 The supremacy of the constitution.
 Republic and democratic form of government.
 Secular character of the Indian Constitution.
 Separation of Power.
 Federal character.
Court also held that “compensation” can’t be replaced with “amount”.
Article 31(c)(i) was held valid but Article 31(c) (i) was declared invalid.

2. State of Gujarat v. Shri Ambika Mills, (1974) 4 SCC 656 (Future Laws)
Any law will be void only to the extent of inconsistency but will remain applicable to
inchoate rights and liabilities. Moreover, it only stays in dormant state in case of
citizens.
Article 13(1) and 13(2) differentiates between the post and pre constitutional laws which
highlight the need for distinction between the citizens and non-citizens. With the advent
of the constitution, special rights were given to the citizens, which render them a
protection against any unconstitutional post-constitution laws. (The law cannot be held
void in rem)
There are many fundamental rights, and they inhere in diverse types of persons, minorities or
denominations. Thus, the laws which are against one set of group may not be void for others.
Article 13 imposes the injunction on the state while making laws, no law can be made against
the fundamental rights.
The non-citizens are given the right to approach the courts for infringement of their
right to property. But the non-citizens are not allowed to question the valid laws passed
by the competent legislature by taking the plea that their right to property is infringed.
The non-citizens cannot take advantage of the voidness of law.
Issue- Whether, on that assumption, the first respondent could claim that the law was void as
against the non-citizen employers or employees under Article 13(2) and further contend
that the non-citizen employers have been deprived of their property without the authority of
law, as, ex hypothesi a void law is a nullity.
Held- post constitutional laws cannot be inconsistent with FR or they are declared as void.
17-04-2023

3. Basheshar Nath v. CIT, AIR 1959 SC 149 (Waiver of Fundamental Rights)

Ours is a nascent democracy and situated as we are, socially, economically, educationally and
politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights. The
question arose before the court the Supreme Court in basheshar nath v. CIT.
The petitioner whose case was referred to the investigation commission under section 5(1) of
the Taxation on income (investigation commission) act,1947, was found to have concealed
his income to the tune of Rs. 4,47,915. With a view to escape heavier penalty, he agreed
to pay Rs.3,50,000 by instalments of Rs.5000 per month, by way of arrears of tax and
penalty. This agreement was reached in May,1954 under section 8-A of the said act. The
petitioner paid a number of instalments.

In the meanwhile, the Supreme Court in Suraj Mall Mehto v. A.V. Visvanath Sastri followed
by Muthiah v. Commissioner of Income Tax, held section 5(1) of the act inconsistent with
article 14 of the constitution.
On this the petitioner stopped paying further instalment and challenged the settlement
between him and the investigation commission.
The petitioner contented that when section 5(1) of the investigation act had been held
unconstitutional, the settlement under section 8A could not be enforced, for the foundation of
the proceedings under section 8 was reference under section 5(1) and the foundation having
crumbled down, the superstructure must fall with it. On the other hand, the respondent raised
the plea of waiver and argued that even section if section 5(1) was invalid, the petitioner, by
voluntarily entering into a settlement, must be taken to have waived his fundamental right
guaranteed under Article 14.
The Supreme Court however, upheld the contention of the petitioner and held that the
fundamental could not be waived.
The majority of the court expounded the following views:
1. It is not open to a citizen to waive his fundamental rights conferred by Part 3 of the
constitution. The Supreme Court is the bulwark of the fundamental rights which have been
for the first time enacted in the constitution and it would be a sacrilege to whittle down these
rights.

2. Whatever be the position in America, no distinction can be drawn here, as has been
attempted in the United States of America, between the fundamental rights which may be said
to have been enacted for the benefit of the individual and those enacted in public interest or
on grounds of public policy.[19]

Marbury vs Madison: Judicial Review

• The Doctrine of Judicial Review was for the first time propounded by the Supreme
Court of America. Originally, the constitution of United States did not contain an
express provision for judicial review but it was assumed by the Supreme Court of
United States in the historic case of Marbury vs Madison The case was rooted in
division between the Federalist and Republican parties following election 1800.
During election, Thomas Jefferson(Republican) defeated John Adams(Federalist).
While Adams lost election in November 1800, his term of office did not expire until
following march 1801. Adams used this period to appoint several federal judges to
17-04-2023

bench. Some of these appointments were made during final hours of his presidency,
earning dubious title 'the midnight judge'.
• Judges could not assume position until a commission was officially delivered by
secretary of state. Since many of Adams appointments were made in final days of his
presidency many of commissions were not delivered when he left office. The new
president, Thomas Jefferson ordered his new secretary of the state James Madison not
to deliver the commission. William Marbury, who expected his commission requested
the SC to issue a writ of mandamus(an official order to govt officer) to Madison
ordering him to deliver the commission.
• Marbury argued that SC had power to issue writ under provisions of judiciary act of
1789,passed by congress. In 1803,the chief justice John Marshall of SC ruled that:
• Madison should not have withheld Marbury's commission, since the commission was
signed & sealed it was rightfully owed to Marbury.
• However he also ruled that SC did not have jurisdiction in this matter & could not
force Madison to deliver commission.
• U/s.13, Judiciary act,1789 passed by congress gave supreme court the power to issue
writs & orders. (In Marshall's opinion, Congress could not give the Supreme Court the
power to issue an order granting Marbury his commission. Only the Constitution
could, and the document said nothing about the Supreme Court having the power to
issue such an order.) Sec.13 of judiciary act,1789,was declared unconstitutional
because congress tries to expand SC authority to include writ of mandamus under
court's original jurisdiction. (Art.3, sec.2 of U.S constitution specifically listed 3 types
of original jurisdiction). Marshall stated that congress overstepped its authority by
changing SC jurisdiction without following proper amendment procedure.
• Thus, CJ Marshall declared s.13 ,judiciary act of 1879,as unconstitutional.
• This case became a landmark case for judicial review. Marshall stated,
''constitution is the supreme law of land''& SC has final say over meaning of
constitution.
• Thus, court itself asserted the doctrine of judicial review.

Right to equality- article 14

WEEKS 5 TO 7: THE RIGHT TO EQUALITY: GENERAL PRINCIPLES (ARTICLES 14 &

15), AFFIRMATIVE ACTION & SUBSTANTIVE EQUALITY: GENDER & CASTE AS
ANALYTICAL CATEGORIES (ARTICLES 15, 16 & 17)

• Articles 15 and 16 that provides for affirmative action in education and government
jobs will be the focus of study. We will closely read the leading Supreme Court
opinions and constitutional amendments to understand and analyze the constitutional
position and the contemporary debates on reservation.
17-04-2023

• We will also discuss the relevance of Article 17 which created constitutional criminal
law for the first time in the history of constitution-making.
• Lastly, using gender as an analytical category, we will attempt to understand equality
in terms of substantive equality in the Constitution.
Right to Equality
14. Equality before law. -The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly
or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes.]
2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to in clause (1) of article
30.]
3[(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article
29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clauses (4) and (5) in so far as such special
provisions relate to their admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30, which in the case of reservation would be in
addition to the existing reservations and subject to a maximum of ten per cent. of the total
seats in each category.
Explanation.—For the purposes of this article and article 16, "economically weaker sections"
shall be such as may be notified by the State from time to time on the basis of family income
and other indicators of economic disadvantage.]
17-04-2023

the Supreme Court has said that the Constitution lays down provisions both for protective
discrimination as also affirmative action.

Art. 16 guarantees to the citizens of India equality of opportunity in matters of public

employment. Art. 17 abolishes untouchability, and Art. 18 abolishes titles, other than a
military or academic distinction.
Neither Parliament nor any State Legislature can transgress the principle of equality.
This principle has been recently reiterated by the Supreme Court in M.G.
Badappanavar v. State of Karnataka in the following words: “Equality is a basic feature
of the Constitution of India and any treatment of equals unequally or unequals as
equals will be violation of basic structure of the Constitution of India.”

In India, the first and second rule has been adopted but the third rule has been omitted
because the Constitution is the supreme law of the land, and the rights of the people originate
from it and all the other laws which are passed by the Legislature should not violate the
provisions of the Constitution.
EXCEPTIONS:
An exception to Equality before Law
There is some exception to the rule of equality which has been provided under the Indian
Constitution. Under Articles 105 and 194, the Members of the Parliament and the State
Legislatures respectively are not held liable for anything which they say within the House.
Under Article 359 when there is a proclamation of Emergency, the operation of Fundamental
Rights including Article 14 can be suspended and if any violation of this right is done during
such proclamation, it cannot be challenged in the Courts after the proclamation ends.
Under Article 361 the President and the Governors are not liable to any court for any act
which is done by them in exercising their power and duties of the office.
(c) Equal Subjection to Courts: According to Dicey, equality before the law means that no
man should be made to suffer in body or goods except for a distinct breach of law ; It also
means that no man is above the law and that all are amenable to the jurisdiction of the
ordinary courts. Dicey was against the Administrative tribunals as they differed
fundamentally from the Ordinary courts. The tribunals do not follow the court procedures
(Civil and Criminal) and also the law relating to Evidence. But, these tribunals had come to
stay. Hence, the courts have imposed a duty on these tribunals that they should follow the
principles of natural justice.
Dicey's concept of Rule of law has equality as its central core. According to him it means the
'Supremacy of Law'. Equality requires that Justice must be available to all. Hence, Justice
should not be denied to the accused who on grounds of poverty is not in a position to
maintain an advocate to defend him . Legal aid is provided in England under the Poor
Prisoners Defence Act, and, Legal Aid and Advice Act.
Dicey had given three meanings to this term:
17-04-2023

1. The supremacy of law: It means that the law is supreme, and the Government cannot act
arbitrarily. If a person has violated any law, he can be punished but he cannot be punished
for anything else at the whim of the Government.
2. Equality before Law: It means that all the people should be subject to the same provisions
of law which is administered by the ordinary courts of the land. Thus, no person is above the
law and has to follow the law. Dicey had given an exception to the Monarch under this rule
because in England it is believed that the King can do no wrong.
3. Constitution originates from the ordinary law: It means that the rights of the people is not
granted by the constitution but instead it is the result of the law of the land which is
administered by the courts.
Equal Protection of the Laws
This is a dynamic concept taken from the American Constitution. It implies equality of
treatment in equal circumstances. The essence of it is that when persons are similarly placed,
they must be similarly treated. It imposes a duty on the State to take all the necessary steps to
ensure that the guarantee of equal treatment of people is followed. Like people being treated
alike is followed under this rule and another important point under this rule is that unlike
should not be treated alike.
Thus, even if people who are under different position and circumstances are governed by the
same rule then it will also have a negative effect on the rule of equality. It is a guarantee of
equal treatment. An equal law should be applied with an equal hand to all persons who are
the equals. The rule is that the like should be treated alike and not that unlike should be
treated alike.
The same or uniform treatment of unequal is as bad as unequal treatment of equals. It has
been said that the equal protection of the law is a pledge of protection or guarantee of equal
laws. The Rule of Law embodied in Article 14 is the ‘basic feature’ of the Indian
Constitution and hence it cannot be destroyed even by an amendment of the Constitution
under Article 368 of the Constitution.
Article 14 Permits Classification but Prohibits Class Legislation
Article 14 guarantee equal protection of laws and they are:
• Neither means that the laws need to be general in character nor that it should be applicable
to everyone, which means, the same law applies to every person.
• It does not assess attainment or situations in the same position. Different classes have
various needs that require separate treatment.
• For safety and security different laws for varying places and legitimate control policies
enacting laws lie at the best interest of the state.
• Identical treatment in unequal situations, in fact, would amount as inequality.
Therefore, for the society to progress a reasonable classification is not only permitted but
also necessary. Article 14 forbids class legislation but not reasonable classification. The
article applies on the reasonable basis, equals are treated differently. The article does not
apply where unequals and equals are given different treatments.
Conferring particular privileges upon a class of persons, class legislation makes improper
discrimination by selecting a large number of persons arbitrarily. No reasonable or
17-04-2023

substantial difference can be found in justifying the exclusion of the one and the inclusion
of the other from such privilege.

Test for reasonable classification-

Classification of reasonable as laid by the Indian Supreme Court has two conditions as in the
case of Saurabh Chaudhari v Union Of India, are-
(i) The classification must be founded on intelligible differentia, distinguishing grouped
together persons or goods from the left-out ones of the group.
(ii) The differential must be in a rational relation with the sought object that is to be
achieved by the act.
The object of the act and differential on the basis of classification are two separate things. It
is essential that there must be the presence of nexus between the object of the act and the
basis of classification. When a reasonable basis is not present for classification then such
classification made by the legislature must be declared discriminatory. The age at which a
person would be deemed competent between themselves can be fixed by the legislature but
competency cannot be claimed. A contract made dependent on the color of hair cannot be
made, and such a classification would be arbitrary.
Supreme Court in Re Special Courts Bill case had warned against overemphasizing the
classification. The court observed that the doctrine of classification is a subsidiary rule which
has been used by the court to facilitate the doctrine of equality. If there is an overemphasis
on the doctrine of classification, it would inevitably result in the doctrine of equality
under Article 14 to erode and will lead to the substitution of equality by classification.

8. Ram Krishna Dalmia v. Justice Tendolkar- TESTS for Article 14

1 .A law may be constitutional even though it relates to a single individual if on account of
some special circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by itself
2. There is always presumption in favour of the constitutionality of a statute and the burden
is upon him who attacks it to show that there has been a clear transgression of constitutional
principles.
3. The presumption may be rebutted in certain cases by showing that on the fact of the
statue, there is no classification and no difference peculiar to any individual or class and not
applicable to any other individual or class, and yet the law hits only a particular individual or
class
4. It must be assumed that Legislature correctly understand and appreciates the need of
its own people that its law is directed to problem made manifest by experience and that its
discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report, the history of the times and
may assume every state of facts which can be conceived existing at the time of the
legislation.
17-04-2023

6. Thus the legislation is free to recognize degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature
are to be presumed, if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the classification may
reasonable be regarded as based, the presumption of constitutionality cannot be carried
to extent always that there must be some undisclosed and unknown reason for
subjecting certain individuals or corporation to be hostile or discriminating legislation
8. The classification may be made on different bases e.g. geographical or according to object
or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or logically
complete. Mathematical nicety and perfect equality are not required. Equality before the
law does not require mathematical equality of all persons in all circumstances. Equal
treatment does not mean identical treatment. Similarly, not identity of treatment is enough.
10. There can be discrimination both in the substantive as well as the procedural law. Article
14 applies to both. If the classification satisfies the test laid down in the above propositions,
the law will be declared constitutional. The question whether a classification is reasonable
and proper and not must however, be judged more on common sense than on legal subtitles.

Basis of classification-
Reasonable classification may be based on different grounds:
(i) Geographical basis: Depending on the peculiar circumstances and situations, the
classification may be based on territorial grounds. Thus, in Ram Chandra V. State of Orissa,
two Nationalizations Acts, to take over road transport for different areas in the State of Orissa
were held valid, as there were material differences peculiar to the two Acts. But district wise
distribution of seats in the Medical College was held bad in Rajendran V. Tamilnadu. Law
providing for different fees in Medical and Engineering Colleges between residents and non-
residents was held valid in Joshi V. State of M.P.
(ii) Historical basis: Merger, State reorganization etc. may be grounds for reorganization. In
Pavitra Kumar V. State of W.B.,he different categories of Advocates into Barrister advocates
and non-barrister advocates was held valid for "historical reasons". (Now Under Advocates
Act 1962 there is no such classification). Special immunity to Ex- Rulers in C.P.C. was held
valid on historical grounds.
(iii) Time as the basis: The basis of classification maybe based on date of operation of law.
For instance, an enhanced tax rate may be imposed from a particular date. Pending cases may
be taxed at old rates. This is not hit by Art. 14.
(iv) Nature of persons, trade, calling or business: Classification of persons, on the basis of
age, for instance is valid (S. 11 Contract Act). Small Scale Industries may be classified as one
group for favoured treatment; Classification of News papers into Small, Medium and Big for
levying customs duty on newsprint was held valid (Express Newspaper Case).
(v) Special Courts and Special Procedure: Leading case: Kathi Ranning V. State of Saurastra.
In re Special Courts Bill the Supreme Court has held that Special Courts and Special
Procedures were valid if the law clearly lays down the guiding principles
17-04-2023

e.g. public safety, maintenance of public order etc. The offences must be properly classified
in relation to the objective to be achieved.
Hence, in India, Special Courts may be constituted by law, but the law should classify
the offences or provide clear guidelines to the Govt. to classify. There should be no room
for any arbitrary discretion of the executive. The procedure should not be substantially
different from the one prescribed by ordinary law.

Enunciation of principles of “reasonable” classification and application of those

principles to different fact situations.
1. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
Basically, the act gave few procedures for the trial in the special courts, which are similar to
the code of criminal procedure. The respondent, who was a petitioner earlier, had challenged
this particular act as it violates or contravenes the principle under Article 14 of the Indian
Constitution. The Calcutta High court held in favor of the petitioner, but the same was
appealed by the state government in this present appeal. The issue raised was of the
constitutional validity of the West Bengal Special Courts Act, 1950 on the grounds of Article
14 of the Constitution of India.
Section 5(1) of the Act was also constitutionally challenged on the ground that it gives
arbitrary power and authority to state government to refer any case or class of cases to special
courts without any reasonable classification.”
Held- “It is, therefore, clear, that the power to direct “cases” as distinct from “classes of
cases” to be tried by a Special Court contemplates and involves a purely arbitrary selection
based on nothing more substantial than the whim and pleasure of the State Government
and without any appreciable relation to the necessity for a speedier trial.”

The Court held that the whole of the West Bengal Special Courts Act of 1950 offends the
provisions of Article 14 and is therefore bad.
“The case of State of West Bengal v Anwar Ali Sarkar was decided by the Hon’ble
Supreme Court in favour of Anwar Ali declaring the West Bengal Special Courts Act,
1950 void on the grounds of violating Article 14 of Constitution of India as the Act gave
arbitrary, uncontrolled, unguided power to the State Government which could be used
unreasonably and in a biased manner and along with that restricted the equal protection of
laws. The Act failed to provide reasonable classification between cases, classes of cases,
offences and classes of offences.”

No intelligible differentia- “It was also held that the classification of cases as already done
in the Code of Criminal Procedure was reasonable and such reasonableness did not meet the
classification as done in the impugned act. The Code already provided the classification of
cases which are to be provided with speedy trial and no adequate need of the Act was seen.”
17-04-2023

Held- The decision, in this case, comes from the seven-judge bench. Six judges gave their
majority, whereas the Chief justice gave his dissenting judgment. Two among six concurred
with the majority. Let us look into each of their reasoning as follows.
Firstly, Justices – Fazal Ali, Mahajan, Mukherjee, and Aiyar gave similar reasoning and
stated that article 14 of the Indian constitution ensures that every person is treated equally,
and when it comes to giving relief and defense, all persons should be given equal
opportunity and not unequally. In that way, if any person has made his complaint stating
that the particular legislature has disabled his fundamental rights through law, then he should
not be prosecuted before being given a chance to prove that the law has denied his rights.
At that time, no legislature should neither state that the object of the law was not to
discriminate against any person or any class nor exclude the implementation of article 14 of
the constitution.
Secondly, Justice Das opined that the state had not been denied the power to classify the
people under article 14, but as per him, what is required is that there should be rational nexus
between the classification and object of the law. He stated that section 5 does not validate
the classification made as per law because it allows the state to make classifications of cases
as required by the whims and fancies of the state, which is discriminatory, and thus void.
Justice Bose, for his part, noted that the true test under article 14 of the Indian constitution is
not about absolute equality or complete classification. It is rather a test to determine the
sovereign democratic and republic as reflected in the preamble of the constitution. Thus, the
section failed to ensure equal treatment under article 14.
Lastly, Chief Justice Patanjali Sastri dissented by stating that the said section was not
discriminatory and not void. According to him, the impugned act of 1950 did not, in any way,
purports to disable the equal protection of laws to any person or any class of persons as
claimed by the majority. Thus, there was no discrimination motive on the legislature present
behind the enactment of the said section, and thus, it did not contravene Article 14 of the
Indian Constitution. Thus, he dissented.
Thus, the majority noted that section 5(1) provides an unrestricted power to refer as
many cases by the state government to the special court, and the same shall not be said
to have not discriminated under article 14. Hence, the statute, along with the
administration, enables discriminative actions and is not rational to do so. Thus void.

2. Kathi Raning Rawat v. Saurashtra, AIR 1952 SC 123

Facts- With the increase in public offences such as dacoity and murder, the government
introduced an amendment in 1949, thereby introducing sections 9, 10 and 11, which gave the
Saurashtra government the power to constitute the special courts through a notification in
the official gazette. The appointment of judges, the jurisdiction of such courts and procedures
have been notified by the said notification in writing by the government. The said procedures
were noted to be different than what had been provided in CrPC etc. the appellant had
challenged the ordinance and the jurisdiction of the special court that had been constituted
under the said ordinance on the ground that the same is discriminatory under article 14 of the
Indian constitution and is void.
Held- Let us look into the different views of seven different judges who decided the case with
a 4:3 ratio
17-04-2023

Firstly, Chief Justice Patanjali Sastri observed that not all legislations need to be
discriminatory and when the case has been filed on the ground of such discrimination,
then the relevant points of article 14 should be examined to conclude whether that is a
reasonable classification or not. He stated that even though there were different procedures
that were to be applied in this instant case, the question is whether there is nexus with the
objective of the law or not. In this case, the disparity in the application of procedures and
laws is different, but the same disparity did not go to the extent to realize there was
substantial disparity such as unfairness and denial of justice. Thus, the ordinance was held to
be valid by him.
Justice Fazal Ali brought a different point to concur with his Chief justice. He observed that
there should be a distinction that should be drawn between what is discrimination with
reason and which is without reason. The present case, according to him, was one such
instance where there was classification with reason, and article 14 of the constitution was
not violated. Hence, I held it valid.
Justice Mukherjea also stated that the notification, which was alleged in this case, was not
invalid as there was clear nexus drawn between the notification and the objective is
sought to achieve through the same. Hence, he held that there should not be any rigid
classification that is not desirable.
Justice Das, who held that section 11 of the notification did not confer any uncontrolled
power on the state government; rather, on the other hand, it gave such power to enable a
reasonable classification between the notification and goal of the ordinance. Thus, he held it
valid
Lastly, Justice Mahajan, Justice Chandrasekhar Aiyar and Justice Vivian Bose dissented by
basing their observation on the fact that there was no reasonable classification neither in the
preamble of the notification nor in the original ordinance in 1948. Thus, the differentiation
made by the state government goes beyond what it has been empowered to do, thus ultra
vires.

Conclusion:
One of the main important points that have been pinned in this case was the reference made
by the constitutional bench to the previous decision held in the West Bengal Special courts
case, which also dealt with the problem in similar lines. The court observed one major
difference that the court made in this case was that the nexus established in this case was
absent in the previous judgment of the West Bengal special courts act case. This case
categorized the offences and dealt appropriately with nexus, unlike in the West Bengal
special courts act case.

State of West Bengal V Anwar Ali, the Act had provided for special courts to conduct
"speedier trial of certain offences". The Govt. could select the offences for speedy trial. The
Supreme Court held that this was an arbitrary Power and violated Art. 14. No guidelines
were given by the Act to classify the offences. Further, the procedure for trial also varied
from the general procedure provided in the Cr.P.C.
This was also held bad. However, in Kathai Raning V. State of Saurastra, the law had given
proper guidelines and also had specified the categories of offence that could be selected
17-04-2023

for special trial. Hence, the law was held good. In its advisory opinion, in "In re special
courts case ", the Supreme Court held that special courts set up to try offences committed
during national emergency of 1975-77,did not violate Art. 14. and the procedure provided
therein, was held not against the Constitution.
Hence, in India, Special Courts may be constituted by law, but the law should classify the
offences or provide clear guidelines to the Govt. to classify. There should be no room for any
arbitrary discretion of the executive. The procedure should not be substantially different from
the one prescribed by ordinary law.

9. Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016

We, first, must test the validity of Section 377 IPC2 on the anvil of Article 14 of the
Constitution. What Article 14 propounds is that ‘all like should be treated alike’. In other
words, it implies equal treatment for all equals. Though the legislature is fully empowered to
enact laws applicable to a particular class, as in the case at hand in which Section 377 applies
to citizens who indulge in carnal intercourse, yet the classification, including the one made
under Section 377 IPC, has to satisfy the twin conditions to the effect that the classification
must be founded on an intelligible differentia and the said differentia must 85AIR 1978 SC
1675 : (1978) 4 SCC 494 have a rational nexus with the object sought to be achieved by the
provision, that is, Section 377 IPC.
A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in
carnal intercourse with the object to protect women and children from being subjected to
carnal intercourse. That being so, now it is to be ascertained whether this classification has a
reasonable nexus with the object sought to be achieved. The answer is in the negative as
the non-consensual acts which have been criminalized by virtue of Section 377 IPC have
already been designated as penal offences under Section 375 IPC and under the POCSO Act.
Per contra, the presence of this Section in its present form has resulted in a distasteful and
objectionable collateral effect whereby even consensual acts which are neither harmful to
children nor women and are performed by a certain class of people (LGBTs) owning to
some inherent characteristics defined by their identity and individuality, have been
woefully targeted. This discrimination and unequal treatment meted out to the LGBT
community as a separate class of citizens is unconstitutional for being violative
of Article 14 of the Constitution.

In M. Nagaraj and others v. Union of India and others, it has been held:-
―The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by
enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification
is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not
the test of intention. Therefore, the basic principle underlying Article 14 is that the law
must operate equally on all persons under like circumstances.
In E.P. Royappa v. State of Tamil Nadu and another, this Court observed that equality is a
dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and
2
Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished.
17-04-2023

confined" within traditional and doctrinaire limits. It was further held that equality is
antithetic to arbitrariness, for equality and arbitrariness are sworn enemies; one belongs to the
rule of law in a republic while the other, to the whim and caprice of an absolute monarch.
In Budhan Choudhry v. The State of Bihar, while delineating on the concept of reasonable
classification, the Court observed thus:-
It is now well-established that while article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. In order, however, to pass the test
of permissible classification two conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the group and (ii) that differentia must
have a rational relation to the object sought to be achieved by the statute in question. The
classification may be founded on different bases; namely, geographical, or according to
objects or occupations or the like. What is necessary is that there must be a nexus between the
basis of classification and the object of the Act under consideration. It is also well established
by the decisions of this Court that article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.
In Shayara Bano (supra), the Court observed that manifest arbitrariness of a provision of law
can also be a ground for declaring a law as unconstitutional. Opining so, the Court observed
thus:-
―The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments
would apply to invalidate legislation as well as subordinate legislation under Article 14.
Manifest arbitrariness, therefore, must be something done by the legislature capriciously,
irrationally and/or without adequate determining principle. Also, when something is done
which is excessive and disproportionate, such legislation would be manifestly arbitrary.
We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as
pointed out by us above would apply to negate legislation as well under Article 14.

10. Maganlal Chhaganlal Ltd. v. Municipal Corporation of Greater Bombay, (1974)

2 SCC 402
Issue- The constitutional validity of Chapter VA of the Municipal Act and the provisions of
the Government Premises (Eviction) Act. as it stood prior to its amendment by Maharashtra
Act of 1969, was challenged on the Sound that they contravene Art. 14 on the basis of the
decision of this Court in Northern India Caterers [1967] 3 S.C.R. 399, wherein it was held,
by the majority of Judges that amongst occupants of public premises inter se there was
discrimination in as much as the special procedure in the Punjab Public Premises and Land.
Held- The impugned provisions of the two Acts are not violative of Art. 14. (Per A. N. Ray.
C.J., Palekar, Mathew and Alagiriswami, JJ.)
(1) It could not be contended that the special provisions of law applying to government
and public bodies are not based upon reasonable classification or that they offend Art. 14.
[10 F-G]
(2) The mere availability of two procedures will not vitiate one of them, namely, the
special procedure. [23 B]
Where a statute providing for a more drastic procedure different from the ordinary
procedure covers the whole field covered by the ordinary procedure, as in Anwar Ali
17-04-2023

Sarkar's case and Suraj Mall Mehta's case without any guidelines as to the class of cases
in which either procedure is to be resorted to, the statute will be hit by Article 14.
Even there, as mentioned in Suraj Mall Mehta's ease, a provision for appeal may cure the
defect. Further, in such cases if from the preamble and surrounding circumstances, as
well as the provisions of the statute themselves explained and amplified by affidavits,
necessary guidelines could be inferred as in Saurashtra case and Jyoti Pershad's case
the statute will not be hit by Art. 14. Then again where tile statute itself covers only a class
of cases as in Haldar's cave and Bajoria's case the statute will not be bad.
The fact that in such cases the executive will choose which cases are to be tried under the
special procedure will not affect the validity of the statute. Therefore, the contention that the
mere availability of two procedures will vitiate one of them, that is the special procedure, is
not supported by reason or authority.
The statute itself in the two classes of cases before us clearly lays down the purpose
behind them, that is premises belonging to the Corporation and the Government should
be subject to speedy procedure in the matter of evicting unauthorized persons
occupying them. This is a sufficient guidance for the authorities on whom the power has
been conferred. With such an indication clearly given in the statutes one expects the officers
concerned to avail themselves of the procedures prescribed by the Acts and not resort to the
dilatory procedure of the ordinary Civil Court. Even normally one cannot imagine an officer
having the choice of two procedures, one which enables him to get possession of the property
quickly and the other which would be a prolonged one, to resort to the latter. Administrative
officers, no less than the courts, do not function in a vacuum.
It would be extremely unreal to hold that an administrative officer would in taking
proceedings for eviction of unauthorised occupants of Government property or Municipal
property resort to the procedure prescribed by the two Acts. in one case and to the ordinary
Civil Court in the other. The provisions of these two Acts cannot be struck down on the
fanciful theory that power would be exercised in such an unrealistic fashion. In
considering whether the officers would be discriminating between one set of persons and
another, one has got to take into account normal human behaviour and not behaviour which is
abnormal. It is not every fancied possibility of discrimination but the real risk of
discrimination that we must take into account.
This is not one of those cases where discrimination is writ large on the face of the statute.
Discrimination may be possible but is very improbable. And if there is discrimination in
actual practice this Court is not powerless. Furthermore, the fact that the Legislature
considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised
occupants of Government and Corporation property and provided a special speedy procedure
therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised
occupants.

Article 14 and the principles of reasonableness, non-arbitrariness and manifest

arbitrariness- right to equality week 4

11. Maneka Gandhi

17-04-2023

Facts- The petitioner (Maneka Gandhi) was a journalist whose passport was issued on June 1,
1976, under the Passport Act, 1967. Later on, July 2nd, 1977, the Regional Passport Officer,
New Delhi, had ordered the petitioner to surrender her passport by a letter posted.
On being asked about the reasons for her passport confiscation, The Ministry of External
Affairs declined to produce any reasons “in the interest of the general public.”
Held- “The fundamental rights conferred in Part III of the Constitution are not
distinctive nor mutually exclusive.” Any law depriving a person of his personal liberty has
to stand a test of one or more of the fundamental rights conferred under Article 19. When
referring to Article 14, “ex-hypothesi” must be tested. The concept of reasonableness must
be projected in the procedure.
Section 10(3)(c) of the Passports Act 1967, is not violative of any fundamental rights,
especially Article 14. In the present case, the petitioner is not discriminated in any
manner under Article 14 because the statute provided unrestricted powers to the authorities.
the ground of “in the interests of the general public” is not vague and undefined, rather it is
protected by certain guidelines which can be borrowed from Article 19.
After this case the Supreme Court became the watchdog to protect the essence of the
Constitution and safeguard the intention of the constitutional assembly who made it. The
majority of judges opined that any legislation or section should be just, fair and
reasonable and in its absence even the established or prevailed law can be considered
arbitrary.
With respect to the constitutionality of the order passed by the government of India, the court
observed that when executive action is taken under a provision of the statute, it should
necessarily comply with the principles of natural justice. In that manner, it was made
clear that section 10(3) empowered the government to ensure the procedure while the
seizure of any passport, such as in writing and informing the person while doing such an
act. Here, even though the provision provided for such procedure, the central government
failed to do so, and mere contention on public interest would not suffice.
Thus, only the order under section 10(3) and not the section per se was violated the
fundamental rights under articles 14 and 19 of the petitioner and was held
unconstitutional. Justice Bhagwati mentioned that the principle of reasonableness is an
essential element of equality or non-arbitrariness shall pervade over article 14 like a
brooding omnipresence.
Lastly, and most importantly, observations on the intersection of articles 14, 19, and 21. In
that manner, the court noted that any law which deprives a person of his life and liberty under
article 21 should also be tested on the grounds of one or more articles such as article 19 and
14, which ensure the actions, are not arbitrary and not violative of one another. Thus, a
golden triangle between articles 14, 19, and 21 was introduced. Thus, whenever article 21 is
in question, it should comply with the test of reasonableness under article 14 and also the
test of reasonable restriction under Article 19 of the Indian Constitution.

12. Joseph Shine v. Union of India (Adultery Judgement), AIR 2018 SC 4898
Issue- Whether the provision for adultery is arbitrary and discriminatory under Article 14?
17-04-2023

The classification is found to be arbitrary in the sense that it treats only the husband as an
aggrieved person given the right to prosecute for the offence and no such right is provided to
the wife. The provision is not based on equality.
The offence is based on the notion of women being a property of husband and adultery is
considered to be a theft of his property because it says consent or connivance by the husband
would not make it an offence.
The provision does not treat the wife as an offender and punishes only the third party.
Such classification is arbitrary and discriminatory and has no relevance in present
times where women have their own identity and stand equal to men in every aspect of
life. This provision clearly violates Article 14.

Whether the provision for adultery encourages the stereotype of women being the
property of men and discriminates on gender basis under Article15?
This provision discriminates between a married man and a married woman to her detriment
on the ground of sex.
This provision is based on the stereotype that a man has control over his wife’s sexuality, and
she is his property. It perpetuates the notion that women are passive and incapable of
exercising their sexual freedom.
Section 497 protects women from being punished as abettors. It is enunciated that this
provision is beneficial for women, which is saved by Article 15(3). Article 15(3) was inserted
to protect the women from patriarchy and pull them out of suppression. This article was
aimed to bring them equal to men. But Section 497 is not protective discrimination but
grounded in patriarchy and paternalism.
Whether the dignity of a woman is compromised by denial of her sexual autonomy and
right to self-determination?
The dignity of an individual and sexual privacy is protected by the constitution under Article
21. A woman has an equal right to privacy as a man. The autonomy of an individual is the
ability to make decisions on vital matters of life.
The provision allows adultery on the husband’s consent or connivance, which gives a man
control over her sexual autonomy. This makes her a puppet of the husband and takes away all
her individuality.
When the penal code was drafted the societal thinking regarding women was backward and
she was treated as a chattel but after 158 years the status of women is equal to that of men.
Her dignity is of utmost importance which cannot be undermined by a provision which
perpetuates such gender stereotypes.
Treating women as victims also demeans her individuality and questions her identity without
her husband.
The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the
fundamental right to dignity and equality provided under Article 21.

13. Shayara Bano & Others v. Union of India & Others, AIR 2017 SC 4609
17-04-2023

Fact- The petitioner, Shayara Bano, had been married to her husband, Rizwan Ahmed, for 15
years. In 2016, he divorced her through instant triple talaq (talaq -e biddat), i.e., a practice
that allows a man to divorce his wife by saying the word “talaq” three times in one sitting
without his wife’s consent.
Shayara Bano filed a Writ petition in the Supreme Court pleading to declare three
practises talaq-e-biddat, polygamy, and nikah-halala as unconstitutional as they violate the
fundamental rights of women enshrined in Articles 14, 15, 21, and 25 of the Indian
Constitution.
Held-
Justice Rohinton Fali Nariman: The impugned practice of Triple Talaq is a tool that allows a
marital tie to be severed on the whims of the husband with no attempt at reconciliation to
save it. Hence, this form of Talaq violates Article 14 and is liable to be struck down.
The Court clarified that “…an arbitrary action must involve negation of equality” and
determined that, because triple talaq states that “…the marital tie can be broken capriciously
with no attempt at reconciliation to save it”, this arbitrariness violates Article 14 of
Constitution of India.
The Constitution Bench of the Supreme Court, by a 3:2 majority, set aside and declared the
practice of instantaneous Triple Talaq or Talaq-e-biddat to be unconstitutional under Article
14 read with Article 13(1) of the Indian Constitution. In Shayra Bano vs UOI, the Court held
that the Muslim Personal Law (Shariat) Application Act of 1937 had sanctioned the
practice as a matter of personal law.
The apex court further held in Shayra Bano v UOI that the Muslim Personal Law (Shariat)
Application Act 1937 is void where it recognizes and enforces triple talaq, citing Article
13(1), which states that all laws in force immediately before the commencement of the
current Constitution (including the 1937 Act) are void where they are inconsistent with the
fundamental rights enshrined in the Constitution.
The court justified its position by stating that, while the Hanafi School practices it, it is sinful
in it. Triple Talaq contradicts the basic tenets of the Quran, and whatever contradicts Quranis
contradicts Shariat; thus, what is bad in theology cannot be good in law.

Gender
14. Air India v. Nergesh Meerza, AIR 1981 SC 1829
Facts-The case imposed a challenge on Regulations 46 and 47 of the Air India Employees
Service Regulations. With the challenge being posited on the grounds that the aforesaid
regulation created a substantial degree of disparity between male (referred to as Air Flight
Pursers) and female (Air Hostesses) (and within the Air Hostesses different operational
standards dependent on whether one is working for Air India International on the
International circuit or Indian Airlines on the domestic circuit) on multitude of grounds such
as promotional avenues, differential retirement ages, conditions pertaining to
termination of the Air hostesses services in cases of pregnancy or marriage (retirement
age for them was 35 years as opposed to 58 for their “male counterparts” – according
to Regulation 46).
17-04-2023

Furthermore, a more prosaic question was regarding the discretionary powers of the
Managing Director who under Regulation 47 could increase the age of retirement as per
his own behest. An aspect which is contested by the petitioners as being arbitrary.
Conditions-retire upon turning thirty-five years of age. This was extendable to the age of
forty-five, at the discretion of the Managing Director. They had to retire if they got married
within the first four years of service and/or on their first pregnancy. Corresponding conditions
did not exist for Air Flight Pursuers. Only men could be appointed as Air Flight Pursuers
while only women could be appointed as Air Hostesses.
Held-Article 14
Despite acknowledging the similarity in the job description of the two, it concluded that
the two formed absolute distinct categories owing to the difference in their pay grades,
promotional avenues and service conditions.
article 14 only forbids against hostile discrimination and not against reasonable
classification. To substantiate this aspect, this judgment relies on a litany of previous
judgments which state that treating equal, and unequal’s differently does not amount to
hostile discrimination. Thus, said regulations for the concerned matter are not violative
in whole or part of Article 14. The judgments echoes this ideologue by stating that where
persons belonging to a particular class in view of their special attributes, qualities, mode of
recruitment and the like, are differently treated in public interest to advance and boost
members belonging to backward classes, such a classification would not amount to
discrimination under Article 14.The court thereafter seeks to a laid down an illustrative, albeit
not exhaustive, set of guidelines to assess whether the Air Hostesses and Air Flight Pursuers
forged separate classes and by extension checking the supposed violation of Article 14. By
assessing their promotional avenues, starting salaries and entry level qualification they
are deemed as two distinct categories by the Court and thus the assertion of Article 14
being violated is rejected on the basis of reasonable and intelligible differentia. For the
discrimination between Air hostess Air India and Indian Airlines, the Court states that that
happens owing to Air India’s conformity with laws of the United Kingdom. Furthermore, the
Court examines a secondary line of argument, which purports that these regulations are on an
arbitrary and unreasonable basis (by making a classification on the basis of sex) and thus by
extension are ultravires to Article 14.
Furthermore, the Court rightly concluded insofar as it is ultra vires since the Managing
Director has been vested with excessive discretionary power without any metric regulating
such power. This regulation was, therefore, in contravention of Article 14.
Article 15(1)
SC made the case of Air India v. Nergesh Meerza one of the first landmark cases in the Indian
equality jurisprudence concerning sex discrimination. The judgement distinguished
between sex and gender and held that the Constitution only aims to protect the former.
This was done by construing the word “only” as it appears under Article 15(1) to mean “only
and only on the ground of sex”. Through such an interpretation, the Court restricted the
applicability of Article 15(1). In effect, the court placed intersectional discrimination beyond
the ambit of Article 15(1) by understanding discrimination on the basis of sex in isolation
from other forms of discrimination women face including their age, marital status and
pregnancy. The same resulted in the ambit of right to equality and non-discrimination
becoming unfairly and erroneously limited.
17-04-2023

Article 16(2)
To examine said aspect the Court states that while Article 16(2) purports that no
discrimination should be made only on the ground of sex, however it never prohibits the state
from discriminating on the grounds of sex and other considerations (as asserted in the case
of Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee [1954] SCR 930[1]).
With this basis, the Court rejects the violation of Article 16. Curiously, though, the case law
or the court’s judgment by enlarge never seeks to elaborate on what the additional criterion
was.
The court on the aspect of termination of services on the instance of first pregnancy
vehemently rejects the respondent’s assertion that women post childbirth seem to leave
the job or alternatively their husbands do not allow for them to work and thus making
it is essential to have a lower age of retirement for them.
The Court surmises by stating that the organizations of the ilk of the Air India have to be
prepared at any point whatsoever for absences which may arise due to the deaths/ infirmity
amongst other reasons. As for the reasons put forward by the respondents, those are instances
which can take place even in the absence of children, thus these assertions are prima facie
baseless. The Court instead advocates for wholesale amendments to be made to said
pregnancy clause whereby a criterion of retirement upon the birth of third child should
instead be introduced in place of the incumbent clause. The reasoning behind it being based
on a public health principle. Thereby deeming said regulation aspect is deemed as being
arbitrary under Article 14. However, a similar stand of constitutional infirmity and
arbitrariness is not applicable to the question of marriage within four years of service of
the air hostess, as the court reflects Article 14 on grounds of utility, public health et.al.

15. Anuj Garg v. Hotel Association of India

The SC observed that stereotypes with respect to socially assigned gender roles cannot be
used to contend that the discrimination was not solely sex based.
Facts- This case deals with issues relating to legislative provisions furthering protective
discrimination, and gender equality under Articles 14 and 15 of the Constitution. The appeal
under discussion challenged the constitutional validity of Section 30 of the Punjab Excise
Act, 1914 (the Act) which prohibited the employment of any man under the age of
twenty-five years or any woman in any part of an establishment in which liquor or any
other intoxicating drugs were consumed by the public. The Court prima facie observed
that the challenged provision was a pre-constitution law and had to be reviewed in view of
the changed societal conditions and against the touchstones of Articles 14 and 15 of the
Constitution. The Court employed the strict scrutiny standard, and the doctrine of
proportionality and incompatibility to review the Act and struck down the provision as
it perpetrated sexual differences and restricted a citizen’s right to be considered for
employment, which was a facet of the right to livelihood.
Issue- Whether the Delhi High Court judgment which declared Section 30 of the Act to
be ultra vires Articles 19(1)(g), 14 and 15 of the Constitution to the extent it prohibited
employment of any woman in any part of such premises in which liquor or intoxicating
drugs were consumed by the public, should be upheld.
17-04-2023

Held- The Court, at the outset, observed that the Act was a pre-constitutional legislation,
saved by Article 372 of the Constitution, and its validity could be challenged on grounds of
Articles 14, 15 and 19. It also pointed out the possibility of declaring a valid legislation
invalid, in view of the “changed social psyche and expectations, (which) are important factors
to be considered in the upkeep of law”, and giving “(p)rimacy to such transformation in
constitutional rights analysis would not be out of place”.
While examining the impugned provision on the touchstone of equality, the Court noted that
“(w)hen the original Act was enacted, the concept of equality between two sexes was
unknown”. However, the Constitution makers framed Articles 14 and 15 with an intention to
apply equality amongst men and women in all spheres of life. Therefore, when the validity of
a legislation was tested on the anvil of equality clauses contained in Articles 14 and 15, the
burden would be on the State to prove that the legislation provides for equality between the
genders. The Court referred to a judgment of the South African Constitutional Court in Bhe
and Ors. vs. The Magistrate, Khayelisha and Ors. ((2004) 18 BHRC 52), where official rules
of customary law of succession did not evolve with the pace of changing societal conditions
and values and caused hardship.
The Court emphasised the use of ‘strict scrutiny test’ as a norm, while assessing the
legislations with pronounced ‘protective discrimination’ because they potentially serve as
double-edged swords. The test to review ‘protective discrimination’ would require
satisfaction of two prongs, first to determine whether the legislative interference is
justified in principle, and second to assess the proportionality of the measures. Noting
that the “impugned legislation suffers from incurable fixations of stereotype morality
and conception of sexual role”, the Court applied the test to determine if such measures
aligned with the “well-settled gender norms such as autonomy, equality of opportunity,
right to privacy et all”, and whether there exists a “reasonable relationship of
proportionality between the means used and aim pursued”. The Court also referred to the
doctrine of proportionality and incompatibility, used by the European Court of Human Rights
(ECtHR) to deal with matters of competing public interests.
The Court, in its analysis, found that the “end result is an invidious discrimination
perpetrating sexual differences”. Moreover, it places restrictions on a “citizen’s right to
be considered for employment, which is a facet of the right to livelihood”. Consequently,
it struck down the impugned provision.

16. Indian Young Lawyer’s Association v. The State of Kerala, Sabarimala Judgement
Facts- Sabarimala Temple, devoted to Lord Ayyappa, is a temple of great antiquity. The
temple is situated over one of the eighteen mountains spread over the Western Ghats known
as Sannidhanam. Situated in the district of Pathanamthitta in Kerala. The faithful believe that
Lord Ayyappa’s powers derive from his asceticism, in particular from his being celibate.
Celibacy is a practice adopted by pilgrims before and during the pilgrimage. Those who
believe in Lord Ayyappa and offer prayers are expected to follow a strict ‘Vratham’ or a vow
over a period of 41 days which lays down a set of practices.
The practise of prohibiting the entry of women and barring their participation in the 41 days
penance ‘vratham’ has been observed by the Ayyapan community since time immemorial as
claimed by the Thantri of the temple. The deity at Sabarimala takes the form of a Naishtika
Brahmacharya. Along with observing a penance, the followers are supposed to wear black
clothes and cut all family ties while observing the ‘vratham’. It is claimed that a deviation
from the celibacy and austerity observed by the followers would be caused by the presence of
17-04-2023

women. Women have not been allowed to be a part of this pilgrimage due to their
physiological features, considering them weak and unfit for the arduous journey. Women are
also considered to be impure while menstruating according to Hindu traditions and therefore
the temple authorities have placed restrictions on the entry of women between the ages 10
and 50 to preserve the temple’s sanctity.
Held- Justice DY Chandrachud in his judgment stated that restricting only women from the
right to worship signifies the subordination of women. He further comments that the
exclusionary practise which is based on ‘physiological factors’ that are non-religious in
nature, suggesting that women cannot keep the ‘vrutham’ and take part in the
pilgrimage is to stigmatize and stereotype them and therefore is a form of social
discrimination. The reason because menstruate for their exclusion is unconstitutional, says
Chandrachud. Justice Mishra declared any rule which differentiates and undermines
women’s dignity shall be struck down as violative of Article 14 and 15. The judges holding
the majority opinion considered this exclusion of women as discriminatory under
Article 25 which equally grants all the people irrespective of their sex, right to freely
practise religion.
Article 17
The petitioners, especially women NGO “Happy to bleed” brings in question ‘Article 17’ has
also been talked about. Article 17 proscribes untouchability in any form and the exclusion of
women from religious places and practices because they menstruate and are considered
impure during that time is no less than a form of discrimination than exclusion of oppressed
castes as untouchables. This approach held by the judges broadens the ambit of Article
17 and stresses that the Constitution should not become an instrument for the
perpetuation of patriarchy.
The entire issue revolves around the barring of women aged between 10 – 50 years, into the
temple and this practice is violative of Fundamental Rights and freedom of women. The
issue is not only about the rights enshrined in the Constitution for the women, but it spreads
much farther than this. It also concerns women’s dignity and self-respect. This discrimination
forms the very basis of this entire debate. This very tradition is against the spirit of
Articles 14, 15, 17 and 25. This tradition not only shows them unequal to men in the eyes of
the society, discriminates with them and takes away their right to practice their religion but it
also violates their Right to Privacy granted to them under Article 21 of the constitution, as
it involves involuntary disclosure of their menstruating details. These acts are not only
constitutionally invalid but are also morally corrupt and demeaning. India which is a land
where on the one hand we say that we worship our women in our houses and temples and
claim them goddesses and on the other, we even refuse to recognize their Fundamental
Human Rights and make them feel socially outcast, there is no surety that in following these
two contradicting paths where are we leading ourselves but there is one thing sure that this
path is nowhere leading us towards a developed future which is desired by all.

Article 25 & 26-

Issues-• Whether the exclusionary practice which is based upon a biological factor exclusive t
o the female gender amounts to “discrimination” and thereby violets the very core of Article
14, Article 15 and Article 17 and protected by “morality” as used in Article 25 and Article 26
[6] of the constitution.
17-04-2023

• Whether this restriction violates the provisions of Kerala Hindu Place of Public Worship
Act, 1965?
• Whether the Sabarimala Temple has a denominational character?
• Whether rule 3 of the Kerala Hindu places of public worship (Authorization of entry)
rules permits ‘religious denomination’ to ban entry of women between the age of 10 to50 yea
rs?
Held-On 28th September 2018, the court delivered its verdict in this case by 4:1 majority whi
ch held that the practice violated the fundamental rights to equality, liberty and freedom of rel
igion, Article 14, 15, 19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu Place
s of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to
exclude women from public places of worship, if the exclusion was based on custom.
The apex court has allowed entry of women of all age groups to the Sabarimala Temple
and held that “Devotion cannot be subjected to Gender Discrimination”.
• “We have no doubt in saying that such practices infringe the right of women to enter a
temple and freely practice Hindu religion”.
• “Devotion cannot be subjected to gender discrimination”.
Hon’ble Chief Justice of India stated in his judgment that religion is way of life linked to the
dignity of an individual and patriarchal practices based on the exclusion of one gender in favo
r of another could not be allowed to infringe upon the fundamental freedom to practice and pr
ofess one’s religion.
The Apex court has declared that the practice of restricting women of a specific age
group in their ‘menstruating years’ from Sabarimala Temple is unconstitutional.

Reservation
Caste and economic criterion cannot be the only determinant.
Socially and educationally backward- obc
SC/St anyone unless promotion.
Article 16
17. Indra Swahney-
 50% cannot be breached by CG. SG can breach state what basis, constitutional
validity. State appointed university or employee. Maratha Judgement- Maratha
reservation was not valid as they were doing well in society, just because the society
has been backward according to one of the criteria then reservation is not needed. SC
can only determine the constitutional validity and not HC.
 Socially advanced members, creamy layer should be excluded.
 Reservation for promotion not valid. – Amendment- Nagraja allowed sc/st
reservation for promotion.
 Class and caste nexus. Class can be used to provide reservation and caste cannot be
the sole criteria.
17-04-2023

EWS- 50% criteria cannot be violated, only economic backwardness according to dpsp state
should provide help. EWS reservation valid, not just for public but also private institutes.
Should not breach 50% criteria.
Two test rule- inadequate representation and backwardness- social and economic

known as the Mandal Commission case, is a very significant pronouncement of the Supreme
Court on the question of reservation of posts for backward classes. The Court has dealt
with this question in a very exhaustive manner. The Mandal Commission was appointed by
the Government of India in terms of Art. 340 of the Constitution in 1979 to investigate the
conditions of socially and educationally backward classes. One of the major
recommendations made by the Commission was that, besides the Scheduled Castes (SCs) and
Scheduled Tribes (STs), for Other Backward Classes (OBCs) which constitute nearly 52%
component of the population, 27% government jobs be reserved so that the total reservation
for all, SCs, STs and OBCs, amounts to 50%.
No action was taken on the basis of the Mandal Report for long after it was submitted, except
that it was discussed in the Houses of Parliament twice, once in 1982 and again in 1983.
On Aug. 13, 1990, the V.P. Singh Government at the centre issued an office memorandum
accepting the Mandal Commission recommendation and announcing 27% reservation for the
socially and educationally backward classes in vacancies in civil posts and services under the
Government of India. This memorandum led to widespread disturbances in the country.
Issue- Scope and extent of Article 16(1) and Article 16(4).
• Definite parameters for the term “backward class of citizens”.
• The criteria to identify the backward class of citizens.
• Nature and extent of the reservations permissible.
Held- Scope and extent of Article 16(1) and Article 16(4).
This was one of the prime issues that needed to be addressed by the Hon’ble Bench. It was
held in this regard that “clause (4) of Article 16 is not an exception to clause (1) of Article 16.
It is an instance of classification implicit in and permitted by clause (1)… it must be read
along with and in harmony with clause (1).” A cursory reading of clauses (1) and (4) may
give us an apparent understanding that clause (4) is the exception to the right to equality of
opportunity to all citizens guaranteed under clause (1) of Article 16. This landmark
judgement cleared this significant confusion by announcing that these two clauses needed to
be studied in harmony with each other and that clause (4) is not an exception clause.
This was held by the majority in paras 57, 121(2)(a) of the judgement.

After- The Court has not been able to completely eliminate the caste factor in identifying the
backward classes. However, the Court has sought to keep the caste factor within limits. Caste
can be one of the factors, but not the sole factor, to assess backwardness. Reservation has
become the bane of the contemporary Indian life. More and more sections of the society are
demanding reservation for themselves in government services. The politicians are also vying
among themselves for demanding reservations to all and sundry groups whether deserved or
not. Needless to say, reservation is inequitable insofar as a meritorious candidate may have to
be passed over in favour of a much less meritorious candidate in the reserved category.
17-04-2023

Creamy layer- In the Mandal case, the Supreme Court has clearly and authoritatively laid
down that the “socially” advanced members of a backward class, the “creamy layer”, has
to be excluded from the backward class and the benefit of reservation under Art. 16(4) can
only be given to the “class” which remains after the exclusion of the ‘creamy layer’. This
would more appropriately serve the purpose and object of Art. 16(4).

Class-caste nexus
The majority of the Indra Sawhney Bench was of the opinion that “class” in Section 16(4)
meant social class and they justified the same by stating that the classification attempted by
Section 16(4) was not on the basis of caste but on the ground that the caste is found to be
a backward class and inadequately represented in the public administration system.
Thus, the majority agreed with the Mandal Commission that the social backwardness was
indeed because of the educational and economic backwardness of the caste and that such
social backwardness was attributable to the caste. In other words, “class” under Section 16(4)
could be read as “caste.”
All this led to the laying down of the two-fold test by which reservation can be provided
based on caste. In other words, if the following two criteria are met, then caste can be the
dominant factor in determining backward classes for the purpose of reservations as per the
Mandal Commission Report. The tests are as follows:

The test of backwardness.

The test of inadequate representation.
The justification that was given for stating that caste can be the dominant factor in the
determination of the backward class is that Article 16(4) requires identification and not
classification and thus any factor that was causing social and educational backwardness of a
class of citizens can be the basis for identification. So, if caste is made the dominant basis for
identifying backward classes, then Article 16(4) is not disturbed. For further references in this
regard paras 83, 83A, 121(3)(b), 206, 231, 366 and 412 of the original judgement may be
referred to.

Economic criteria
The majority of the Bench refused to recognise economic criteria as the sole determining
factor of backwardness. That is the reason the ten percent reservation of economically
backward sections was rejected by the majority Bench.

The “Creamy Layer” exclusionary principle

The “Creamy Layer” exclusionary principle is another feat of the majority Bench of Indra
Sawhney. By virtue of this principle, the advanced sections of the OBCs were excluded from
the benefits of the reservation. The justification that was provided in this regard is that when
some members of the OBCs have advanced significantly socially (which in the context
necessarily means economically and may also mean educationally), they would be misfits in
the class as then the connecting thread between them and the remaining class snaps.
17-04-2023

But as a corollary to this “Creamy Layer” exclusionary principle came the dire possibility of
taking away with one hand what was given by the other. So, there was a necessity to have a
drawing line to exclude the creamy layer from the benefits of reservation without
jeopardising the non-creamy layers. Hence, to this end, a duty was imposed on the Centre and
the states to evolve the said basis for the exclusion of the creamy layer within a time period of
four months and six months, respectively, and to subsequently implement the same. To follow
this order, the government formed the Ram Nandan Prasad Committee to evolve the required
criteria for the exclusion of the creamy layer. It sought to exclude the following:
“i. Persons holding constitutional posts.
ii. Class I officers of the All India Centre and Slate services.
iii. If both parents are Class II officers, children are not eligible.
iv. Those with a gross annual income of Rs. 1 lakh and above in the non-governmental sector.
v. Property holders based on the extent of land holdings.”
Nature and extent of the reservations permissible:
The following principles were evolved in this landmark case regarding the nature and extent
of reservations permissible under the Indian constitution:
It was held that there was no legal or constitutional bar to the sub-classification of OBCs.
Hence, if on the basis of the degrees of social backwardness, classification is done, then
separate quotas of reservations would have to be kept for each class of backward classes.
Reservations based on the dominant identifying factor of caste are permissible but should be
restricted to initial appointments only and not for subsequent promotions. Although,
without compromising the efficiency of administration, the States may offer donations,
exemptions, concessions, etc. to enable the OBCs to compete for the advancement of their
career.
The rule of reservations cannot be called anti-meritarian but as and when necessary, there
can be an exclusion of this rule to certain posts and services (for example- defence services).
The reservation granted under Article 16(4) should not cross fifty percent. Only in
exceptional circumstances can this strict rule be transgressed, but only when an extraordinary
or special case is made out and only with the application of extreme caution.
While applying the fifty percent rule, a year is to be considered as a unit and not the
entire strength of the cadre or service. Moreover, the “carry forward rule” is not per se
unconstitutional, but even when such a rule is applied for unfilled reserved vacancies,
the fifty percent ceiling limit should not be breached.
The landmark Indra Sawhney judgement is a lengthy piece of judgement and for the ease of
the readers, the crux of the judgement is summarised as follows:
1. Under Article 16(4), backward classes of citizens can be identified on the basis of
caste and not just on an economic basis. Economic criteria cannot be the sole
identifying factor for backwardness under article 16(4). Also, in order to prevent
the abuse of power, the identifying examination to determine backwardness should be
an objective one and not a subjective one.
2. Article 16(4) is an independent clause and not an exception to Article 16(1).
17-04-2023

3. Article 16(4) is exhaustive in nature regarding reservations for backward classes only.
4. Article 16(1) permits reasonable classification and reservation for other classes.
5. The socially and educationally backward classes under Article 15(4) are different
from the backward classes under Article 16(4).
6. Article 16(4) permits the sub-classification of backward classes into backward and
more backward classes.
7. Creamy layers (socially advanced people) can be and must be excluded from
backward classes for the purposes of reservation under Article 16(4).
8. Reservations shall not exceed 50 percent and even for the purpose of application of
the carry forward rule (by which unfulfilled vacancies are filled in the upcoming
year), the 50 percent ceiling should not be breached.
9. There shall be no reservation in promotions.
Indra swahney, Court directed the exclusion of creamy layer by way of horizontal division of
every other backward class into creamy layer and non-creamy layer.
The Parliament responded by enacting the 77th Constitutional Amendment Act which
introduced Article 16(4A).
Later, two more amendments were brought, one to ensure consequential seniority and
another to secure carry forward of unfilled vacancies of a year, the former by way of
addition to Article 16(4 A) and the latter by way of adding Article 16(4 B).

15. M. Nagaraj v. Union of India, (2006) 8 SCC 212

Facts- The Bench ruled that the challenged legal amendments on the constitution added
Articles 16(4A) and 16(4B) from Article 16(4). They make no changes to the framework of
Article 16(4). They preserve the governing criteria or crucial factors, namely,
backwardness and insufficiency of participation, which allows states to provide for
reservation while keeping the general efficiency of government administration in mind under
Article 335. These challenged amendments only apply to SCs and STs. They do not nullify
any constitutional obligations, including the 50 percent ceiling, the notion of the creamy
layer, the sub-classification of OBCs and SCs/STs as held in the Indra Sawhney case, and the
idea of a post-based roster with an in-built idea of substitute as held in R.K. Sabharwal.
Affirming that the 50% threshold, the creamy layer idea, and the convincing reasons,
including backwardness, insufficiency of representation, plus general administration
efficiency, are all constitutional prerequisites without which the system of equal opportunity
under Article 16 will fail. Before establishing provision for reservation, the Bench concluded
that the concerned State must demonstrate the existence of compelling factors, including
backwardness, lack of participation, and overall administrative effectiveness, in each case
Held- The hon’ble Bench further said that the challenged clause is just an enabling provision,
and the Government is not required to impose reservations for SC/ST in promotions.
However, if they desire to use their discretion and establish such a provision, the State must
17-04-2023

collect quantitative facts demonstrating the class’s backwardness and insufficiency of

representation in public employment, in addition to complying with Article 335.
The Bench ruled that even if the State has strong grounds, as described above, the State
must ensure that its reservations law does not result to excessiveness, obliterating the
creamy layer, or extending the reservation forever.
It was said that the state must submit verification of the underdevelopment of the class
benefiting from the reservation, insufficient representative in the role for which the reserve in
promotion is to be granted, and how reservation in promotions will promote administrative
efficiency. The Court affirmed the constitutionality of the challenged constitutional changes.
According to the respected court, social justice is concerned with the allocation of advantages
and obligations. The region of conflict between rights, needs, and means serves as the basis
for distribution. These three requirements might be classified as “formal equality” or
“proportional equality,” with formal equality implying that the law treats everyone equally.
Held in short- In this case applying the creamy layer concept in SC/ST reservation in
promotions, the SC reversed its earlier stance in the Indra Sawhney case (1992), in
which it had excluded the creamy layer concept on SCs/STs (that was applicable on
OBCs).
The SC had upheld the Constitutional amendments by which Articles 16 (4A) and 16
(4B) were inserted, saying they flow from Article 16 (4) and do not alter its structure.
It also laid down three conditions for promotion of SCs and STs in public employment.
 The SC and ST community should be socially and educationally backward.
 The SC and ST communities are not adequately represented in Public
employment.
 Such a reservation policy shall not affect the overall efficiency in the
administration.
The court held that the government cannot introduce a quota in promotion for its
SC/ST employees unless it proves that the particular community was backward,
inadequately represented and providing reservation in promotion would not affect the
overall efficiency of public administration.
The opinion of the government should be based on quantifiable data.

16. Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021):

State reservation can exceed but SC is the final determinant, central university
cannot be exceded the 50% mark.
Facts- The Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha
reservation law) came under challenge before the Supreme Court which referred the same
to a bench of five judges and one question was whether the 1992 judgment needs a
relook.
On November 29th, 2018, the Maharashtra Socially and Educationally Backward Classes
Act was passed upon the recommendation of the Maharashtra State Backward Classes
Commission.
17-04-2023

The Gaikwad Committee recommended 12% and 13% reservation for Marathas in
educational institutions and appointments in public services, respectively. As the Act
exceeded the original quota limit, its validity was challenged before the Bombay High
Court with several writ petitions. During the pendency of these writ petitions, the scope of
the petition was exceeded, and also several other applications were filed for intervention
seeking to justify the validity of the 2018 Act. The Supreme Court accepted these
applications, and they were directed to be added as party respondents.

Issue- The five-judge bench gave out a 569-page verdict, precluding the need to rethink
the validity of the 1992 Indra Sawhney judgment case, which fixed the 50% reservation
bar.
Held- The Supreme Court further said that the 2018 Act violates the principle of equality
mentioned in Article 14 of the Constitution. The exceeding of the reservation limit
without there being any extraordinary circumstances violates Article 14 and Article 16 of
the Constitution of India which makes the enactment ultra vires.
The Constitutional Bench upheld the validity of the 102nd amendment which granted
constitutional status to the National Commission for Backward Classes.
Justice Bhushan, who headed the Constitutional seat, observed that the condition for
a 50% reservation limit under Article 16(4) wasn’t satisfied in giving 12% and 13%
reservation to Marathas in jobs and education.
Senior Advocate Pradeep Sancheti was asked to prove whether the Gaikwad
Commission’s report justified extraordinary circumstances. He noted that the Gaikwad
Commission’s Report failed to provide sufficient data or analysis of two requirements for
granting reservations. The two requirements regarding the Gaikwad Commission Report
were:
A requirement in Article 16(4) was whether there was an inadequacy of representation
from the community. The Commission’s data on this was faulty. It also failed to note that
Marathas were a dominant class.
Another requirement under Article 335 was to consider the efficiency of administration.
This found no mention in the report.
Hence, the Supreme Court struck down the Maharashtra Law giving reservations to
the Maratha Community.
The ruling is likely to impact other reservation laws under the category of exceptional
circumstances as well on the reservations of economically weaker sections of the society
that have access to the 50% limit. Before the Supreme Court, the Maharashtra Socially
and Educationally Backward Classes Act, 2018 was turned down by various commissions
and the demand for the reservation of the Maratha Community has been rejected before.
It has been a political issue that has been brought up time and again in recent years.
The quota issue continues to dominate in state politics with the parties promising quotas
to the group. Going forward, the Maharashtra Government has some serious thinking to
do regarding this judgment and the way ahead.
Held in short- Interestingly, the Supreme Court not only affirmed the Indra Sawhney
decision, but also struck down Section 4(1)(a) and Section 4(1)(b) of the Act which
17-04-2023

provided 12% reservation for Marathas in educational institutions and 13%

reservation in public employment respectively, citing the breach of ceiling.

Article 19
19. Protection of certain rights regarding freedom of speech, etc.— (1) All citizens shall have
the right—
(a) to freedom of speech and expression.
(b) to assemble peaceably and without arms.
(c) to form associations or unions 2[or co-operative societies].
(d) to move freely throughout the territory of India.
(e) to reside and settle in any part of the territory of India; 1[and]
2[(f)* * * * *]
(g) to practise any profession, or to carry on any occupation, trade, or business.

Restrictions – Article 19 (2) – (6)

3[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of 4[the
sovereignty and integrity of India], the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.]
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
4[the sovereignty and integrity of India or] public order, reasonable restrictions on the
exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
4[the sovereignty and integrity of India or] public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in 5[sub-clauses (d) and (e)] of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses
17-04-2023

either in the interests of the general public or for the protection of the interests of any
Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub-clause, and, in particular, 1[nothing in the said sub-clause shall affect the operation of
any existing law in so far as it relates to, or prevent the State from making any law relating to,
—
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry or service, whether to the exclusion, complete or partial, of
citizens or otherwise.]

Article 19 1 a
The freedom of speech under Art. 19(1)(a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture,
film, movie, etc. It thus includes the freedom of communication and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Art.
19(2).
• RIGHT TO SILENCE
The right to speech implies the right to silence. It implies freedom, not to listen, and
not to be forced to listen. The right comprehends the freedom to be free from what
one desires to be free from. A loudspeaker forces a person to hear what he wishes not
to hear. The use of a loudspeaker may be incidental to the exercise of the right but, its
use is not a matter of right, or part of the rights guaranteed by Article 19(1).
• RIGHT TO RECEIVE INFORMATION
The expression “freedom of speech and expression” in Art. 19(1)(a) has been held to
include the right to acquire information and disseminate the same. It includes the
right to communicate it through any available media whether print or electronic or
audio-visual, such as, advertisement, movie, article or speech, etc. This freedom
includes the freedom to communicate or circulate one’s opinion without interference
to as large a population in the country, as well as abroad, as is possible to reach. In
People’s Union for Civil Liberties, the Supreme Court dealt with this aspect of the
freedom elaborately. The right of the citizens to obtain information on matters relating
to public acts flows from the Fundamental Right enshrined in Art. 19(1)(a). Securing
information on the basic details concerning the candidates contesting for elections to
Parliament or the State Legislature promotes freedom of expression and therefore the
right to information forms an integral part of Article 19(1)(a).
• FREEDOM OF THE PRESS
In India, freedom of the press is implied from the freedom of speech and expression
guaranteed by Art. 19(1)(a). There is no specific provision ensuring freedom of the
press as such. The freedom of the press is regarded as a “species of which freedom of
expression is a genus.” Thus, being only a right flowing from the freedom of
speech, the freedom of the press in India stands on no higher footing than the
freedom of speech of a citizen, and the press enjoys no privilege as such distinct
from the freedom of the citizen.
 In Romesh Thapar v/s State of Madras, Patanjali Shastri,CJ, observed that
“Freedom of speech & of the press lay at the foundation of all democratic
organization, for without free political discussion no public education, so essential for
17-04-2023

the proper functioning of the process of popular government, is possible.” In this case,
entry and circulation of the English journal “Cross Road”, printed and published in
Bombay, was banned by the Government of Madras. The same was held to be
violative of the freedom of speech and expression, as “without liberty of circulation,
publication would be of little value”.
• CENSORSHIP OF FILMS
In K.A. Abbas v. Union of India, the Supreme Court has upheld censorship of films
under Art. 19(1)(a) on the ground that films have to be treated separately from other
forms of art and expression because a motion picture is able to stir up emotions more
deeply than any other product of art. A film can therefore be censored on the grounds
mentioned in Art. 19(2).

Restrictions to 19 1 a
• Freedom of speech includes the right to propagate one’s views through print media or
through any other communication channel, e.g., radio and television. The right to
impart and receive information is a species of freedom of speech. No monopoly of
electronic media is permissible as Art. 19(2) does not permit state monopoly.
• It can thus be seen that the Supreme Court has interpreted Art. 19(1)(a) broadly so as
to bring broadcasting and telecasting within its coverage. Also, the Court has taken a
very significant step by way of freeing these activities from governmental
monopolistic control. Also, the function of regulating airwaves will henceforth be
performed by an autonomous body rather than the Government itself.
• Hence, in a democratic society, neither any private body nor any governmental
organisation can claim any monopoly over it.
• Unlike the print media, there are certain built-in limitations on the use of electronic
media, viz.:
• (i) the airwaves or frequencies are a public property and they have to be used
for the benefit of the society at large;
• (ii) the frequencies are limited;
• (iii) the airwaves are owned or controlled by the Government or a central
national authority;
• (iv) they are not available on account of the scarcity, costs and competition.
Broadcasting is a means of communication, and, therefore, a medium of
speech and expression.
• VOTING
Voting at an election is a form of expression. A citizen as a voter is the master of his vote. He
must have necessary information so that he can intelligently decide in favour of a candidate
who satisfies his criterion of being elected as an MP or MLA.

RESTRICTIONS UNDER ART. 19(2) - GROUNDS OF RESTRICTIONS

• While it is necessary to maintain and preserve freedom of speech and expression in a
democracy, so also it is necessary to place some curbs on this freedom for the
maintenance of social order. No freedom can be absolute or completely unrestricted.
• Accordingly, under Art. 19(2), the state may make a law imposing ‘reasonable
restrictions’ on the exercise of the right to freedom of speech and expression ‘in
the interests of’ the security of the State, friendly relations with foreign States,
17-04-2023

public order, decency, morality, sovereignty and integrity of India, or ‘in relation
to contempt of Court, defamation or incitement to an offence’.
• The expression used in Art. 19(2) “in the interests of” give a wide amplitude to the
permissible law which can be enacted to impose reasonable restrictions on the right
guaranteed by Art. 19(1)(a) under one of the heads mentioned in Art. 19(2). No
restriction can be placed on the right to freedom of speech and expression on any
ground other than those specified in Art. 19(2).
• The burden is on the authority to justify the restrictions imposed.
• Article 19(2) uses two concepts: ‘public order’ and ‘security of state’. The concept of
‘public order’ is wider than ‘security of state’. As the Supreme Court points out, in
Art. 19(2), there exist two expressions ‘public order’ and ‘security of state’. Thus,
‘security of state’ having been specifically and expressly provided for, “public order
cannot include the security of state, though in its widest sense it may be capable of
including the said concept. Therefore, in cl. (2), public order is virtually synonymous
with public peace, safety and tranquility.”
• The term ‘public order’ covers a small riot, an affray, breaches of peace, or acts
disturbing public tranquility. But ‘public order’ and ‘public tranquility’ may not
always be synonymous. For example, a man playing loud music in his home at night
may disturb public tranquility, but not public order. Therefore, such acts as disturb
only the serenity of others may not fall within the term ‘public order’.
SOVEREIGNTY AND INTEGRITY OF INDIA
• Section 2 of the Criminal Law Amendment Act, 1961, makes penal the questioning of
the “territorial integrity or frontiers of India” in a manner which is, or is likely to be,
prejudicial to the interests of the safety or security of India.
FRIENDLY RELATIONS WITH FOREIGN STATES
• The idea behind imposing restrictions on the freedom of speech in the interests of
friendly relations with a foreign country is that persistent and malicious propaganda
against a foreign power having friendly relations with India may cause considerable
embarrassment to India, and, accordingly, indulging in such a propaganda may be
prohibited. The ground, however, is of broad import and is susceptible of supporting
legislation which may even restrict legitimate criticism of the foreign policy of the
Government of India.
Inticement of an offence
• According to the general theories of criminal law, incitement and abutment of a crime
is punishable. Incitement to serious and aggravated offences, like murder, may be
punished as involving the security of the State. Incitement to many other offences
may be made punishable as affecting the public order. But there may still be some
offences like bribery, forgery, cheating, etc., having no public order aspect, and
incitement to which could not be made punishable as an aspect of public order. So,
Art. 19(2) has the words ‘incitement to an offence’.
• The word ‘offence’ has not been defined in the Constitution but according to the
General Clauses Act it means any act or omission made punishable by law. This is a
broad concept and so it is possible for the Legislature to create an offence and make
incitement thereto punishable. In this way, the freedom of speech can be effectively
17-04-2023

circumscribed as any subject can be precluded from public discussion by making it an

offence.
Restrictions
CONTEMPT OF COURT
• In a democratic society, freedom of speech and expression is a prized privilege and a
salutary right of the people. But, at the same time, no less important is the
maintenance of independence and integrity of the judiciary and public confidence in
the administration of justice. It thus becomes necessary to draw a balance between the
two values.
• Power has been specifically conferred on the Supreme Court [Art. 129] as well as
each High Court [Art. 215] to punish its contempt. The freedom of speech and
expression guaranteed by Art. 19(1)(a) is thus subject to Arts. 19(2), 129 and 215.
• Contempt of other Courts can be punished by the High Courts under the Contempt of
Courts Act, 1952. A challenge to the Act as imposing an unreasonable restriction on
the right under Art. 19(1)(a), because it provides no definition of the expression
‘contempt of Court’, has been rejected on the ground that the expression has a well-
recognised judicial interpretation.
DEFAMATION
• Defamation is both a crime as well as a tort. According to Winfield: “Defamation is
the publication of a statement which reflects on a person’s reputation and tends to
lower him in the estimation of right-thinking members of society generally or tends to
make them shun or avoid him.” As a crime, Defamation is defined in S. 49, I.P.C. The
law seeks to protect a person in his reputation as in his person or property.
DECENCY OR MORALITY
• These are terms of variable content having no fixed meaning for ideas about decency
or morality vary from society to society and time to time depending on the standards
of morals prevailing in the contemporary society.
• The Indian Penal Code in Ss. 292 to 294 lists some of the offences like selling
obscene books, selling obscene things to young persons, committing an obscene act,
or singing an obscene song in a public place. S. 292, I.P.C., has been held valid
because the law against obscenity seeks no more than to promote public decency and
morality.

Article 19 1 b &19 3
• Article 19(1)(b) guarantees to the citizens of India the right to assemble peaceably
and without arms. Under Art. 19(3), however, the state can make any law imposing
reasonable restrictions on the exercise of this right in the interests of public order,
and sovereignty and integrity of India. To some extent, there is common ground
between Arts. 19(1)(a) and 19(1)(b). For example, demonstrations, processions, and
meetings considered under Art. 19(1)(a) also fall under Art. 19(1)(b) for a
demonstration also amounts to an assembly and, therefore, the same principles apply
under both Articles. The right to strike is not available under either of these Articles.
17-04-2023

• Article 19(1)(b) does not confer on any one a right to hold meetings in government
premises. Therefore, Railways can validly prohibit holding of meetings in their
premises either within or outside office hours. The right of assembly cannot be
exercised on the property of somebody. Railways are entitled to enjoy their properties
in the same manner as any private individual subject to such restrictions as may be
placed on them by law or usage. But a right to hold public meetings on government
property (like a maidan) can be created by usage.
• It is not valid to confer uncontrolled discretion on administrative officers to regulate
the freedom of assembly. A rule banning holding of public meetings on public streets
without police permission has been held bad in Himmat Lal v. Police
Commissioner. In India, citizens had a right to hold meetings on public streets before
the Constitution, subject to the control of appropriate authority regarding the time and
place of the meeting and considerations of public order. The rule in question gave no
guidance as to the circumstances in which permission to hold a meeting could be
refused and, therefore, gave arbitrary powers.

Article 19 1 c & 19 4
• Article 19(1)(c) guarantees to the citizens of India the right to form associations or
unions. Under Art. 19(4), reasonable restrictions in the interests of public order or
morality or sovereignty and integrity of India may be imposed on this right by law.
• The right to form associations is the very lifeblood of democracy. Without such a
right, political parties cannot be formed, and without such parties a democratic form
of government, especially that of the parliamentary type, cannot be run properly.
Hence the Constitution guarantees the right to form associations subject to such
restrictions as can be imposed under Art. 19(4).
• Recognising the importance of the right of forming associations in a democratic
society, the Courts have not favoured the vesting of absolute discretion in the
executive to interfere with this Fundamental Right. A discretion vested in a
government official to prohibit formation of an association, without proper
safeguards, has been held to be unconstitutional.
• A law empowered the State Government to declare an association unlawful on the
ground that such association constituted a danger to the public peace, or interfered
with the maintenance of public order, or the administration of the law. The
government notification had to specify the grounds for making the order and fix a
reasonable period to make a representation against the order. The State Government
was, however, authorised not to disclose any facts which it regarded as being against
public interest. The government had to place the notification and the representation
against it before an advisory board. If the board, after considering the material, found
that there was no sufficient cause for declaring the association unlawful, the
government was bound to cancel the order.
The Unlawful Activities (Prevention) Act, 1967
• The Act authorises the Central Government to declare by notification in official
gazette an association as unlawful on certain grounds mentioned in S. 2(f) of the Act.
To keep control over the government power, provision has been made for appointment
of a tribunal consisting of a sitting High Court Judge. A notification declaring an
association unlawful is not to be effective until it is confirmed by the tribunal. The
tribunal is to decide whether or not there is sufficient cause for declaring the
association as unlawful.
17-04-2023

RIGHT NOT TO FORM ASSOCIATION

• A question not yet free from doubt is whether the Fundamental Right to form
association also envisages the right to refuse to form an association. In Tikaramji v.
State of Uttar Pradesh, the Supreme Court observed that assuming that the right to
form an association “implies a right not to form an association, it does not follow that
the negative right must also be regarded as a Fundamental Right”. It has been already
seen that while the constitution guarantees a right to form an association or unions the
association or union cannot claim as a further Fundamental Right to achieve the
particular purpose for which such association has been established and that such a
right even if concomitant to the Fundamental Right is not a Fundamental Right in
itself unless the same is justified Article 19(4).

Art 19 d, e & 19 5
• 19(1)(d) guarantees to every citizen the right to move freely throughout the territory
of India. Art. 19(1)(e) guarantees to a citizen the right to reside and settle in any part
of India. According to Art. 19(5), however, the State may impose reasonable
restrictions on these rights by law in the interests of general public or for the
protection of the interests of any Scheduled Tribe.
• These constitutional provisions guarantee to the Indian citizens the right to go or to
reside wherever they like within the Indian territory. A citizen can move freely from
one State to another, or from one place to another within a State. These rights
underline the concept that India is one unit so far as the citizens are concerned.

Article 19 1 g

• Article 19(1)(g) guarantees to all citizens the right to practise any profession, or to
carry on any occupation, trade, or business. Under Art. 19(6), however, the state is not
prevented from making a law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the above right. Nor is the state prevented
from making—
• (i) a law relating to professional or technical qualifications necessary for
practising a profession or carrying on any occupation, trade or business; or
• (ii) a law relating to the carrying on by the state, or by corporation owned or
controlled by it, of any trade, business, industry or service, whether to the
exclusion, complete or partial, of citizens or otherwise.

Restrictions
State Monopoly
• Article 19(6)(ii) enables the state to make laws for creating state monoplies either
partially or complete in respect of any trade or business or industry or service. The
state may enter into any trade like any other person either for administrative reasons,
or with the object of mitigating the evils in the trade, or even for the purpose of
making profits in order to enrich the exchequer.
RESTRICTIONS ON TRADE AND COMMERCE
• In several cases, the Courts have upheld measures affecting trade and commerce to
some extent, on the ground that they do not constitute restrictions on the Fundamental
Right concerned.
17-04-2023

• In Ram Jawaya v. State of Punjab,the government scheme to nationalise school text

books was held valid under Art. 19(1)(g) because the private publishers’ right to print
and publish any book they liked and offer the same for sale, was not curtailed. The
choice of text books for the recognised schools lay with the government and the
publishers had no Fundamental Right to have any of their books prescribed as a text
book by the school authorities.
• In Bombay Hawkers’ Union v. Bombay Municipal Corporation, the Supreme Court
ruled, in answer to the claim of the hawkers that under Art. 19(1)(g) they have a
Fundamental Right to carry on their trade on public streets, that no one has a right to
do business so as to cause annoyance or inconvenience to members of the public.
Public streets are meant for use by the general public; they are not meant to facilitate
the carrying on of private trade or business. But the hawkers ought not to be
completely deprived of their right to carry on trade. So, the Court directed that there
should be hawking zones in the city where licenses should not be refused to the
hawkers except for good reasons.

1. Romesh Thapar v. Union of India, AIR 1950 SC 124- set a favourable precedent in
terms of safeguarding press freedom and defining the proper limit of restrictions on
fundamental rights under Part III of the Constitution.
Facts-The petitioner was the printer, publisher and editor of a journal in English called Cross
Roads printed and published in Bombay. Under Section 9 (1-A) of the the Madras
Maintenance of Public Order Act, 1949, the entry and circulation of the journal was
banned in the erstwhile State of Madras. In response to the ban, the petitioner filed a writ
petition before the Supreme Court, averring that the powers under the Act were an excessive
restriction on freedom of expression under Article 19 of the Constitution of India.
In response, it was considered on behalf of the respondent State, that the restriction was for
the purpose of public safety and public order. This could be equated with security of the
State, which is considered a reasonable restriction on freedom of expression under Article
19(2).
Decision Overview
J. Patanjali Sastri (per KANIA C.J., PATANJALI SASTRI, MEHR CHAND
MAHAJAN, MUKHERJEA and DAS JJ.):
Security of the State is a reasonable restriction under Article 19 (2) of the Constitution.
However, the words used in the impugned section of the Act are ‘public safety and public
order’. The Court considered that the 2 terms have to be read together. The purpose for
which restrictions were allowed under the Act for the wider purpose of public order. It drew
parallels with the Indian Penal Code and other texts to show that public order has a very wide
interpretation- including acts like rash driving. On the other hand, security of the State
referred to extreme acts of violence that would threaten to overthrow the State. Therefore, the
restriction under the Act was wider than what was Constitutionally permissible as a
restriction on freedom of expression.
Further, where an Act may be used within the constitutional limits as well as outside the
scope of these limits, it must be considered void. The impugned section was accordingly
considered to be void for unconstitutionality, because it gave the State-wide powers to
restrict freedom of expression. The Court also quashed the order of the Government
whereby the newspaper was banned.
17-04-2023

J. Fazl, dissenting-
He concluded that the maintenance of peace and tranquility was a part of maintaining
security of the State. Therefore, he disagreed with the majority opinion and asserted that the
Act imposed reasonable restrictions on freedom of expression and must be upheld as valid.
Held- the petitioner was free to apply to the Supreme Court for the enforcement of his
fundamental rights without first going to the High Court.
In its decision regarding the legality of the impugned order that prohibited the entry
and circulation of the weekly magazine into certain areas of Madras, the Court held
that freedom of speech and expression includes freedom of idea propagation, which can
only be ensured by circulation.
The Court ruled that the impugned decision was manifestly in violation of Article 19(1)
(a) unless the reservation in Article 19(1)(a) of the impugned Act protected Section 9(1-
A) of the impugned Act (2).
The majority held Section 9(1-A) of the Madras Maintenance of Public Order Act to be
illegal under Article 13(1) of the Constitution and so extra vires since it contradicted Part III
(Fundamental Rights) provisions after using the severability criteria.
In reaction to the ruling, the First Constitutional Amendment Act of 1951 was passed,
introducing ‘Public Order’ as a legal restraint under section 19(2) of the Freedom of Speech
and Expression Act – 19(1). (a).

2. Ram Manohar Lohia v. State of Bihar3, AIR 1960 SC 633

Rule 30(1)(b) of the Defence of India Rules, 1962, provided that a State Government might,
if it was satisfied with respect to a person that with a view to preventing him from acting in
a manner prejudicial, inter alia to "public safety and maintenance of public order" it is
necessary to do so, order him to be detained.
Facts- A Disrict Magistrate to whom the power of the Government of the State of Bihar had
been delegated under s. 40(2) of the Defence of India Act, 1962, ordered the detention of the
petitioner under.
The petitioner moved this Court under Art. 32 of the Constitution for a writ of habeas corpus
directing his release from detention, contending that:
(i) though an order of detention to prevent acts prejudicial to public order may be justifiable
an order to prevent acts prejudicial to law and order would not be justified by the rule.
(ii) the order mentioned a notification which did not contain the necessary delegation;
(iii) the District Magistrate acted beyond his jurisdiction by considering the danger not only
in his district but in the entire State; and
(iv) all the conditions mentioned in the rule must be cumulatively applied before the order of
detention could be made.
The respondent-State raised a preliminary objection that the President of India had made an
Order under Art. 359(1) that the right of a person to move any court for the enforcement of
the rights conferred by Arts. 21 and 22 shall remain suspended for the period during which
3
??????????/
17-04-2023

the proclamation of emergency under Art. 352 was in force, if such person had been deprived
of any such rights under the Defence of India Act or any rule made there under, and that
therefore, this Court was prevented from entertaining the petition.
The order detaining the petitioner would not be in. terms of the rule unless it could be said
that the expression "law and order" means the same thing as "Public order". What was meant
by maintenance of public order was the prevention of disorder of a grave nature, a
disorder which the authorities thought was necessary to prevent in view of the emergent
situation created by external aggression, whereas the expression "maintenance of law and
order" may mean prevention of disorder of comparatively lesser gravity and of local
significance only.
Courts are only entitled to look at the face of the order, because the satisfaction which
justifies the order under the rule is the subjective satisfaction of the detaining authority. If on
its face an order of detention is in terms of the rule, ordinarily, a court is bound to stay its
hands and uphold the order.
When an order is on the face of it not in terms of the rule, a court cannot enter into an
investigation whether the order of detention was: In fact in terms of the rule. So, the State
cannot be heard to say of prove that an order was in fact made to prevent acts prejudicial to
public order though the order does not say so. It is not a case where the order is only evidence
of the detention having been made under the rule.
The order is conclusive as to the state of the mind of the person who made it and no evidence
is admissible to prove that state of mind. Extraneous evidence such as the note made by the
District Magistrate was not admissible lo prove that the rule had been complied with.
If we could examine the reasons, we may be able to say whether the action can still be said
to fall within the other topic public safety. That enquiry is not open to us. If we looked into
the matter from that angle, we would be acting outside our powers. The order on its face
shows two reasons. There is nothing to show that one purpose was considered to be more
essential than the other. We are not, therefore, certain that the District Magistrate was
influenced by one consideration and not both. The order -of detention is a warrant which
authorises action.
Affidavits hardly improve the order as it is. If there is allegation of bad faith, they can be seen
to determine the question of good faith. If mistaken identity is alleged, we can satisfy
ourselves about the identity.
But if action is taken to maintain law and order instead of maintaining public order, there is
room to think that the powers were misconceived and if there is such a fundamental error
then the action remains vulnerable.
It will not be possible to say that although maintenance of law and order were specified, what
was considered was the problem of maintenance of public order. The error is an error of a
fundamental character and unlike quoting a wrong notification.
It is thus apparent why one error in the order of detention is admitted but not the other, and
why with elaborate arguments it is attempted to establish that "public order" involves
elements more numerous than "law and order" where, in fact, the truth is the other way.

THE SUPERINTENDENT, CENTRAL PRISON, FATEHGARH vs Ram Manohar

Lohiya 1960 AIR 633
17-04-2023

Rule- Section 3 of the U.P. Special Powers Act, 1932 (XIV Of 1932), provided as follows:-
"Whoever, by word, either spoken or written, or by signs or by visible representations, or
otherwise, instigates, expressly or by implication, any person or class of persons not to pay or
to defer payment of any liability, and whoever does any act, with intent or knowing it to be
likely that any words, signs or visible representations containing such instigation shall
thereby be communicated directly or indirectly to any person or class of persons, in any
manner whatsoever, shall be punishable with imprisonment which may extend to six months,
or with fine, extending to Rs. 250, or with both."
Facts- The appellant, who was prosecuted under the section for delivering speeches
instigating cultivators not to pay enhanced irrigation rates to the Government, applied to
the High Court for a writ of habeas corpus on the ground, amongst others, that the said
section was inconsistent with Art. 19(1) (a) of the Constitution and as such void.
Conclusion- The High Court decided in favour of the appellant, and he was released.
Issue- The State appealed to this Court and the question for determination was whether the
impugned section embodied reasonable restrictions in the interests of public order and
was thus protected by Art. 19(2) of the Constitution.
Held- Held, that even though in a comprehensive sense all the grounds specified in Art. 19(2)
of the Constitution on which any reasonable restrictions on the right to freedom of speech
must be based can be brought under the general head "public order", that expression, inserted
into the Article by the Constitution (First Amendment) Act, 1951, must be demarcated from
the other grounds and ordinarily read in an exclusive sense to mean public peace, safety and
tranquility in contradistinction to national upheavals, such as revolution, civil strife and
war, affecting the security of the State.
It is well settled by decisions of this Court that in a restriction in order to be reasonable
must have a reasonable relation to the object the Legislation has in view and must not
go beyond it. Restrictions, therefore, meant to be in the interest of public order which have
no proximate relationship or nexus with it but can be only remotely or hypothetically
connected with it, cannot be reasonable within the meaning of Art. 19(2) of the
Constitution.
Reasoning- It would be incorrect to argue that since instigation by a single individual not to
pay taxes might ultimately lead to a revolution resulting in destruction of public order, that
instigation must have a proximate connection with public order. No fundamental rights can be
restricted on such hypothetical and imaginary consideration.
Nor is it possible to accept the argument that in a democratic set up there can be no scope for
agitational approach or that any instigation to break a bad law must by itself constitute a
breach of public order, for to do so without obvious limitations would be to destroy the
right to freedom of speech on which democracy is founded.
It is not possible to apply the doctrine of severability relating to fundamental rights as
enunciated by this Court to the provisions of the impugned section, since it is not possible to
precisely determine whether the various categories of instigation mentioned therein fall
within or without the constitutionally permissible limits of legislation and separate the valid
parts from the invalid.

3. Kedarnath Singh v. State of Bihar, AIR 1962 SC 955

17-04-2023

Facts- The appellant in this case had been convicted for sedition and inciting public
mischief because of a speech in which he had criticized Congress, the ruling national party,
for its capitalist policies, and instead advocated for the Forward Communist Party. His appeal
before the High Court of Judicature at Patna was struck down. On appeal to the Supreme
Court, the appellant argued that the Indian Penal Code provisions on sedition violated
the right to freedom of expression under Article 19(1)(a) of the Indian Constitution.
Issue- The Supreme Court was tasked to determine the constitutional validity of the offenses
of sedition and inciting public mischief.
Reasoning- The Court began by affirming that the impugned provisions are clearly a
restriction on the right to freedom of expression, which is protected under Article 19(1)(a)
of the Constitution. The Court’s task was to determine whether these were reasonable
restrictions under Article 19(2), which provides that reasonable restrictions may be imposed
on certain grounds including ‘public order’. If a restriction is in keeping with Article
19(2), it is constitutionally valid.
The Court emphasized that the phrase “Government established by law” under section
124A must be distinguished from criticism of a specific party or persons. The Court stated
that this interpretation finds support from the title of the relevant chapter in the Indian Penal
Code, which is headed “Offences against the State”.
The Court considered furthermore that since the State machinery is essential in maintaining
peace and stability, statements that fall under section 124A would disturb public order.
However, the Court held that the offense of sedition is constituted only when the words
spoken have the tendency or intention to create disorder or disturb public peace by
resort to violence. This is a constitutionally valid restriction on the right to freedom of
expression, because the State may restrict speech in the interest of protecting public
order.
The Court went on to elaborate that if the provision was interpreted in any other manner, for
example to punish speech that merely spreads disaffection or enmity without inciting a
violent overthrow of the government, it would be unconstitutional. However, a statute must
be interpreted with due regard to the mischief it seeks to correct and its legislative history.
Therefore, the Court concluded that Section 124A must be construed to only penalize
statements that incite public disorder. Interpreted in such a manner, the provision was
constitutionally valid.
For the same reason, the Court also held that Section 505 was constitutionally valid; it was
a reasonable restriction on the right to freedom of expression in the interest of protecting
public order.
It followed that Appeal no. 169 was dismissed, and appeals nos. 124-126 were remanded to
the High Courts for decisions in line with the Court’s direction.
Held- The Supreme Court of India upheld the constitutional validity of the provisions of the
Indian Penal Code that penalized sedition. Kedar Nath Singh had been convicted for sedition
and inciting public mischief because of a speech in which he criticized the government and
advocated for the Forward Communist Party.
The Court reasoned that the penalization of sedition is a constitutionally valid restriction on
the right to freedom of expression only when the words are intended to disturb public peace
by violence.
17-04-2023

4. Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305- Newspaper
Mudholkar, J., delivered the opinion of the Court. A private company that published
newspapers, its shareholders, and two readers (Sakal) filed petitions against the state. The
publishing company challenged the constitutional validity of the Newspaper (Price and
Page) Act, 1956 (Newspaper Act), which empowered the central government to regulate
the price of newspapers in relation to their pages and the allocation of space for
advertising matter.
The publishing company also challenged the Daily Newspapers (Price and Page) Order,
1960 (Newspaper Order), which was passed by the Government under the Newspaper
Act to put in place such regulations. The petitions argued that the Newspaper Act and
Newspaper Order violated the freedom of speech and expression guaranteed under Article
19(1)(a) of the Indian Constitution.
While the Indian Constitution does not explicitly guarantee freedom of the press, it is
recognized as part of the freedom of speech and expression under Article 19(1)(a), which
may be restricted on grounds mentioned in Article 19(2). The right to propagate one’s ideas
includes the right to publish them, disseminate them, and circulate them.
The Court noted that by providing the maximum number of pages for the particular price
charged, the effect of the Newspaper Act and Newspaper Order was to compel newspapers
either to reduce the number of pages or to raise the prices. While the former restricted
the dissemination of news and views by the newspapers, the latter would have
significantly cut down their circulation. Both involved a direct infringement of the
newspapers’ right under Article 19(1)(a). The freedom of a newspaper to publish any
number of pages and to circulate to any number of persons is an integral part of the
freedom of speech.
Reason- Regulation of advertising space forced newspapers either to raise their prices
and compromise on circulation or to run at losses, eventually forcing them to close
down. This was a direct, and not a remote or incidental, infringement on the right to
freedom of speech and expression. India contended that advertising is a commercial aspect
of speech, and restrictions in the public’s interest may be placed on it under Article 19(6).
However, the Court held that the right to freedom of speech cannot be taken away with
the object of restricting business activities.
The Court held that the Newspaper Act and Newspaper Order were unconstitutional. In view
of this relief, the Court did not consider the grievance of the readers that their right under
Article 19(1)(a) was also infringed.
The Supreme Court declared that the Newspaper (Price and Page) Act, 1956 and the Daily
Newspapers (Price and Page) Order, 1960 violated the constitutional right to free speech. The
Act and Order regulated the prices publishers could charge for newspapers based on page
count and the amount of content, with Sakal Papers alleging that this was an
unconstitutional violation of free speech.
The Court found that the laws in question would either increase prices or reduce the
number of pages, both of which would inhibit the dissemination of ideas, a fundamental
aspect of the right to free speech.
17-04-2023

5. Bennet Coleman v. Union of India, AIR 1973 SC 106- newspaper+ company

Facts- The petitioners are media conglomerates involved in the publication of newspapers.
They challenged the restrictions on the import of newsprint under Import Control Order
1955 and on the manner in which this is used by newspapers under the Newsprint Order
1962. Further, the Newsprint Policy of 1972-73 placed further restrictions based on four
features: first, no new newspapers may be started by establishments owning more than
two newspapers if at least one of which is a daily; second, the total number of pages may
not exceed ten; third, the increase in number of pages may not be more than 20% for
newspapers that are under ten pages; and, finally, no-interchangeability of newsprint
may permitted between different newspapers of the same establishment or between
different editions of the same paper.
Therefore, the petitioners were not allowed to make adjustments in circulation, etc., under
these newsprint policies even within the quota limit. This was challenged for violation of
Article 19(1)(a) of the Indian Constitution.
The respondents argued that the petitions were not maintainable because companies do not
enjoy fundamental rights, which are available only to natural persons. Further, the
respondents argued that Article 358—the Constitution’s provision for “emergency powers”—
barred any challenge on grounds of fundamental rights. They also proposed a subject-matter
test of restriction rather than an “effects test.” Accordingly, the restrictions were valid because
they regulated the commercial operations of newspapers in order to prevent monopolies, by
which any effect on freedom of expression was incidental. Finally, they asserted that the
question of whether newsprint import must be increased was a question of policy that could
not be challenge on any grounds except “mala fide.”
Further, the bar under Article 358 did not apply to laws passed before the proclamation of
emergency, and, therefore, the newsprint policy could be challenged as a continuation of the
previous year’s policy and relevant orders.
Held- On merits, the Court noted that freedom of the press was an essential element of
Article 19(1)(a) and the absence of an express mention of such freedoms as a special
category was irrelevant. Free press was to be regarded as an essential element of freedom of
expression in general. The Court also observed that shortage of newsprint could be tackled
by fixing the quotas. However, direct interference in terms of page limits and other such
regulation was not justified. The page limit meant that the newspapers would either lose
economic viability due to reduction in advertisements or be forced to reduce news
content. This would limit freedom of expression because, in the first case, circulation
would drop due to increased costs, and, in the second, there were quantitative restrictions on
content. The Court observed that freedom of the press had both quantitative and qualitative
elements and, therefore, the quantitative controls constituted restrictions on freedom of
expression. Since they were not justified on the basis of shortage of newsprint, they could not
be considered to be reasonable restrictions. The Court held that the Newsprint Policy of
1972-73 was unconstitutional. However, the Newsprint Order and Import Control Order were
considered not to be the source of these restrictions and were not struck down.
J. Beg, in a concurrence, observed that the Newsprint Policy of 1972-73 was outside the
scope of the Import Control Order, which provided only for fixing of quotas and no further
interference. Therefore, the question of whether the restrictions were reasonable did not arise,
as the government action had no legal basis in the first place.
17-04-2023

J. Mathew, in a dissent, observed that there was no direct regulation of content and that a
restriction on number of pages did not mean an abridgment of freedom of expression.
He reasoned that the control of newsprint and regulating its distribution was necessary to
ensure that it was efficiently utilized. Insofar as it made newsprint utilization efficient and
prevented monopoly by a few newspapers, the policy expanded rather than abridged freedom
of speech and expression. He disagreed with the majority judgment and held that the policy
was not unconstitutional.
Held- The Supreme Court of India accepted petitioners’ challenges those certain restrictions
and regulations on newspapers affected the right to freedom of speech and
expression. The petitioners challenged the restrictions on the import of newsprint under
Import Order 1955; the regulation of sale, acquisition, and use of newsprint under Newsprint
Order 1962; and the direct regulation of size and circulation of newspapers under the
Newsprint Policy of 1972-73.
The Court found that because the freedom of the press involved both qualitative and
quantitative dimensions, the Newsprint Policy was unconstitutional as its quantitative
restrictions were not justified by a shortage of newsprint; the Newsprint Order and Import
Control Order were not struck down.

 S. Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574- movie

Facts- On 07/08/1987, the producer applied to issue an exhibition certificate for the film Ore
Oru Gramathile. The film was based on the theme reservation policy must be based on
economic condition rather than the caste system. In the film, there was not any kind of
warrant that it contains the theme of caste consideration or reservation policy, neither it gave
any kind of consideration over sovereignty, integrity, and national security of India.
At first, the examining committee refused to grant the exhibiting certificate, then the
producer asked for a second review by a Revising Committee of nine members. Eight of the
nine members were in favor to grant the certificate but one opposed the same, so the
Chairman of the Censor Board referred for review under the Second Review Committee that
was also consisted of nine members. After the whole examination, they conclude to issue
a Certificate after deleting some of the scenes from the movie.
The movie was awarded a National Award by the Directorate of Film Festival of the
Government of India. After the projection of the movie, a writ petition was filed at Madras
High Court with a view that this movie has expressed the Reservation policy of the
Government irresponsibly. The Division Bench revoked the certificate on the view of the
minority section and thus the appellant went to the Supreme Court of India.
Justice K. Jagannatha Shetty delivered the judgment of the court. Article 19(1)(a) of the
Indian Constitution guarantees the freedom of speech and expression which also includes the
freedom of communication that can be made via movie. But these rights have consisted of
some restrictions in the interest of sovereignty, integrity, and national security that are obliged
under Article 13(2) of the Indian Constitution.
The movie enjoys the right, but it doesn't work like newspaper or other modes of
communication, and we can observe the difference between the First Amendment of the U.S.
Constitution and Article 19(1)(a) of the Indian Constitution. There are some sections and
guidelines under The Cinematography Act, 1952 through which any particular film must be
17-04-2023

judged, including its impact at the general view and must be examined at the
contemporary standard of the country.
The permissible censorship must be permitted based on social interest and the standard
of society under Article 19(2) of the Indian Constitution.
Reason- It held that since the state has the obligation to protect freedom of expression
and the film has been judged by two different committees as per the prescribed
guidelines. There is no constitutional contrary in approving the projection of film and
also any person has the right to give his/her view on any governmental policy.
Held- Open criticism of government policies and operations is not a ground for
restricting such an important right, it must be tolerable. Hence the judgment of the
High Court was reversed, and the film was allowed to be projected.
Conclusion held that the freedom of expression is important and legitimate as per the
perspective of cinema or any other mode of communication.

 Shreya Singhal v. Union of India, AIR 2015 SC 1523 S66A ITA unconstitutional
Fact- Police arrested two women for posting allegedly offensive and objectionable
comments on Facebook about the propriety of shutting down the city of Mumbai after
the death of a political leader. The police made the arrests under Section 66A of the
Information Technology Act of 2000 (ITA), which punishes any person who sends through a
computer resource or communication device any information that is grossly offensive, or
with the knowledge of its falsity, the information is transmitted for the purpose of
causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will. Although the
police later released the women and dismissed their prosecution, the incident invoked
substantial media attention and criticism.
Issue- The women then filed a petition, challenging the constitutional validity of Section
66A on the ground that it violates the right to freedom of expression.
The Supreme Court of India initially issued an interim measure in Singhal v. Union of India,
(2013) 12 S.C.C. 73, prohibiting any arrest pursuant to Section 66A unless such arrest is
approved by senior police officers. In the case in hand, the Court addressed the
constitutionality of the provision.
Held-Justices Chelameswar and Nariman delivered the opinion of the Supreme Court of
India.
The main issue was whether Section 66A of ITA violated the right to freedom of expression
guaranteed under Article 19(1)(a) of the Constitution of India. As an exception to the right,
Article 19(2) permits the government to impose “reasonable restrictions . . . in the
interests of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offense.”
The Petitioners argued that Section 66A was unconstitutional because its intended protection
against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation,
or ill-will fall outside the purview of Article 19(2). They also argued that the law was
unconstitutionally vague as it fails to specifically define its prohibitions. In addition, they
contended that the law has a “chilling effect” on the right to freedom of expression. [para. 5]
17-04-2023

The government, on the other hand, argued that the legislature is in the best position to
fulfill the needs of people and courts may interfere with legislative process only when “a
statute is clearly violative of the rights conferred on the citizen under Part-III of the
Constitution.” [para. 6] The government contended that mere presence of abuse of a provision
may not be a ground to declare the provision as unconstitutional. Also, the government was
of the opinion that loose language of the law could not be a ground for invalidity because the
law is concerned with novel methods of disturbing people’s rights through internet.
According to the government, vagueness cannot not a ground to declare a statute
unconstitutional “if the statute is otherwise legislatively competent and non-arbitrary.” [para.
6]
Held- The Court first discussed three fundamental concepts in understanding the freedom of
expression: discussion, advocacy, and incitement. According to the Court, “[m]ere
discussion or even advocacy of a particular cause howsoever unpopular is at the heart” of the
right. [para. 13] And, the law may curtail the freedom only when a discussion or advocacy
amounts to incitement.
The Court further held that the law fails to establish a clear proximate relation to the
protection of public order. According to the Court, the commission of an offense under
Section 66A is complete by sending a message for the purpose of causing annoyance or
insult. As a result, the law does not make distinction between mass dissemination and
dissemination to only one person without requiring the message to have a clear tendency of
disrupting public order.
As to whether Section 66A was a valid attempt to protect individuals from defamatory
statements through online communications, the Court noted that the main ingredient of
defamation is “injury to reputation.” It held that the law does not concern this objective
because it also condemns offensive statements that may annoy or be inconvenient to an
individual without affecting his reputation. [para. 43]
The Court also held that the government failed to show that the law intends to prevent
communications that incite the commission of an offense because “the mere causing of
annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing
character are not offences under the Penal Code at all.” [para. 44]
As to petitioners’ challenge of vagueness, the Court followed the U.S. judicial precedent,
which holds that “where no reasonable standards are laid down to define guilt in a Section
which creates an offense, and where no clear guidance is given to either law abiding citizens
or to authorities and courts, a Section which creates an offense and which is vague must be
struck down as being arbitrary and unreasonable.” [para. 52] The Court found that Section
66A leaves many terms open-ended and undefined, therefore making the statute void for
vagueness.
The Court also addressed whether Section 66A is capable of imposing chilling effect on the
right to freedom of expresssion. It held that because the provision fails to define terms, such
as inconvenience or annoyance, “a very large amount of protected and innocent speech”
could be curtailed. [para. 83]
The Court also noted the intelligible difference between information transmitted through
internet and other forms of speech, which permits the government to create separate offenses
related to online communications. Accordingly, the Court rejected petitioners’ argument that
Section 66A was in violation of Article 14 of the Constitution against discrimination. [para.
98]
17-04-2023

The Court declined to address the Petitioners’ challenge of procedural unreasonableness since
the law was already declared unconstitutional on substantive grounds. It also found Section
118(d) of the Kerala Police Act to be unconstitutional as applied to Section 66A.
Key holding- Based on the forgoing reasons, the Court invalidated Section 66A of ITA in
its entirety as it violated the right to freedom of expression guaranteed under Article
19(1)(a) of the Constitution of India.

 N. Radhakrishnan v. Union of India (UOI) and Ors., AIR 2018 SC 4154

Conclusion- The Supreme Court dismissed a petition to ban a book stating that the
language used in the book could not remotely be said to be obscene, and while the
language may be disliked by some people, it is not a ground for a Constitutional Court
to ban a literary work. The Petitioner filed a Writ Petition in the Supreme Court of
India seeking a ban on a book titled ‘Meesha’ on the ground that a part of the book was
obscene and offended women belonging to a particular faith.
The dialogue in the book that was primarily alleged to be obscene was a dialogue where
the protagonist’s friend, in a conversation with the protagonist, says that women will
wear their best clothes when going to the temple to proclaim that they are ready to enter
into sex.
Facts- The Petitioner filed a Petition under Article 32 of the Constitution of India in the
Supreme Court of India seeking a ban on a book titled ‘Meesha’ (meaning, Moustache)
which “appeared in a popular Malayalam weekly ‘Mathrubhumi’, published from Kozikhode,
Kerala and circulated throughout the country and abroad” [para. 5]. The book was the
narration of the life-story of protagonist Vavachan who became famous for his
mustache that was symbolic of defiance to the upper caste persons of his village. The
dialogue in the book that was primarily alleged to be obscene was a dialogue where
Vavachan’s friend, in a conversation with Vavachan, says that women by wearing their best
clothes when going to the temple are “unconsciously proclaiming that they are ready to
enter into sex” [para. 23].
The Petition was filed against the Chief Editor of the Magazine, the Union of India and the
State of Kerala. The Petitioner sought the seizure all copies of the magazine from July 2018
that contained the allegedly obscene paragraphs; directions to prevent any further
publication/circulation of the novel in the form of a book or on the internet and lastly,
prayed to issue directions to the Ministry of Information and Broadcasting, to “frame such
guidelines as to prevent the recurrence of such instances which have the tendency to cause
threat to the integrity of the society and the safety of women” [para. 11].
The Petitioner averred that the book was “insulting and derogatory to temple going women
and that it hurt the sentiments of a particular faith/community” [para. 6]. The Petitioner stated
that he approached the Court “singularly for the protection of the legitimate interest of the
women community” [para. 7] as the book had a “tendency to propel the general public to
view the women community as mere sexual and material objects” [para. 7] thus denying
women their fundamental rights and putting them at risk.
Issue- The central issue before the Court was whether the allegedly obscene and defamatory
portion of the book was an aberration of such magnitude that it could “potentiality disturb
the public order, decency or morality,” [para. 24] thus inviting imposition of reasonable
restrictions under Article 19(2) of the Constitution.
17-04-2023

Held-Chief Justice of India Dipak Misra authored the judgment on behalf of the bench of
three judges.
It was contended by the Petitioner that the editor of Mathrubhumi failed in his duty by “not
editing or scrutinizing the portion of the book” and that the impugned writings were “not a
manifestation of the freedom of expression but were collusive efforts aimed at dividing
the society” by targeting the “virtues of pluralistic community, religion and gender balance”
[para. 7].
Further, the impugned writings “defiled the places of worship and caused the public to look
down upon them with contempt and ridicule, whereas worshiping of deities by visiting the
temples with purity of body and mind is an integral part of the Hindu religion” [para. 8]. The
material had the “potentiality to disturb the public order, decency or morality” which
were grounds for the State to impose reasonable restrictions under Article 19(2) on the
fundamental right of freedom of speech and expression.
The Court dismissed the Petition on the “touchstone of pragmatic realism” [para. 5] and
on the principle that “creative voices cannot be stifled” [para. 27]. The Court held that it
couldn’t be denied that the plots and sub-plots of the narrative were a manifestation of
creativity. The characteristics of the protagonist may either evoke feelings of empathy from
the reader of feelings of contempt but the “Court was not to be swayed by any kind of
perception” [para. 35]. No matter which of these feelings are evoked in the Court’s mind, it
could not be denied that the “dialogue to which the objection is raised is not an intrusion to
create sensation but a facet of projection of the characters” [para. 36]. The Court held that the
“language used in the dialogue cannot remotely be thought of as obscene and the
concept of defamation does not arise” [para. 35]. The Court stated that a reader’s dislike
towards a particular manner of expression would not warrant the Court to ban the
book.
To conclude, the Court held that “the culture of banning books directly impacts the free flow
of ideas” and “any direct or veiled censorship or ban of a book, unless defamatory or
derogatory to any community for abject obscenity, would create unrest and disquiet among
the intelligentsia” [para. 27]. The Court affirmed that we do not live in a “totalitarian regime
but in a democratic nation, which permits the free exchange of ideas and liberty of
thought and expression” [para. 27].

 Indibily Creative Pvt. Ltd v. Govt. of West Bengal, Writ Petition (Civil) No.
000306/2019- violation+ police arbitrariness
Facts- The Petitioners were producers of the Bengali film, Bhobishyoter Bhoot (‘Future
Ghosts’). The film was a political satire about ghosts who seek to find meaning through
rescuing the marginalized and the obsolete. The film was scheduled to release in Kolkata
and some districts of West Bengal on 15th February. The film received its certificate for
public exhibition on 19 November 2018. However, a few days prior to the release, the
Petitioner No. 2 (producer) received a phone call from the Kolkata police on 11 February
2019 and thereafter, a letter, asking for an advance screening of the film for senior officials.
The communication stated that the police had received intelligence reports that the film could
cause “political law and order issues”. The Petitioner No. 2 responded by letter dated 12
February 2019 that the film was already duly certified, and it was settled law that after the
approval of the Central Board of Film Certification, it wasn’t open for any other authority to
obstruct the screening of the film.
17-04-2023

The film was released on 15 February 2019. On 16 February 2019, the film was
simultaneously removed from theatres by an overwhelming number of exhibitors and tickets
were refunded. Allegedly, this was due to instructions by “higher authorities.” The
Petitioners therefore filed a writ petition before the Supreme Court alleging violation of their
rights.
By the time the writ was filed, the film was pulled down by a majority of the theatres and out
of forty-eight exhibitors, only two continued to display the film. One of the exhibitors, INOX
Leisure Ltd eventually addressed a communication on 4 March 2019 to the producer stating
that they were “directed by the authorities to discontinue screening” of the film “keeping in
mind the interest of the guests”. The Petitioners, therefore, averred that the State had sought
to ban the film through indirect means and without the authority of law. The Court was also
informed by the State of West Bengal that it has not taken recourse to its powers either under
the West Bengal Cinemas (Regulation) Act 1954 or the Cinematograph Act 1952 and
therefore, the Writ Petition was without basis.
At the time of hearing, the Court considered the irreparable loss caused due to interference
with the screening of the film as well as the State’s positive obligation to protect freedom of
speech and passed significant interim orders. By order dated 15 March 2019, the Court
directed the Chief Secretary and Principal Secretary, Department of Home of the State of
West Bengal to ensure that there is no obstruction to the screening of the film. They were also
instructed, along with the Director General of Police, State of West Bengal to ensure that
adequate security arrangements are made to protect the viewers of the film and the property
of the exhibitors. By order dated 25 March 2019, the Court noted the statement of the counsel
for the State of West Bengal that there was no formal ban on the film. However, considering
the communication dated 11 February 2019 was an extra-constitutional exercise of power, the
Court further directed that the Joint Commissioner of Police withdraw the said letter. The
police and State authorities were directed to send communications to each of the exhibitors
reiterating that there was no ban on the film and that the State will provide adequate security
to all exhibitors who resume the screening of the film. An affidavit of compliance dated 27
March 2019 was duly filed by the relevant authorities.

Issue- The main issue before the court was whether the state and its agencies had resorted
to “extra constitutional means to abrogate the fundamental rights of the producer,
director and the viewers.” [para. 12]
 The Court began with a survey of philosophical and literary writings, citing Voltaire,
Camus, and Simone de Beauvoir among many others, to establish the value of freed
speech in a democratic society. In particular it recalled that the right to freedom of
expression requires extending protections to speech we may despise, as “[t]his
principle is at the heart of democracy, a basic human right, and its protection is a mark
of a civilized and tolerant society.” It further elaborated that there are moral
arguments to defend free speech based on its intrinsic value as well as instrumental
arguments based on its benefits for individual, social and economic development.
[para. 13] Citing John Stuart Mill, the Court noted that restrictions to freedom of
expression can only be justified if they are to prevent harm to others. It relied on
Dworkin’s concept of democracy to establish that the participation of minorities and
the presentation of unconventional views are necessary for public debate. Satire, it
noted, is a powerful form of artistic expression able to quickly reveal the “absurdities,
hypocrisies, and contradictions” in life which is protected, except in instances where it
could marginalize or disenfranchise groups.
17-04-2023

 Next the Court extensively reviewed established case law on the “narrow and
stringent” limits to restrictions on freedom of expression (Romesh Thapar v. State
of Madras), especially “concerning censorship of content by state-controlled entities”
(LIC v. Manubhai Shah). [para. 14]
The Court considered the circumstances surrounding the release and subsequent
withdrawal of the film from all exhibitors, including the communication by police
officials to the Petitioners. The Court stated that “[t]he police are not in a free
society the self-appointed guardians of public morality. The uniformed authority of
their force is subject to the rule of law. They cannot arrogate to themselves the
authority to be willing allies in the suppression of dissent and obstruction of
speech and expression.” [para. 16]
It concluded that the State had sought to indirectly interfere with the screening of the
film, outside the scope of statutory powers that governed the exercise of police
powers. The Court also recognized the particular harm of such indirect interference,
characterized as ‘shadow banning’- statutory exercise of power allowed for the right
to judicial review under Article 32 of the Constitution; whereas in the present
circumstance, there was no formal ban or reasons provided by the State,
rendering this right illusory. The Court additionally noted the potential chilling
effect such arbitrary restrictions could have.

 The Court also considered the failure of the State to ensure adequate protection to
the release of the film. It was considered necessary to read ‘positive obligations’
into the right to freedom of speech and expression in order to ensure the meaningful
exercise of this right. The Court cited S. Rangarajan v. P. Jagjivan Ram to establish
that “[i]f the film is unobjectionable and cannot constitutionally be restricted
under Article 19(2), freedom of expression cannot be suppressed on account of
threat of demonstration and processions or threats of violence.” [para. 14] It
further explained that once a film had been cleared by the film board or tribunal, the
Central Government did not have the power to “review or revise” those decisions
based on concerns about potential “public resentment” towards the film and that it
was the Government’s responsibility to ensure law and order is maintained. [para. 14]
(see K.M. Shankarappa v. Union of India, Maqbool Fida Hussain v. Rajkumar Pandey
and Viacom 18 Media Pvt Ltd. Versus Union of India)
Considering the social context, the Court expressed a concern that “contemporary events
reveal that there is a growing intolerance: intolerance which is unaccepting of the rights
of others in society to freely espouse their views and to portray them in print, in the
theatre or in the celluloid media.” In the present case, the Court found there had been “an
unconstitutional attempt to invade the fundamental rights of the producers, the
actors and the audience. Worse still, by making an example out of them, there has
been an attempt to silence criticism and critique.” [para. 18]
Held- Therefore, considering the State’s interference with the freedom of speech and
expression, both in commission and omission, the Court held that there was a violation of the
rights of the Petitioners under Article 19(1)(a) of the Constitution. The Court also
recognized the importance of remedy under public law to ensure adequate compensation for
this violation of Fundamental Rights. The Respondents were directed to pay compensation
quantified at Rs. 20 lakhs by the Court, in addition to Rs. 1 lakh as legal costs.
17-04-2023

 Anuradha Bhasin V. Union of India AIR 2020 SC 1308- indefinite suspension of

internet services would be illegal.
Facts- Jammu and Kashmir is an Indian territory bordering Pakistan that has been the subject
of a decades-long dispute between the two countries. Under Article 370 of the Indian
Constitution, the territory enjoyed special status, had its own Constitution and Indian citizens
from other states were not allowed to purchase land or property there. On August 5, 2019, the
Indian Government issued Constitution (Application to Jammu and Kashmir) Order, 2019,
which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954
and made it fully subservient to all provisions of the Constitution of India.
In the days leading up to this Constitutional Order, the Indian government began imposing
restrictions on online communication and freedom of movement. On August 2, the Civil
Secretariat, Home Department, Government of Jammu and Kashmir, advised tourists and
Amarnath Yatra pilgrims to leave the Jammu and Kashmir area in India. Subsequently,
schools and offices were ordered to remain closed until further notice. On August 4, 2019,
mobile phone networks, internet services, landline connectivity were all shutdown in the
region. The District Magistrates imposed additional restrictions on freedoms of movement
and public assembly citing authority to do so under Section 144 of the Criminal Penal
Code.
The internet shutdown and movement restrictions (hereafter “restrictions”) limited the
ability of journalists to travel and to publish and accordingly were challenged in court for
their violations of Article 19 of India’s Constitution which guarantees the right to freedom of
expression.
Arguments- The Attorney General argued that the restrictions were a measure to prevent
terrorist acts and were justified considering the history of cross-border terrorism and internal
militancy that had long plagued the State of Jammu and Kashmir. The Attorney General
recalled that similar steps had been taken in the past, for example, in 2016 after a terrorist had
been killed there.
The Solicitor General reiterated the historical necessity argument and noted that a State’s
first and foremost duty is to ensure security and protect the citizens’ lives. He also argued that
the facts laid down by the petitioners were false and exaggerated the effects of the
restrictions. Particularly, he noted that individual movement had never been restricted, that
restrictions were imposed only in certain areas and were relaxed soon after, and that all
newspapers, television and radio channels were functioning.
Further, the Solicitor General argued that even before the Constitutional Order for abrogating
Article 370 had been issued, the issue was a subject of speculation in Jammu and Kashmir,
including provocative speeches and messages. Accordingly, government officers on the
ground decided that the restrictions were necessary, and courts have limited jurisdiction
to question their judgment since issues of national security were at stake.
Specifically, concerning the communications and internet shutdown, the Solicitor General
submitted that the internet was never restricted in the Jammu and Ladakh regions. He added
that social media, which allowed people to send messages and communicate with a number
of people at the same time, could be used as a means to incite violence. According to him,
the internet allowed for the transmission of false news or fake images, which were then
used to spread violence. Further, he claimed that the “dark web” allowed individuals to
purchase weapons and illegal substances easily.
17-04-2023

The Solicitor General rejected the argument that free speech standards as they related to
newspapers applied to the internet on the grounds that their differences were too great.
He explained that while newspapers only allowed one-way communication, the internet
made it possible to communicate in both directions, making dissemination of messages very
simple. He concluded that it was not possible to ban only certain websites or parts of the
Internet while allowing access to other parts, as the government learned in 2017.
Held- The Supreme Court began by stating that in light of the facts of the present case, the
objective of the Court was to “to strike a balance between the liberty and security
concerns so that the right to life is secured and enjoyed in the best possible manner,” and
leave the “propriety” of the orders at issue for “democratic forces to act on.” [para. 1]
The Court then identified five issues from the arguments presented by the petitioners and the
government:
Whether the Government can claim exemption from producing all of the restriction orders?
Whether freedom of speech and expression and freedom to practice any profession, or to
carry on any occupation, trade or business over the Internet is a part of the fundamental
rights protected by Article 19(1)(a) and Article 19(1)(g) of the Constitution?
Whether the Government’s action of prohibiting internet access is valid?
Whether the imposition of movement restrictions under Section 144 of the Code of Criminal
Procedure was valid?
Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was
violated due to the restrictions?
Held- The Supreme Court of India ruled that an indefinite suspension of internet services
would be illegal under Indian law and that orders for internet shutdown must satisfy
the tests of necessity and proportionality.
The case concerned the internet and movement restrictions imposed in the Jammu and
Kashmir region in India on August 4, 2019, in the name of protecting public order. In the end,
however, the Court did not lift the internet restrictions and instead, it directed the
government to review the shutdown orders against the tests outlined in its judgment
and lift those that were not necessary or did not have a temporal limit.
The Court reiterated that freedom of expression online enjoyed Constitutional protection
but could be restricted in the name of national security. The Court held that though the
Government was empowered to impose a complete internet shutdown, any order(s)
imposing such restrictions had to be made public and was subject to judicial review.

 Right to Protest – Farmer’s Protest

The SC Pivots on the Right to Protest
Facts- Since August 2020, protesters have gathered on the outskirts of Delhi, asking for farm
laws to be repealed. The residents of Delhi-NCR filed several PILs against the protests. The
Court heard the matter and passed an Order on December 17th 2020 recognising the farmers’
right to protest.
17-04-2023

Prior to Republic Day when violence broke out in Delhi, the Delhi Police filed an application
seeking an injunction against a rally proposed for the day. The Court emphasised that they
will not “stifle a peaceful protest”, after which the application was withdrawn.
Seven months later, on July 17th 2021, a body of farmers called the Kisan Mahapanchayat
filed a petition seeking permission to protest in Jantar Mantar, Delhi. A Bench constituted by
Justices A.M. Khanwilkar and C.T. Ravikumar, heard the plahoria petition.
Issue- This time, the Court pivoted its disposition towards the protests and criticised the
protesters for not trusting the Court. They questioned whether the right to protest an
absolute right is, especially when a legal remedy has already been sought.

 Shaheen bagh protests-

Right to protest: a fundamental right with restrictions
Held- The Court held that even when the right to protest was a fundamental right granted
by the Indian Constitution, it had to be subjected to reasonable restrictions related to
public order, sovereignty and integrity of India and “regulation by the concerned police
authorities in this regard”.
While recognizing the right to freedom of speech and expression under Article 19(1)(a) and
the right to assemble peacefully without arms under Article 19(1)(b), the Court held that
public spaces could not be occupied, especially indefinitely. While “democracy and
dissent went hand-in-hand”, dissent could take place only in designated places. Shaheen
Bagh could not be a designated place because it was a road used frequently by
commuters and the sit-in was causing a lot of inconvenience to say commuters.
Furthermore, the Court refused to accept the plea that an indeterminable number of
people could assemble whenever they chose to protest.
Balance between right to travel and right to protest.
Although not explicitly mentioned in the judgment, an implied balance must be struck
between various rights. In the case in contention, the right to travel of the commuters of
Shaheen Bagh was being affected. Right to travel freely across the territory of India has
been guaranteed by Article 19(1)(d) of the Indian Constitution. One right cannot be given
more importance than the other. What is needed is to ensure that policies and rules
being made conform to the greater public good.
Dismissal of review petition
The Supreme Court in 2021 dismissed a review petition which challenged its Shaheen Bagh
judgment. It reiterated its stand that while spontaneous protests could be allowed,
prolonged protests would under no circumstance be allowed in public spaces. It is
interesting to note that the three-judge bench that examined the review petition was the same
bench that gave the verdict in the original judgment.
The Court held that protests could not take place in public places. But a public protest by its
definition implies a protest in places that are public and available to all. When it is in a public
location, it will create inconvenience to someone else who genuinely wished to utilise that
space for a different reason. If the Supreme Court’s decision is to be followed, then it
automatically implies that the ability to protest anywhere will be reduced considerably.
17-04-2023

Another important point to note is the inconvenience caused to the commuters was
aggravated because they were unable to access any other alternate routes, as they too were
apparently blocked in by the protestors. But later, reports emerged which said that the
alternate routes had been barricaded by the police itself, not the protestors. Thus, it is strange
that the Court failed to include this bit of information in its judgment. This entire scenario
implies that if the police can somehow prove an inconvenience for the commuters, then such
inconvenience will be understood to be a threat to public order and would not have the
Constitutional backing of the right to protest.
This case has been said to not have a ratio decidendi at all. This is because the Court gave a
decision based on a protest that had already been wrapped up. It has been contended that
since there was no case, there cannot be any ratio that automatically implies that the judgment
should not have any binding value. With regards to whether there is persuasive value, the
entire Shaheen Bagh judgment can be said to have set a dangerous precedent with regards to
the right to protest given to the citizens of India.

08-05-2023
WEEK 14:(ARTICLES 29 & 30)
Minority article 29- Linguistic, Religious. Religious minorities- Muslim, Sikhs, Christians,
Buddhists, Zoroastrians.
(1) Protection of language, script, or culture
Who is a minority? - Article 30 of the Constitution talks about two types of minority
communities – Linguistic and Religious. From the language of the text, we may understand
that communities with distinct languages, script or cultures fall under minority communities.
But in later cases such as Bal Patil v. Union of India and the Islamic Academy of
Education v. State of Karnataka, we see that courts rely on other factors such as
economic welfare to decide whether a community is a minority or not.

1. S.P.Mittal V UOI
Facts- Sri Aurobindo gave up for a life of meditation and moved to Pondicherry, Tamil Nadu.
It was there where he met Madam M. Alfassa, who would, later on, be known as Mother, who
became his disciple. Later on, his disciples and the mother established The Sri Aurobindo
Society to propagate and practice the ideals and beliefs of Sri Aurobindo. Through this
society, the founding president, the Mother, set up a township called Auroville which was
meant for people to come and engage in various pursuits. Later on, The United Nations
Education, Scientific, and Cultural Organization (UNESCO) took it upon themselves to fund
17-04-2023

provisions to help with the development of Auroville. When the mother passed away, many
problems such as mismanagement of the project and misuse of the funds cropped up which
made it impossible for the townships functioning and growth. Thus, keeping in mind the
international character of Auroville due to the agreement with UNESCO, the
government of Tamil Nadu took management in their own hands and filed a
presidential ordinance which later on became The Auroville (Emergency Provisions)
Act, 1980.
Issue- Seeing that the government took control of a ‘religious’ enterprise, the Constitutional
validity of the Act was challenged on 4 grounds. One of the grounds was that it was violative
of Article 29 and 30.
Decision- It was held by the bench that the aforesaid Act does not violate Articles 29 and
30. The court held that it, in no way curtailed their right or prevented any citizen from
conserving its own language, script or culture and thus was not violative of Article 29.
Also in this case, in order to seek protection under Article 30, one must prove that they are
a linguistic or religious minority and the institution in question was established by them.
Considering that Auroville was not religious and was founded on the ideology of Sri
Aurobindo, they could not seek protection under these articles.

With regard to the reservation and special provisions for minority communities, many have
brought up the argument that such provisions are ‘cushioning’. But in the case of The
Ahmedabad St. Xaviers College vs State Of Gujarat & Anr, Khanna J. stated that such
provisions are necessary so that “none might have the feeling that any section of the
population consisted of first-class citizens and the other of second class citizens”. He also
stated that a majority of the Fundamental Rights of the Constitution protect majority rights as
it protects minority rights.

2. TM Pai foundation
 Facts- The two rights are Art 19(1)(g) which is right to the profession (subject to
restrictions in Art 19(6)) and Article 26 which is the right of all religious
denominations to maintain and establish educational institutions.
 Facts
 The St Stephen’s College v University of Delhi case that was previously reviewed by
a 5 Judge Bench, was transferred to a 6 Judge Bench and then a massive 11 Judge
Bench to decide the status of minority rights.
 Issue Raised - Kirpal, CJI framed 5 main questions, those that are relevant to the
article have been stated below-
1. “Is there a Fundamental Right to set up educational institutions and if so, under which
provision?”
2. To what extent can private universities be regulated?
3. “In order to determine the existence of a religious minority in relation to Article 30, what
is to be the unit?”
17-04-2023

4. “To what extent can the rights of aided private minority institutions be regulated?”

Decision
 1. For non-minority groups, the two rights are Article 19(1)(g) [ the right to a
profession which is subjected to restrictions of Article 19(6)] and Article 26 which
gives the right to “all citizens and religious denominations to establish and maintain
educational institutions”. For minority communities, Article 29(1) and Article
30(1) is provided by the Constitution.
 The right of minority communities with regards to setting up educational institutes
also includes the right to decide the method by which the students and teachers are
selected. It should be fair, transparent and most importantly, based on merit. The
same goes for un-aided schools.
 But it is important for such authorities to abide by Article 29(2) during admission.
They must not discriminate against students on the basis of sex, race, creed, etc at
the time of admission, especially students from the majority community.
2. Private institutions are divided into three categories to answer this question-
 Private Unaided Non-Minority Educational Institutions- While the government
can lay down rules and regulations (based on academic excellence) for affiliation, but
the management of the institute should be autonomous.
 Private Unaided Professional Colleges- They have autonomy with regard to
aspects such as fee structure and admission. But such colleges should not forgo
the principle of merit and should reserve a few seats. These seats shall be reserved
at the discretion of the management to those who have passed the entrance exam.
The rest of the seats should go to people based on counseling by the state. For
affiliation, the rules and regulations to achieve it should not be cohesive in nature.
 Private Aided Professional Institutions (non-minority)- Since the government is
giving aid, they can lay down certain rules and regulations for management. They
may also put guidelines for fee structure, admission for students and appointment of
teachers.
 Other Aided Institutions- For such institutes, the government can lay down rules and
regulations.
3. Linguistic and religious minority communities are covered by the expression
“minority” under Article 30 of the Constitution. With regards to both Central and State
law, the state shall be taken as the unit to decide whether a certain community is a
minority or not. What happens when a community that is a minority in the country, is a
majority in a certain state was left unanswered.
4. Article 30(1) does not override the law or government regulations, keeping in mind
such regulations do not destroy the character of minority educational institutions. Laws
pertaining to subjects such as health and morality still apply to them. This is despite the
nature of the wording of Article 30. Regulations that ensure academic excellence and are for
the welfare of teachers and students still apply.
 When aid is given to such institutions, it must not come with certain conditions or
regulations that harm the management and nature of the institution. But if such
17-04-2023

regulations are not detrimental to its management and character, then it is not
violative of Article 30.

 Article 29 (2) and Article 15 (1) are very similar due to the fact they both prevent
discrimination on the basis of caste, race sex, etc and are sometimes seen as mutually
exclusive. However, there is a big difference. While Article 15 provides a broader
ambit against discrimination on the basis of caste, race sex, etc, Article 29 provides
specific restitution for those who have faced discrimination from state-run educational
institutions at the time of entry or admission.
 Why did the fathers of the Constitution take an extra step to prevent discrimination by
educational institutions? Education is important for a certain community to flourish
and grow.
 When properly and efficiently educated, one becomes equipt to enter public services
and search for jobs. Without the tools of education, the community shall be culturally
but economically dominated. Thus, it is imperative that any minority community gets
access to education and receives relief against discrimination.

 Article 29(1) states protect the rights of members of communities who have distinct
language, culture, and script.
 Article 30(1) protects minority rights with regard to establishing and managing
educational institutions.
 Thus, both Acts facilitate minority rights to establish and manage their own
educational institutions. The only difference is that 29(1) tries to define who minority
communities are. Due to the articles being almost identical, many might believe that
when seeking protection, you can only seek protection under one. But in St. Xaviers
College v. the State of Gujarat, it was stated that Articles 29(1) and 30(1) were not
mutually exclusive.

3. St. Xaviers College v. the State of Gujarat, AIR 1974 SC 1389

Facts- St. Xaviers College, a religious denomination affiliated under the Gujarat University
Act, 1949, provided education to not only Christians but students of other religions and
creeds. They had challenged sections 35-A, 40, 41, 51-A and 52-A of the Gujarat University
Act, 1972 which dealt with the appointment of teachers and students of minority
communities. They stated that the Act encroached on the autonomy of the universities.
Contention of the Parties
Article 29 (1) of the Constitution safeguards a citizen’s right to preserve his or her own
language, script or culture, and Article 30 (1) states that minority communities have the right
to establish and manage their own institutions.
17-04-2023

Article 30(2) also states that the government should not discriminate against any institution
under minority management.
Under Article 32, they had a right to not only establish and administer institutes of their
choice but they also had the right to affiliation( to operate independently, but also has a
formal collaborative agreement with the state).
The opposition stated that Article 29 and 30 were mutually exclusive and protection under
these Acts cannot be brought up at the same time. They also stated that affiliation was not a
Fundamental Right and that a minority institution must abide by the provision if they wished
to be affiliated. Another argument was unless the law was an absolute violation of minority
rights under Article 30(1), then there was no reason for the Act to be struck down. They
pleaded that the court wait until statutes and ordinances are issued in pursuit of the disputed
sections.
Issues Raised:
• Are Article 29 and 30 mutually exclusive?
• Is affiliation a Fundamental Right?
• Does section 35-A, 40, 41, 51-A, and 52-A of the Act tamper with the institutes
• Fundamental Right? Decision
It was held that-
• Articles 29 and 30 were not mutually exclusive.
• While affiliation is not a Fundamental Right, it is necessary for the meaningful
management and establishment of such institutes Section 35-A, 40, 41, 51-A and 52-A
of the Act would not apply to minority institutions as they tamper with their
Fundamental Right to establish and manage educational institutions of their
choice.
• Ray C.J. and Palekar, J. stated that it would be wrong to limit their rights to only
institutes that administer language, script, and culture. This would make the Act
redundant. It is also wrong to believe that Articles 29 and 30 are mutually exclusive
because while Article 29 is for all citizens, Article 30 was placed to safeguard the
rights of minority communities. Thus Article 30 must be treated as an extension of
Article 29.
• Jaganmohan Reddy, J. stated that while affiliation is not a Fundamental Right, the
state cannot use it as a tool to force an institution to abide by certain rules. The
institution has the right to “establish their institutions, lay down their own syllabi,
provide instructions in the subjects of their choice, conduct examinations and award
degrees or diplomas, seek recognition to their degrees and diplomas and ask for aid
where aid is given to other educational institutions”. The state can only discriminate
on the basis of the excellence of the institution.
• With regard to the various disputed sections of the Act, the general consensus of the
bench was that minority managed institutions had the right to function without
government intrusion of such nature.
17-04-2023

4. P.A. Inamdar v. the State of Maharashtra: Reservation in Private Educational

Institution violative of Articles 30 and 19(1)(g)
Facts
Several more queries from the T.M.A Pai verdict were addressed and the Islamic Educational
Academy case was reviewed as well. This verdict goes against the Islamic Academy of
Education verdict and reverts back to Pai.
Decision
In correlation with the Kerala Education Bill case, Lohoti, C.J divides the amount of
protection educational institutions (both minority and non-minority) can seek from Article 30
into three categories.
1. Unaided or unrecognized institutions that can enjoy protection under this Article to their
“heart’s content”.
2. Institutions asking for affiliation or recognition from the State must abide by the rules
and regulations enforced by the government. This is only if the nature of such regulations is
for the benefit of the institution.
3. Institutions receiving state aid must abide by regulations with regards to the management
of funds. Article 29(2) will also apply as they would be required to admit students from
non- minority communities.
The bench also puts a stop on policies that require unaided private colleges to reserve seats
for citizens from backward classes. They believe such policies will cause the ‘nationalizing’
of seats. They believe such policies violated Article 30 of minority communities to set up and
manage educational institutes autonomously and violated 19(1)(g) of non-minority colleges
to practice any trade or profession. Instead, they let the state control the quota of seat-sharing
between management.
Interestingly, they do allow for the reservation of seats for non-resident Indians or NRIs. The
reason they give behind this is that the high fees charged from such students could help
students belonging to weaker parts of society.
In regards to admission procedure in unaided education institutes, the Bench decided that
merit for admission in various levels of education is crucial but its level of importance
increases with the rising level of education. Merit might not have much of a role to play in
kindergarten admission but had a crucial role to play in college admission.
The bench also decides that every institute is allowed to set up its own fee structure but it
shall be subjected to regulations to prevent excessive profiteering.
And the last, but the most controversial, the bench stated that the Islamic Academy of
Education case shall not exceed TMA Pai.
Committees to monitor the fee structure and admission process of private universities shall
not happen.
17-04-2023

DOCTRINE OF BASIC STRUCTURE

Shankari Prasad v Union of India (1951) Ist amendment 1951 including 31-A and 31-B
in Constitution was challenged as violation of fundamental rights. These provisions
provide a protective umbrella to all Act that are included in 9th Schedule of the Constitution.
Once an Act in included in 9 Schedule by a constitutional amendment the inclusion of such
Act cannot be challenged on the ground of violation of the fundamental rights conferred by
Part III of the Constitution, judicial review of such amendment The petitioners argued that the
amendment inserting Article 31-A and 31-B was unconstitutional and that Article 13(2)
controlled constitutional amendments under Article 368. It was argued that an
"amendment" was "law" under Article 13(2) and therefore the Supreme Court should declare
the above amendment as invalid. Rejecting this argument, the Court held that power to
amend the Constitution including fundamental rights is contained in Article 368 and
law in Article 13 did not include an amendment.
Parliament amends the Constitution in the exercise of its constituent power and laws are
made in the exercise of legislative power. There is no limitation on the amending power of
Parliament, and it could amend any provision of the Constitution including
fundamental rights.
Sajjan Singh v State of Rajasthan ( 1964) 17 amendment Act 1964 adding several
legislations in 9th Schedule was again challenged as violating fundamental rights. The
Court approved the view of Shankar Prasad and held that there is no limitation on the
amending power of Parliament.
Golaknath v State of Punjab (1967) Inclusion of a Land Reform legislation in 9th Schedule
by 17th Amendment Act 1964 was challenged as violating fundamental rights.
By 6.5 majority the Supreme Court held that fundamental rights are outside the amending
power of Parliament if an amendment took away or abridged fundamental rights. Shankari
Prasad and Sajjan Singh were overruled.
Principles laid down in Golaknath
1. The Constitution embodies an implied limitation that fundamental rights are out of reach
of Parliament as fundamental freedoms and rights enjoy a place of prominence in the
Constitution. They are sacrosanct and are natural rights.
17-04-2023

2. Article 368 does not contain the power to amend the Constitution. It only provides the
procedure to amend the Constitution. Power to amend is a legislative power which
resides in the residuary power of Parliament under Article248 read with entry 97 List I
3. Amendment is law and is controlled by Article 13 (2) which states that State cannot
make law taking away and abridging fundamental rights
Golaknath was a product of crack in Indian National Congress weakening the hold of Indira
Gandhi. She decided to remove constitutional hurdle created by Golakhnath in the path of her
policy for poverty removal. She sought premature dissolution of Lok Sabha and won a
massive mandate to strengthen her hands for any constitutional change.
24th Amendment 1971 was passed to nullify Golaknath-
1. Clause 4 was added to Article 13 providing that nothing in Article 13 shall apply to a
Constitutional amendment under Article 368.
2. Clause 3 was added to Article 368 to provide that nothing in Article 13 will apply to
amendments made under Article 368
3. Marginal note to Article 368 was changed as power and procedure to amend the
Constitution
4. Article 368(1) clarified that Parliament may in the exercise of constituent power amend by
way of addition, variation or repeal any provision of the Constitution.
5. This amendment clarified the distinction between Constituent power and legislative power.
25' Amendment Act 1971 inserted Article 31 C giving priority to Article 39(b) and (c) over
fundamental rights under Article 14, 19 and 21.
Kesavananda Bharti v State of Kerala (1973)
The validity of 24th and 25th amendments was challenged in this case. All the 13 judges
upheld the validity of 24" amendment, overruled Golaknath and agreed that Parliament has
power to amend any provision of the Constitution including fundamental rights. The majority
of seven judges (Sikri CJ, Shelat, Hegde, Grover, Jaganmohan Reddy and Khanna JJ) held
that power of amendment was subject to inherent and implied limitation and in the
exercise of amending power Parliament cannot damage or destroy the basic structure or
framework of the Constitution. Six judges, Ray, Palekar, Mathew, Dwivedi, Beg and
Chndrachud dissented holding that there is no limitation on the constituent power of
Parliament.
The majority judges in their separate opinion mentioned the following features as constituting
the basic features of the constitution:
1. Supremacy of the Constitution
2. Republican and democratic form of government
3. Separation of powers
4. Secular character
5. Dignity of the individual
6. Mandate of welfare state
17-04-2023

7. Unity and integrity of nation

8. Preamble, fundamental rights and directive principles
The basic structure was built on certain foundational values which could not be destroyed by
amending the Constitution. To amend means to change and not to destroy.
After Kesavananda Chief Justice Sikri retired and Indira Gandhi appointed
Justice Ray superceding three senior most judges as Chief Justice thus undermining the
independence of judiciary. On 12 June 1975 Justice Jag Mohan Lal Sinha of Allahabad
High Court invalidated the election of Indira Gandhi and disqualified her for next six
years from contesting election on a finding that she had committed corrupt practice
during her election. To overcome the effect of the High Court order Parliament passed 39
Constitution Amendment Act in 1975 withdrawing the jurisdiction of all courts over the
election dispute involving the Prime Minister.
In Indira Nehru Gandhi v Raj Narain (1975) the Supreme Court for the first time applied
Kesavananda and struck down the 39th amendment as violating democracy implicit in free
and fair election, equality and rule of law which are the basic feature of the constitution. The
exclusion of judicial review damaged the basic structure of the Constitution.
The Court upheld the amendments in Representation of People's Act 1951and clarified that
the doctrine of basic structure does not apply to ordinary legislation.
To overcome Kesavananda, Indira Gandhi appointed Swaran Singh Committee during
emergency to review the entire Constitution. On the recommendation of this report
Parliament passed 42nd amendment in 1976. The validity of amendment to Article 368
and 31-C was challenged in Minerva Mills Ltd v Union of India (1980). Clauses 4 and 5
were added to Article 368 which validated all existing and future constitutional
amendments and removed all limitations on the amending power of the Constitution.
Amendment made to Article 31 C provided that a law to implement directive principles could
not be challenged on the ground of violation of Articles 14, 19 and 21
The Supreme Court unanimously invalidated clause 4 and 5 of Article 368 as violating the
basic feature of limited amending power. Limited amending power is one of the basic
features of the Constitution and Parliament cannot enlarge its limited power by amending the
Constitution.
However the majority of four out of five judges (Justice Bhagwati dissented) declared the
amendment to Article 31C was declared as disturbing the harmony and balance
between Fundamental Rights and Directive Principles which a basic feature of the
Indian Constitution.

In M Nagraj v Union of India (2006) the Supreme Court unanimously upheld the
validity of 77, 81" 82nd and 85 amendment in Article 16 (4-A) (4-B) and proviso to
Article 335 holding that these provisions did not destroy the equality code of the
Constitution. Nagaraj recommended a general test for determining whether an amendment
violates the basic structure of our Constitution. The court stated that only those constitutional
principles that constitute the "constitutional identity and stand at the pinnacle of the
"hierarchy of constitutional values form part of the basic structure and are beyond the
amending power of Parliament.
17-04-2023

In I R Coelho v Union of India (2007) a mine judge bench of the Supreme Court
Unanimously held that amendments adding new laws in 9th Schedule after Kesavananda
judgment on 24.4.1973 were subject to basic structure requirement but fundamental
rights especially Articles 14, 15, 19 and 21 are parts of basic structure and the effect of
inclusion of a law in 9th Schedule results in abrogation of Article 32 as such laws cannot
be challenged on the ground of violation of Part III rights. Therefore, addition of any
law in 9 can be tested on the touchstone of basic structure doctrine.
The Doctrine of basic structure has now been fully entrenched as a constitutional principle.
However, the content of basic structure is not yet settled and will depend upon case to
case development. The following features have so far been identified by the Supreme
Court as constituting part of basic structure:
1. Judicial review ( L Chandra Kumar v Union of India 1997)
2. Democracy (Indira Nehru Gandhi v Rai Narain 1975)
3. Secularism (S R Bommai v Union of India 1994)
4. Rule of Law (Indira Nehru Gandhi v Rai Narain 1975)
5. Harmony and Balance between Fundamental Rights and Directive Principles (Minerva
Mills Ltd v Union of India 1980)
6. Limited Amending Power (Minerva Mills Ltd v Union Of India
1980)
7. Equality Indra Sawhnev v Union of India 1993)
8. Independence of Judiciary ( Kumar Padma Prasad Union of India 1992)
Test for Basic Structure
The Supreme Court in M Nagraj and I R Coelho has clarified Kesavananda as laying
down the test of identity. It is not an amendment of a particular article but an
amendment that adversely affects the wider principle of constitutional law such as
republicanism, secularism, equality and democracy or other foundational values that
changes the identity of the Constitution are impermissible.