CITIZENSHIP

Article 5 confers citizenship to people

1. born in the territory of India
2. parents born in the territory of India
3. ordinary residents of India for not less than five years

When the constitution came to effect. anyone domiciled in India as on 26-1-1950 and fulfilling any of
these three conditions were made citizens.

Citizenship = membership of society or Government

Domicile = country where the person has a permanent abode. A minor’s domicile is that of his/her
father, married women’s domicile is that of her husband.

FUNDAMENTAL RIGHTS
Fundamental Rights are individual rights are enforced against the arbitrary invasion by the state.
Some fundamental rights can be enforced against private individuals also.

Part-III of the Indian constitution (Articles 12 to 32) list out the Fundamental Rights.

Fundamental Rights are not absolute rights, and Parliament can place reasonable restrictions, on
grounds of maintenance of general public order, security of state, upliftment of SCs, STs, OBCs,
women and children; maintaining public decency and mortality, to maintain friendly relations with
foreign states, and so on.

Classification of Fundamental rights

Right to Equality (Art 14 to 18)

Article Equality before the law or equal protection of the laws - available to any person
14 including legal persons viz. statutory corporation, companies, etc.

Prohibition of discrimination on the grounds of religion, race, caste, sex or place of

Article
birth. However, Article 15 (3) & (4) empowers the government to make special
15
provisions for women & children, and economically and socially backward groups.

Article Equality of opportunity for all citizens in matters relating to employment or appointment
16 to any office under the state.

Article Untouchability is abolished and its practice in any form is forbidden. The enforcement
17 of any disability arising out of untouchability shall be an offence punishable by law

No title, except that of military or academic distinction, shall be conferred by the State.
Article Likewise, no citizen of India shall accept any title from any foreign state. National
18 Awards such as Bharat Ratna, Padma Vibhuhan, Padma Bhusan and Padma Shri are
exempted.

Right to Freedom (Article 19 to 22)

Freedom * of speech and expression. * to assemble peacefully and without arms. * to

Article form associations or unions. * to move freely throughout the territory of India. * to
19 reside anywhere in India * to practice any profession or to carry on any occupation,
trade or business.
 State can impose reasonable restrictions on the groups of security of the state, friendly
Article
relations with foreign states, public order, decency, morality, contempt of court,
20
defamation, etc

Article
Everyone has the right to life, liberty and the security of person (Right to Life)
21

Article
Free and compulsory education to all children of the age of 6-14 years
21A

Article
Protection against arrest and detention in certain cases.
22

Right against Exploitation (Article 23 and 24)

Article
Prohibition of traffic in human beings and forced labour.
23

Article Prohibition of employment of children under 14 in factories, mine, and hazardous

24 establishments

Right to Freedom of Religion (Articles 25-28)

Article
Freedom of conscience and free profession, practice, and propagation of religion.
25

Article
Freedom to manage religious affairs.
26

Article
Taxes for promotion of any particular religion
27

Article Freedom to attend religious instructions or religious worship in certain educational

28 institutions.

Cultural and Educational Rights (Articles 29-30)

Article
Protection of language, script, and culture of minorities.
29

Article
Right of minorities to establish and administer educational institutions.
30

Right to Constitutional Remedies (Article 32)

Article Right to move to the supreme court for the enforcement of Fundamental Rights
32 including the Writs of (i) Habeas corpus, (ii) Mandamus, (iii) Prohibition, (iv) Certiorari
 and (iv) Quo warranto.

ARTICLE 12: WHAT CONSTITUTES THE "STATE?'

According to Article 12, ‘the state’ includes the

 Government and Parliament of India.

 Government and Legislature of States.
 All local or state authorities such as municipalities, panchayats, district boards, improvement
trusts, etc within the territory of India or under the control of Government of India.

All these entities are responsible for ensuring the fundamental rights of citizens.

The words “other authorities” and “under the control” are ambiguous and led to numerous litigations in
the Supreme Court.

SCOPE OF ARTICLE 12

When a body is

 Financially
 Functionally
 Administratively

dominated by or under the control of the government and such control is particular to the body and is
pervasive, then it will be “State” within Article 12. (defined in Ajay Hasia case)

If the control is merely regulatory, it will not be a State.

The definition in Article 12 is only for the purpose of application of the provisions contained in Part III
(Fundamental Rights). Definition of state under Article 226, to determine whether an entity is carrying
out a “public function” is much wider in scope.

LOCAL AUTHORITIES

Local authorities are included under ART 12 virtue of entry 5 of List II of the 7th Schedule: eg:
Municipal Committee; a Panchayat; a Port Trust; Municipality
For article 12, “Authority” means a public administrative agency or corporation having quasi-
governmental powers and authorized to administer a revenue producing public enterprise.

In Union of India v/s R.C.Jain court held that to be considered a “local authority”, an authority must
fulfil the following:
L = Separate legal existence.
A = Function in a defined area. LAFAS
F = has power to raise funds.
A= Enjoys a degree of autonomy.
S = Entrusted by a statute with functions which are usually entrusted to municipalities
Court applied these provisions to bring Delhi Development Authority as a state under Art 12.

OTHER AUTHORITIES

“Other authorities” include all constitutional or statutory authorities (other than local self-government)
who have the power to make rules and regulations having the force of law. It includes

 statutory corporations
 government company
 registered society
  bodies which have some nexus with the government eg: ONGC, CSIR, IDBI, ICAR, NAFED,
State Electricity Boards etc.

In R.D.Shetty v/s International Airport Authority, the Court held AAI discriminated and violated
provisions of article 12, by acting in an arbitrary manner for awarding the tender to run restaurant at
Bombay airport. Tender clauses such as “Airport Director reserves the right to reject all or any of the
tenders received without assigning any reasons therefor” is not valid.

An entity becomes “state” as per Article 12 when

1. FUNDING: Major funding source should come from government

2. FUNCTION: Entity must perform a public function, or function must be governmental in
essence
3. MONOPOLY: Entity enjoys monopoly status which is state conferred or state protected
4. AUTHORITY: The entity has some element of authority or command
5. CONTROL: Government has plenary control over the entity
6. HISTORY: The entity has taken over functions previously carried out by the government, or
the government has transferred some of its function to the entity

FFMACH – anyone or combination of these is enough for the entity to become “state”

Case Laws

Ujjain Bai v. State of U.P: The word “State” is of wide amplitude and capable of comprehending
every authority created under the statute and functioning within the territory of India. Court held Sales
Tax officer is included in other authorities as the authority exercised government functions.
Som Prakash v Union of India: other authorities include statutory bodies and also non-statutory
bodies such as government companies, and brought BPCL (Bharat Petroleum) under Article 12.
Rajasthan State Electricity Board v Mohan Lal: State electricity board falls under article 12. Court
held that it was not necessary that statutory authority included under article 12 should be performing a
governmental or sovereign function. Even authorities performing commercials functions can come
under article 12
All India Reserve Bank Retired Officers Assn v Union of India, the court held Reserve Bank is
“state” as per art 12. Likewise, SBI and all nationalized banks is also “state,” as it is guided by
directions from central government.
Regional Rural Bank constituted by state action, is also state. However private companies carrying
out banking business does not come under the scope of article 12.
Star Enterprises vs City & Industrial Dev. Corp. of Maharastra (1990) Private body falling under
the ambit of “tests” or which is an agency of the state is also a state.
Ajay Hasia v Khalid Mujib: Regional Engineering College, Srinagar is “state” and money is provided
by government, and state government is empowered to take decisions regarding the college.
Bhaskaran v Addl Secretary, Agri Dept, GoK: Co-op societies are not “state” as per article 12
Satimbla Sharma vs St Paul’s SSC (2011): Unaided, private minority schools are not state under
Article 12
Manmohan Singh jatia vs Commissioner, UT of Chandigarh: Aided schools, subject to regulations
by department of education, is included in Art 12
Zee Telefilms vs Union of India (2005) : BCCI is not a state because it is not financially, functionally
or administratively dominated by government, nor it is under the government. (In Jan 2016, SC held
BCCI is bound by the rigours of public law, as it wields monopolistic power which can intrude into
fundamental rights)

Whether the entity is a corporation created by a statute, as distinguished from under a statute, is not
an important criterion. Government. cannot override fundamental rights just by forming a corporation
to carry out commercial activities.

DOES “STATE” INCLUDE JUDICIARY

The definition of State under Article 12 of the Constitution does not explicitly mention the Judiciary.
In its non-judicial functions, the Judiciary does come within the meaning of State. However,
challenging a judicial decision which has achieved finality, under the writ jurisdiction of superior courts
on the basis of the violation of fundamental rights, remains open to debate.

Bringing the Judiciary within the scope of Article 12 would mean that it is deemed capable of acting in
contravention of Fundamental Rights.
A.R. Antulay v. R.S. Nayak: When rulemaking power of Judiciary is concerned it is State but when
the exercise of judicial power is concerned it is not State.
Rati Lal v. State of Bombay, it was held that Judiciary is not State for the purpose of Article 12, and
the Judgment of the Court cannot be challenged for violation of Fundamental Rights.
Naresh v. State of Maharashtra: issue posed before the Supreme Court for consideration whether
the judiciary is covered by the expression ‘State’ in Article 12. The Court held that the fundamental
right is not infringed by the order of the Court and no writ can be issued to High Court.
Ujjam Bai vs State of UP: Error of law or fact committed by a quasi-judicial authority cannot be
challenged except in case of erroneous implementation

Rule of EJUSDEM GENERIS

meaning = “of the same kind or nature.” When general words in a statutory text are flanked by
restricted words, the meaning of the general words is taken to be restricted by implication with the
meaning of restricted words. If this rule is applied for article 12, article 12 covers only authorities
exercising sovereign function. However, courts have rejected this doctrine and given wide coverage.

ARTICLE 13
Article 13 states laws inconsistent with fundamental rights are eclipsed, and the state shall not make
new laws that contradict with fundamental rights. The law means legislation, ordinance, by-law, rule,
regulation, notification etc.

24th amendment 1971 established constitutional amendment is not a “law.”

Krishna v Mathura (1980): Personal law is beyond the definition of law for art 13

1st amendment 1950 abridged fundamental right to property in some respects. This was challenged
in Gokalnath v State of Punjab (1967), where SC held constitutional amendment is also a law. The
government brought in 24th amendment (1971) to clarify constitutional amendment is not a law. The
right to amend the constitution was affirmed by SC in Kesavananda Bharati case.

How does Doctrines of Ultra Vires, Eclipse and Severability Apply in the Interpretation of the
Indian Constitution

DOCTRINE OF WAIVER

Fundamental rights cannot be waived, as they are not just for individual benefit, but for public polity as
well. This was decided in Behram Kurshid v State of Bombay (1955), and also in Bisheshnar Nath v
Commissioner of Income Tax (1959). ..

DOCTRINE OF ULTRA-VIRES

Ultra-Vires means to act beyond the powers. Any act becomes intra-vires (within the powers) only if it
is done within the authority granted to the entity making the act.

According to article 13(2), the state shall not make any law which takes away or abridges the rights
conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this clause
shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for this purpose,
unless the context otherwise requires, the law includes any ordinance, order, by – law, rule,
regulation, notification, custom or usage having in the territory of India, the force of law. Thus laws
passed by any authority in contravention of these sections become ultra-vires
DOCTRINE OF ECLIPSE

Eclipse means overshadow. A law becomes void not in toto or for all purposes or for all times or for all
persons but only “to the extent of inconsistency” with the superior statue that eclipses it.

In India, the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws. It holds such laws
are not null and void ab initio but simply become unenforceable to the extent of its inconsistency with
the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency
or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that
particular law again becomes active again.

DOCTRINE OF SEVERABILITY

The doctrine of severability holds if an enactment cannot be saved by construing it consistent with its
constitutionality, it may be seen whether it can be partly saved.
SC established the doctrine of severability in India in R.M.D. Chamarbaugwalla v. The Union of
India. SC held “If a part of a statute turns out to be void, that should not affect the validity of the rest of
it. … When a statute is in part void, it will be enforced as regards the rest, if that is severable from
what is invalid.”

If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one
another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the
other hand, if they are distinct and separate that after striking out what is invalid, what remains is in
itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has
become unenforceable.

Reading Down:
The court may resort to reading down a law in order to save it from being rendered unconstitutional.
But while doing so, it cannot change the essence of the law and create a new law which in its opinion
is more desirable

In A. K. Gopalan v. State of Madras, SC observed “what we have to see is, whether the omission of
the impugned portions of the Act will “change the nature of the structure or the object of the
legislation”.

SIGNIFICANCE OF ARTICLE 13 TO FUNDAMENTAL RIGHTS

Art 13 (1) states all laws in force before enactment of the Constitution shall be void if they are
inconsistent with Fundamental Rights. Art 13(2) states state shall not make any law which abrogates
or takes away the fundamental rights, and any law, ordinance, by-0law, rule, regulation, notification,
custom or usage made in contravention of this section will be void.

Pre-constitutional laws are treated under the doctrine of eclipse, in that the parts of such laws which
violate fundamental rights are eclipsed and not enforceable against citizens. The SC propounded the
doctrine of the eclipse in Bhikaji Narayan v State of Madhya Pradesh (1955), when the state tried to
monopolise road transportation on the basis of the old CP and Berar state law that allowed monopoly.
This law infringed upon the citizen’s right to carry on any business as per article 19(1).

The Supreme Court initially applied the doctrine of eclipse only to pre-constitutional laws but in the
case of the state of Gujarat vs. Shri Ambika Mills (1974), it stated the doctrine can be extended to the
post-constitutional laws as well.

ARTICLE 14: EQUALITY OF LAW AND EQUAL PROTECTION OF

LAW (ARTICLE 14)
Article 14 of the Constitution of India says that State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.
“Equality before law” means no one is above the law of the land. It means the law does not
discriminate on the basis of birth, position, gender or other personal attributes. Privileged,
underprivileged, unprivileged are all equal before law.

“Equal protection of law” means that law provides equal opportunities to all those who are in similar
circumstances or situations. But because all persons are not, by nature, attainment or circumstances
in the same positions; article 14 provides that state can treat different persons differently if
circumstances justify such treatment. The Doctrine of Reasonable classification holds protective
discrimination is also a facet of equality.

These concepts were taken from the Irish and American constitution, and also find mention in the
Universal Declaration of Human Right, 1948

Menaka Gandhi v Union of India (1978): When an act is arbitrary, it is against both political logic and
constitutional law, and against Article 14. Court asked the government not to withhold passport
without due process and giving Menaka Gandhi a hearing.

Art 14 is a potent weapon for the judiciary to test state action on legislation and executive orders, on
the grounds of reasonableness, and strike down unfair and arbitrary rules.
Through art 14, rule of law can be firmly established.

Art 14 prevents “class legislation”, or legislations that confer special privileges or impose some
restrictions on any particular class. It also prevents discretionary or hostile legislation targeted against
any particular individual.

Ram Prasad v State of Bihar (1953): Court struck down the Sathilands Restoration Act, which
specifically directed the petitioner to vacate his land, and empowered the Collector to evict him.
Likewise, the validity of the Walluddoowa succession act in Nizam’s Hyderabad, which specifically
excluded one wife of a nobleman from inheriting property, was struck down, as unconstitutional.
IR Colchelo v State of Tamil Nadu (2007): Article 14, 19 and 21 constitute a golden triangle, as they
stand for equity and rule of law. These form the basic structure of the constitution, and cannot be
abrogated.
Ekasakti Foundation v Government of NCT Delhi (2006): Art 14 is a positive concept, and not a
negative concept. It has no application or justification to legitimize an illegal action.

Test of Reasonable Classification

While Art 14 prevents class legislations, legislation cannot be said as discriminatory simply because it
does not deal with all citizens, or it restricted its scope to only a part of the state or the population.
Legislature is entitled to make reasonable classification

Special benefits conferred in Article 15, clause 3 and 4, and article 16 clause 5 in favour of backward
class are protective in nature, and are exemptions to art 14.

Kathi Raning v Saurashtra (1952): Court laid down two criteria for reasonable classification.
- Classification should be based on intelligible differentia which distinguished those include from those
left out of the group
- The diffentia must have a rational relation to be object sought to be achieved by the legislation
Reliance Energy v Maharashtra State Road Transport Corp (2007): SC held art 14 should be read
in conjunction with Art 21, and not in isolation. If any policy of government fails to stand the test of
reasonableness, such act or even contract is to be struck down. Policies of the government cannot be
repugnant to the constitution.
Express Newspapers v Union of India (1958): Newspaper challenged act to improve service
conditions of journalists on grounds it singled out journalists for preferential treatment, and singled out
press industry while excluding all other industries, and as such violate art 14. SC dismissed the suit,
treating it as a reasonable classification.
Harnam Singh v RTA Calcutta (1954): Transport authorities divided taxis as those above 20 HP and
below 20HP, with differential rates. When taxi operators called in SC, SC held it as reasonable
classification.
K A Abbas v Union of India (1971): Reasonable classification test upheld for classification of films
into U and A ratings,
RC Cooper v Union of India (1970): The doctrine was also applied in the Bank nationalization cases,
where 14 banks were singled out for nationalization.
State of West Bengal v Anwar Ali Sarkar (1952): petition challenged special courts, it put accused
at a disadvantage with regards to provisions of CrPC, and constitution for special courts was anyway
in an arbitrary manner. The court struck down law that allowed government. to refer matters to special
court in an arbitrary way6.
Ashirwad Films v Union of India (2007): Notification by the state of AP, to charge 10%
entertainment tax on Telugu films, and 24% on Hindi films was struck down as unconstitutional, as it
is violative of article 14. Differentiation on basis of language only is impermissible.
ITO(Shillong) v Rymbai (1976): SC held classification of sources of income based on geography
was valid, when intention is to protect weaker sections
KSEB v Govinda Phrabu (1986): State Electricity board entitled to fix different tariffs for different
customers. Considering the nature and purpose of supply.
Chancala v State of Mysore (1971): University wise reservation of rests invalid and does not violate
art 14. Universities in Mysore reserved 80% of seats for its own alumni/ Thus is because each
university has different standards, so equity principle is not violated. However, in Charles v Mathew
(1980), SC struck down Kerala uty regulation of keeping only 2% of medical seats for open
competition as unconstitutional

ARTICLE 15 AND 16
Article 15 prohibits state to discriminate on grounds of religion, race, caste, place of birth etc, with
regards to

 access to shops, public restaurants, hotels and places of public entertainment

 use of roads, tanks, bathing gaths, and other places maintained for use of general public

Article 16 mandates equal opportunity in matters on public employment, with no discrimination on

basis of religion, race, caste, place of birth etc.

However Article 15(3) empowers state to make special provisions for women and children, and 15(4)
enable state to make special provisions for schedules caste/tribes, and backward classes, including in
educational institutions (15-5)

Article 16(3) empowers state to restrict employment to people residing in a particular state or UT. Art
16(4) empowers state to make reservation fort backward classes.

Champakam Doraiswamy v State of Madras (1951): Court struck down regulation of admission to
government. colleges on basis of religion. Art 15(4) was added on 1st amendment to overcome this
rule and allow reservation of seats for backward classes. Thus govt overcome the barrier of
reservations being labelled as discriminatory by converting it into an affirmative action
legislation.
Air India v Nergesh Meerza (1981): Court struck down rule that air hostess would lose their job on
their first pregnancy. Rule that air hostess should be pretty etc. is unreasonable
State of UP v Pradip Tandon (1975): Reservation in college for people born in rural areas was struck
down as being violative of art 15(1). However, place of residence is different from place of birth, and
place of residence is to be tested under Art 14
Balaji v State of Mysore (1963): court held criteria of backwardness should not be caste alone, but
also social and educational. Also, quantum of reservation should be reasonable and not excessive. In
this case, total reservation was 68% and court held reservation should not exceed 50%
Ashok Kumar Thakur v Union of India (2008) : SC asked to increase total seats, so that general
pool is not decreased when there is increase reservation for backward class. Court held differentiation
of classification for special preference should not unduly favour persons left out for favoured groups.
This verdict also allows state to reserve seats in private educational institutions.
Jain Narain Ram v State of UP (1996): Vacancies to be filled from merit list when reserved quotas is
not filled by eligible people not choosing to join service. Art 16(4) applies only to initial appointments
and not to promotions. This case overrides several earlier verdicts.
Nivedita Jain v State of MP (1981): Lowering qualification mark for backward classes is a valid
classification.
PA Inamdar v State of Maharashtra (2005): Professional education to be made available on basis of
merit and non-exploitative terms to everybody. Both minority and non-minority institutions have duty to
maintain requisite standards. However, state cannot insist on unaided private colleges to offer
reservation. Based on this verdict, government made 93rd amendment to constitution and added
15(5) which enabled government to make reservation for backward classes even in private
educational institutions, both aided and unaided.
Valsamma Paul v Cochin University (1996): Marriage to a backward class does not make person
eligible for reservation.
V Narayan v State of AP (1987): SC summarised the principles of reservation. Caste alone cannot
be criteria for determining backward class as per 15(4) and 16(4).

 Backwardness shall be both social and educational.

 Poverty is not the sole criteria, but placing an income level is desirable
 When a group becomes sufficiently advanced, it may be removed from list of backward class.
So periodic revision is essential
 Total reservation as per 15(4) and 16(4) not to exceed 50%
 When unfulfilled vacancies are carried forward to next year, it will be regarded as additional to
vacancies arising next year. Total rser4vation, including carry forward should not exceed
50%.

Indra Sawhney v Union of India (1993): This is the Mandal case, where V P Singh government.
reserved 27% of seats for OBC’s in addition to reservations for SC and ST. Later Narashima Rao
government. introduced economic criteria and added 10% reservation to economic poor of forward
class. Supreme Court upheld Mandal

 Commission reservation based on economic conditions, but struck down 10% for forward
classes. The verdict also clarified
 Reservation can be made through executive order, not necessarily by legislations
 Economic condition cannot be an exclusive criteria for determining reservation
 Total reservation should not exceed 50%, except in exceptional cases.

M Nagaraj v Union of India (2006): Court reaffirmed creamy layer concept laid down in Indira
Swanhey case.

Ashok Kumar Thakkar v State of Bihar (1995): Income criteria of 10 lakh to fall under creamy layer
concept quashed, and economic criteria is not valid, and has already been struck down in Indira
Sawhney case. As per Indira Sawhney case all people holding constitutional post, IAS etc. was held
as creamy layer and not eligible for reservation.

77th amendment 1995 added clause 4A to article 16, empowering government to make provision for
reservation to promotion for SC/ST in government services, if they are inadequately represented. This
nullified SC verdict in Indira Sawhney case which negated reservations in promotions. In various
subsequent case laws, SC held employment meant entire course of employment and not just
appointments.

Venkata Raman v State of Madras (1951) Art 16(4) allows reservation only on case of “backward
class of citizens” and not on basis of religions.
Narashima Rao v State (1970): Resident within state is a valid classification, but residence within
any part of a state is invalid. SC quashed requirement that for appointment person should be from
Telingana, as it was part of AP then.
State of Bihar v Begshwari Prasad (1995) and India v Brij Lal Thakur (1997) held reservation of
solitary post was valid, if there is rule of rotation or raster system in place.
Article 17: Abolition of untouchability
Article 18: Abolition of Titles. Bharat Ratna, Honorable degrees etc. are
not titles**

ARTICLE 19 : Occupational Freedom

Reasonableness of restrictions as per Art 19

a. Freedom of speech and expression.

Restrictions brought on by first amendment 1952 are things that
- affect sovereignty,
- Security of state,
- Friendly relationship with foreign states,
- Public order,
- Decency or morality,
- Contempt of court,
- Defamation,
- Incitement to offence
16th amendment restricted preaching of secession

b. Freedom to assemble peacefully, without arms

Restrictions are
Sovereignty
Public order

c. Freedom to form associations or unions

Restrictions are:
Sovereignty
Public order
Morality

d. Freedom to move freely throughout India

e. Freedom to reside and settle anywhere in India
Restrictions for d and e are
- Protection of interest of SC and ST
- Public interest

g. Freedom to practice any profession, carry out any trade, occupation or business
Restrictions are
- State can lay down professional or technical qualifications for practicing any profession or trade
- State can have complete or partial monopoly on any business

19(1)(f), right to property have been removed by 44th amendment 1978.

Freedom of Press

Freedom of press is included in 19(1)(a).

Romesh Thapar v State of Madras **(1950): Bombay publication “CrossRoads” was banned in
Madras on grounds on public interest. BrijBhusan v Delhi (1950): Organizer was subject to pre-
censorship. Court struck down both as volatile of 19(1)(a)
Court held Daily newspaper (Price and Page) Order 1960 that regulated newspaper price in
relation of page and size, and also regulated government advertisements, to prevent unfair
competition among newspapers, as unconstitutional.
Bennet Coleman v Union of India** (1973): Newsprint control order imposing ceiling of pages to 10
was struck down as unconstitutional.
Indian Express v Union of India (1986): Imposition of customs duty on newsprint for big newspapers
was challenged, Court asked government to review the stand in 6 months.
Printers (Mysore) Ltd v Assist Commercial tax Officer (1994): No sales tax can be levied on sale
of newspapers
R Rajagopal v State of Tamil Nadu (1994): Court held editor of Nakheeran can publish
autobiography of Auto Shankar from public records. Officials cannot stop publication, but can claim for
any defamation after publication.
Government of India v Cricket Association of Bengal (1995): Doordarshan does not have
monopoly of creating terrestrial signals and telecasting them. Right to communicate through any
media is available to citizens as part of 19(1)(a)
Directorate of Film Festivals v Gaurav Ashwin (2007): Requirement of certificate from Film censor
board is a reasonable restriction.

Unlawful Assembly

Babulal Parate v State of Maharashtra (1961): To prevent clashes between two rival unions of
textile mill, Section 144 was imposed. Court upheld Section 144 as a reasonable restriction.

Banning associations can be upheld only with judicial scrutiny and cannot be arbitrary (VG Row v
State of Madras)

Freedom of Occupation

Chintaman Rao v Madhya Pradesh: An order no one was to manufacture beedis, to ensure supply
of agricultural labourers was held unconstitutional.
Dandapani v State (1986): Blacklisting a businessman without giving him a hearing is
unconstitutional
MD Usmanbhai v Municipal Corporation, Ahmedabad (1986): Closure of slaughter house on 7
festive days is reasonable,
Sukumar Mukherjee v West Bengal (1993): Law prohibiting government. teacher doctors from
private practice was held valid.
Kerala SMT v Kerala TBBO: Trawling ban for 44 days was held valid on ground of economic interest
of traditional fisherman, and on public interest
Unnikrishnan v State of AP (1993): Education is not a commercial activity, but when run with profit
motive, restrictions of art 19(2) will apply to them,
Khoday Distilleries v State of Karnataka (1995): Freedom under 19(1)(g) is not absolute. Portable
liquor is dangerous and injurious to health. As per Art 47, total prohibition on liqour trade can be
imposed.
Akadasi Padhan v Orissa (1963): When state creates a monopoly, many agents appointed has to
work on behalf of the state. Monopoly cannot be operates so as to pass on the benefits to private
operators
Excel Wear v India (1979) Right to carry on business is also right to close dowjnm a business. SC
held Sn. 25-O of ID Act as unconstitutional.
BE Enterprises v UP (1999) Lottery is not a trade, as any occupation with an element of “chance”
cannot be constructed as a trade.
TMA Pai Foundation v Karnataka (2002): Education is essentially charitable in nature, and not profit
making commercial venture.
Maharastra Ekta Hawkers Union v Mumbai Corp (2004): Hawking is a fundamental right as per
19(1)(g), but with restrictions such as not being allowed on narrow roads, near hospitals, places of
worship etc.

ARTICLE 20
The safeguards available are
1. No one can be punished retrospectively under criminal law. Art 20(1)
2. No one shall be prosecuted for the same offence a second time. Art 20(2)
3. There shall be no forced confessions Art 20(3).

Protection against ex-post facto laws (Art 20-1)

Article 20 (1) of the Constitution holds no one shall be convicted of any offence except for violation of
a law in force at the time of commencement of the act, and the penalty imposed shall not be greater
than what might have been inflicted by the law in force at the time of commencement of the act. This
article bans ex-post facto (retrospective) crimi9nal legislation protects against arbitrary enforcement of
state power against any individual, and also protects against retrospective implementation of
punishments.

Kedar Nath v State of Bengal (1953): SC hend enhanced punishment could not be given since new
punishment came into effect in 1953 and offence was committed in 1947
T Baral v Henry Han How (1983) SC allowed accused in food adulteration case to get relaxation of
lighter sentence of 3 years imprisonment from imprisonment for life.

MEMO DEBIT BIS VEXARI (Art 20 Clause 2)

“Nemo Debet Bis Vexari Pro Una Et Eadem Causa” means no-one shall be tried or punished twice in
regards to the same event. This doctrine of “Double Jeopardy” is expounded in Article 20 (2) of the
Constitution.

Double Jeopardy is taken from American constitution, and also English common law. However,
American constitution and Common law allows double jeopardy even if there was no previous
conviction, whereas in India, double jeopardy would apply only if there was conviction ion the first
case, Also, unlike India, this is not a fundamental right in England.

Scope for double jeopardy to apply

1. Prior proceedings should be a prosecution.

Venkatraman v Union of India (1954): Mere department enquiry is not prosecution. SC held for
protection against double jeopardy, there should be prosecution in court of law, and prior proceedings
should have resulted in punishments
Maqbool Hassan v State of Bombay (1953): Confiscation of smuggled gold by sea prosecution, and
subsequent prosecution under FERA was not double jeopardy, as confiscation of gold was not
criminal prosecution.

2. Second prosecution is barred only if it is for the same offence

SL Apte v State of Bombay (1961): Plaintiff was prosecuted twice for criminal breach of trust. SC
held for double jeopardy to apply, not just allegation, but also ingredients of the case should be the
same. However, this ruling has come in for criticism.

Art 20(3) offers right against self-incrimination. It is the duty of the prosecution to prove guilt beyond
reasonable doubt, and prosecution cannot coerce the accused,. Accused has the right to refuse to
answer any question put to him, if the answer is likely to incriminate him or her, and no adverse
inference can be drawn from such silence. A person cannot be compelled to be a witness against
himself, though he can examine himself as a witness if he wants to.

1. Person invoking art 20(3) should be an accused. Person becomes accused when a FIR is filed
against him/her.
Joseph v Narayanan (1964): Right to remain silent does not apply when directors of a bank are
grilled under Sn 45-G or Banking Companies Act. Such grilling may lead to an accusation, but at the
time of grilling, person is not an accused.

2. Right to silence does not apply to voluntary confessions. It applies only when the accused is
compelled (Kalavathy v Himachal Pradesh – 1953)
Sharma v satishchandra (1954): Rule against testimonial confession applies equally to oral
testimony and production of documentary evidence. Documentary evidence produced by accused
under compulsion cannot be used against him.
YusufAli v State of Maharashtra (1968): Secretly recording conversation in a tape is not against the
rule for testimony confessions. Self-incrimination does not apply in thjis case.
3. Material evidence such as fingerprints, identification parades etc. does not come under 20(2).
(State of Bombay v Kathi Kalu Oghad (1961)).

ARTICLE 21
Protection of Life and Liberty as per Art 21
Due Process of Law as per Art 21

Article 21 says no person shall be deprived of life and liberty, except with due process of law.

This draws from the “due process” clause in the American constitution.

AK Gopalan v State of Madras (1951): AK Gopalan was put in preventive custody as per preventive
detention act 1950. However, court held law means “law made by legislature” and not “universal
principles of natural justice”, and hence Gopalan’s detention was upheld. Court held Article 19 and 21
are mutually exclusive and cannot be read in conjecture. However, in Menaka Gandhi v Union of India
(1978), SC held “due process” means reasonable, and not just merely any state law. Court struck
down validity of Sn 10 of Passport Act as being unreasonable.

Rajendra Prasad v State, justice VR Krishna Iyer struck down capital punishment as violating art 21.
However, in Bachan Singh v State of Punjab (1980) this was reversed and capitl punishment was
upheld.

Likewise in P Ratnam and N Patnaik v Union of India (1994) SC held right to life included right to
die, and legalized suicide. But this was reversed in Gain Kaur v State of Punjab (1996).

Right to life include right to humane treatment. In Citizens for Democracy v Assam (1993) SC treated
a letter from Kuldip Nair as a writ and ordered humane treatment of TADA prisoners who were tied to
hospital beds with ropes. Likewise, in Sunil Batra v Delhi Admin (1980), SC treated a letter from
undertrial as a writ and ordered enquiry into complaint warden had trust a stick up a prisoner’s anus.

Scope of right to life includes living a life of dignity. Kit does not merely mean animal existence. It
includes right to healthcare, right to education, right to livelihood and right to humane living conditions,
among other thing. Even environment cases are now treated in art 21 (In Vellore Citizens Welfare
Forum v India 1996 Sc gave instructions to Madras HC to constitute a “green bench.”

In Satwant Singh v APO Delhi (1967) SC held scope of art 21 included right to have a passport and
travel broad.

Likewise right to privacy, right to free legal aid and right to speedy justice come under scope of art 21.
Kharak Singh v state of UP: SC prevented police from making regular night visits to residence of
anti-social characters, to check if they are at home.
In Hussainara cases (1979) SC ordered under trial languishing in prisons for a long time to be
released. Any under trial imprison beyond the maximum period of sentence of the crime was to be
released. More than a lakh of under trial prisoners were freed.

Rape was also held as violation of art 21, in Ramdeb Singh v State of Punjab (2004)

ARTICLE 22
Rights of a person who is arrested as per Article 22 of the Constitution

Article 22 protects citizens against arbitrary arrests. It offers four rights.

1. Arrested person shall be informed of the grounds of his arrest as soon as possible.
2. Arrested person has right to defend himself/herself through a legal practitioner of choice.
3. The arrested shall be produced before the nearest magistrate within 24 hours of arrest.
 4. No person shall be detained beyond 24 hours beyond the authority of the magistrate.

However these clauses do not apply for enemy aliens, and those under preventive detention.

The maximum period of preventive detention is three months, unless an Advisory Board approves of
his/her detention beyond such period. Constitution gives parliament the right to decide circumstances
under which detention may extend beyond three months. 44th Amendment, 1978 reduced 3 months
to 23 months, and laid down guidelines for establishing Advisory Board. The Advisory board shall
have minimum of three members, the Chairman being a serving judge of the respective High Court
and other members being serving or retired judges of High Court.

The first two rights – being informed of grounds of arrest and right to defend through lawyer is
available for preventive detainees as well.

Bhim Singh v State of JK (1986): Arrest made in contravention of these laws was declared illegal,
and court awarded exemplary costs of Rs 50,000/-

SC has further said maximum days under police custody can be only 15 days, beyond which it should
be judicial custody. Even judicial custody can be for maximum of 60 or 90 days, beyond which person
is to be released on bail as per Sn 1678(2) of CrPC even if trial is not compete.

D K Basu v State of West Bengal (1997), SC listed out 11 requirements to be followed by police in
case of arrest or detention

1. Arresting officials to spot name tags containing designation

2. Preparation of arrest memo mentioning date and time of arrest with two witnesses and
countersigned by arrestee
3. A friend or relative of arrestee to be informed of the arrest
4. If friend of relative outside the district, they are to be informed telegraphically or through
District Legal Aid Committee
5. Arrestee should be informed of his/her rights
6. Entry must be made in diary at place of detention
7. Injuries on arrestee at time of arrest to be recorded in inspection memo, signed by both
arrestee and police official
8. Arrestee subject to medical examination every 48 hours
9. Copies of all above documents to be send to magistrate
10. Arrestee permitted to meet lawyer during interrogation, but not through interrogation
11. Details of arrest to be made available to police control room at district and state.

ARTICLE 23 and 24
Article 23 prohibits trafficking in humans, and beggary (forced work without pay)
23(2) empowers state to impose compulsory service for public purposes, without discrimination to
caste, creed, religion etc.
Art 24 prohibits employment of children below 14 in hazardous factories.

Deena v Union of India (1983): Even prisoners have right to minimum wages
Banduha Mukti Morcha v Union of India (1984): SC asked state to end practice of bonded labours
in stone quarries of Haryana.
Nereraja Chaudhari v State of MP (1984): SC assumed activist role and ask government to
rehabilitate those rescued from bonded labour

ARTICLE 25, 26, 27, 28, 30 : FREEDOM OF RELIGION

Article 25 (1) allows every citizen to freely follow his own religion, subject to the following restriction
1. Public order, morality and health.
2. Regulating economic, financial or other secular practice associated with religious practices (eg:
State took over Arubindo society, Pondicherry)
3. Providing social welfare and throwing opn Hindu religion for all classes and sections of Hindus
4. Freedom to propagate dos not man freedom to convert. There is no fundamental right to convert

Narayana Deekisthu v AP (1996): Art 25 protects only essential or integral part of the religion, and
not non-spiritual accretions that crystalized during course of history.
Ramjill v UP (1957) Art 25 gives right to propagate any religion. Propagation of atheism is under art
19(1) freedom of speech, which comes with caveat of being restricted in interest of public order. So
propagation of atheism that outrages religious beliefs may be subject to restrictions under Sn 295 of
IPC.

Article 26 grants freedom to manage religious affairs

To manage own affairs in matters of religion
To establish and maintain institutions for religious and charitable purposes
To own and acquire immovable property and administer such property
Art 27 says no person shall be compelled to pay any taxes for promotion of any particular religion.

Santosh Kumar v Ministry of HRD (1995): Introduction of Sanskrit in CBSE does not violate
freedom of religion.
Bijoe Emmanuel v State of Kerala (1986): Jehovas Witness refusal to sing national anthem upheld,
as long as they stand up and respect the flag.
Venkata Ramana Devaru v Mysore (1958): Temple entry legislation is a social reform and Harijans
and untouchables are allowed to enter any temple, even denominational public temples belonging to
certain groups.
Istihaq Husain v UP (1988): State allows denominational autonomy, which safeguards existing right,
but does not give rights to start new denomination.

Mohd Hanif Qureshi v West Bengal (1958): Slaughter of cows on Bakrid is not obligatory and hence
not allowed.
John Vallamattom v India (2003): Laws regarding marriage, succession are secular character and
does not come under ambit of freedom of religion in art 25.

The freedom of religion guaranteed under the Constitution of India is not confined to its citizens but
also to all persons including alien. In Ratilal Panchand v. State of Bombay (1954), SC established this
fact, allowing foreign Christian missionaries to propagate their faith among the adherents of other
religious.

However, while every individual is free to profess, practice or propagate a religion of his choice;
conversion secured through force, fraud or allurement is certainly unwelcome.

Besides the right to practice the religion of choice at an individual level, religious groups or
denominations are given the rights to:

 establish and maintain institutions for religions and charitable purposes

 manage its own affairs in matters of religion;
 own and acquire movable and immovable property, and
 administer such property in accordance with law. (Article 26).

Article 29 give religious and linguistic minorities right to establish and manage educational institutions
of their own. Article 29 also forbids discrimination on grounds of race, religion, caste, language, in
admission to educational institutions run by the state or receiving aids from the state.

Freedom of Religious Minorities to Run their Own Educational Institution

Article 29 give religious and linguistic minorities right to establish and manage educational institutions
of their own.
Article 30-1 further gives minorities the right to establish and administer educational institutions of
their choice, and prevent the state from discriminating against educational institutions established and
managed by the minorities, in matters of granting aids (30-2).

However, the state educational authorities have the right to regulate such educational institutions
because the “right to manage does not include the right to mismanage.”

On educational institutions, the position of the state is as follows:

 State cannot impose any tax to promote a religion or to maintain religious institution, (Art 27)
 Religious instructions cannot be imparted in educational institution run by state funds (Art 28-
1). Exception is intution et up with endowment where condition is to impart religious
education (Art 28-2)
 In educational institutions recognized by the state and receiving aid from the government,
religious instructions cannot be compulsorily given to an unwilling student. (Art 28-3)
 In educational institutions run by religious establishments, religious instructions can be given
only to students willing to receive it.
 Religious instructions can be given to the minors only with the express consent of their
guardians.

Islamic Academy of Education v Karnataka (2003): Each unaided institution has freedom to fix its
own fee structure, but there can be no profiteering and capitation fees cannot be charged.

TMA Pai Foundation v Karnataka (2002): Admission to non-aided minority institution cannot be
regulated by state, but admission has to be transparent and based on merit. Only qualification and
minimum eligibility conditions, in the interest of maintaining academic standards can be enforced.

Fr Thomas Shingare v State of Maharashtra (2002): Right of minorities to administer unaided

institution under art 30-1 does not give them right to profiteer.

State of Kerala v Reverend Provincial (1970): Once a minority has established an educational
institution, right to administer it is protected, Stipulation of Kerala university Act requiring governing
body of 11 including university nominee was held violating Article 30-1. However state may prescribe
standards of education. Service of teachers is also related to educational standards, and hence can
be regulated.

Frank Anthony School v Union of India (1987): Unaided minority schools are also subject to
regulatory power to safeguard excellence and standards of education.

ARTICLE 29
Art 29 gives right to all citizens to preserve their culture, script, language.
29-2 says no citizen shall be denied admission to any education institution maintained by state, or
receiving state funds, on basis of religion, caste, language etc.

In DACV college v Punjab (1961), , SC defined “minority” as less than 50% in relation to the
particular legislation. This case established Arya Samaji Hindus are minority in Punjab, though they
may be majority when a larger area is taken. Court gave college exemption from university regulations
to take measures to promote Punjabi language.

State of Bombay v Bombay Education Society (1954) struck down government. rule to teach Hindi
in Anglo Indian school as violation of art 29-1.

ARTICLE 31-2
Doctrine of Eminent Domain, as opposed to police power.
The Doctrine of eminent domain means that the government or the sovereign has the supreme power
to take the property of any person over the interest of general public. The primary owner of the land of
a nation is the government, notwithstanding parts of the land being transferred to private individuals
for various purposes..

Nevertheless, the right to property is universally recognised as a natural and inherent right.

This doctrine is based on two maxims:

i) “salus populi supreme lex esto” meaning that welfare of people is paramount law and ii) “necessita
public major est quan” meaning public necessity is greater than private necessity.

So, eminent domain is the power of the sovereign to acquire the property from private hands for public
use where the individual’s consent doesn’t matter, but after following due process of law..

In practice, this has generally been possible only by awarding compensation to the land owner of the
private property.

Article 31(2) of Constitution empowers state of take possession of private property for public purpose,
but the law empowering such take-over should have provision for payment of compensation in the
manner as laid down in the clause. To facilitate this power, the Constitution was amended (44th
amendment 1978) and the Right to Property was reduced from a Fundamental Right to a
Constitutional Right.

Police power forms the part of state power. It is exercised in maintaining law and order situation of the
country. It denotes the dominant role of the
police in carrying out day to day activities of the State in its administration in
streamlining the societal living. Police power is thus only a means to an end but not an end in itself.

The police power can, however, be distinguished from eminent domain power. While under police
power, State merely regulates the use and enjoyment of property; under the eminent domain, State
can take the property from the owner for public use.

In Chiranjit Lal v. Union of India (1967), SC held the eminent domain is the inherent right in every
sovereign State to take and appropriate private property belonging to an individual for public purpose
In Chemili Singh v. Slate of U.P. it has been held that compulsory acquisition of land for providing
houses to dalits cannot be challenged on the ground of violation of right to livelihood which is an
integral part of right to life under Article 21.

ARTICLE 32: RIGHT TO CONSTITUTIONAL REMEDIES - WRIT

In common law, a writ is an informal written order issued by a body with administrative or judicial
jurisdiction. The early writs were simply written orders made by the king to a specified person, to
undertake a specified action. For example, the king making a military summons to one of his tenants-
in-chief, to appear dressed for battle with retinue, at a certain place and time. In United Kingdom and
Canada, elections are still held by means of a writ. Writ of election is a written order issued on behalf
of the monarch to local officials to hold a general election.

In modern usage, writs are issued by courts. Article 32 of the Indian Constitution empowers the
Supreme Court and the High Courts to issue writs for enforcement of any of the fundamental rights.

**The Constitution of India specifies five types of writs. **

Meaning of the
Type of Writ Purpose of issue
word

Habeas You may have To release a person who has been detained unlawfully
 Corpus the body whether in prison or in private custody.

To secure the performance of public duties by lower court,

Mandamus We Command
tribunal or public authority.

Prohibition to prohibit

To quash the order already passed by an inferior court,

Certiorari To be certified
tribunal or quasi-judicial authority.

Quo What is your To restrain a person from holding a public office which he
Warranto authority? is not entitled.

Writ jurisdiction of SC under article 32 is only for fundamental rights.

Writ jurisdiction for HC under art 226 is for fundamental rights and also other purposes such as
judicial control of administrative authorities in discharge of statutory duties. In such cases,. SC has
appellate jurisdiction.
Art 32(2) empowers parliament to empower other courts to issue writs as well.
Romesh Thapar v State of Madras (1950): Writ jurisdiction of SC and HC is concurrent, and petitioner
can approach either court. However, SC of late is recommending going to HC first due to overload of
cases. Remedy in HC is less expensive and more convenient.

Writ will not be entertained if alternate remedy is available, but not so in

1. case of fundamental rights.
2. When statue that authorised the impugned act is ultra-vires
3. when act is done without jurisdiction.

Rashid Ahmed v Kairana Municipal Board (1950): Municipality gave monopoly of fruits and
vegetable business to a person, affecting the petitioners business. Since this order violated
fundamental rights, writ was admitted even though petitioner had not exercise alternate remedy of
appealing to municipal board.

Once HC disposes a writ petition, same petition cannot be filed under SC, as per doctrine of Res
Judicata.
Daryao v State of UP: Res Judicata applies if earlier petition was dismissed on merits. If it was
withdrawn or dismissed on a preliminary point, res judicata does not apply and petitioner can file the
same writ again.
Ghulam Sarwar v Union of India (1967): Res Judicata does not apply for habeus corpus case.
Lallubhai Jagadbhai Patel v Union of India (1981): Doctrine of constructive Res Judicata does not
apply to writ. Constructive Res Judicata is a point not raised in first petition, but which could have
been raised, cannot be the basis for filing the suit a second time over.
Sangam Singh v Election Tribunal (1955): Rules such as “Order made by tribunal shall be final and
binding” is not a restrained for filing writ.
Sanjay Singh v UP Public Service Commission (2007): Judgment of SC cannot be challenged
under Sec 32, but it can be reviewed under Art 137. The ratio decendenti of earlier decision can be
challenged under 32 and only final order cannot be challenged. Every judgment has three parts1.
facts of the case, 2. reason or ratio decndenti, 3. final order

Law of Limitation (Doctrine of Laches) is not applicable to writ petitions, but court may still disallow
petition because of inordinate delay, as done in Motichand v Commissioner of Sales tax, Bombay
(1970).
Locus Standi” Writ can be filed only by person affected by the case, or who has suffered a legal
wrong, except in case of Habeus Corpus, when anyone can file it.
Duryappah v Fernando (1967): Minister of local government dissolved Jaffna municipal council. The
mayor of council filed a writ of certiorari. Since mayor was doing so in personal capacity and not on
behalf of council, Privy Council held there was no locus standi.
Rustom Cooper v Union of India (1970) or the Bank nationalization case, court accepted the
petition as petitioner was a shareholder and director of affected bank. But the petition was eventually
disallowed.
Fertilizer Corp Kamgar Union v Union of India (1981) Court allowed labour union to file a case,
even though union has no legal rights over the issue, on grounds of PIL.
Justice Bagwati put PIL in firm footing in Peoples Union for Democratic Rights v Union of India
91982). Case related to workers constructing stadiums for Asiad Games not being given minimum
wages, and child labour being employed. Government held breach of law cannot be raised by writ, SC
held not paying minimum ages is violation of art 23 and also art 24 forbids child labour in hazardous
places, and hence allowed the petition. Court also said even though violations are done by
contractors, primary responsibility is with state as principal employers, and hence writ is admissible.
Upendra Bai v State of UP : Writ may be initiated by means a mere letter. In this case. SC ordered
police outpost, power generator, approach road, and advocate visit to improve conditions of a
protective home for women.
SC will not issue a writ under Sn 32 to High Court, or one bench of SC cannot issue a writ against
another bench. Art 32 can only be used to enforce fundamental rights, and judicial orders cannot be
said to violate fundamental rights. This was reiterate din Rupa Ashok Hurra v Ashok Hurra (2002)

SC summaries principles of PIL in Guruvayoor Devasam v C K Rajan (2004)

1. Court can entertain PIL filed by any interested person
2. If matter is of public importance or enforcement of fundamental rights of a large number of the
public, even a letter or telegram would be treated as PIL
3. Common rule of Locus Standi is relaxed for PIL
4. Though procedural laws apply to PIL, question will be decided on nature and circumstances of the
case
5. Disputes between two warring groups pertaining to private law will not be admissible under PIL
6. Court may apply a commission to enquire the case, at its discretion
… among other points