Question 1 :- What is Preamble? Discuss in detail
of Preamble of Indian Constitution and its objects and significance. How
can you say that according to Preamble, India is a sovereign, socialist,
secular and democratic republic. How these are applied by the courts.
Refer to some decided cases? How the various ideals and goals enshrined in the
preamble have been realised in the constitution? Refer some decided cases.
PREAMBLE OF THE CONSTITUTION:-The preamble of an Act sets out the purpose and object for
which a statute is enacted. The Preamble of the constitution declares :-
We the people of India having
solemnly resolved to constitute of India into a sovereign, socialist, secular
democratic Republic and to secure to all its citizens. :- i) Liberty of
thoughts, expression, belief, faith and worship. Ii) Justice, social, economics
and political. Iii) Equality of Status and opportunity and to promote among
them all.. iv) Fraternity assuring dignity of the individual and the unity an
integrity of the Nation.
I our constitution Assembly this
twenty sixth day of November, 1949 do hereby adopt enact and give to ourselves
this constitution.
The Purpose of Preamble:- The
Preamble to the constitution is a key to open the mind of the makers for
which they made several provisions in the constitution. In constitution
preamble occupies an important place &
The constitution should be
interpreted in the light of the ideals mentioned in the
preamble.KeswanandBhartiv.State of Kerla 1973.
In Berubari case SC held that
preamble is not a part of the constitution and therefore it was never regarded
as the source of limitations powers. But in KeswanandBharti case the SC held
that Preamble is a part of the Constitution and all importance is to be attached
to it in interpreting the constitution.
The Preamble to the constitution
serves the following purposes:-
i) It discloses the source of the
constitution.
ii) It lays down the date of the
commencement of the constitution.
iii) It sets out the rights and
freedoms which the people of India wished to secure for themselves.
iv) It declares the nature of the
government which it wishes to establish in the country.
Preamble declares that people of
India are the source of the constitution of India. The govt., derives all its
authority from the people of India. Administrators are elected by the People of
India. The nature of the govornment, which the preamble establishes is a
sovereign, socialist, secular, democratic republic. Sovereign because const.,
does not recognise the legal supremacy of any other country. A democratic
because govornment of the people, by the people and for the people.
Secular because it treats all the religions equally. It does not
recognise any religion as a State Religion. Socialist because it implies
economic equality and equitable distribution of income. In such
state important means of production is controlled by the State. And republic
because the Head of State is not a hereditary Monarch, political sovereignty
resides in the people and Head of State is President of India who is elected by
the people for a fixed term.
Objectives of the Constitution:- The
objectives is to secure to its people, justice. Liberty, and fraternity, the
dignity of the individual and the unity and integrity of the nation. // In
keswaanandBharti case it has been held that the preamble is the part of the
constitution and therefore it can be amended by the Parliament under its
amending power under article 368 with the condition that it should not exercise
it amending power so as to destroy the basic features in the preamble. By
42nd amendment of the constitution of India, Parliament did amend the Preamble
inserting the words “ socialist secular” before” Democratic Republic and “
integrity”before of the nation. Spirit of these amendments only expressly
stated what was already present in the constitution impliedly, the
additions did not impair the basic features.In //Aruna Roy v. Union of India
2003 secularism has been held to be knowledge of and respect for all religions
and fostering feeling of respect for them. Although socialism has nowhere
been defined in the constitution.//In D.S.Nakara v. Union of India 1983 it has
been taken to mean raising the living standard of the weaker section and labourers
and to guarantee for them lifelong social security while Excel Wear v. Union of
India 1979, it was held that the effect of adding the word Socialist is that
the court should give more effect to nationalisation and state ownership. In
brief our socialism is a unique combination of Maxism.
Question 2 :- “Article 14
permits classification, but prohibits class legislation.” Discuss this
statement.
OR
What do you understand by
reasonable classification in the context of “ Right of Equality”? Can a
single person be treated as a class?
Ans:- Introduction:-
Classification and class legislation : The guarantee of equality
before the law and equal protection of the laws does not mean that all
the laws must be universal in application to all persons irrespective of
differences in their nature and circumstances. Equal treatment with
persons in unequal circumstances amounts to inequality and hence article 14
permits classification of people difference between those put in class is
distinct from the others and bears a reasonable relations to the object sought
to be achieved by the legislature.// But article 14 does not permit class
legislation which means undue discrimination by conferring some advantages or
privileges upon an arbitrarily selected group of people though all of them are
similarly circumstanced in relation to privilege conferred on the selected
class. In other words class legislation amounts to unequal treatment with
equals and hence void under article 14.// Equality is for equals i.e. to say those
who are similarly circumstanced are entitled to an equal treatment. The
guarantee of equality does not imply that the same rules should be made
applicable to all persons in spite of differences in their circumstances and
conditions. Refer case Ramesh Prasad Singh v. State of Bihar l978. // In APBC
Singh v. Jharkand state Vaishya Federation 2006, the Jharkhand state had
amalgamated Extremely backward class and backward class into one group for the
purpose of reservation in professional and educational institutions. The
court has held that the decision of the state govt., amalgamating the extremely
Backward classes and Backward classes is violative of Article 14 because two
different classes have been treated similarly. Merely showing that the
Council of Ministers had applied their minds in order to arrive at the decision
is not tenable and such decision is arbitrary and unreasonable and is subject
to judicial review.// In a case of chiranjeetlal v.Union of India 1951,
It was held that single individual may be considered as a class in special
circumstances. The SC ruled that a law may be constitutional even if it applies
to a single individual on account of some special circumstances or reasons
applicable to him, that individual may be treated as a class itself.
Ordinarily a legislation pertaining to a single person would not be valid
unless it was possible for the court to discern the special circumstances
differentiating that particular person from the rest. If a classification
is discernible in the Act, a presumption arises in favour of its
constitutionality, but the person affected may show that while there are others
having the same differentiating attribute as he, only he is covered by the Act
and not others and the Act will then be void.
What article 14
prohibits is class legislation. But it does not forbid reasonable
classification. The classification should not be arbitrary but must rest
upon some real and substantial distinction having some relationship which is
reasonable to the things in respect of which the classification is sought to be
made. The classification can be based on the basis of geography or other
objects or occupation. Refer case: Shashi Mohan v. State of W.Bengal-1958.
In Menka Gandhi
case v Union of India- 1978 SC emphasized on the content and reach of the great
equalising principle enunciated in Article 14. Warning against any
attempt to truncate itsall embracing scope and meaning which might
violate it activist magnitude, SC observed that equality is a dynamic concept
with many aspects and dimensions and it cannot be imprisoned within traditional
and doctrinaire limits. The court reiterated the majority view in
E.P.Royappav.state of Tamil Nadu 1974 that Art. 14 strikes at arbitrariness in
State action and ensures fairness and equality of treatment. The
principle of reasonableness which legally as well as philosophically is an
essential element of equality or non-arbitrariness pervades article 14 like a
brooding omnipresence. In Ajay Hasiav.KhalidMujib 1981 SC struck down as
constitutionally invalid, the allocation of as high a percentage as 33
1/3 of the total marks for the oral interview for admission to the Engineering
college and declared it as infecting the admission procedure with the vice of
arbitrariness. The court firmly laid down ha “ what article 14 strikes at
negation of equality” so ruled , the court said that not more than 15% of the
total marks should be allocated for the oral interview.//In the series of cases
State laws creating special Courts to deal with the problems of law and order
have been questioned. A law creating special courts can therefore be sustained
only if it makes reasonable classification either of the offences or of the
cases or of the persons, triable by the special courts. Difficulties usually
arise when the law establishing these courts fails to do so itself and instead
leaves it to the govt., to decide this matter. In such situation the
courts have held that the law would not be valid if it does not lay down the
policy or principle to regulate and control administrative discretion to decide
which cases offences or persons would be triable by these courts. In Bhagwanti
v Union of India-1989 it has been held that classification between marriage
during service and after retirement for the purpose of giving family pension is
arbitrary and violativeof Article 14. In state of UP v. Committee
Management 2010 SC the respondents were running unaided school which was
upgraded as High School and Intermediate college in 1991-1999. After 30.6.84
Junior schools wee granted recognition covered by the Grants-in-aid scheme but
the court held that the action of the State creates class within class which is
arbitrary and violates Article 14 of the constitution. A distinction between
two schools of the same category was created while one category of schools
continued to get the grants-in-aid benefit inspite of upgradation of other
junior High school were excluded from benefit.
Short Notes
A. DOCTRINE OF SEVERABILITY WAIVER.
B. DOCTRINE OF ECLIPSE.
C. CITIZENSHIP
D. WAIVER
E. Protection Against
Self-Incrimination
F. PROTECTION FROM EX-POST FACTO LAW
G. PROTECTION FROM DOUBLE JEOPARDY
CITIZENSHIP
At the commencement of this
constitution every person who has his domicile in the territory of India
and i) who was born in the territory of India ii) either whose parents
was born in the territory of India iii) who has been ordinarily resident in the
territory of India for not less than five years immediately preceding such commencement
shall be a citizen of India.
According to the Federal principle, the constitution of USA
provides for dual citizenship i.e. the citizenship of the USA and the
citizenship of the state. Though the Indian constitution has adopted the
federal principle of the American constitution but it had opted for a single
citizenship, that is the citizenship of India. There is no state
citizenship.
The citizenship Amendment Act 2003 has paved for conferring Indian
Citizenship not only upon the persons of Indian origin but citizens of certain
other countries also. The amendment has obviously reserved the idea of
single citizenship and introduced a limited sort of double citizenship.
DOCTRINE OF SEVERABILITY
A :- Clause (1) of Article 13 provides : All
laws in force in the territory of India immediately before the commencement of
this constitution in so far as they are inconsistent with the provisions of
this part, shall to the extent of such inconsistency be void. Clause (2)
of Article 13 says that the state shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of contravention be void. Clause 1 and 2 of
article 13 thus declare that laws inconsistent with or in contravention of the
fundamental rights shall be void to the extent of inconsistency or
contravention as the case may be. It means that where only a part of law is
inconsistent with or contravenes the fundamental rights, it is only that part
which shall be void under article 13 and not the whole of the law. The courts
apply the doctrine of severability orseparability to separate the valid
portion of the law from the invalid portion.
In a case State Of West Bengal
v .Committee for protection Democratic Rights, W.Bengal 2010 SC held that, Any
law that abrogates or abridges such right would be violative of the basic
structure. Doctrine.
In some other cases KeshavaanandaBharti
v/s State of Kerla 1973, Minerva Mills v/s Union of India 1980, WamanRao v/s
Union of India l981 and Srinivasa v/s State of Karnataka 1987, it was held by
SC, The basic features” of the constitution cannot be amended by exercising the
power of amendment under article 368.
DOCTRINE OF ECLIPSE
DOCTRINE OF ECLIPSE :-
A law existing at the time of coming into force of the constitution and
inconsistent with a fundamental rights though becomes inoperative from the date
of the commencement of the constitution. It is not dead altogether. Though it
is overshadowed by the fundamental rights and remains dormant, it is not wiped
out from the statute book It stands for all the transactions and for
enforcement of rights incurred during pre-constitution period. It this shadow
or eclipse is removed by the appropriate constitutional amendment the law
revives. This question was considered by the SC in BhikajiNarain v. State of MP
1955 the court held that an existing (pre-constitution) inconsistent law is not
dead and can be revived by any subsequent amendment of the constitution. In
that case a law authorised the State Govt., to nationalize motor transport
business. This law became void on coming into force of the constitution
in 1950 as it is violated article 18(1)(g) in 1951. Art.19(b) was amended which
authorised the state govt to nationalized motor transport business. It
was held that the amendment had removed the shadow and made the law
enforceable. All existing laws are continued to be valid till courts declares
them to be in conflict with fundamental right and therefore void. Thus the
declaration of validity of the court is necessary.
THE WAIVER
?
Protection Against
Self-Incrimination
It is a trite law in English &
American Jurisprudence that no one should be compelled to give evidence or be
witness against himself. Article 20(3) of constitution provides,” no person
accused of any offence shall be compelled to be a witness against himself.”
This means that no accused shall be compelled to make confessions which
might lead to his conviction.
i) It is the right pertaining to a
person “accused of an offender”
The privilege under article 20(3) is
confined only to an accused i.e. a person against whom there is a formal
accusation relating to commission of an offence, which in the normal course may
result, in prosecution (R.K.Dalmia v. Delhi Administration 1962) Where a
custom Officer arrests a person and informs him of the ground for the purpose
of holding enquiry there is no formal accusation of an offence. ( Veer Ibrahim
v. State of Maharashtra, 1976)
ii) It is protection against
compulsion to be witness.
The phrase used in Art.20(3)
is “ to be witness” and not “appear as witness". Every possible
volitional act which furnishes evidence is testimony and testimonial compulsion
connotes a coercion which procures the positive volitional evidentiary
acts of the person as opposed to the negative attitude of silence or submission
on his part. Case :M.P.Sharma v. Satish Chandra 1954. The interpretation
of the phrase,“ to be witness” given in above case is too wide and requires a
qualification. Self incrimination can only mean conveying information
based upon personal knowledge of the person giving information and cannot
include merely mechanical process of providing documents in court.
iii) The Prohibition is only against
the compulsion of the accused to give evidence against himself.
There is not constitutional
disability against an accused being a witness on his own behalf. Case
NandiniSatpathi v. P.L.Dhani-1978, It is laid down that the phrase,
compelled testimony” must be read as evidence procured not merely by a physical
threats or violence but also by phychic torture. In case: Yusafali v. State of
Maharashtra-1968. Production of a tape-recorded statement of the accused
recorded without his knowledge and without use of force or oppression was held
to be not hit by art. 20(3) and hence admissible in evidence.
PROTECTION FROM EX-POST FACTO LAW
Article 20(1) of the constitution
says, “ No person shall be convicted of any offence except for violation of a
law in force at the time of the commission of the act charged as an offence,
nor he subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of commission of the offence.
Article 20(1) corresponds to the
provisions against ex-post-facto laws of the American constitution.
Ex-post-facto-laws are laws which impose and enhanced penalties upon acts
already done i.e. retrospectively. This means that person can only be convicted
of an offence if the act was charged against him was an offence under the law
in force at the date of commission of the act. However it does not
prohibit the imposition of civil liabilities retrospectively. So a tax
can be imposed with effect from a past date. This first part of art.20(1)
simply means that if an act is not an offence at the date of its commission, it
cannot be made an offence at any date subsequent to its commission. The second
part of the clause provided that a person cannot be subjected to a penalty
greater than that which might have been inflicted under the law in force at the
time of the commission of the offence. Case: Shiv Bahadursingh v. State of
U.P.-1958 : The prohibition :- it will be noted, extends not only to the
passing of ex-post-facto laws but also the conviction or the sentence under
such laws. It was held that penalty means penalty for the offence committed. In
case : Venkataraman v. Union of India.1954: -such a trial under a procedure
different from what obtained at the time of the offence or by a court different
from that which had the competence at the time cannot ipso facto be held
to be unconstitutional. Protection of cause(1) or article 20 cannot be claimed
in cases of preventive detention.
PROTECTION FROM DOUBLE JEOPARDY
English and American laws bar second
prosecution of an accused for the same offence whether he was convicted or
acquitted as a result of the first prosecution. No one should be vexed twice
for the same act. But art.20(2) of the constitution of India has adopted
this principle to a rather narrower extent as its protection against prosecution
for which the accused has already been prosecuted and punished. Art.20(2)
provides “ No person shall be prosecuted for the same offence more than
once.”
The constitutional protection against double jeopardy is available to the
citizens and non citizens of India. Thus the Indian provision enumerates only
the principle of autrefois convict but not that of autrefois acquit. In
England and the USA both these rules operate and a second trial is barred even
when the accused was acquitted at the first trial for that offence.
In order to bring the case of a person within the prohibition of
art.20(2) it must be shown that he had been (i) Prosecuted before a court.
(ii)Punished by it (iii) The punishment was for ,” the same offence “ for which
he is being prosecuted again.
Accordingly there can be no constitutional bar to a second prosecution
and punishment for the same offence unless the accused had already been
punished in the first instance, in a case Kalawati v. State of M.P.-1953. The
word prosecution has no fixed meaning and is susceptible of both wider and
narrower meanings as laid down in Venkataraman v. Union of India 1954, but as
used in art.20(2) it embodies four essentials :
1. There must be a person accused of
an offence.
2. The proceedings of the
prosecution should have taken place before a court or judicial tribunal and not
the executive or administrative action.
Case :MaqboolHussain v. State of
Bombay 1953 &H.H.Advani v. State of Maharashtra 1971.
3. The proceeding should have been
taken before the judicial tribunal or court in reference to the law which
creates offences. Case:Venkatraman v. Union of India.-1954 & Leo Roy v.
Supdt. Of District Jail- 1958.
4. The person must have been not
only prosecuted but also punished in the previous proceeding.
Likewise, clause (2) of article 20
does not apply when the person prosecuted and punished for the second time and
subsequent proceeding is a mere continuation of the previous proceedings, e.g.
in the case of an appeal against acquittal. Case: State of M.P. vs.
Veereshwar-1957.
Similarly the conviction of
the accused under section 304 IPC for the death of deceased does not deprive
the wife of the deceased to claim compensation. A decree of damages is
not a punishment and the rule of double jeopardy has no application, Case :Suba
Singh v. Devender kaur,2011.
Question :- Discuss the
importance of the speech and expression. Does the constitution permits
its curtailment? If so on what ground and o what extent?
OR
Examine the scope of
freedom of speech and expression under the constitution of India. Is
right to information implies in Article 19(1)(a)?
OR
What is the scope of the
right to freedom of speech and expression? On what grounds can this right be
restricted?
Answer:- INRODUCTION:- Freedom
of speech and expression is a fundamental right given under Art 19(1) A in the
part III of the constitution of India. Article 19 itself contains
certain freedom for the individual. In a case LIC v/s Manu BhaiD.Shah,
the apex court held that,” That a speech is Gods- gifted to mankind.
Through speech a human being conveys thoughts, sentiments and feeling o
others, freedom speech and expression is thus a natural right which a human
being acquires on birth. Art.19(2) imposes certain reasonable
restrictions on these freedom. As a general rule of law, all constitution
of the world have given certain freedoms to their individuals. The
preamble of our constitution also gives the object of the freedom of speech
and expression.
Meaning :- Two things are
following:-
i) right of speech
(ii) expression
Speech:- Means a speak. It
means one has the freedom to speak. But this freedom is no absolute or
complete, no one can speak in such a manner which is injurious to others
and on such a matter which is prohibited by law itself.
Expression :- It means to express or
propagate a thing. Expression may be done through written or through
other legal means. The communication of speech and expression is a must.
So the freedom of communication of speech and expression is also
guaranteed under Art.19(1)A.
In National Anthem Case 1986 :- It
was held that the right to speak aso incudes the right not to speak. In
this case, three students of Jehyesh’s school were expelled by the governing
body of this school on he ground of not speaking national anthem with other
students. The challenged it in the court. The SC held that the
freedom of speech and expression also includes not speaking and not expressing.
One cannot be compelled to speak or express.
In other case l995 In the
Election Petition of Maharashtra Chief Minister. In the Election of Manohar
Joshi was challenged on the ground of freedom of religion and freedom of
speech and expression. The petitioner argued that Mr.Manohar Joshi used
some words like Hindu and Hinduism during this election. These words are
against the right of freedom or religion and also against provisions of people
representative Act. 1950. In other wards, to ask for vote in the name of
religion is illegal. Bu in this case SC held that to ask votes in the
name of Hindu’s or Hinduism is not in the name of religion. The word
Hindu or Hinduism do not denote or represent religion. These words are
used for particular community residing in India. However, the statement of
Balthakery chief of shiv sena, was held against religion. So in
this case two question of freedom of speech discussed Mr. Joshi was also
protected due to the freedom of speech and expression.
Art.19(1)(a) guarantees right to
freedom of speech and expression to its citizens not only within India
but even outside it. If the state action sets up barriers to its citizens
freedom of speech and expression in any country of the world such action is
violative of Article 19(1) (a) as such expression is within the country. (Per
Justice Bhagwati in Menka Gandhi v. Union of India l978)
Territorial Extent of the right :-
The right of freedom & expression is available even out of India.
Case: Menka Gandhi v/s Union of India 1978. The govt argued that
this right can be restricted on the ground of out of the territory of India
because this right is available only within India. It cannot be enforced
in the foreign countries. But in this case SC held that this right could
not be restricted on the ground of territorial extent. It includes the
freedom of speech and expression even out of India.
FREEDOM OF PRESS :- The right of
speech and expression includes the freedom of press. The idea of the
freedom can be expressed by the way of press. Pres is the fourth estate
of the democracy the fourth essential condition or the fourth piller of the
democracy. So no restriction can be imposed on the freedom of press.
The word expression means no interference in there shall be the freedom
of press. The freedom of press shall not be violating to Art.19(1) A.
Case: Indian Express Newspaper
v/s Union of India 1985:- Even imposing sales taxes on the sale of newspaper
has been held violative of Art.19(1) A. No sales Tax can be imposed on
the newspaper because the newspapers are the mode of expression or of the views
of the public so there should be no restriction on such freedom
1 Decency and morality : Any such
speech expression which is against morality can be restricted under this
right. To show film is also a mode of freedom of speech and expression qarb of
film. Any such thing or scene or speech which is injurious to the society will
be prohibited under art. 19(2). Morality means some ethical rules of the
society and some form of the society by which the status of the society is
maintained.
1. Public Order: Any such speech
which is dangerous to the unity of country can be restricted under ar. 19(2).
2. Contempt of Court:-Any-thing said
against the interest of the court can be prohibited, if any one interferes in
courts business it is offence & Punishable.
3. Friendly relation with foreign
states: Ist amendment 1951 friendly relation should be maintained with other
countries.
4. Defamation:- Any statement which
gives injuries to man’s status under sec.499 IPC
5. Incitement for an offence:-
Abetment or to provoke through speech It is an offence under section 107
IPC.
6. Sovereignty & Integrity of
India: By 10th amendment so any such speech which can be dangerous to he Unity
& integrity of India can be restricted
So in this way these are the
reasonable restrictions, which can be imposed on the right of freedom and
speech & expression.
Question :- Define the
word ,” State” as used in context of Fundamental Rights In Part III of the
constitution .
OR
What does the word, State
signify as defined in Article 12? Examine.
Answer: INTRODUCTION :-
Article 12 OF the constitution defines the term State, It lays down, In this
part, unless the context otherwise requires, the state includes the Government
and Parliament of India and the government and the legislature of each of the
states and all local or other authorities within the territory of India or
under the control of the government of India.” Thus the term state includes :-
1.
The Government of India i.e. the executive of the Union.
2.
The Parliament of India i.e. the legislature of the Union.
3.
The government of each state i.e. Executive of states.
4.
The legislature of each state i.e. Legislature of states.
5.
All local or other authorities within the territory of India.
6.
All local or other authorities under the control of the Govt., of India
Thus the term state includes
Executive and the Legislative organs of the Union and States besides the
Local or other authorities within the territory of India or under the control
of the Govt., of India.
Authorities = Means a person or body
exercising power to command. In art.12 the word authority means the person or
body having the power to make laws orders, regulations, bye-laws, notifications
etc., which have the force of law and have the power to enforce those laws.
Local Authorities :-According to
sub-section 3(1) of section 3 of the General Clauses Act 1897, local authority
means a Municipal Committee, District Board, Body of Commissioners or other
authority legally entitled to or entrusted by the government within the control
or management of a municipal or local fund.
Other Authorites :- It was the
opinion of the Madras High Court that the term,’ other authorities’ under article
12 should be constructed ejusdem generis with the government or legislature and
so construed it can only mean authorities exercising governmental functions.
Case :Madras University v. Santa Bai 1954, This view of the Madras High
Court has been rejected by the Appex Court. In Ujjambai v. State of
U.P.1962. The SC laid down that the doctrine of ejusdem generis cannot be
applied in the interpretation of the term, other authorities.
In Electricity Board v. Mohan Lal,
196 SC has observed that the term other authorities used under Article 12
includes all the authorities created by the Constitution or Statute on whom
powers as conferred by law, whether or not they are engaged in performing
governmental functions.
In later decisions the Supreme
Court gave a wider and more liberal interpretation of the expression, ‘other
authorities’.
In RamannaDayaramShety v. The
International Airport authority of India 1979:- The SC held that if a body is
an agency or instrumentality of government it is an authority within the
meaning of Art. 12, whether it is a statutory corporation, a government company
or even a registered society. In this case the SC laid down the following
tests for determining whether or not a body is an agency or instrumentality of
the govt.
Whether there is any financial assistance given by the State and if so
what is the magnitude of such assistance. Whether there is any other form of
assistance given by the State and if so, whether it is of the usual kind or it
is extraordinary. Whether there is any control of the management and
policies of the corporation by the State and the nature and extent of such
control.
IN ASSAM SMAL SCALE INDUSRIES
DEVELOPMENT CORN., LTD V/S J.D.PHARM 2006 :- The Appex court has observed
that Assam small scale Industries development corpn. Ltd., is a statutory body,
it is a State within the meaning of Art.12 of the constitution.
IS JUDICIARY INCLUDED IN THE TERM
STATE ?
The present position appears to be
that when the judiciary acts in its judicial capacity, it is not included
within the term other agencies and therefore it is not ‘State’ within the
meaning of Art. 12 whereas when it acts in administrative capacity it is
included within the term’ other agency’ and therefore, it is a State, in the
case of PremchandGarg v. Excise Commissioner 1963.
In another case of Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology, 2002, The SC has held that the
Council of Scientific and Industrial Research is an instrumentality of the
State within the meaning of art. 12 of the constitution.
Question: What is right to life and
personal liberty ? How the new dimension Has been given to it by
Judiciary?
OR
Explain the concept of personal
liberty and upto what extent it has been moulded in modern times?
OR
No person shall be deprived of the
right of life and personal liberty except according to procedure established by
law under Aar.21? Comment.
Ans. Introduction:- Personal
liberty means freedom of person or body. The right of life means to live
in the world. These two things the right of life and personal liberty are the
most important rights of a person. No one has the right to take away the
personal liberty of a person. The rights are protected by the constitution
itself under article 21. The concept of personal liberty borrowed from
the American constitution. Even at international level, there wee declarations
which granted personal liberty and right of life to human beings. Article
21, has been explained now a days very liberally by the SC.
In a case P.N.
Bhagwati on behalf of S. Court gave decision for the people of certain local of
Himachal Pradesh, for enforcing the right of personal liberty. In this
trial village people were prohibited during raing days bringing essential
commodities, such as, food, clothes, shelter due to water-course on the way.
The court held govt., was liable for constructing a bridge on the water-course.
Right of life and personal liberty:-
Art.21 “ No person shall be deprived of the right of life a personal
liberty except according to the procedure established by law"
No Person: means that any person
whether citizen or non-citizen
Deprived : means to take away or to
finish or to arrogate a thing.
Right of Life : Life means to live
in the world. For living in the world mainly three things Roti- Kapra and Makan
are necessary. These things are under the right of life.
Personal Liberty: It consisted two
things i) Personal ii) Liberty. Personal means relating to person or
body. Liberty means freedom. So personal liberty means the freedom of the
body or bodily freedom in art. 19 there are certain freedoms, but art 21
contains certain other types of freedoms which are particularly related with
body. For exp. To eat, sleep and sit etc., according to one’s own choice.
In A.K. Gopalan v/s State of
Madras:- This freedom was restricted to bodily freedom only but later on
in Kharak Singh case, Menka Gandhi case and in certain other cases, this
concept of personal liberty was applied very widely by the Supreme Court.
Case :A.K.Gopalan v/s State of
Madras: 1950 : The meaning of term personal liberty was taken very narrowly.
The court held the term liberty is lin ked with the term personal so
personal freedom is only bodily freedom. In this case certain persons including
the petitioner, A.K.Gopalan was aarrested under the Preventive Detention Act
1950. It was held by s. Court that the arrest and the imprisonment of the
accused under this act is not against Art.21.
Right of Privacy:-Case :Kharak Singh
v/s State of U.P.-1963.: In this case the police of UP state suspected
that the petitioner has links with certain Dacoits. For the purpose of
investigation, the police interfered in the personal life of Kharaksingh.
Police even searched his house at night and police used to ask from the
petitioner at midnight about his whereabouts. The petitioner challenged these
actions of the police under art.21. He argued that these actions of the
police infringe his personal liberty.
The Supreme Court held that the police could not interfere in the
private life of the petitioner without the procedure established by law. A
human being want to live with privacy. Thus in this case, the right of privacy
was included in the right of liberty.
A case Govind v/s State of
M.P. 1975 in this case the same activities of M.P. state police were held
valid because they had force of law. The state govt., formed certain
regulations after taking power from police act.
A case Raj gopal v/s State of Tamil
Nadu 1994 :- The S. Court held that the right of privacy is a fundamental right
under art.21 of the constitution and a citizen has the right to safe guard the
privacy of his own family, marriage, procreation, motherhood, child bearing and
education among another matters" No one can punish anything mentioned
above without his consent.
RIGHT TO TRAVEL TO ABROAD:-
A case Satwant Singh v/s Delhii Pass Port Officer 1967 in this case
the passport of the petitioner was confiscated by the Passport authority of
Delhi without giving any reason. The petitioner challenged this action
and argued that the travel to abroad also comes under the right of personal
liberty. The petitioner was some business in the foreign country so he
used to go to abroad from time to time. Supreme Court held that to travel
to abroad also come under the right of personal liberty.
Menka Gandhi v/s Union of India.
1978 in this case also the passport of the petitioner was confiscated by the
Passport authorities giving no reason for confiscation to the petitioner.
The petitioner challenged it on the ground of personal liberty. The
passport authorities argued that there is a law for this purpose, In this law,
it is not necessary to give reason for impounding the passport. It is
also not in the interest of public to give reasons of impounding the
passport.
But S. Court rejected all
these arguments and said law should also be based on the principle of natural
justice. The procedure established by the law should be reasonable &
According to natural justice and the opposite party should be given
opportunity of hearing. So this case changed the concept of personal
liberty dynamically.
Right of Livelihood :- A case People
of democratic v/s Delhi Administration 1982 The workers of Asaid Village 1982
were paid very minimum wages. A public interest litigation was filed for this
purpose. The petitioner said that reasonable wages are necessary for
livelihood. Therefore outright of live hood has been broken. This
right comes under the right of personal liberty. The S. Court held that
the right of livelihood comes under the right of personal liberty under art.
21, but in another case Sadan Singh v/s New Delhi Municipal Committee 1989 the
S.C, held that right to carry on any trade or business is not included in the
concept of life and personal liberty. The petitioner who was doing he business
on the pavement of the roads of Delhi had claimed the refusal by the Municipal
authorities to them, to carry on business for their livelihood resulting in the
violation of their right of livelihood under art. 21 of the constitution.
The court distinguished the ruling of the court in Ollga-Tell’s case and
held that it is not applicable in this case. In another case D.K.Yadav v/s
J.N.A Industries-1993: In this case SC held that the right of life under
art.21, includes right of live-hood and therefore before terminating the
service of an employee a fair plea requires that a reasonable opportunity
should be given to him to explain his case.
RIGHT TO DIE : A case Marui
SripatiDubal v/s State of Maharashtra 1986 the Bombay High court held in
case that the right to die also comes under the right of personal liberty.
So committing to suicide should not be taken as an offence. It is a
freedom of human beings to live or to die. Therefore section 309 of IPC is
against Art. 21. In this case a police constable due to adverse family
circumstances tried to commit suicide. He was prosecuted for this act. The
court held that he was not liable under section 309 of IPC. Another case
of P.Rathanam and Nag BhushanPatnaik v/s.Union of India 1944 : The S.
Court confirmed the decision of Bombay High Court and held that the right to
live also includes the right to die, so it is personal liberty of a person to
finish his life. But still there is a controversy about the mercy death.
The view of some writers is that this death should be included under the
right of personal liberty.
GianKaur v/s State of Punjab
1996:- The S. Court held that ‘right to life’ under article 21 of the
constitution does not include, ‘right to die’, right to life is natural right
embodied in art. 21 which means to die a natural death and does not include the
right to commit suicide which is a unnatural extinction of life and
inconsistent with the concept of right to life.
RIGHT OF EDUCATION: A CASE MISS
MOHINI JAIN V/S STATE OF KARNATKA-1992 In this case the petitioner could not
get admission in the professional course due to high capitation fees.
There are some orders of the Govt., of Karnataka for taking capitation
fees. This fee was Rs.60,000/-for the out state candidates. The
petitioner could not arrange this amount of money. She challenged it on
the ground that the right of education also come under the right of personal
liberty. The S.C. held its decision according to the petitioner’s
argument. In Unikrishanan v/s State of Andhra Pradesh 1993 the court
modified the scheme laid down in Mohini Jain case in relation to NRI
students and held that out of entire the seats only 5% seats can be filled up
by NRI students, on the basis of merit, to be judged by the management of the
college concerned and not on the basis of entrance examination.
Case : All India Imam Organization
and others v/s Union of India The Imams of various mosques in India challenged
their wages etc., under the right of personal liberty. Their wages were very
low on which they could no exist in the world. They had no other source
of income. They were engaged in this service for the whole life time. The S.
Court held that the right to live in world is the first most important right of
personal living. Here also their rights of life had been infringed. The
court ordered the Waqif Board of India for giving sufficient wages to these
Imams for their living in this world. On source basis now a day a system
of Rain Basera ( Lodging system for poor) has been started by the Rajasthan
Govt., on the orders of the Rajasthan High Court.
PROFESSIONAL DOCTOR LIABILITY:- In
PARMANAND KARTARA V/S UNION OF INDIA 1989 it has been made a rule now there is
no need to file FIR, according to the rules of Cr.PC for the purpose of curing
the wounded person in an accident. In this case, the SC held that it is a
duty of professional doctor whether private or govt., to cure(care) the wounded
person firt and to report to police afterwards.
SUSPENSION OF ARRTICLE 21 DURING
EMERGENCY:- During National emergency( under article 352) article 21 can be
suspended. It means no one can claim personal liberty under article 21
during national emergency. There was done in 1962(Chiana attack) in 1971
(Pakistan) and 1975 emergency in India. This has also been confined in
the Case of : ABM JABALPUR V/S STATE OF U.P.-1976: This case is known
as ‘ Habeas Corpus’ case. In this case the SC held that during emergency Art.21
can be suspended. But in 44th amendment 1978 it has been added that
Art.21 cannot be suspended during emergency of Indian government. There were
many authorities to the person. This amendment adopted the dissented
views of justice Khanna given in the above mentioned cases. Thus if there
is a reasonable procedure established by law then personal liberty can be
taken, otherwise not.
Question: Constitution of
India Provides freedom of Religion or Secularism to all person. What are the
restrictions which can be imposed by the State on this freedom? OR
India is a secular state?
Do you agree with it.? OR There is a guarantee of freedom of conscience and
right to profess, practice and propagate the religion under article
25(1). Comments. Give its exceptions also.
Answer: Introdction : Right of
freedom of religion is contained from Art. 25 to28 of constitution of India,
these articles are contained in the part III of the constitution. As part
III is related with the fundamental rights, Art 25(1) gives the conditions for
the freedom of religion. Under Art.2(2)there are certain restrictions on this
freedom of religion. Art.26 is related the management of the religious
affairs and the maintenance of religious institution. Art.27 says that
the income earned by the way of religious activities shall not be taxable,
Art.28 says that the Govt., shall not give any aid for the religious activities.
These four Articles give the ideas of secularism. The preamble of
the constitution also says that our constitution is secular. There is
freedom of thought, expression, belief and faith. That is why India is a
secular state.
DEFINITION OF RELIGION: On the basis
of religious concept a state may be divided into three categories :-
i) Anti-Religious State : A state,
which is anti religious. It means where there is no recognition to any
religion in the state. In other words, the persons of that state can not follow
or adopt any religion.
ii) Religious State : A State, which
has its own religion or where there is recognition of only one religion.
All people are bound to follow that one religion. For example Pakistan,
and other Muslim countries.
iii) Secular state :- A State, which
is neither anti religious, nor religious. It means such a state has not
its own religion but it does not prohibit any person for adopting any religion.
Modern Democratic countries are mostly secular states. For example, America, England
& India etc.
WHAT IS RELIGION : Now question is
arises that what is religion? It is very difficult to difine in certain
words of term ‘religion’ because it is based upon faith and belief. It is a
matter of inner conscience or spiritual matter. Though in various cases the SC
of India has said that,” Religion is a doctrine of belief. Religion is related
with the manners, living manners of getting peace in this world, including the
manners of talking, eating even types of dress. So religion is a variety of
different things in the life of a person, which are related with spiritual or
inner conscience matters.
RIGHT TO FREEDOM OF RELIGION:
According to article 25(1) there is guarantee to every person for the freedom
conscience and right to profess, practice and propagate the religion. The
words of this article give the right for the freedom of religion. Art.
25(1) gives the guarantee for the freedom of religion. This article
mainly contains the following two things:
i) Freedom of conscience.
ii) Right to profess, practice and
propagate the religion.
Freedom of Conscience: Every
person has the freedom of conscience. It means to think according to
one’s own will. Conscience is an internal matter upon which there is no
control of any other person, even a father cannot control his son for the
purpose of religion. A person is free to adopt any religion or he is free
to adopt no religion. He may be antitheist or anti God. But it does not,
mean that it is violative of any provision of the constitution or of any law.
He is free to follow any section or any branch of religion.
RIGHT TO PROFESS, PRACTICE
&PROPAGAE : Profess means to accept any thing. A person is
free to accept any religion and to declare it openly. There is no restriction
on him for this purpose. Practice Means o perform he religious activities. I
mean one is free o follow the customs or ceremonies or other activities of a
religion. Propagate means o spread the religion it means one has the right to
expend or spread his religion. It means one has the freedom to make
others as his followers in this religion. For this purpose one has the right to
express his thoughts or ideas about his religion but propagation of this does
not mean the conversion of the religion. Conversion is an interference in the
propagation of another religion. In a case, conversion is allowed.
1. Case : National Anthem’s
case 1984, in this case the SC held that it is the freedom of Religion and one
cannot compel any other person for obeying he directions relating with another
religion.” It is also said that the right to speak also includes right of
not to speak. So this order was held violative of Art.2(1)being against the
right of freedom of religion. Case: Ramesh v/s Union of India 1988, a PIL was
filed, SC rejected this agreement and held that it does not
infringes the right of freedom of religion under article 25(1), even said that
by this serial the true picture of the partition of India comes in the
knowledge of the public which will be in the benefit of the public.
RESTRICTION OVER THE FREEDOM OF
RELIGION:- Freedom of religion is neither right nor absolute freedom.
Some restrictions may be imposed on this right in the interest of public.
The article 25(2) it self lays down certain restrictions.
Restriction in the interest of
public morality and health:-To maintain law & order is prime duty of the
government. The government may impose certain reasonable restriction on the
religious activities. If they are dangerous to the public. For example: to
arrange route of the religious, procession, even the force-able conversion is
not in the interest of the public. Case: Gulam Abbas V/s State of UP 1984 : The
SC rejected this argument and held that to decide a dispute between two
sections such acts petition come under the reasonable restrictions.
* Recently in election of
Maharashtra Chief Minister: During Dec., 1995 the election of Mr.
MurliManohar Joshi was challenged on the ground of religion and freedom
of speech & expression. The petitioner argued that Mr.Joshi used some
words like Hindu or Hinduism during his election speech.
SC held that o ask for votes in the name of Hindu or Hinduism do
not denote or represent religion. These words are used for a particular
community residing in India. However the statement of BalThakry chief of
shiv-sena was held against religion. Mrjoshi was protected due to the freedom
of religion and freedom of speech and expression.
1
Morality : To Practice or propagate any such activity in the name
of religion which effects the morality of persons shall be restricted.
That is to practice or propagate prostitution in the name of religion, is
not valid.
2 Health :- In the shia act, there
is a provision for slaughtering the cows in the public place because of its effects
on the health. So this is not reasonable even if to be related with
religion.
3 Economic or secular of
administrative activities : means monitory or financial matters.
Some reasonable restrictions may be imposed on the financial matters of the religious
activities. There are certain secular activities which have no link with the
religion can be prohibited under section 25(2). Case : SP Mittal v/s
Union of India 1983. In this court held that certain reasonable restrictions
could be imposed in the administrative activities of any religion. In other
case :State of W.Sbegal v/s AshutoshLohri -1995, The SC held that the decision
of the Mohd. Hanif &Qureshi v/s state of Bihar, the slaughtering of
cows no the essential elements of Muslim religion.
4 Social Welfare Reform :
Certain restricitions may be imposed for the purpose of social reforms,
for example Sati Pratha which is considered as a religious activity under Hindu
religion has been prohibited by passing the sati pratha prevention act. Similarly
in south DevdasiPratha according to this pratha the girls were sent
to the temple for entertain of the guests in the temple under this practice,
there were incidents by which these girls were misused, so the restrictions in
the name of social reforms imposed on this pratha under section 25(2).
Article 26 Freedom to manage
religious Affairs : Says that any denomination has the freedom to manage the
affairs of its religion. For this purpose, following rights have been given:
1. To establish and maintain institution
for religious or charitable purposes.
2. To maintain the religious affair
in these institutions.
3. To acquire and hold movable and
immovable property for these institutions.
4. To dispose of such properties
according to law.
Article 2 says that no tax can be
imposed upon religious income. Even state can also not impose tax on any person
o property for the promotion of religion. However Private and govt. Aided
educational institutions can give such directions for the purpose of religion
but in case of govt educational institutions no religious directions or aid can
be given by the state. There is complete freedom of religion in India except
certain restrictions as explained above. India is a secular state.
Article 25 to 28 are peculiar and
most important articles which adjust all types of religious communities castes
in India that is why it is said that ,” There is unity in diversity in India.”
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