Principles laid down in Gopalan

• Procedure established by law means procedure enacted by a law made by the State.
Law a here means State made law and does not mean 'just law'; it was held that ‘due
process’ was intentionally omitted by the framers of the Constitution.
• Procedure need not satisfy the rules of natural justice.
• Narrow interpretation of 'personal liberty'- because the Majority held that personal
liberty is confined to freedom from unlawful detention or physical restraint.
• Art. 21 provided protection against executive action and not against legislative action.
When a person was lawfully deprived of his life or personal liberty he could not claim
any of the rights guaranteed by Article 19 (this means the rights were read exclusively
and not together even though inter-reading of Part 3 rights is important).
•The majority found Art. 21 to be covering both the procedural and substantive content
of law, as long as it is validly enacted by the appropriate legislature (no limitations on It was further explained that Personal liberty’
the powers to enact any procedure as long as it was 'established by law'. under Art. 21 mean only “freedom from
arbitrary arrest”. Since the arrest was made
Arguments based upon American due process clause were rejected by the Supreme under procedure established by preventive
Court. Gopalan was the law of the land until 1978 and was overruled in Maneka detention laws, thus, it is not arbitrary arrest
Majority Gandhi’s case (1978). and thereby not violative of Art. 21.

AK Gopalan v State of Madras (1951) - Personal Liberty and Procedure Established by Law

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•He noticed that the word ‘law’ was common to both the phrases ‘due process of law’ and
‘procedure established by law’, and since, according to Fazl Ali, American courts had
interpreted the term ‘law’ to mean procedural due process, the phrase ‘procedure
established by law’ meant procedural due process.
Minority
•In conclusion, Fazl Ali found in his dissent that Article 21 of the Indian Constitution
gave everyone a right to be heard before being condemned, and that deprivations of life
and personal liberty under Article 21 of the Constitution could only proceed if the
aggrieved person was given four procedural safeguards: (i) a notice; (ii) an opportunity to
be heard; (iii) an impartial tribunal; and (iv) an orderly course of procedure.

Facts: validity of certain police regulations which, without any statutory basis,
authorized the police to keep under surveillance person whose names were recorded
in the ‘history-sheet’ maintained by the police as persons who were or were likely to
become habitual criminals. Surveillance as defined in the impugned regulation
included secret picketing of the house, domiciliary visits at night, periodical inquiries
about the person, an eye on his movements, etc. (all done under an impugned
Regulation)

The right of privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movements of an individual which is
merely a manner in which privacy is invaded is not an infringement of a
fundamental right guaranteed by Part III. [para 21]

However, it was held that the impugned Regulation was plainly violative of
Art. 21 as it wasn’t justified under any “law” and was therefore
unconstitutional.
Majority
The SC held that “ ‘personal liberty’ is used in the article as a compendious term
to include within itself all the varieties of rights which go to make up the
‘personal liberties’ of man other than those dealt with in the several clauses of
Art. 19(1) (no harmonious reading of the rights - narrow vision of Part III rights.

An English Common Law maxim asserts that "every man's house is his castle" and
in Semayne's case (1604) 5 Coke 91 : 1 Sm. L.C. 104, where this was applied, it was
stated that "the house of everyone is to him as his castle and fortress as well as for
his defence against injury and violence as for his repose".

Kharak Singh v State of UP (1963) - Personal Liberty and Right to Privacy Judgement: Read

Minority

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S.10(3)(c) of the Passports Act allows the passport authority to

Facts: The petitioner’s passport impounded under Section 10(3)(c) impound passports in in the interests of the security of the country,
of the Passport Act allegedly in public interest and requiring her to sovereignty and integrity of India, friendly relations with foreign
surrender the passport - petitioner immediately addressed a letter to countries or in the general public interest of India.
the Regional Passport Officer requesting him to furnish a copy of
the statement of reasons for making the order – Government
replying that it has decided “in the interest of the general public”
not to furnish her a copy of the statement of reasons for the making
of the order - petitioner filed the petition challenging Section 10(3)
of Passports Act, 1967 as violative of Art. 14 and also of Art. 19(1)
(a) and (g) and Art. 21.
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(1) Whether the Fundamental Rights are absolute or

conditional, and what is the extent of the territorial
application of such Fundamental Rights provided to the
citizens by the Constitution of India?

(2) Whether ‘Right to Travel Abroad’ is protected under the

umbrella of Art. 21 as a peripheral and concomitant right?

(3) What is the connection between the rights guaranteed

under Art. 14, 19 and 21 (The Golden Triangle Principle)?

Issues: (4) What is the scope of the phrase “Procedure established

by Law” as mentioned under Art. 21?

(5) Whether the provision laid down in S. 10(3)(c) of the

Passport Act, 1967, is a violation of Fundamental Rights,
and if it is, whether such legislation is a concrete law?

(6) Whether the impugned order of Regional Passport

Officer is in contravention of principles of natural justice?

J Bhagwati - held that “the expression “personal liberty” in

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

Overruled the view given in AK Gopalan on narrow

interpretation of 'personal liberty'.

'Personal Liberty' has also been given a liberal interpretation. It is more than
Personal Liberty liberty of body (eg. Freedom from arrest or detention), but much more than that. It
includes all varieties of rights which go to make up the “personal liberties”. It
includes the rights under Art. 19. Any law interfering with personal liberty
must pass a triple test- (a) it must prescribe a procedure, (b) the procedure must
withstand the test of one or more of the fundamental rights conferred under Art 19
which may be applicable in a given situation, and (c) it must be liable to be tested
with reference to Art. 14.

Art. 14, 19, and 21 are known to form the Golden Triangle in Part
III of the Constitution. Therefore, co-joint reading of these rights is
important (unique relationship between these three rights).

“The fundamental rights conferred in Part III of the Constitution are not
distinctive nor mutually exclusive.”

The court says that reasonability runs in all FRs and that all FRs
must be read with reasonability in mind. Art. 14, 19 and 21 are
connected and share a common nexus. If one of them is violated,
the possibility must be considered that one or both of the others
have been violated too.

(i) The law, must, therefore, now be taken to be well settled that
Doctrine of Golden Triangle Art. 21 does not exclude Art. 19 and that even if there is a law
prescribing a procedure for depriving a person of “personal
liberty” and there is consequently no infringement of the
fundamental right conferred by Art. 21, such law, insofar as it
abridges or takes away any fundamental right under Art. 19
would have to meet the challenge of that Art.

(ii) Now, if a law depriving a person of “personal liberty” and

Maneka Gandhi v UOI (1978)
prescribing a procedure for that purpose within the meaning of Art.
The inter-relationship between Art. 14, 19, and 21 21 has to stand the test of one or more of the fundamental rights
conferred under Art. 19 which may be applicable in a given
situation, ex-hypothesis it must also be liable to be tested with
reference to Art. 14.

Upheld as part of Art. 21

The SC stated that “personal liberty” in its ambit also includes the right of
Referred to Satwant Singh Sawhney locomotion and travel abroad. Hence, no person can be deprived of such rights
The right to travel abroad and go v D. Ramarathnam (1967) except through procedures established by law.
outside the country
In the present case, since the State had not made any law regarding the regulation
or prohibiting the rights of a person to travel abroad and go outside the country, the
Judgement: confiscation of the petitioner’s passport is in violation of Art. 21, and its grounds
being unchallenged and arbitrary, it is also in violation of Art. 14.

Principles of Natural Justice (such as Audi Alteram

Principles of Natural Justice
Partem) are integral part of Art. 21 – Infringement of these
principles violates the fair procedure or procedural due
process which is against the spirit of Art. 21.
In other words, the right to fair hearing becomes a
natural component of any legal procedure

Court held that 'procedure established by law' under Art. 21

would have the same effect as the expression ‘due process Moved away from the previous
of law’ that are free from irrationality and arbitrariness. holding in AK Gopalan

The concept of fairness and reasonableness must be projected

into the procedural due process (in order to be in conformity
with Art. 14). Must also conform to Principles of Natural Justice

The court held that the law as well as procedure made by legislature
J Chandrachud: The procedure in Art. 21 “has to be fair, just and can’t be ‘any enacted legislation’ but it must be JUST, FAIR &
reasonable, not fanciful, oppressive or arbitrary". REASONABLE.
Procedure established by Law
The Court goes forward and says that 'Law' denotes an enacted law or a law
made by legislature. An ordinance is included in the ambit of “law” under Art.
21. The law making powers of the SC and HC are also included in this.
Department instructions made without any statutory authority and not having
force of law aren’t included in 'law'.

Impounding the petitioner's passport without giving her hearing is

not according to ‘procedure established by law’. By giving such
wider interpretation to the expression, the court almost equated the
expression to the U.S. notion of ‘due process of law’.

S. 10(3)(c) of the Passports Act 1967, is not violative of any fundamental rights,
especially Art. 14. In the present case, the petitioner is not discriminated against in any
manner under Art. 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 Speaking in regards to substantial law,
is protected by certain guidelines which can be borrowed from Art. 19. hence no violation of Art. 14 and 19

Additionally, under this impugned provision when the state finds it necessary to seize the
passport or take any such action in the above-mentioned reasons, the authority is required to
record in writing the reason for such act and, on-demand furnish a copy of that record to the
S. 10(3)(c) violation holder of the passport.

However, the Central Government never disclosed any reasons for impounding the petitioner’s passport;
rather, she was told that the act was done in “the interests of the general public,”. The reason was given
explicitly that it was not really necessarily done in the public interest, and no ordinary person would Speaking in regards to procedural
understand the reasons for not disclosing this information or the grounds for her passport confiscation. law, hence violation of Art. 21

S. 30. (1) Every prisoner under sentence of death shall, immediately on his
arrival in the prison after sentence, be searched by, or by order of, the Jailer and
all articles shall be taken from him which the Jailer deems it dangerous or
inexpedient to leave in his possession.
(2) Every such prisoner shall be confined in a cell apart from all other
prisoners, and shall be placed by day and by night under the charge of a guard.

S. 56. Whenever the Superintendent considers it necessary (with reference

Facts: Sunil Batra and another, sentenced to death, kept in solitary
confinement u/s 30 of the Prisons Act, 1894. A letter was sent to an
SC judge, intimating him of torture being inflicted on the said
prisoners by the prison authorities.
either to the state of the prison or the character of the prisoners) for the safe
custody of any prisoners that they should be confined in irons, he may, subject
to such rules and instructions as may be laid down by the Inspector General
with the sanction of the State Government, so confine them.
Contentions: •Does a prison setting, ipso facto, out-law the rule of law, lock out the
judicial process from the jail gates and declare a long holiday for human rights of
convicts in confinement, and (to change the metaphor) if there is no total eclipse,
what lucent segment is open for judicial justice?
•The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against de
facto solitary confinement, pending his appeal, without de jure sanction. And the
complaint of Sobraj is against the distressing disablement, by bar fetters, of men
behind bars especially of under trials, and that for unlimited duration.

(1) Did the SC have the jurisdiction to entertain the petition of a convict?

(2) Whether the fundamental rights under Art. 14,19

Issues: and 21 were enjoyable by the convict.

(3) Whether S. 30(2) and S. 56 of the Prison Act, 1894,

violative of Art. 14 and 21.

The 5 judge constitutional bench affirmed that prisoners retain the right
to approach the Court under Art. 32 and 226 if their fundamental rights,
even after conviction, are infringed upon.

J Desai: conviction of a person for a crime did not
reduce him to a non-person vulnerable to major
punishment imposed by the jail authorities without
observance of procedural safeguards.
“It is no more open to debate that convicts are not wholly denuded of their fundamental rights.
No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled
to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier
v. Martinex) 40 L. Ed. 2d. 224 at 242. However, a prisoner's liberty is in the very nature of
things circumscribed by the very fact of his confinement. His interest in the limited liberty left
to him is then all the more substantial. Conviction for crime does not reduce the person into a
nonperson whose rights are subject to the whim of the prison administration and, therefore, the
imposition of any major punishment within the prison system is conditional upon the
observance of procedural safeguards (see Wolff v. McDonnell) 41 L. Ed. 935. By the very fact
of the incarceration prisoners are not in a position to enjoy the full panoply of fundamental
rights because these very rights are subject to restrictions imposed by the nature of the regime
to which they have been lawfully committed.”

Due Process of Law argument read with Art. 20(3) as
per J VR Krishna Iyer and J Desai
“Personal liberty of the person who is incarcerated is to a great extent curtailed by punitive detention.
It is even curtailed in preventive detention. The liberty to move, mix, mingle, talk, share company
with co-prisoners, if substantially curtailed, would be violative of Article 21 unless the curtailment
has the backing of law. Sub-section (2) of Section 30 establishes the procedure by which it can be
curtailed but it must be read subject to our interpretation. The word "law" in the expression
"procedure established by law" in Article 21 has been interpreted to mean in Maneka Gandhi's case
(supra) that the law must be right, just and fair, and not arbitrary, fanciful or oppressive.”
"For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively
counterproductive, is unarguably unreasonable and arbitrary and is shot down by Article 14
and 19 and if inflicted with procedural unfairness, falls foul of Article 21". [para 57]

S. 30(2) of the Prison Act,1894 clearly states about Solitary Confinement (to
be kept in separate cells) by the Prison Authorities there is nothing about
torturing the prisoners (no freedom/right to torture inmates). This was a
violation of Art. 21 which an inmate/prisoner is not stripped off before and
after conviction.
"Apart from all other prisoners" used in S. 30(2) is also a phrase of flexible
import. 'Apart' has the sense of 'To one side, aside,... apart from each other,
separately in action or function' (Shorter Oxford English Dictionary).
Segregation into an isolated cell is not warranted by the word. All that it
connotes is that in a cell where there are a plurality of inmates the death
sentences will have to be kept separated from the rest in the same cell but not
too close to the others. And this separation can be effectively achieved because
the condemned prisoner will be placed under the charge of a guard by day and
by night. The guard will thus stand in between the several inmates and the
condemned prisoner. Such a meaning preserves the disciplinary purpose and
avoids punitive harshness. Viewed functionally, the separation is authorised,
not obligated. That is to say, if discipline needs it the authority shall be entitled
to and the prisoner shall be liable to separate keeping within the same cell as
explained above.

Sunil Batra v Delhi Administration (1978) - Right of Prisoners and Due Process
However, the same is not violative of Art. 14 because after receiving death
penalty, prisoners are legally permitted to be kept in solitary confinement by
the Authorities (may run the risk of being a danger to other prisoners and jail
authorities). Therefore, curtailment of FR here is not unconstitutional as the
same is backed by just and reasonable laws. However, the same is not absolute.
In other words, if the death penalty is reversible then the same procedure of
solitary confinement cannot be followed but if the ruling is final and
irreversible then it is legal permissible.

Bar Fetters/In Irons

Judgement:

“We are, therefore, of the opinion that the power under Section 56 can be exercised only
for reasons and considerations which are germane to the objective of the statute, viz., safe
custody of the prisoner, which takes in considerations regarding the character and
propensities of the prisoner. These and similar considerations bear direct nexus with the
safe custody of prisoners as they are aimed primarily at preventing their escape. The
determination of the necessity to put a prisoner in bar fetters has to be made after
application of mind to the peculiar and special characteristics of each individual prisoner.
The nature and length of sentence or the magnitude of the crime committed by the
prisoner are not relevant for the purpose of determining that question.”

Regarding S. 56, the SC acknowledged the Superintendent’s authority to take

necessary precautions for prison discipline (Duty of Care), including using restraints.
Still, it emphasised that such measures should only be taken when authorised by the
local government or the Court, not at the authorities’ discretion.
Constitutional validity of S. 56 missing

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Aftermath (Sunil Batra Guidelines)

Facts: A petition under Art. 32 was raised by a detainee under the

Conservation of Foreign Exchange & Prevention of Smuggling Activities
Act (“COFEPOSA”) about restrictions imposed by the Prison Authorities
regarding interviews with a lawyer and members of family.

Issue: Whether the restrictions imposed S. 3(b)(i) and (ii) of

COFEPOSA are violative of Art. 14 and 21?

The said clause was found to be violative of Art. 14 and 21

The court upheld the right of detenus to have interview with

members of their family, friends and their lawyer.

“We think that the right to life includes the right to live with human dignity and
all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter and facilities for reading, writing and expressing
one-self in diverse forms, freely moving about and mixing and commingling
with fellow human being”

The fundamental right to life which is the most precious human right and which forms the ark
Right to Dignity x Right to Life of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it
with significance and vitality which may endure for years to come and enhance the dignity of
the individual and the worth of the human person. [para 6]

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J Bhagwati: “Right to life included the right to live with

Francis Coralie Mullin v Union Territory of Delhi (1981) - Human Dignity and Right to Life human dignity and all that goes along with it”.
Judgement:
This is to say that, the law of preventive detention has therefore now to pass
the test not only of Art. 22, but also of Art. 21 and if the constitutional
validity of any such law is challenged, the Court would have to decide
whether the procedure laid down by such law for depriving a person of his
personal liberty is reasonable, fair and just.

The distinction between 'preventive detention' and punitive detention’, is
important while considering the question of validity of conditions of detention
"Thus it is now clear law that a prisoner wears the armour of basic freedom
even behind bars and that on breach thereof by lawless officials the law will
respond to his distress signals through 'writ' aid. The Indian human has a
constant companion-the Court armed with the Constitution.”—J Krishna Iyer
(Sunil Batra case)

International Law: It would thus be seen that there is implicit in Art. 21 the
right to protection against torture or cruel, inhuman or degrading treatment
which is enunciated in Art. 5 of the UDHR and guaranteed by Art. 7 of the
ICCPR.

This case also held that any form of torture or cruel, inhumane or degrading treatment
would be offensive to human dignity and would offend the Right to Live under Art 21.
No law which authorizes it will ever pass the test of reasonableness and non-
arbitrariness.

Liberty Argument- When considered from the perspective of Right to ‘Personal Liberty’,
there is no doubt that personal liberty includes the right to socialize with friends and
family subject to any valid prison regulations under Art. 14 and 21, such prison
regulations should be reasonable and non-arbitrary.

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DPSP x FR

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Facts: WP filed by Petitioner NGO against the extreme working

conditions of workmen in 2 stone queries in Faridabad, Haryana,
leading to bonded labor. Questions regarding rehabilitation were raised.

1. Whether the writ petition filed under Art. 32

of the Constitution is valid or not?

2. Whether any fundamental right of the worker

was actually violated or not?

3. Whether the Supreme court is empowered

to appoint any commission or investigating
Issue: body under Art. 32 or not ?

4. Whether the workmen mentioned tin the

case are bonded labourers are not?

5. Whether workmen in the present case

entitled to relief under various social labour
legislations or not.

J Bhagwati: "It is the fundamental right of everyone in this

country…to live with human dignity, free from exploitation.
These are the minimum requirements which must exist in order
to enable a person to live with human dignity, and no State…has
the right to take any action which will deprive a person of the
enjoyment of these basic essentials "

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Relied on the ruling of Francis Coralie Mullen on
Right to Live with Human Dignity and Free from
Exploitation enshrined under Art. 21

Art. 39. Certain principles of policy to be followed by the State.—

(e) that the health and strength of workers, men and women, and the Art. 41. Right to work, to education and to public
tender age of children are not abused and that citizens are not forced assistance in certain cases.—The State shall, within the Art. 42. Provision for just and
by economic necessity to enter avocations unsuited to their age or limits of its economic capacity and development, make humane conditions of work and
strength; (f) that children are given opportunities and facilities to effective provision for securing the right to work, to maternity relief.—The State shall
develop in a healthy manner and in conditions of freedom and dignity education and to public assistance in cases of make provision for securing just
and that childhood and youth are protected against exploitation and unemployment, old age, sickness and disablement, and in and humane conditions of work
against moral and material abandonment other cases of undeserved want. and for maternity relief.

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Art. 21 and the role of DPSP in constructing

state’s statutory and constitutional liabilities

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While interpreting Art. 32, it must be borne in mind that our approach must be
guided not by any verbal or formalistic canons of construction but by the
paramount object and purpose for which this Article has been enacted as a
Fundamental Right in the Constitution and its interpretation must receive
illumination from the trinity of provisions which permeate and energise the
entire Constitution namely, the Preamble, the Fundamental Rights and the
DPSP. Various Principles governing this are laid down below:

Flexible Locus: Art. 32(1) confers the right to move the Supreme Court for
enforcement of any of the fundamental rights, but it does not say as to who shall
have this right to move the Supreme Court nor does it say by what proceedings the
Supreme Court may be so moved.
The [rule of strict locus breaks down] when we have the case of a person or
class of persons whose fundamental right is violated but who cannot have
resort to the court on account of their poverty or disability or socially or
economically disadvantaged position and in such a case, therefore, the court
can and must allow any member of live public acting bona fide to espouse the
cause of such person or class of persons and move the court for judicial
enforcement of the fundamental right of such person or class of persons.

Riders on Locus: It is clear on the plain language of Art. 32(1) that whenever there
is a violation of a fundamental right, any one can move the Supreme Court for
enforcement of such fundamental right. Of course, the Court would not, in exercise
of its discretion, intervene at the instance of a meddlesome interloper or busy body
and would ordinarily insist that only a person whose fundamental right is violated
should be allowed to activise the court.

Flexible Proceedings: Art.32(1) says that the Supreme Court can be
moved for enforcement of a fundamental right by any 'appropriate'
proceeding. There is no limitation in regard to the kind of proceeding
envisaged in Cl. (1) except that the proceeding must be "appropriate" and
this requirement of appropriateness must be judged in the light of the
purpose for which the proceeding is to be taken, namely, enforcement of
Bandhua Mukti Morcha v UOI (1984) - Human Dignity a fundamental right.
The Constitution makers deliberately did not lay down any particular
form of proceeding for enforcement of a fundamental right nor did
they stipulate that such proceeding should conform to any rigid
pattern or straight jacket formula as, for example, in England, because
they knew that in a country like India where there is so much of
poverty, ignorance, illiteracy, deprivation and exploitation, any
insistence on a rigid formula of proceeding for enforcement of a
fundamental right would become self-defeating. [para 17]

Epistolary Jurisdiction u/Art.32: such member of the public may move

the court even by just writing a letter, because it would not be right or
fair to expect a person acting pro bono public to incur expenses out of
his own pocket for going to a lawyer and preparing a regular writ
petition for being filed in court for enforcement of the fundamental
right of the poor and deprived sections of the community and in such a
case, a letter addressed by him can legitimately be regarded as an
Opinion over Art. 32 "appropriate" proceeding. [para 17]
Judgement: even if the conditions for issue of any of these high
prerogative writs are not fulfilled, the Supreme
Power u/Art. 32 (2) of widest amplitude: The only provision made by the Court would not be constrained to fold its hands in
Constitution makers in this behalf is to be found in Art.32 (2) which confers power despair and plead its inability to help the citizen
on the Supreme Court "to issue directions or orders or writs including writs in the who has come before it for judicial redress, but
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, would have power to issue any direction, order or
which-ever may be appropriate, for enforcement of any of the fundamental rights. It writ including a writ in the nature of any high
will be seen that the power conferred by Art. 32(2) is in the widest terms. [para 18] prerogative writ.

Widest interpretation as per the Maker’s Intentions: This

provision conferring on the Supreme Court power to
enforce the fundamental rights in the widest possible
terms shows the anxiety of the Constitution makers not to
allow any procedural technicalities to stand in the way of
enforcement of fundamental rights.

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Directions issued by the SC through pragmatic steps that could

be taken to protect and promote the rights of children in the
poverty-stricken and vulnerable populations of Indian society
(Positive Obligations on State)

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Facts: The state of Maharashtra in 1981 and the BMC decided to evict the
pavement dwellers and those who were residing in slums in Bombay. The
same was executed via an order passed by the then CM and these dwellers
were asked to return back to their origin. Their dwellings were demolished
under Section 314 of the Bombay Municipal Corporation Act. No prior notice
of demolition was given since the section does not provide for such
notice.The same was appealed via writ petition.
Petition: It is these men and women who have come to this Court to ask for a judgment that
they cannot be evicted from their squalid shelters without being offered alternative
accommodation. They rely for their rights on Art. 21 which guarantees that no person shall be
deprived of his life except according to procedure established by law. They do not contend that
they have a right to Live on the pavements. Their contention is that they have a right to live, a
right which cannot be exercised without the means of livelihood. And, the right to life can only
be taken away or abridged by a procedure established by law, which has to be fair and
reasonable, not fanciful or arbitrary such as is prescribed by the Bombay Municipal
Corporation Act or the Bombay Police Act.
They also rely upon their right to reside and settle in any part of the country which is
guaranteed by Art. 19(1)(e).
Petitioners said they live in Bombay because they are employed in Bombay and they
live on pavements because there is no other place where they can live. They are not
trespassers of public land.
S. 314 - Power to remove without notice anything erected, deposited or hawked in
contravention of Section 312, 313 or 313-A. — The Commissioner may, without
notice, cause to be removed —(a) any wall, fence, rail, post, step, booth or other
structure or fixture which shall be erected or set up in or upon any street, …

The decision of the respondents to demolish the huts is challenged by the petitioners on the
Issue: ground that it is violative of Art. 19 and 21.
Art. 21 cases

Life is not about animal existence, but

rather living it with human dignity
Right to livelihood is included in right to life “because no
person can live without the means of living, that is, the Means of sustenance including
means of livelihood”. livelihood is part of Art. 21

Therefore, deprivation of life and personal

liberty is violative of Art. 21

The easiest way of depriving a person his right to life would be to deprive him of his means of
livelihood to the point of abrogation. Such deprivation would not only denude the life of its
effective content and meaningfulness but it would make life impossible to live.
Right to Livelihood
To summarise, we hold that no person has the right to encroach, by erecting a structure
or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a
public purpose like, for example, a garden or a playground .

The State may not be compellable to provide means of livelihood but if an

individual is deprived of livelihood by just and reasonable procedure established
by law, such individual may challenge the procedure under Art 21.

Since eviction would lead to loss of livelihood in this case, fair, just and reasonable
procedure must be followed for this purpose.

Olga Tellis v Bombay Muncipal Corporation (1986) - Right to Life and livelihood
Fundamental Rights x DPSP
Art. 39(a), which is a Directive Principle of State Policy, provides that the State shall, in
particular, direct its policy towards securing that the citizens, men and women equally, have
the right to an adequate means of livelihood. Art. 41, which is another Directive Principle,
provides, inter alia, that the State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work in cases of
unemployment and of undeserved want. Art. 37 provides that the Directive Principles,
though not enforceable by any court, are nevertheless fundamental in the governance of the
country. The Principles contained in Art. 39(a) and 41 must be regarded as equally
fundamental in the understanding and interpretation of the meaning and content of
fundamental rights. If there is an obligation upon the State to secure to the 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. The State may not, by affirmative
action, be compellable to provide adequate means of livelihood or work to the citizens. But,
any person, who is deprived of his right to livelihood except according to just and fair
procedure established by law, can challenge the deprivation as offending the right to life
conferred by Art. 21. [para 33]

BMC has no right to presume the response of the slum-dwellers court shunning class-
based stereotypes. [para 46]
Principle of Natural Justice
Inalienable part of the Constitution

•There is no doubt that the petitioners are using pavements and other public properties
Judgement: for an unauthorised purpose, but, their intention or object in doing so is not to "commit
an offence or intimidate, insult or annoy any person" (no malafide reason), which is the
gist or the offence of 'Criminal trespass' under S. 441 IPC.
•The encroachments committed by these persons are involuntary acts in the sense that
those acts are compelled by inevitable circumstances and are not guided by choice
Slum Dwelling is not an offence (involuntary activities).

The court held that no one had the right to encroach on the pavement and the slum
dwellers should be given alternate pitches elsewhere and slums shouldn’t be removed for
atleast a month after monsoon. slums which have been in existence for a long time, say for
twenty years or more, and which have been improved and developed will not be removed
unless the land on which they stand or the appurtenant land, is required for a public
purpose, in which case, alternate sites or accommodation will be provided to them.

Read

Procedure Established by law under

Art. 21, a test was laid down,
wherein both the conditions need to
be satisfied
Read

Contentions

Facts: The common grievance of the respondents herein (the writ petitioners before the High Court), is that
with a view to appease the Jain community the State Government and the Ahmedabad Municipal
Corporation (in short 'the Corporation') have, from time to time, taken decisions/passed resolutions for
closure of the municipal slaughter houses in Ahmedabad during the period of the Paryushan festival (which
is an important Jain festival) resulting in serious violation of their fundamental right to trade and do business
in meat etc. They have alleged that in the year 1993, the State Government accepted the demand of some
organizations belonging to the Jain community for closure of the municipal slaughter houses during the
period of Paryushan and issued directions to the Corporation to take appropriate action accordingly. In
subsequent years, the Corporation passed resolutions for closure of the municipal slaughter houses for
different period ranging from 8 to 18 days during the Paryushan festival.
Contentions

The Division Bench of the HC held that the writ petitioners' right to freedom to carry on the
trade of slaughtering and selling meat cannot be curtailed or abridged merely at the asking of a
particular section of society, or organizations belonging to a particular community merely
because the members of that particular community feel that according to their religion people
Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat (2008) should not eat non-vegetarian food during a particular festival. The Division Bench was of the
view that whether the people eat vegetarian food or non-vegetarian food is their private affair
and the Court cannot make any pronouncement about it. People living in different parts of the
country have different eating habits. Even in a particular locality, village or town, there are
some who are vegetarian and Ors. who are non-vegetarian. The Division Bench held that no
restriction can be placed on the slaughtering or eating of meat merely because it may hurt the
HC sentiments or the religious feelings of a particular community or a society.

Had the impugned resolutions ordered closure of municipal slaughter houses for a considerable
period of time we may have held the impugned resolutions to be invalid being an excessive
Judgement: restriction on the rights of the butchers of Ahmedabad who practice their profession of meat
selling. After all, butchers are practicing a trade and it is their fundamental right under Art. 19(1)
(g) which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of
the butchery shop alone. There may be also several workmen therein who may become
unemployed if the slaughter houses are closed for a considerable period of time, because one of
the conditions of the license given to the shop-owners is to supply meat regularly in the city of
Ahmedabad and this supply comes from the municipal slaughter houses of Ahmedabad. Also, a
large number of people are non-vegetarian and they cannot be compelled to become vegetarian
for a long period. What one eats is one's personal affair and it is a part of his right to privacy
which is included in Art. 21. [para 22]

In this connection it may be mentioned that there is a large population of the Jain However, in the present case, the closure of the
SC community in the States of Rajasthan and Gujarat. The Jains have a religious festival slaughter houses is only for 9 days and not for a
called Paryushan during which they do penance. Out of respect, for their sentiments considerable period of time. We have, therefore, to take
surely the non-vegetarians can remain vegetarians for 9 days in a year. [para 23] a balanced view of the matter.

Background: In 2009, the Indian Government devised the

Aadhaar project as a universal identification system to better
track disbursement of Government services and benefits. The
Aadhaar project entailed the collection of biometric
information of individuals to be used for identification and
authentication of service delivery and was initially begun by
way of an executive order in 2009. The Aadhaar project
received statutory sanction by the enactment of the Aadhaar
Act in 2016. However, the Aadhaar project attracted public
scrutiny and eventually both the administrative action as well
as the Aadhaar Act were challenged before the Supreme Court
for violating the Constitution, including the Right to Privacy.
The first writ petition was filed in 2012, but doubts were raised as to
the existence of the Right to Privacy as a fundamental right, which led
to the constitution of a nine Judge Bench in the case of K.S.
Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1),
(Puttaswamy I). Once the Court in Puttaswamy I affirmed the Right to
Privacy as a fundamental right, following which the Court posted the
matter for final hearing in 2018 before a five Judge Constitution
Bench.

Facts: 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 This matter was first placed before a five-judge
benches. The latest case had concerned a challenge to the bench headed by the then CJ Khehar.
government’s Aadhaar scheme (a form of uniform biometrics-based Subsequently, the matter was referred to a nine-
identity card) as mentioned above. judge bench on July 18th 2017.

(1) Whether the Right to Privacy is a fundamental right or not

irrespective of the fact that it is not expressly provided in the
constitution.

Issue addressed in Puttasamy II case law (2018), wherein a five-judge bench delivered the
judgement holding that the Aadhaar Act does not violate the right to privacy, as it passes the three-
fold test established in the landmark privacy judgment, Puttaswamy I. He clarified that the
Issue: (2) Whether the Aadhar projects violates the Right to Privacy standard of review to test privacy infringements by a law is the “just, fair and reasonableness”
under the Constitution standard (three-fold Puttaswamy I test) and not the “strict scrutiny test”.

(3) What is the ratio decidendi in the cases of M.P. Sharma and Kharak
Singh, and was the decision made correctly in those situations.

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 v Satish Chandra
(1954) [eight-judge bench] and Kharak Singh v State of UP
(1962) [six-judge bench] in so far as the latter did not expressly
recognize this Right.

• National security, including terrorist and cyber attacks

(1) Legitimate Aim - The law should seek to achieve
a legitimate state aim/interest (J Chandrachud). The
proposed action must be necessary for a democratic
society for a legitimate aim (J Kaul)
• Data mining to ensure that public resources are not
syphoned off by the undeserving in social welfare
programmes and schemes
• Prevention of crime
• Protecting interests of the revenue, public health
• Digital platforms

(2) Proportionality - There should be a rational nexus

between the objects and the means adopted to achieve
A Test for Infringement of Privacy was laid down. them (J Chandrachud). The extent of interference must be
proportionate to its need (J Kaul)

The Right to Privacy is protected as an intrinsic part of the Right to
Life and Personal Liberty under Art. 21 and as a part of the Freedoms
guaranteed by Part III of the Constitution, hence a fundamental right.
It is classified as an inalienable right because it is one of those natural
rights that are inseparable from the human personality and autonomy
of body and mind.
(3) Legality - The existence of a law
(4) Procedural Guarantees - To check against the abuse of
But like other fundamental rights, it State interference (J Kaul) [this was an additional criteria
too is not absolute in nature. founded by J Kaul alone in the concurring opinion]
This Test was applicable to both state and non-state entities

While the content and applicability of this Test will be assessed in subsequent Court
decisions, but what is certain is that privacy claims will be examined against these
standards. More so, at the very least, the impugned action should satisfy the test of
"just, fair and reasonable" procedure under Art. 21

Applied the Test to the given case scenario
In the opinion of the Court, the very existence of the (1) Aadhaar Act
coupled with (2) the aim of delivery of welfare benefits passed the
first two prongs of the test. The Court stated that (3) requirement of
proportionality had also been met as the purpose of the Aadhaar Act
was to accurately identify the beneficiaries of State welfare schemes
and that it achieved the balancing of two fundamental rights with
privacy on one hand, and the right to food, shelter and employment
on the other.

There is an inter-relationship between Art. 14, 19, and 21 that

resulted in an expansive interpretation

Referred to International Context under Art. 12 UDHR,

Unanimous Decision Art. 17 ICCPR, Art. 8 ECHR, and Art. 11 ACHR.

On the question of whether children could be brought within the

While S. 139AA of the IT Act which provided for mandatory Aadhaar-PAN sweep of provisions of the Aadhaar Act, it was held that for a child’s
linkage was upheld, the mandatory linkage of Aadhaar with bank accounts was enrolment into the Aadhaar programme, parental consent was
held to not satisfy the test of proportionality and was struck down. Similarly, the mandatory and that such enrollees were entitled to opt-out on
mandatory linkage with mobile numbers was not upheld as constitutional. attaining the age of majority.

Aadhar is not encouraging a Surveillance State
On the question of whether the project created or had the tendency to create a
surveillance state, the Court said that neither the structure of Aadhaar nor the provisions
under the Act created a surveillance state. Taking from arguments presented by the
UIDAI, the Court said: only ‘minimal’ biometric data was collected during the process;
the UIDAI was purpose blind as it did not gather the purpose, location or other
information related to the transaction; the collated data was siloed, the merging of which
was banned; the process of authentication was shielded from the internet and that ample
security measures were undertaken; and the use of only registered devices was mandated
for requests related to authentication.
Therefore, the Court held that it was extremely difficult to profile
individuals based on their biometric and demographic information
stored. Certain provisions relating to data protection were
strengthened by the Court, which ordered that authentication
records were not to be stored for a period longer than six months,
as opposed to the permitted five years under the Act.

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Arises from the constitutional protection towards human

dignity, as the sanctity of privacy lies in the functional Privacy recognises the autonomy of
relationship with dignity. the individual and the right of every
person to make individual choices
which affect the course of life.

Right to Privacy (an invasion of life and personal

liberty) is not independent of Art. 21 and other
Freedoms guaranteed under Part III

Keeping this as the standard, J Chandrachud identifies information

privacy in connection with human dignity and autonomy whilst
rejecting the argument that privacy is an elitist construct
It is closely related to the elements of The ability of an individual to make choices lies at the core of the human
human dignity, making it an inalienable personality. The notion of privacy enables the individual to assert and control
natural right for all. As well as the human the human element which is inseparable from the personality of the
conceptions of ‘life’ and ‘personal liberty’. individual. The inviolable nature of the human personality is manifested in
the ability to make decisions on matters intimate to human life. The
autonomy of the individual is associated over matters which can be kept
private. These are concerns over which there is a legitimate expectation of
privacy.
Justice KS Puttaswamy (Retd.) & Anr. v UOI (2017) (I) - Right to Privacy
Privacy was not surrendered entirely when an individual is in the public Dworkin’s on the importance of Rights against state: It
sphere. Further, it found that the right to privacy included the negative makes sense to say that a man has a fundamental right
right against State interference, as in the case of criminalization of against the Government, in the strong sense, like free
homosexuality, as well as the positive right to be protected by the State. speech, if that right is necessary to protect his dignity, or his
On this basis, the Judges held that there was a need to introduce a data standing as equally entitled to concern and respect, or some
protection regime in India other personal value of like consequence

It is not necessary to address every definitional issue at the time of

recognition of a fundamental right. Definitional ambiguity is not a
justification for failing to acknowledge the right to privacy

Judgement: Plurality Opinion by J Chandrachud on

behalf of CJ Kehar, J Agrawal, J Nazeer
and himself

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Grounds the Right to Privacy, as comprising of three

facets, namely repose (freedom from unwarranted
stimuli), sanctuary (protection from intrusive
observation) and intimate decision (autonomy to
make personal life decisions).

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
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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)
J Nariman in his 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
Seconds, J Chelameswar's opinion of 3 facets of Privacy and
Read
further elaborates by classifying it into three categories: (1) that
which involves invasion by the State into a person's physical
body, (2) information privacy which captures unauthorised uses
of personal information, and (3) privacy of choice, or
"individual autonomy over fundamental personal choices".

Echos the opinion of J Chandrachud on negative and

Concurring Opinion by J Nariman, positive aspects of Fundamental Right and continues to
J Sapre, J Kaul, J Chelameswar, say that fundamental rights have two aspects - first, to
and J Bobde restrict legislative powers and second, to provide the
J Bobde observed that consent was essential for distribution conditions for the development and dignity of
of inherently personal data such as health records individuals

J Sapre 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 read with Art. 19(1) Read this Right, in tandem, with the Preamble

Recognizes the claims of privacy against the State and non-State

J Kaul 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
actors. In respect of the State, he identifies concerns of surveillance
and profiling, whereas, in respect of non-State actors, he emphasizes
on the impact of technology, in the form of pervasive data generation,
collection, and use in a digital economy. J Kaul also elaborates on the
influence of big data, in particular, its impact on the actions of an
individual and the resultant chilling effect it may have on free speech
and expression. He thus observes the need to protect certain
information from both the State as well as private actors.

J Chelameswar opined that a violation of privacy in the context

of an arbitrary State action would attract a "reasonableness"
enquiry under Article 14; similarly, privacy invasions that
implicate Art. 19 freedoms would have to fall under the
specified reasonable restrictions under this constitutional
provision like public order, obscenity etc; and finally, intrusion
into life or personal liberty under Art. 21, which forms the
"bedrock of the privacy guarantee", would have to be just, fair
and reasonable.

Application of the Golden Triangle Goes on to include a fourth

test for privacy claims which deserve the
with Right to Privacy "highest standard of scrutiny" and can be justified only in case of a
"compelling state interest". That is application of strict scrutiny
(in addition to Art. 21 procedural due process) in terms of the
Governments interests in the privacy intrusion.

It is a well-settled legal principle that a case is only an authority for

what it actually decides , not any observations made in the course of
the judgment or any propositions that may logically follow from it.
Hence, to determine what aspects of the judgment are binding, it is
important to examine each opinion and see the point of agreement
amongst a majority of the nine judges. So, if any judge agrees with a
view taken by Chandrachud J. on any proposition, that would result
in a majority of five out of nine, and hence, be binding on smaller
benches and other courts. For instance, since a majority of the
judges agree that privacy is an inalienable, natural right, that forms
part of the binding element of the case.

Facts: Petition to evaluate the constitutional validity of S. 377 of the IPC, 1860 (unnatural offences)
that criminalised consensual homosexual intercourse or “carnal intercourse against the order of nature”.
In 2009, S. 377 was held to be unconstitutional by the HC of Delhi in the Naz Foundation v
Government of NCT of Delhi (2009) case, which was overruled by the SC in Suresh Kumar Koushal v S. 377 - Whoever voluntarily has carnal intercourse against
Naz Foundation (2013). The Petitioner, Navtej Singh Johar along with many others filed a writ petition the order of nature with any man, woman or animal, shall be
before a three-judge Bench of the Supreme Court in 2016 challenging its decision in Suresh Kumar punished with imprisonment for life, or with imprisonment
Koushal and the constitutionality of S. 377. The matter was referred to the five-judge Constitution of either description for a term which may extend to ten
Bench considering the importance of the issue. years, and shall also be liable to fine.

(1) Whether S. 377 of IPC, 1860 insofar as it applied to consensual sexual conduct
between adults was unconstitutional and whether the judgment in Suresh Kumar
Koushal should be upheld or set aside.

(2) Whether S. 377 violates Art. 14 and 15 by allowing discrimination

based on “Sexual Orientation” and “Gender Identity”?

Issue: (3) Whether S. 377 violates the fundamental right to expression under
Art. 19(1)(a) by criminalizing the gender expression of persons
belonging to the LGBTQI+ community?

(4) Whether S. 377 violates right to autonomy and dignity under Art. 21
by penalizing private consensual acts between same-sex persons?

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Petitioner's Contentions:

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While observing the judgment in Suresh Kumar Koushal, noted that it relied on
the miniscule minority rationale to deprive the LGBTQ+ community of their
fundamental rights including the ones on equality and non-discrimination.
The Court held that the unequal treatment of LGBTQ+ individuals violates Art. 14.
S. 377 is now meant to target a particular community and discriminate
against them on the basis of their gender and sexual identity, which is
unfair and violative of Art. 14

S. 377 (sodomy laws) arbitrarily punishes individuals who engage

in same sex relationships.

Overruled Suresh Kumar Koushal judgement.
Read with Right to Equality and Non-
Discrimination under Art. 14
Further, the Court held that S. 377 is manifestly arbitrary as it does not
distinguish between consensual and non-consensual sexual acts between Referred to the Shayara Bano case and the Test of
adults. It targeted people exercising certain choices and treated them as “less Manifest Arbitrariness to hold such differential
than humans” and encouraged prejudices and stereotypes accompanied by treatment as arbitrary, irrational, and
debilitating social effects. unreasonable.

Unable to satisfy the Test of Reasonable Classification between

consent heterosexual and homosexual couples.

Moreover, consensual relationships between adults could not be classified along

with offences of sodomy, bestiality and non-consensual relationships, hence
application of S. 377 to consensual same-sex relationships was unconstitutional.

The Court relied on the NALSA judgment, which granted equal protection of
laws to transgender persons, to reiterate that sexual orientation and gender
identity was an integral part of a person’s personality and denying the same
would be violative of one’s dignity. The word 'sex' in Clause (1) of Art. 15
includes not only gender (as held in NALSA) but also sexual orientation (as
upheld in Navtej Singh Johar).

Relied on the Puttaswamy (I) judgment, which recognised the interrelationship

between privacy and autonomy. Using this, the Court in the said case held that the SC in this judgement held that denying the LGBT
right to sexual orientation was an intrinsic part of the right to privacy, to conclude community its right to privacy on the ground that they form a
that “it is imperative to widen the scope of the right to privacy to incorporate a right minority of the population would be violative of their
to 'sexual privacy' to protect the rights of sexual minorities”. fundamental rights.

Sexual Orientation is another non- The Court further discussed the Yogyakarta Principles on Gender Identity and
discrimination ground under Art. 15 Sexual Orientation and the U.K. Wolfenden Committee Report, 1957, which
abolished penal offences involving same-sex consenting adults amongst many other
international comparative references.

“Transformative constitutionalism not only includes within its wide periphery the recognition of
the rights and dignity of individuals but also propagates the fostering and development of an
atmosphere wherein every individual is bestowed with adequate opportunities to develop socially,
economically, and politically. Discrimination of any kind strikes at the very core of any democratic
Navtej Singh Johar & Ors v. UOI (2018) society. When guided by transformative constitutionalism, the society is dissuaded from indulging
in any form of discrimination so that the nation is guided towards a resplendent future.”

The Court acknowledged that all persons, including LGBTQ+ individuals, had the
right to express their choices without any fear. It recognized same-sex sexuality as
a normal variant of human sexuality. In particular, the Court noted that S. 377
stigmatises and discriminates against non-binary persons

The Court noted that a “subjective notion of public or societal

S. 377 has a chilling effect on Art. 19(1)
SC tested whether public order, decency and morality are reasonable grounds to
restrict the Right to Freedom of Expression of Sexuality under Art. 19(1)(a). It noted
that S. 377 criminalises private consensual acts which neither disturb public order, nor
injure public decency or morality.
morality which discriminates against LGBTQ+ persons, and
subjects them to criminal sanction, simply on the basis of an
innate characteristic runs counter to the concept of
Constitutional morality, and cannot form the basis of a
legitimate State interest”.

It held that S. 377 amounts to an unreasonable restriction on the right to

freedom to expression since consensual carnal intercourse in private “does not
in any way harm public decency or morality” [p. 165, para. 253(xvi)] and if it The Court affirmed that that “intimacy between
continues to be on the statute books, it would cause a chilling effect that would consenting adults of the same sex is beyond the
“violate the privacy right under Art. 19(1)(a)” [p. 224, para. 83]. legitimate interests of the state”

The Court held that S. 377 violates human dignity, decisional

autonomy (autonomy of choice) and privacy. Thereby, violation
multiple rights enshrined under Art. 21 (Right to Life)

Every individual has the liberty to choose their sexual orientation,

seek companionship and exercise it within their private space. Hence, As S. 377 inhibits the exercise of personal liberty to
any infringement of this is violation of Right to Personal Liberty. engage in voluntary sexual acts, it violates Art. 21.

It socially ostracises LGBT persons and does not permit

Judgement: The Supreme Court applied 'The Litmus full realisation of their personhood.
test for Survival of S. 377' to assess the constitutionality
of it against the principles of equality, liberty, dignity Denying the right to determine one’s sexual orientation curtails the right to
under Art. 14, 19 and 21. privacy of an individual (KS Puttaswamy). Therefore, the Court held that the
Right to Life and Personal Liberty under Art. 21 scope of the right to privacy must be widened to incorporate and protect
‘sexual privacy’.

The Court concluded that sexual orientation was natural, innate and immutable. It The Court also relied upon its decisions in Shafin Jahan v. Asokan K.M.
held that the “choice of LGBT person to enter into intimate sexual relations with and Shakti Vahini v. Union of India to reaffirm that an adult’s right to “choose
persons of the same sex is an exercise of their personal choice, and an expression a life partner of his/her choice” [p. 72, para. 107] is a facet of individual
of their autonomy and self determination”. liberty (facet of human rights) under Art. 21.

Everyone is free to select their sexual orientation, as well as to look for and
enjoy company in their own place. S. 377 contradicts Art. 21 because it forbids
people from exercising their right to consent to sexual activity.

Disassociating with the holding in Suresh Kumar Koushal and the

arguments raised by the Respondents, the Court described
‘constitutional morality’ as the ideals and morals of the
Constitution and the values that create an inclusive society.
It recognized the Constitution as a tool to transform society.

Sexual acts cannot be viewed solely from the lens of morality

where they are seen to be purely for procreation (aims to forgo
that only heterosexual sex is natural).

Constitutional Morality A decision on whether a penal provision violates

fundamental rights must be guided by the principles of
constitutional morality and not societal morality.

Where a constitutional court finds that a provision violates

constitutional morality (violation of fundamental rights of a minority
sect of the society), it must be struck down.

S. 377 criminalises ‘unnatural sex’ which is “against the order

Finds 'against the order of nature' to be
unconstitutional
of nature”. The Court held that such a classification between
natural and unnatural intercourse is not legally valid.
Naturalness should not determine the legality or acceptance
of a phenomenon. Penal consequences for an act that is
unnatural or wrong cannot be imposed without sufficient
justification.

On behalf of himself and J. Khanwilkar, relied on the principles of

transformative constitutionalism and progressive realization of rights to hold
that the constitution must guide the society’s transformation from an archaic
to a pragmatic society where fundamental rights are fiercely guarded. He
further stated, “constitutional morality would prevail over social morality” [p.
79, para. 121] to ensure that human rights of LGBTQ+ individuals are
protected, regardless of whether such rights have the approval of a
CJI Misra majoritarian government.

She affirmed that homosexuality is “not an aberration but a

variation of sexuality” [p. 455]. She stated that the right to
privacy does not only include the right to be left alone but also
extends to “spatial and decisional privacy” [p. 476]. She
concluded her opinion by stating that history owes an apology
to members of the LGBTQ+ community and their families for
the delay in providing redress for the ignominy and ostracism
J Malhotra that they have suffered through the centuries.
Individual Judge's Opinion
In his opinion recognized that though Section 377 was facially neutral, its “effect
was to efface identities” [p. 328, para. 51] of the LGBT community. He stated that,
if Section 377 continues to prevail, the LGBT community will be marginalized
from health services and the “prevalence of HIV will exacerbate” [p. 368, para.
90]. He stated that not only must the law not discriminate against same-sex
relationships, it must take positive steps to achieve equal protection and to grant
J Chandrachud the community “equal citizenship in all its manifestations” [p. 270, para. 7].

In his opinion analyzed the legislative history of Section 377 to conclude

that since the rationale for Section 377, namely Victorian morality, “has
long gone” [p. 239, para. 78] there was no reason for the continuance of
the law. He concluded his opinion by imposing an obligation on the
Union of India to take all measures to publicize the judgment so as to
eliminate the stigma faced by the LGBTQ+ community in society. He
also directed government and police officials to be sensitized to the
J Nariman plight of the community so as to ensure favorable treatment for them.

Facts: Originating from a Public Interest Litigation (PIL) in Uttaranchal High Court. It
questioned L.P. Nathani’s Advocate General role. The issue was his age, over 62, the
High Court judge’s retirement age under Art. 217. The High Court demanded a state
response (it essentially questions the appointment rules of an Advocate General as per Art. 165 governs state Advocate General appointments. Article
Art. 165). 217 defines High Court judges’ terms, including retirement age.

Issue: Does a High Court judge’s age limit under Art. 217 affect the Advocate General’s
appointment as per Art. 165?

The Divisional bench of the SC backed the appellant’s view. It clarified

that the Advocate General’s appointment under Art. 165 is not limited by
the High Court judges’ age rule in Art. 217.

The Court underscored the Advocate General’s unique, independent role. The
decision confirms the Advocate General’s independence from judiciary age
limits. It reinforces constitutional separation of roles and warns against PIL
abuse. The filing of indiscriminate petitions creates unnecessary strain on the Through PILs, the Courts contribution in helping the poorer
judicial system and consequently leads to inordinate delay in disposal of sections by giving a new definition to life and liberty and in
genuine and bona fide cases (works against the principles of justice of the protecting ecology, environment and forests is extremely
poorer sections). significant.

According to Black's Law Dictionary, Public Interest – Something in which the public, the
community at large, has some pecuniary interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of
the particular localities, which may be affected by the matters in question. Interest shared by
citizens generally in affairs of local, state or national government….”

(1) The courts must encourage genuine and bona fide PIL and effectively
discourage and curb the PIL filed for extraneous considerations; The court
should also ensure that there is no personal gain, private motive or oblique
motive behind filing the public interest litigation;

(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
State of Uttranchal v. Balwant Singh Chaufal and Ors. (2010) - PIL Rules prepared by the High Court is sent to the Secretary General of this court
immediately thereafter;
Judgement: In order to preserve the purity and (3) The courts should prima facie verify the credentials of the petitioner before entertaining a PILs;
sanctity of the PIL, the Supreme
The importance of the judgment lies on the fact that it raises certain interesting Court has laid down guidelines to (4) The court should be prima facie satisfied regarding the correctness of the
issues about the need to regulate the field of PILs. be followed by courts. contents of the petition before entertaining a PIL;

(5) The court should be fully satisfied that substantial public interest is involved
before entertaining the petition;

(6) The court should ensure that the petition which involves larger public interest,
gravity and urgency must be given priority over other petitions;

(7) The courts before entertaining the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury;

(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.

Rule 1(3-A) - In addition to satisfying the requirements of

Responsibility of the person
seeking to file the PIL
The said person should precisely and specifically state in the affidavit to
be sworn by him giving his credentials. Rule 1(3-A) was added in the
HC Rules in order to address the concerns raised by the SC wherein it
laid emphasis that genuine PIL should be entertained by the Courts
where some grievance in relation to some disadvantageous section of the
Society is raised or violation of basic human rights are brought to the
notice of the court, however, in the same breath, SC has also put a word
of caution that frivolous vexatious petitions and petitions which seek to
serve personal interest should not be entertained; rather such petition
should be dismissed at the very threshold
the other rules in this chapter, the petition seeking to file a
Public Interest Litigation, should precisely and specifically
state, in the affidavit to be sworn by him giving his
credentials, the public cause he is seeking to espouse; that he
has no personal or private interest in the matter; that there is
no authoritative pronouncement by the Supreme Court or
High Court on the question raised; and that the result of the
litigation will not lead to any undue gain to himself or
anyone associated with him, or any undue loss to any person,
body of persons or the State.

By way of the 42nd Constitution (Amendment) Act, 1976, a new Chapter IV-A
which consists of only one Article i.e. 51-A was added which dealt with a Code
of 10 Fundamental Duties for citizens. Later on, by virtue of 86th Constitution
the Amendment in year 2002, 11th duty was added.

Fundamental duties are intended to serve as a constant reminder to Fundamental Rights, it also requires citizens to observe
every citizen that while the constitution specifically conferred on certain basic norms of democratic conduct and democratic
them certain behavior because rights and duties are co-relative

The concept of Fundamental duties was taken from the USSR.

The Fundamental duties are essentially taken from the Indian

tradition, mythology, religions and practices.
Theory on Fundamental Duties
Essentially these were the duties that are the codification of
tasks integral to the Indian way of life.

The right and duty are the two sides of the same coin. If a legal system
gives the right to life to its citizen, it also imposes an obligation on him
to not to expose his life in trouble, as well as to respect the life and
convenience of others. Thus, a strong legal system shall consist of
Legal Rights and Legal Duties like it is two non-separable parts.
In the words of late Prime Minister Indira Gandhi, “The
moral value of fundamental duties would not be to
smoother rights but to establish a democratic balance by
making people conscious of their duties equally as they are
conscious of their rights.”

Facts: AIIMs conducted examination for admission to PG courses. The prospectus in

September, 1995 declared that selection will be on merti. However, 1/3rd of the seats were
reserved for in-house candidates of the institute. Not only 33% of the available PG seats
were reserved for the institute’s in-house candidates, there was yet another subsequent
reservation which was provided for reservation in favour of in-house candidates of 50%
seats discipline wise, subject o an overall reservation of 33%.

(1) Does AIIMS have a unique status according to the AIIMS Act, 1956 and
can the booking of 33% for AIIMS understudies presented in 1978 be
supported dependent on standards appropriate for a college savvy share?

(2) Whether then again, regardless of whether it is admissible to have an

Issues: institutional portion, the 33% share for MBBS understudies in P.G. Courses
in a public Institute like the AIIMS, which is required to be the head
foundation in clinical schooling, educating and research is on realities not
reasonable as per Art. 14.

Institutional reservations are ultra vires and hence

must be struck down on grounds of unconstitution-
ality, unfair, arbitrariness, and unreasonableness. Violation of Art. 14.

The Court then goes to interpret the violation of fundamental rights

AIIMS Student Union v. AIIMS (2001) - Fundamental Duties of Part III with fundamental duties of Part IV (similar to DPSPs). The Even though the Courts do not impose fundamental duties,
Bench referred to Fundamental Duties under Art. 51-A to strike down nonetheless, they still provide a valuable guidance in
institutional reservations. understanding constitutional and other legal matters.

The prefix 'Fundamental' grants them equal status

Fundamental Duties under Art. 51-A are equally important and importance in the Constitution as per the
Judgement: as Fundamental Right under Art. 14. intentions of the founding fathers

The Supreme Court clearly held that though the Fundamental Duties though
may not be enforceable by a writ of the Court they provide a valuable guide
in the interpretation of the constitutional provision.

In this case, the State (which includes citizens of our country) failed to
The Fundamental Duties do not expressly cast any duty on the State (no take care of fundamental duty i.e. Clause (j) of Art. 51-A to strive towards
basic obligation on the State), however, the duty of each individual excellence of individuals and collective activity in order for the
became the collective duty of the State. betterment of the nation.