MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-IV, Semester-VIII: Academic Year : 2020-2021

Course Code and Name: 8.4 Optional Paper-I – Comparative Constitutional Law
Name of Student: ADITYA SWARUP SINGH UID: 17-12

Answer 2.
Abortion is one of the subject that has been discussed extensively in every legal jurisprudence
not only as a public health concern but also as an ethical and religious issue. One pertinent
question that has left everybody in dilemma is whether a mother has right to terminate her
pregnancy at her will or the rights of an unborn child take a front seat.
In India, article 21 of the constitution guarantees right to life. Among various rights available
to a women right to abortion is also believes to be one of its facet as held by Supreme Court
in Suchita Srivastava v. Chandigarh Administration. Right to abortion has also been
recognised under right to privacy which is an aspect of right to personal liberty which further
stems from right to life. The question that must be considered is the question of foetal
personhood i.e. can an unborn child be given the status of a person or not.
Prior to 1971, abortions were criminalised under Indian Penal Code, 1860, and
notwithstanding the 1971 Act, continue to be criminalised as of date. In fact, even the
pregnant woman could be found guilty if she self-aborts the child she is carrying. The Indian
penal code 1860 from sec 312 to sec 316 plays a significant role in prevention of illegal
abortions.
The Medical Termination of Pregnancy Act, 1971 permits abortion for a broad range of social
and medical reasons, including:
i. to save the life of the woman;
ii. to preserve physical health;
iii. to preserve mental health;
iv. to terminate a pregnancy resulting from rape or incest and in cases of foetal
impairment.
The termination of pregnancy can only be done through medical professionals up to 12 weeks
and the opinion of 2 medical practitioners is required if termination of pregnancy is performed
until 24 weeks. But it can be allowed beyond 24 weeks in exceptional cases. In Meera
Santosh Pal v. UOI the SC directed the woman to undergo termination of pregnancy till 24th

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week to protect the women from grave physical and mental health. The similar decision has
been given in other cases like Sarmistha Chakraborty v. UOI and X. UOI.
In Nikita Mehta’s case, the petitioner filled a suit in Bombay High Court to allow them to
abort their 26-week-old foetus who had been diagnosed with a heart defect. For the first time,
the national medical narrative took note of the fact that with the advent of medical
technology, pre-natal diagnosis of defects had come a long way and some defects could be
revealed after 20 weeks has passed. The Mehtas’ plea was turned down on expert advice. But
the court’s observation that only the legislature could address the demand for change in the
legal limit meant that India started the process of re-evaluating provisions of the Medical
Termination of Pregnancy Act, 1971.
In 2015, a 14-year-old rape victim from Gujarat sought and received permission from
the Supreme Court to abort after the 20 weeks deadline had passed. Her petition was
treated as a “special case”, meaning it could not be used as a precedent to grant
permission in another case. It allowed termination of pregnancy saying that unborn child
will not wish to be born.
So, in India, termination of pregnancy can only be done till 24th week but it can be allowed
beyond 24 weeks by the courts only in exceptional case. In the given factual matrix, Afruj has
decided of its own to end its pregencny and there is no medical emergency or situation like
growth of the fetus will harm health of the mother or something like that. In India, IPC and
MTP Act cumulatively do not confer right to abortion to the woman for terminating her
pregnancy. This ultimate choice affecting the interest of the woman and her body is taken by
medical practitioner. If the medical practitioner in good faith believes that the pregnancy can
be terminated, the woman can go ahead with abortion Therefore, on the basis of above
discussion, in India she will not be allowed to terminate her pregnancy.
In US, since 1973, Roe v Wade the court has legalised abortion across the United States. It
was held that the criminal abortion statute which criminalises abortion except to save the life
of the mother is violative of the Due process clause of the fourteenth amendment. The word
‘person’ used in the fourteenth amendment does not include the unborn child thereby
eradicating the concept of foetal personhood. Also when does the life begin cannot be
speculated by it. Though the constitution of the United States does not explicitly
recognise the right to privacy but the same can be construed by the judicial precedents.
They have brought it under right to personal liberty. It is broad enough to include the
right to choice with respect to abortion.

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Then in 1992 in the case of Planned Parenthood Southeastern Pennsylvania v Casey the
court reaffirmed the Roe’s case. The court held that the undue burden test shall be applied to
determine if the state can obstruct the woman’s right to abortion before viability. The court
held that the constitutional protection of woman’s decision to terminate her pregnancy derives
from the due process clause of the fourteenth amendment.
U.S.A has recognised right to abortion as a facet of right to privacy. The interest of the unborn
child can be protected by the state only after the stage of viability. The right to choice of
women takes precedence. The courts in the U.S.A have upheld the interest of the pregnant
woman and her rights over her body, thereby allowing her to make decisions. Therefore, she
can undergo abortion in US.

Answer 3
Public Interest litigation, itself says that this is a litigation for any public interest. In other
words, we can say that public interest litigation in a litigation which can be file in any court
of law by any public spirited person for the protection of “public interest.” Public interest is
any act for the benefit of public is public interest. And those act are such as pollution,
Terrorism, Road safety, constructional hazards etc. in all these activities we can clearly see
the public interest. As it is said that this petition can file any public spirited person so its
mean that there should not be interest of only himself. There in word only says that in can be
possible that in that act for what he is filing a PIL there in a small part of his benefit also hide
But it’s not mean that he cannot file. If the is interest of public then he can file public interest
litigation.
Public interest litigation is not defined in any statute or any act. It has been interpreted by
judge to consider the intent of public at large. This is just like a writ petition which is file in
high court or supreme court under article 226 for high court and article 32 for supreme court.
When public interest in affecting at large then this can be filed but affection on only one
person is not a ground for filing this petition. There are some various area where a public
interest litigation can be filed.
 Violation of basic human rights of the poor.
 Content or conduct of government policy.
 Compel municipal authorities to perform a public duty.
 Violation of religious rights or other basic fundamental rights.

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In India the first case of PIL was filed in 1976 named Majdur kaamgar sabha v Abdul bhai
Faizulla. Where Justice Krishna Iyar allowed a group of people to file petition on behalf of
others. The rights of the member were violated. Justice Krishna Iyar held either one
individual or group of individuals together can come to the court. In PUDR v. UOI the
Supreme Court clearly stated that a third party can file PIL for the violation of any person’s
fundamental right.
It is pertinent to note that before filing a PIL, it is admonished that the petitioner first brings
the dispute before the relevant authorities and give them sufficient time to act on it. However,
when no action is taken or the petitioner is not satisfied with the response, they may file a PIL
before the concerned court of law, High Court or the Supreme Court.
So, in the given factual matrix, Mohit can file PIL as the interest of the whole village is there
but before that he should bring the consult the authorities responsible for the construction and
maintaiinance of road and should give sufficient time to act on it. If these authorities does not
take satisfactory step then he can proceed for filing PIL.
Procedure of filing a PIL
In India, a PIL can be filed in the Supreme Court under Article 32 of the Constitution of
India. The Supreme Court has taken various steps that have given a healthy boost to PIL. The
procedural requirements are very easy and relaxed as compared to filing other ordinary
petitions. Even, a letter, post card, newspaper report or email addressed to the Supreme Court
by a person, acting in public interest has been accepted as a petition. Any simple information
received by the Court complaining of a legal injury against a person or a group of persons,
who cannot approach the Court directly (because of poverty, disability, social backwardness
and the like can be treated as PIL. The Courts understand that in such case it would be unfair
to expect a person to incur expenses and approach the Court through ordinary litigation.
 Collect all information .i.e. documents and photographs etc of affected interest and
the groups affected.
 File a case as written petition carefully with proper drafting.
 Write to relevant authorizes and maintain records in organized form to be clear about
releifs.
 The petition should be addressed to the court within the respective jurisdiction. In
case of Supreme Court, five sets required to be filed. The notice to opposite party will
be issued by notice.
 With a Court fee of RS. 50, per respondent have to be affixed on the petition.

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  After getting the replies from opposite party and rejoinder by the petitioner, final
hearing takes place, and the judge gives his final decision (judge may appoint a
commissioner, to inspect allegations, in the middle of the case).
The inspiration of PIL comes from the American concept of Public Interest Law and class
action suits. The most important case in USA which is said to commenced the PIL in USA as
well as other country is Brown v Board of Education in which US Supreme Court decleared a
state’s segregation in public school on the basis of race unconstitutional. On this basis, it
must be noted that Mohit can file PIL in Supreme Court of USA. But it has to be understood
that the courts of USA are not liberal like Indian Courts. The second most important
difference between Indian and USA form of instituting PIL is Locus Standi in PIL. In India
anyone can file PIL but in USA only the affected party can file PIL. No person other than the
affected person can file PIL in USA courts unlike India. PIL in India is an upgraded version
of Public Interest Law of USA. So, in order to institute PIL in the Supreme Court of USA,
Mohit can only do for himself as the affected party not for whole village as an affected party.

Answer 4
The freedom of speech and expression is regarded as the first condition of liberty. It occupies
a preferred and important position in the hierarchy of the liberty. It is truly said about the
freedom of speech and expression that it is the mother of all other liberties. Freedom od
Speech and expression means the right to express one’s own convictions and opinions freely
by words of mouth, writng, printing, pictures or anny other mode. In modern time it is widey
accepted that the right to freedom of speech is the essence of free society and it must be
safeguarded at all time.
Freedom of speech enjoys special position as far India is concerned. The importance of
freedom of expression and speech can be easily understand by the fact that preamble of
constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith
and worship. The constitutional significance of the freedom of speech consists in the
Preamble of Constitution and is transformed as fundamental and human right in Article 19(1)
(a) as “freedom of speech and expression”. Explaining the scope of freedom of speech and
expression Supreme Court has said that the words "freedom of speech and expression" must
be broadly constructed to include the freedom to circulate one's views by words of mouth or
in writing or through audio visual.
Moreover, it is important to note that liberty of one must not offend the liberty of others.
Patanjali Shastri,J. in A.K. Gopalan case, observed that man as a rational being desires to
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do many things, but in a civil society his desires will have to be controlled with the exercise
of similar desires by other individuals.
Every citizen of this country therefore has the right to express his view and opinions freely
subject to reasonable restrictions imposed under Article 19(2) of the Constitution. Freedom
of speech, though guaranteed, is not absolute in India. Romesh Thappar v. State of
Madras was amongst the earliest cases to be decided by the Supreme Court declaring
freedom of press as a part of freedom of speech and expression. Patanjali Sastri, J.,rightly
observed that freedom of Speech and of Press lay at the foundation of all democratic
organizations, for without free political discussion, no public education, so essential for the
proper functioning of the process of Government, is possible.
In the present factual matrix, Rahul in his speech has advocated the use of drugs at IIM
Nagpur. As per section 3 of the Drugs and Magic Remedies Act, 1954, the advertisement
of drugs is illegal for any kind of disease. Also, NDPS Act prohibits consumption of any
type of drugs in India. Also, the Supreme Court in Hamdard Dawakhana case has stated that
consumption of drugs has a deleterious effect on the health of the community and is
likely to affect the wellbeing of the people. Also, the Central government through Drugs
& Cpsmetic Act, 1940 and Drugs and Cosmetic Rules, Drugs and Magic Remedies Act,
1954 has prohibited the advertisement of all type of drugs.
Therefore on the basis of this Rahul cannot use the protection of Right to Speech under
Article 19(1) as it has tendency to disturbs public peace and public order. The Supreme
Court in Kishori Mohan v. State of West Bengal stated that expression 'public order'
connotes the sense of public peace, safety and tranquillity. Anything that disturbs public
peace disturbs public order cannot comes under the exception given under article 19(1). The
words 'in the interest of public order', as used in the Article 19 include not only utterances as
are directly intended to lead to disorder but also those that have the tendency to lead to
disorder. Article 19(2) prohibits every expression which possess a tendency to cause harm to
public peace and public order and therefore, Rahul’s speech comes under the ambit of Article
19(2).
Unlike India, Freedom of speech is absolute in USA. In the United States freedom of speech
receives a very high degree of constitutional protection. It is not untrue to say that the
constitutional protection afforded to freedom of speech is perhaps the strongest protection
afforded to any individual right under the American Constitution. Also, in some of the states
of USA, use of certain amount of drugs is permissible. Therefore, it cannot be said that Rahul
has committed any crime in the USA.

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Schenck v. United States was the one of the first important case where Supreme Court was
first requested to strike down a law violating the Free Speech Clause. In in Debs v. United
States , the court brought the test of clear and present danger to check whether any speech
and expression is illegal or not. According to this, if any speech possess any tendency of clear
and present denger than only it can be said to be the violation of freedom of speech and
expression, otherwise not.
Therefore, It can be observed that the US Supreme Court has observed and concluded that the
citizens have the right to give opinions and viewpoints about any matter of public concern
and they are protected by the first amendment. They are no restrictions or inhibitions to this
right.
Answer 5
To alleviate discriminatory practices against certain historically oppressed groups, a small
number of countries have adopted affirmative action. In the United States, affirmative action
is defined as a system of preferential treatment for minorities and women which attempts to
compensate them for being denied opportunities of advancement due to past and present
discrimination.' Other countries, like India, have adopted affirmative action to deal with the
disadvantaged segments of their populations.
Affirmative action refers to a set of policies and practices within a government or
organization seeking to increase to increase the representation of particular groups based on
their gender, race, sex, caste etc. in areas in which they are underrepresented such as
education and employment. Basically, support for affirmative action has sought to achieve
goals such as bridging inequalities in employment and pay, increasing access to education,
promoting diversity and redressing apparent past wrongs, harms or hindrances.
The nature of affirmative action policies varies from region to regionand exists on a spectrum
from a hard quot to merely targeting encouragement for increased participation. Some
countries use a quota system, whereby a certain percentage of government jobs, seats in
educational institution are reserved for memebers of a certain group like the Mandal
Commisssion’s implementation of reservation system in India.
Affirmative Action Plans in India
Initially it was the pre-independence British rule which introduced affirmative action policies
to India and has kept on growing ever since. India has a quota based affirmative action
programme, which is called the ‘reservation system’. Reservation normally implies a separate
quota which is reserved for a special category of persons. The reservations for the backward
classes can be broadly categorized into: political, educational and employment.

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  For the first, the Constitution provides for reservation of seats in proportion to their
numbers for the SCs and the STs in the Lok Sabha in its Article 330, and in the
Legislative Assembly of the State in Article 332. These provisions do not exist for the
OBCs, which indicate that the principal categories for the affirmative action are the
SCs and STs according to the Constitution.
 For the second, an implication exists in the constitutional provision - Article 15(4),
which allows the state to make any special provision for the advancement of any
socially and educationally backward classes of citizens or for the SCs and STs.
 For the third, the Constitutional provisions as modified and simplified from time to
time are, Articles 16(4), 16(4-A), 16(4-B), 320(4) and 335. These articles provide
explicitly for reservation in educational institutions for the backward classes and the
authority of the State to make any required changes as and when required.
Judicial Decisions
In the case of M.R. Balaji v. State of Mysore the court held that social and educational
backwardness not the sole test for determining reservation and later in State of U.P v.
Pradip Tondon the court also held that poverty is not the sole criteria for backwardness.
In State of Kerala v. N.M Thomas, the Supreme Court argues that Article 16(4) of the Indian
Constitution is not an exception to Article 16(1). The court also concluded that “the quality
and concept of equality is that if persons are dissimilarly placed they cannot be made equal
by having the same treatment.”
In Indra Sawhney v. Union of India, the Court holds that Article 16(4) of the Indian
Constitution was not an exception to 16(1) but rather merely an explicit statement of
classifications and provisions for backward classes that were already implicitly stated in
Article 16(1). By interpreting affirmative action not as the exception to equal treatment but as
part of equal treatment itself, India has adopted a substantive notion of equality.
Supreme Court of India, in P. A. Inamdar v. State of Maharashtra on August 12, 2005, gave
a clear verdict against reservation of seats for the Scheduled Castes, Scheduled Tribes and
Other Backward Classes in the un-aided private and minority higher education institutions.
In Ashoka Kumar Thakur v. Union of India the Supreme Court of India upheld the
Government’s 27% OBC quotas in Government funded institutions. The Court categorically
reiterated its prior stand that “Creamy Layer” should be excluded from the ambit of
reservation policy and private institutions are also not to be included in.

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Affirmative Actions in USA
Racial inequality continues to be a major problem in American society. After the end of the
Civil War in 1865, the US Congress passed the 13th and 14th amendments to the Constitution
outlawing slavery and prohibiting all states of the Union from discriminating against persons
on the basis of race. Despite these measures, many southern states passed what became
known as “Jim Crow” laws, which mandated separate facilities for whites and non-whites.
The Supreme Court upheld “separate but equal” facilities in the infamous case of Plessy v.
Ferguson (1896), where a man who claimed to be seven-eighths white was required under a
state law to ride in a separate train car from whites. It took nearly sixty years for the Supreme
Court to reverse its ruling in Plessy in another landmark case, Brown v. Board of Education
(1954). The Court struck down the separate but equal practice, here in the context of
lawsuit regarding segregated state-run public schools. The ruling sparked an era of
social upheaval in the US.
The XIII Amendment of the US Constitution abolished slavery and the XIV Amendment
guaranteed equality to all its citizens. The ‘Separate but equal’ doctrine evolved in 1896 was
overruled in two landmark decisions rendered in 1953. However, in reality discrimination
persisted and the Civil Rights Act, 1964 was passed during the tenure of President Kennedy.
The Civil Rights Act of 1964 introduced the principle of ‘affirmative action’ into the
political, judicial and administrative spheres of American society. The concept of reverse
discrimination can also be seen in the landmark case of University of California v. Allan
Bakke where a white man could not get admission for two consecutive years in a medical
college but members of minority races who had scored less marks than him gained
admission.Also in the Michigan cases, the Supreme Court ruled that although affirmative
action was no longer justified as a way of redressing past oppression and injustice, it
promoted a “compelling state interest” in diversity at all levels of society.
The important difference which lies between the USA and India is that affirmative action is
not enshrined in the constitution of the USA, nor is it quota-based. Thus, as a result, the effect
is that even executive orders and/or court judgements can either strengthen or dilute the
affirmative action program with the passage of time. Although India has borrowed from the
United States in creating and interpreting their equal protection provisions, it has failed to
adhere to the American perspective on individuals equality.