Article 15

1) Anuj Garg vs Hotel Association of India

 In this case, Section 30 of the Punjab Excise Act has been challenged. The section prohibited the
employment of any man under the age of 25 years and any woman, in any part of an establishment in
which liquor or any other intoxicating drug was being consumed.
 The Court prima facie observed that the challenged provision was a pre-constitution law i.e. the
section had come into force before Article 14 and Article 15 (sex equality) was guaranteed as a
fundamental right under the Constitution of India.
 The Court observed: “The present law ends up victimizing its subject in the name of protection. In
that regard the interference prescribed by state for pursuing the ends of protection should be
proportionate to the legitimate aims.”
 Court stated that “strict scrutiny should be employed” in cases assessing the validity of sex-based
legislation.
 Court seemed to adopt a proportionality test: “the legislative interference to the autonomy in
employment opportunities for women is justified as a legitimate aim and proportionate to the aim
pursued
 The Court held: “Legislation should not be only assessed on its proposed aims but rather on the
implications and the effects.”
 Court noted that two conditions would have to be satisfied in such cases: (a) the legislative
interference (induced by sex discriminatory legalisation in the instant case) should be justified in
principle, (b) the same should be proportionate in measure.”

RESERVATION

MR BALAJI vs. State of Mysore

Court is sole discriminating factor and class cannot be equated with caste. Reservation cannot be more than
50%.
2) State of Kerala vs. NM Thomas 1975
 a governmental order granted provisional promotions to members of Scheduled Castes and
Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion,
along with a two year grace period for them to gain such qualifications. This was challenged. The
key contention of the aggrieved parties was that the classification was clearly void under Articles
16(1) and (2), and not covered by Article 16(4).
 “The rule of differentiation is enacting laws differentiating between different persons or things in
different circumstances. The circumstances which govern one set of persons or objects may not
necessarily be the same as those governing another set of persons or objects so that the question of
 unequal treatment does not really arise between persons governed by different conditions and
different sets of circumstances. “
 the Court adopts the group-subordination idea of equality, one that locates the site of historical
discrimination as the group, and seeks to remedy that by targeting groups.
 the fundamental shift in N.M. Thomas is this: 16(4) no longer operates as an exception to 16(1),
allowing the government limited powers to do what it would otherwise be prohibited from doing by
virtue of 16(1), but now exists as “one of the methods of achieving equality embodied in Article
16(1).”
 Justice Mathew conceded that Article 16(1) was about equality for individuals – equality of
opportunity. But equality of opportunity, he argued, meant that in distributing a benefit or burden,
the State must set those criteria for selection that “people from all sections of the society have an
equal chance of satisfying them.
 Justice Iyer argued that the interpretation of Articles 16(1) and 16(2) must be such that gives effect
to Article 46.
 The point of the Article 16 scheme – after Thomas, therefore – is not to achieve group equality qua
groups, but to achieve individual equality, and the use of groups is a convenient mechanism
to achieve the end goal of individual equality.
3) Indra Sawhney vs, Union of India 1992
ISSUE RAISED
1) Whether the classification is based on the caste or economic basis?
2) Whether the Article 16 (4) is exception of article 16 (1) or not?
3) Whether in Article 16 (4) backward classes are similiar as SEBCS in Article 15 (4) or not?
4) Would making “any provision” under Article 16(4) for reservation “by the state” necessarily have to
be by law made by the legislatures of the state or by law made by parliament? Or could such
provisions be made by an executive order?
5) Whether the classification between backward class into backward or more back ward class is valid or
not?
Judgement
 Decision given by the 6:3 majority held that the decision of the Union Government to hold 27%
Government occupations for SEBCs gave them Creamy layer among them dispensed with is
constitutionally valid.
 Apex Court struck down the second provision of Office Memoranda and held that holding 10%
Government occupations for monetarily in backward classes among higher station isn't valid.
Following were the significant proclamations.
1) Backward classes in Article 16(4) were not like as socially and educationally backward in article
15(4).
2) Creamy layer must be barred from the backward classes.
 3) Article 16(4) grants characterization of backward classes into backward & more backward
classes.
4) A backward class of citizen can't be distinguished just and solely with reference to financial
criteria.
5) Reservation should not exceed 50%.
6) Reservation can be made by the Executive Order.
7) No reservation in promotion.
8) Permanent Statutory body to look at whines of over – inclusion /under – inclusion.
9) Majority held that there is no need to express any opinion on the accuracy or ampleness of the
activity done by the Mandal Commission.
10) Disputes with respect to new criteria can only be raised in the Supreme Court.
 Commonly, the reservations kept both under Article 16(1) and 16(4) together ought not to surpass
50% of the appointments in a grade, unit or administration in a specific year.
 It is just for additional normal reasons that this rate might be surpassed. In any case, each abundance
more than 50 for every penny should be advocated on substantial grounds which grounds should be
particularly made out.
4) M Nagaraj vs. Union of India 2006
 judgment M. Nagaraj, where the Court, while upholding the constitutional validity of the
improvements and changes bought up in Article 16, also set out certain conditions and standard for
the State to implement corrective measures under Articles 16(4A), as also 16(4B) (that deals with
carrying forward of vacancies reserved for backward classes such as OBC/SCs/STs)
 16(4A) inserted by 77th amendment- reservation in matters of promotion – after indra sawhney
 16(4b) inserted by 81st amendment- vacancies
 Held - Amendments were held as constitutionally valid. Article 16(4A and B) are inserted into the
flow of article 16, and they do not alter the structure of Article 16(4). (Twin TEST) – Width ( 4a and
4b must not violate the basic structure) and Identity test (16 1 and 16 4 are different in nature.)
 Prior to granting reservations in promotion to a Scheduled Caste or Scheduled Tribe in public
employment, the State must demonstrate compelling state interests by using the following:
 Current backwardness of the SC/ST- quantifiable data
 Inadequate representation of the SC/ST in the relevant sector
 The reservations will maintain administrative efficiency
5. Jarnail Singh vs lacchmi
Facts
 A vacation bench of Justice Adarsh Kumar Goel and Justice Ashok Bhushan was hearing an SLP
preferred by the Centre against the August-2017 judgment of the Delhi High Court quashing the
DoPT Office Memorandum (OM) dated August 13, 1997, which provided for the continuation of
reservation in promotions indefinitely.
 2. The high court had passed the verdict in the light of the apex court constitution bench judgment in
M Nagaraj (2006).
 4. The Constitution bench of the Supreme Court,on 26 September,2018 delivered a judgement
authored by Justice Rohinton Nariman, that reservation in promotions does not require the state to
collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes, yet
makes the “creamy layer” in either group ineligible for the benefits.
 Issues Raised:-
 1. Whether M. Nagaraj v. Union of India (Nagaraj) required reconsideration?
 2. Nagaraj verdict had held that before the Scheduled Caste and Scheduled Tribe candidates can be
promoted, the states had to prove by “quantifiable data” that they were indeed “backward”
 3. Whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through
reservations?
 Judgement
 The court set aside the requirement to collect quantifiable data that was stipulated by its 2006 verdict
in M. Nagaraj v. Union of India as it ignored the reasoning of a nine-judge bench in Indra Sawhney
(1992) that any discussion on creamy layer “has no relevance” in the context of SC/STs.
 The court has taken more than a decade to correct an anomaly in the Nagaraj case which brought in a
creamy layer filter for promotions for SC/ST employees. This resulted in thousands of employees
being denied their due promotions.
 Firstly, the judgment held that the Supreme Court's 2006 Nagaraj judgment does not need
reconsideration by a 7-judge Bench.
 Nevertheless, the judgment modified Nagaraj with regards to 'further backwardness'. In Nagaraj, the
Supreme Court had held that if the State chose to grant reservations in promotion, the State must
collect quantifiable data to demonstrate the current backwardness of the SC/ST been granting
reservations in promotion. On further backwardness, the judgment held that the further backwardness
condition is contrary to the nine-judge Bench decision in Indra Sawhney. Justice Nariman held that
Indra Sawhney does not allow for the collection of quantifiable data as a pre-requisite for granting
reservations in promotions.
 However, while the judgment modified the further backwardness criterion, it also added that the
principle of creamy layer exclusion applies to SC/STs. Previously creamy layer exclusion only
applied to Other Backward Classes (OBCs) in matters of reservation.
 The Court held that creamy layer exclusion is a principle of equality. It held that failing to apply the
exclusion of creamy layer principle would violate right to equality in two ways. Firstly, it held that
doing so treats equals differently, namely the general classes and the forward among Backward
Classes (SC/ST). Second, it held that doing so treat unequals the same, namely backward classes and
the forward among backward classes. Thus, the Court held that the exclusion of creamy layer
principle is essential to safeguard the right to equality.
Article 19
6. Sakal Papers v. Union of India [1962]
 In accordance with the Newspaper Act of 1956, and the Daily Newspaper Order of 1960, the
government sought to regulate the number of pages a newspaper could contain by making it a direct
function of newspaper’s price (i.e., in order to bring out more pages, the newspaper would have to be
priced higher); it also prescribed the number of supplements that could be published, as well as the
relative area that could be occupied by advertisements.
 The constitutionality of these measures was impugned as being violative of – inter alia – Article
19(1)(a). The petitioners argued if they wished to keep the size of their newspaper constant, they
would have to raise the price – and suffer a fall in circulation. If, on the other hand, they wished to
keep their price constant, they would have to reduce the volume of news they were providing. In
either event, there was an infringement of Article 19(1)(a).
 While the Indian Constitution does not explicitly guarantee freedom of the press, it is recognized as
part of the freedom of speech and expression under Article 19(1)(a), which may be restricted on
grounds mentioned in Article 19(2). The right to propagate one’s ideas includes the right to publish
them, disseminate them, and circulate them.
 The Court noted that by providing the maximum number of pages for the particular price charged,
the effect of the Newspaper Act and Newspaper Order was to compel newspapers either to reduce
the number of pages or to raise the prices. While the former restricted the dissemination of news and
views by the newspapers, the latter would have significantly cut down their circulation. Both
involved a direct infringement of the newspapers’ right under Article 19(1)(a). The freedom of a
newspaper to publish any number of pages and to circulate to any number of persons is an integral
part of the freedom of speech.
 Regulation of advertising space forced newspapers either to raise their prices and compromise on
circulation or to run at losses, eventually forcing them to close down. This was a direct, and not a
remote or incidental, infringement on the right to freedom of speech and expression. India contended
that advertising is a commercial aspect of speech, and restrictions in the public’s interest may be
placed on it under Article 19(6). However, the Court held that the right to freedom of speech cannot
be taken away with the object of restricting business activities.
7. Bennett Coleman & Co. and Ors. Vs. Union of India and Ors. 1972
Facts
 The petitioners are media conglomerates involved in the publication of newspapers. They challenged
the restrictions on the import of newsprint under Import Control Order 1955 and on the manner in
which this is used by newspapers under the Newsprint Order 1962. Further, the Newsprint Policy of
1972-73 placed further restrictions based on four features: first, no new newspapers may be started
by establishments owning more than two newspapers if at least one of which is a daily; second, the
total number of pages may not exceed ten; third, the increase in number of pages may not be more
 than 20% for newspapers that are under ten pages; and, finally, no-interchangeability of newsprint
may permitted between different newspapers of the same establishment or between different editions
of the same paper. Therefore, the petitioners were not allowed to make adjustments in circulation,
etc., under these newsprint policies even within the quota limit. This was challenged for violation of
Article 19(1)(a) of the Indian Constitution.
 The respondents argued that the petitions were not maintainable because companies do not enjoy
fundamental rights, which are available only to natural persons. Further, the respondents argued that
Article 358—the Constitution’s provision for “emergency powers”—barred any challenge on
grounds of fundamental rights. They also proposed a subject-matter test of restriction rather than an
“effects test.” Accordingly, the restrictions were valid because they regulated the commercial
operations of newspapers in order to prevent monopolies, by which any effect on freedom of
expression was incidental. Finally, they asserted that the question of whether newsprint import must
be increased was a question of policy that could not be challenge on any grounds except “mala fide.”
 Decision Overview
 J. Ray delivered the opinion of the court. As a preliminary question, the Supreme Court observed
that the petitions were maintainable. The fact that the petitioners were companies was not a bar to
award relief for violation of the rights of shareholders and editorial staff (who were also petitioners).
Further, the bar under Article 358 did not apply to laws passed before the proclamation of
emergency, and, therefore, the newsprint policy could be challenged as a continuation of the
previous year’s policy and relevant orders.
 On merits, the Court noted that freedom of the press was an essential element of Article 19(1)(a) and
the absence of an express mention of such freedoms as a special category was irrelevant. Free press
was to be regarded as an essential element of freedom of expression in general. The Court also
observed that shortage of newsprint could be tackled by fixing the quotas. However, direct
interference in terms of page limits and other such regulation was not justified. The page limit meant
that the newspapers would either lose economic viability due to reduction in advertisements or be
forced to reduce news content. This would limit freedom of expression because, in the first case,
circulation would drop due to increased costs, and, in the second, there were quantitative restrictions
on content.
 The Court observed that freedom of the press had both quantitative and qualitative elements and,
therefore, the quantitative controls constituted restrictions on freedom of expression. Since they were
not justified on the basis of shortage of newsprint, they could not be considered to be reasonable
restrictions. The Court held that the Newsprint Policy of 1972-73 was unconstitutional. However, the
Newsprint Order and Import Control Order were considered not to be the source of these restrictions
and were not struck down.
 Doctrine of Real and Immediate Effect of law upon the rights which attracts jurisdiction grant relief.
  It is not the object of the authority to make the law impairing the right of citizen. Rather it is the
effect of the law on the rights that forms the real test.
8. Romesh Thappar vs. State of madras 1950
Facts
 The petitioner was the the printer, publisher and editor of a journal in English called Cross Roads
printed and published in Bombay. Under Section 9 (1-A) of the the Madras Maintenance of Public
Order Act, 1949, the entry and circulation of the journal was banned in the erstwhile State of Madras.
In response to the ban, the petitioner filed a writ petition before the Supreme Court, averring that the
powers under the Act were an excessive restriction on freedom of expression under Article 19 of the
Constitution of India.
 In response, it was considered on behalf of the respondent State, that the restriction was for the
purpose of public safety and public order. This could be equated with security of the State, which is
considered a reasonable restriction on freedom of expression under Article 19(2).
 Decision Overview
 Security of the State is a reasonable restriction under Article 19 (2) of the Constitution. However, the
words used in the impugned section of the Act are ‘public safety and public order’. The Court
considered that the 2 terms have to be read together. The purpose for which restrictions were allowed
under the Act for the wider purpose of public order. It drew parallels with the Indian Penal Code and
other texts to show that public order has a very wide interpretation- including acts like rash driving.
On the other hand, security of the State referred to extreme acts of violence that would threaten to
overthrow the State. Therefore, the restriction under the Act was wider than what was
Constitutionally permissible as a restriction on freedom of expression.
 Further, where an Act may be used within the constitutional limits as well as outside the scope of
these limits, it must be considered void. The impugned section was accordingly considered to be
void for unconstitutionality, because it gave the State wide powers to restrict freedom of expression.
The Court also quashed the order of the Government whereby the newspaper was banned.
9. Superintendent central vs. Ram manohar lohia
Facts
 S. 3 of the U.P. Special Powers Act of 1932 criminalised instigating a class of persons against paying
dues recoverable as arrears of land revenue. Ram Manohar Lohia, the General Secretary of the
Socialist Party of India, did just that, was duly arrested, and duly challenged the constitutionality of
the Section at issue.
 Principles laid down
 The foregoing discussion yields the following results : (1) "Public order" is synonymous with public
safety and tranquillity : it is the absence of disorder involving breaches of local significance in
contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of
the State; (2) there must be proximate and reasonable nexus between the speech and the public order;
 (3) s. 3, as it now stands, does not establish in most of the cases comprehended by it any such nexus;
(4) there is a conflict of decision on the on the question of severability in the context of an offending
provision the language whereof is wide enough to cover restrictions both within and without the
limits of constitutionally permissible legislation; one view is that it cannot be split up if there is
possibility of its being applied for purposes not sanctioned by the Constitution and the other view is
that such a provision is valid if it is severable in its application to an object which is clearly
demarcated from other object or objects falling outside the limits of constitutionally permissible
legislation; and (5) and the provisions of the section are so inextricably mixed up that it is not
possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it
and reject the rest.
 RML test
 There must be a remote and fanciful nexus between the speech and public order
 There must be rational nexus between the what law wants to achieve and public order.
 The restriction imposed by law must not be excessive or arbitrary over what is required for public
order.
10. Shreya singhal vs. Union of India 2015
Facts
 Police arrested two women for posting allegedly offensive and objectionable comments on Facebook
about the propriety of shutting down the city of Mumbai after the death of a political leader. The
police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which
punishes any person who sends through a computer resource or communication device any
information that is grossly offensive, or with the knowledge of its falsity, the information is
transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill
will.
 Decision
 The main issue was whether Section 66A of ITA violated the right to freedom of expression
guaranteed under Article 19(1)(a) of the Constitution of India.
 The Court first discussed three fundamental concepts in understanding the freedom of expression:
discussion, advocacy, and incitement. According to the Court, “[m]ere discussion or even advocacy
of a particular cause howsoever unpopular is at the heart” of the right. [para. 13] And, the law may
curtail the freedom only when a discussion or advocacy amounts to incitement.
 Discussion and Advocacy is saved under article 19 (1)(a) whereas incitement is not as it goes against
the public order under 19(2).
 Any legislation which invades a right cannot be said to contain the quality of such right unless it
strikes a proper balance between the freedom guaranteed under 19 1 and social control under 19 2.
 Test for Hate speech
 Interference is prescribed by law
  Interference proportionate to legitimate aim pursued
 Is interference necessary in democratic society.

11. Perumal Murugan vs State Of Tamil Nadu Rep. By on 27 September, 2016

Facts
 The case concerns the novel, Mathorubagan (One-Part Woman), written by Perumal Murugan, which
describes the travails of a childless couple and the ensuing social stigma. Certain portions of the
novel describe the historical temple chariot festival at Tiruchengode, an ancient Hindu temple,
depicting it as one where the rules of sexual conduct are relaxed for one night and all consenting men
and women may engage in sexual activity irrespective of their marital status. This is recommended to
the husband in the novel, Kali, as a means of ensuring that his wife, Ponna, gets pregnant and
disguising his impotence. Eventually, Ponna is taken to the festival without Kali’s consent and she
consents to having sex with one young man.
 This “sexual permissiveness” became the root of agitations against the novel, which was regarded as
falsely representing the history of the practices of the community and generally, failing the test of
obscenity. The local authorities started peace initiatives, summonsing the author to participate in
them. The resulting Settlement order required Murugan to issue an unconditional apology. He agreed
out of fear for his family’s well-being.
 Murugan then instituted proceedings at the High Court. His counsel averred that the settlement had
no binding effect and violated Murugan’s right to freedom of expression. He sought to distinguish
between a historical work with detailed records and literature based on folklore, capturing human
emotions. He averred that the novel belonged to the latter category and must not be held to the same
standard of historical truth. In parallel with these proceedings, other petitioners demanded that legal
action be taken against Murugan for obscenity and offending the sentiments of a community. They
demanded that a police case to be registered against both Murugan and his publisher.
 Decision Overview
 Chief Justice Kaul delivered the opinion of the Court, with which Justice Sathyanarayana concurred.
The Court noted that the “community standards” test suggested that the novel was not obscene by
contemporary standards. The novel did not appeal to the prurient interests of individuals but
described the emotional travails of a childless couple, and should be viewed as such. The Court noted
that those objecting may choose to not read the book; banning a book merely on the grounds that it
offended the sensitivity of certain people was not a solution. The Court considered that the question
of obscenity should be viewed on the basis of how it is perceived by society at large. The fact that
the book had received numerous awards was indicative of its social perception.
Article 19 2- Obscenity
12. BOBBY ART INTERNATIONAL, ETC. Vs. OM PAL SINGH HOON & ORS. 01/05/1996
BENCH
Facts
 In 1994, Bobby Art International, a film production company, made a film titled “Bandit Queen”
which was based on a true story about a village girl who was raped and brutalized, and who
subsequently became a member of a violent criminal gang as a means of revenging herself upon
society. The film was based on the book about the incident written by Mala Sen. The film contained
explicit scenes of rape and nudity. In July 1995, the Censor Board indicated that it would grant the
film an “A” certificate (films considered suitable for exhibition restricted to adults only) in terms of
the Cinematograph Act, 1952 (the Act) but only on the condition that certain scenes were deleted or
modified.
 Om Pal Singh Hoon, a member of the specific community portrayed in the film, filed a petition
before the Delhi High Court seeking the quashing of the “A” classification and a restraint on the
exhibition of the film in India on the grounds that the portrayal of the main character was “abhorrent
and unconscionable and a slur upon the womanhood of India.” He also claimed that the film
portrayed his community in a depraved way and lowered his self-respect.
DECISION
 In conclusion, Bharucha held that the message of a serious film should be recognized and the test to
be applied was whether the individual scenes advance the film’s message. If the scenes did
advance the message Bharucha held that the scenes should not be censored and that a certificate
of an “A” rating would be sufficient caution as adult citizens could be “relied upon to comprehend
intelligently the message and react to it”. He reiterated that “a film illustrating the consequences of
social evils must necessarily show that social evil”, and that “a film that carries the message that the
social evil is evil cannot be made impermissible on the ground that it depicts the social evil”. The
Judge also stressed that the determination of whether the manner in which the social evil is depicted
is necessary to tell the story should be left to the experts within the Tribunal.
13. Aveek Sarkar vs State Of West Bengal & Anr on 26 March, 2015
Facts
 A German magazine published a photograph of Boris Becker, a renowned tennis player, posing nude
with his dark-skinned fiancée Barbara Feltus, an actress, covering her breasts with his hand. The
picture was taken by Feltus’ father. The article that contained the photograph portrayed Becker as an
opponent of racial discrimination, and signified a choice of love over hatred. A newspaper and
magazine circulated in India republished the article with the photograph.
 A complaint was filed against the newspaper and magazine under Section 292 of the Indian Penal
Code (IPC) that punished distribution of obscene materials, and under Section 4 of the Indecent
 Representation of Women (Prohibition) Act, 1986, which prohibited publication of indecent
representations of women.
 Decision Overview
 The Court rejected the Hicklin’s test in favor of the community standards test.
 Hicklins Test- material judged in isolated parts- influence on most susceptible readers
 The Court noted that that regard must be given to contemporary mores and national standards, and
not the standard of sensitive persons.
 A bare reading of IPC Section 292 showed that a matter is obscene “(i) if it is lascivious; (ii) it
appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to
read, see or hear the matter.”
 The Court then had to examine the context in which the photograph appeared and the message it
sought to convey. Applying the community standards test, the Court held that the photograph was
not obscene within the meaning of Section 292 of the IPC.
 Community Standard Test
 Work must be taken as a whole
 Work must not be patently sexually offensive.
 Work must not be of artistic value.
14. Devidas Ramachandra Tuljapurkar vs. State Of Maharashtra, 2015
FACTS:
 The controversy, as summarised by the Hon’ble judge, that spiralled in the course
of hearing of this appeal centres around the question framed
vide order dated 18.2.2015, for this Court thought it apposite to answer, whether the
poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine
named the ‘Bulletin’ which was published, in July-
August, 1994 issue, meant for private circulation amongst the members of
All India Bank Association Union, could in the ultimate eventuate give rise to framing
of charge under Section 292 IPC against the author, the publisher and the printer.
 Freedom of speech and expression has to be given a broad canvas, but it has to have inherent
limitations which are permissible within the constitutional parameters. The Court reiterated the
principle already opined by the Hon’ble Supreme Court in various cases which is that the freedom of
speech is a right of great value and transcends and with the passage of time and growth
of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of
absoluteness. There is constitutional limitation attached to it.
After examining the tests and methods of American and European judiciary, the Hon’ble court came
to the conclusion that when the name of Mahatma Gandhi is alluded or used as a symbol, speaking
or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary
community standards test” becomes applicable with more vigour, in a greater degree and in an
 accentuated manner. What can otherwise pass of the contemporary community standards test
for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a
symbol or allusion or surrealistic voice to put words or to show him doing such acts which are
obscene. Hence, the framing of charges under Section 292 of IPC is not a flawed decision of the
High Court.

19 2 – Reasonable restrictions
Contempt of Court
 Wilful disobedience to any judgement, decree, direction order under section 2(b) of contempt of
Court act.
 Criminal Contempt - any publication by words spoken or written or by signs or visible
representations or otherwise for any matter or doing of any other act what so ever which
- Scandalises or tends to scandalise
- Lowers or tends to lower authority of any court
- Interferes with due course of proceedings
- Obstruct the administration of justice.
Media Trial
 People of State of California vs. Oriental James Simpson
Article 20(3)
15. State of Bombay vs. Kathi Kalu Oghad 1962
 Brief facts Of the Case The, respondent was charged, alongwith another person, under s. 302, read
with s. 34 of the 1. P. C., as also under s. 19(e) of the Indian Arms Act (XI of 1878). The Trial Court
found him guilty of those charges-and sentenced him to imprisonment for life under s. 302, read with
s. 34 of the |.P.C. and to. a term of two years rigorous imprisonment for the. offence under the Arms
Act.
 Legal Issue
 The impressions of the appellant’s palms and fingers taken from him after his arrest, which were
compared with the impressions on the glass panes and phials, were not admissible evidence in view
of the provisions of Art. 20(3) of the Constitution.
 (3) Whether a direction given by a Court to an accused person present in Court to give his specimen
writing and signature for the purpose of comparison under the provisions of 5.73 of the Indian
Evidence Act infringes the fundamental right enshrined in Art. 20 (3) 0f the Constitution.
 Observation
 Section 27 provides that when any fact is deposed to as discovered in consequence of Information
received from a person accused of any offence, in the custody, of a police officer, so much of the
information, whether it amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved. It cannot be disputed that by giving such information the accused
 furnishes evidence and therefore is a ”witness” during the investigation. Unless however he is
"'compelled” to give the information he cannot be said to be “compelled” to be a witness; and so Art.
20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an
accused person in the custody of a police officer. There may be cases where an accused in custody is
compelled to give the information later on sought to be proved under S.27. There will be other cases
where the accused gives the information without any compulsion. Where the accused is compelled to
give information it will be an infringement of Art. 20(3); but there is no such infringement where he
gives the information without any compulsion. Therefore, compulsion not being inherent or implicit
in the fact of the information having been received from a person in custody, the contention that s. 27
necessarily infringes Art.20(3) cannot be accepted. A question was raised in the course of the
discussion as to when a person can be said to have been "'compelled” within the meaning of
Art.20(3).this question does not arise for consideration in view of our conclusion that in any case the
accused does not become a "’witness against himself by giving his Specimen signatures or
impressions of his fingers or Palms.
 Decision
 Held, that there was no infringement of Art. 20(3) of the Constitution in compelling an accused
person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or
foot to the investigating officer or under orders of a court for the purposes of comparison. Section 27
of the Indian evidence act did not offend Art 20(3) unless compulsion is used.
 Principles laid down as to guarantee
 (i) the guarantee includes not only oral testimony given in court or out of court but also
statements in writing which incriminate the maker when figuring as an accused person;
 (ii) the words "to be a witness" in Art.20(3) do not include the giving of thumb impression or
impression of palm, foot or fingers or specimen writing or exposing a part of the body by an
accused person for identification;
 (iii) "self-incrimination" means conveying information based upon the personal knowledge of the
given and does not include the mere mechanical process of producing documents in court which
do not contain' any statement of the accused based on his personal knowledge;
 (iv) in order to come within the prohibition of Art. 20(3) the testimony must be of such a character
that by itself it should have the, tendency to incriminate the accused; and
 (V) to avail of the protection of Art. 20(3) the person must have stood in the character of an accused
person at the time he made the statement .
16. Nandini Satpathy vs. P. L. Dani and Ors. 1978
Facts
 The Deputy Superintendent of Police (Vigilance), Cuttack, filed a complaint against the appellant,
the former Chief Minister of Orissa, under section 179 of IPC before the Sub-divisional Judicial
Magistrate, Sadar, Cuttack. The Magistrate took cognizance of the offence and issued summons for
 appearance to the appellant. Aggrieved by this, the appellant moved the High Court challenging the
validity of the proceedings on the grounds that the charges against her were because of the
appellant’s failure to police interrogation and that the appellant’s refusal to do so was covered under
Article 20(3) of the Constitution and section 161(2) of Cr.P.C. The High Court dismissed the petition
and the appellant preferred an appeal to the Supreme Court.
 The Hon’ble Court held that: ‘To be witness against oneself is not confined to particular offence
regarding which the questioning is made but extends to other offences about which the accused has
reasonable apprehension of implication from his answer. This conclusion also flows from ‘tendency
to be exposed to a criminal charge’. ‘A criminal charge’ covers any criminal charge than under
investigation or trial or imminently threatens the accused.’
 The Hon’ble Court took into consideration M.P.Sharma’s case and held that the guarantee under
Article 20(3) would be available to those persons against whom a First Information Report has been
recorded as accused therein. It would extend to any compulsory process for production of evidentiary
documents which are reasonably likely to support a prosecution against them. The prohibitive sweep
of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in
court only.
 While deciding the ambit of article 20(3) of the Constitution with regard to the fourth issue, the
Hon’ble Court held that insistence on answering is a form of pressure especially in the atmosphere of
the police station unless certain safeguards erasing duress are adhered to.
 The term section 161 of Cr. P. C includes accused persons as well as witnesses. Section 161(2) was
held to be an extension of article 20(3) as it provides an accused the right against self-incrimination.
The appeal was allowed and the prosecutory proceedings were quashed.
Principles
 A 20 (3) extends to suspects, victims with accused.
 A 20 (3) protects right to silence
 A 20 (3) prevents foreseeable conveyance of personal knowledge.

17. Smt Selvi & Ors vs. State of Karnataka 2010

 Facts
 The bone of contention involved in the case is the involuntary administration of the impugned
techniques which prompts questions about the protective scope of the ‘right against self
incrimination’ under article 20(3) of our constitution.
 MAIN LEGAL ISSUES INVOLVED
 Whether narcoanalysis, brain mapping, FMRI and polygraph test could be used as a constitutionally
valid method of gathering evidence.
 Whether these evidence gathering scheme result in dilution of constitutional rights such as the ‘right
against self-incrimination under article 20(3)
  Whether the procedure undertaken be considered violative of “substantive due process”.
 DECISION BY THE JUDGES
 In our considered opinion, the compulsory administration of the impugned techniques
violates the `right against self- incrimination'. 20 (3)
 The test results cannot be admitted in evidence if they have been obtained through the use of
compulsion.
 We are also of the view that forcing an individual to undergo any of the impugned techniques
violates the standard of `substantive due process' which is required for restraining personal
liberty. (A 21)
 We have also elaborated how the compulsory administration of any of these techniques is an
unjustified intrusion into the mental privacy of an individual.(A 21)
 Even when the subject has given consent to undergo any of these tests, the test results by
themselves cannot be admitted as evidence because the subject does not exercise conscious
control over the responses during the administration of the test. However, any information or
material that is subsequently discovered with the help of voluntary administered test results
can be admitted, in accordance with Section 27 of the Evidence Act, 1872.
 `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in
2000.
(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An
option should be given to the accused whether he wishes to avail such test.
(iii) The consent should be recorded before a Judicial Magistrate.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is
made shall not be a `confessional' statement to the Magistrate but will have the status of a statement
made to the police.
18. Maneka Gandhi vs. Union of India 1978
 The Supreme Court in Satwant Singh[1] held that right to travel abroad is well within the ambit of
Article 21. Therefore, to combat the above laid down law the Parliament enacted Passports Act 1967.
Passport Act, 1967 empowers the authorities to impound the passport of certain individual if such
action is necessary in the interest of sovereignty and integrity of India, the security of India, friendly
relations of India with any foreign country, or general public. Therefore, the petitioner approached
Supreme Court u/a 32 for the enforcement of Fundamental Right mentioned u/a 14 against the
arbitrary action of the authorities. The petition was further amended and enforcement of Article 21
i.e. Protection of Life & Personal Liberty, Article 19(1)(a) i.e. Right to freedom of speech & Article
19(1)(g) i.e. Right to freedom of Movement. Among the major reasons contended for the filing of
such petition, the petitioner contended that the impugned order is void as it took away the
petitioner’s right to be given a fair hearing to present her defense.
  The major findings of the court were as follows:
 The court while delivering this landmark judgment changed the landscape of the Constitution by
holding that though the phrase used in Article 21 is “procedure established by law” instead of “due
process of law” however, the procedure must be free from arbitrariness and irrationality.
 The court overruled Gopalan by stating that there is a unique relationship between the provisions of
Article 14, 19 & 21 and every law must pass the tests of the said provisions.
 Section 10(3)(c) of Passport Act 1967 is not violative of neither Article 21 nor Article 19(1)(a) or 19
(1)(g). The court further held that the said 1967 provision also not in contradiction of Article 14.
 The court held that Section 10(3)(c) & 10(5) is an administrative order therefore, open to challenge
on the grounds of mala fide, unreasonable, denial of natural justice and ultra vires.
 The rights discussed under 19(1)(a) & 19(1)(g) are not confined to the territorial limits of India.
 Principles of Law
 The right to travel abroad as held in Satwant Singh is within the scope of guarantees mentioned
under Article 21.
 Art 14, 19, 21 are not water tight compartments thus must be read as an integral whole. 21 must
satisfy requirements of 14 and 19.
 Procedure established by law must comply with due process of law- procedures must be just, fair and
reasonable in addition to not being oppressive, fanciful and arbitrary.
Article 25& 26
19. The Commissioner, Hindu ... vs Sri Lakshmindra Thirtha Swamiar of Shirur Math, 1954
 The constitutionality of Madras Hindu Religious and Charitable Endowments Act, 1951 was
challenged on the ground of infringement of Article 26. The legislation was enacted for the purpose
of acquiring control over the ‘secular' activities of the Religious Endowments, namely.
 Many provisions of the enactment were struck down by Court on different counts, it upheld the
inspection of accounts and even inspection of temples by the State authorities since, according to the
court; it did not interfere with the essential aspects of religion.
 Court defined the scope of ‘secular' activities using ‘essential principles test'. It was held that for
defining social welfare content the judiciary can distinguish essential from the non-essential activity.
“What constitutes the essential part of a religion is primarily to be ascertained with reference to the
doctrines of that religion itself”
 Section 56 of the Madras Hindu Religious and Charitable Endowments, Act 1951 empowered the
Commissioner, at any moment, to deprive the ‘mahanta’, of his right to administer the property even
if there was no negligence or maladministration.
 Although the State’s right under 25(2)(a) will generally trump the denomination’s rights under
26(c)(d), the court held that the state's ability to encroach upon the denomination’s rights should be
reasonable. The state can regulate but not completely take away a denomination's right to own and
 administer property. In this case section 56 was held as violating Article 26(c)(d) as it completely
extinguished the denomination's right under 26(b).
 a denomination is “a collection of individuals, classed together under the same name. Thus if a body
has a: 1. Common Faith, 2. Common Organisation, 3.Distinctive Name; it categorises as a religious
denomination.
20. Sri Venkataramana Devaru and Others v.The State of Mysore and Ors.
 In this case, trustees of the temple of Shri Venkataramana of Moolky Petta challenged the Madras
Temple Entry Authorisation Act, which allowed entry of Harijans in the temple, as breaching the
right to manage its own affairs.
 Here an appeal to the HC decision was filed by the trustees of the temple of Sri Venkataramana of
Moolky Petta demanding to uphold the ban of entry Harijan into the temple premises. The Temple of
claimed to be a religious denomination having an absolute right to manage its own affairs with
respect to its religious practice and outside the purview of governmental control. The High court
maintained the prohibition only certain instance of special ceremonies but however upheld the public
right to worship. The Supreme Court when dismissing the appeal reasoned that Article 25(2) (b)
must be read harmoniously with Article 26 i.e. it must be given a liberal interpretation to benefit the
public. It also declared that Article 26 is not an absolute right and yields to the restrictions found in
Article 25. The scheme in Article 26 was further read down by extending the application of the
essentiality principle to clause (b) ‘matters of religion.’ The entry of Harijans was allowed with the
exception of some special ceremonies when entry could be restricted.
 Principles of Law
 A 26 b is subjected to law protected under A 25 2 (b)- religious institutions of public character
include religious denominations
 Under A 26 b matters of religion includes practices regulated by community as part of religion as
well as ceremonial laws.
 Court decides which practices deserves clause protection.
21. Nikhil Soni vs. Union of India
 Santhara or Sallekhana is a religious practice among the Jain community where it is believed to be a
medium through which moksha(salvation) can be attained it involves a person undertaking fast unto
death when he has completed all the purposes of his life, or his body is not functioning.
 It had been stated in the PIL that Santhara amounts to self destruction and therefore amounts to
suicide under section 309 of IPC and is also violative of Right to life as Right to death is not
provided by part III of the constitution.
 The judgement of the High Court also holds Santhara as not an essential practice under the Jain
religion and therefore it cannot be granted the protection of the constitution under religious freedom.
 The court says there is no dignity whatsoever in the act of fasting, and that therefore, there exists no
freedom to practice Santhara as an extension of one’s right to life under Article 21.
  The Supreme Court in its appeal was satisfied that the practice of Santhara is different from that of
suicide under section 306 of IPC and stayed the decision given by the Rajasthan High Court
declaring Santhara as an offence.
22. Sheshamal vs. State of Tamil Nadu
 An act was passed which made certain hereditary religious offices non-hereditary and prescribed
certain qualifications for them irrespective of caste, creed or race. The Act was passed with an object
of social reform measure, and was challenged on the ground of violation of Article 25(1) and 26 (b).
 Petitioner contended that under the law a trustee could appoint any one as priest if he possessed
requisite qualifications irrespective of his being a Savaite or Vaisnavite which constituted a violation
of freedom of religion.
 The Court held that the appointment of a priest was a secular act and appointment of priest on
hereditary principle despite its religious usage was not an integral part of religion. The Court upheld
the validity of the law.
23. Commissioner of Police vs. Jagdishwarananda Avadhut
 The commissioner of Police, Calcutta imposed a ban on Tandava Dance performed in public place
and streets
 Commissioner’s order was challenged by the followers of Anand marga as infringing their rights
under Article 25 and 26.
 The court went through the origins of Ananda Marga and found the Tandava performed by carrying
trident in public is not an essential part of Anand Marga.

24. Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu & Another
 The case Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu &
Another 1 (hereinafter Adi Saiva) revived the issue of temple Archakas (priests) customarily being
appointed from within certain Brahmin sects within the broader religious denomination. The matter
involved a Tamil Nadu State Government Order (hereinafter G.O) that sought to break the monopoly
of the Brahmin priests over what was a public office under the powers of appointment of an agent of
the State, the temple trustee, by making all Hindus irrespective of caste eligible for the office of
Archaka. This, according to the appellants, violated their freedom to religious practices protected by
Article 25 and 26 of the Constitution. The Bench comprising of Justices Ranjan Gogoi and N.V
Ramana, having heard the competing claims observed that the appointment of Archaka could not be
in contravention to the constitutional principles, referring to equality and freedom from caste
discrimination.
 However, they acknowledged the claims of the appellants insofar as Archaka appointments could not
be made in contravention to diktats imposed by the Agamas, the religious scriptures that governed a
Hindu temple. Despite engaging in a critical analysis of the established jurisprudence on the matter,
the Court curiously did not provide any conclusion to the central question at hand that of the
 constitutionality of the challenged order, rather held that its validity would be adjudged on a case-to-
case basis.
 Principle - legitimacy supersedes all religious practices and benefits.
25. Indian Young Lawyers Associations vs The State of Kerala, 2018
 The Sabarimala temple is one of Kerala’s most famous temples and it is dedicated to the worship of
Lord Ayyappa, who is also referred to as ‘Dharmashastha’ or Lord of Dharma and is worshipped as a
‘Naishtika Bramhachari’ or a celibate for life. Therefore, as per a notification by the Devaswom
Board that manages the temple, women belonging to the menstruating age are not permitted to enter
the temple. The Sabarimala temple is managed by the Travancore Devaswom Board. The centuries-
old restriction that restricts women of menstruating age from temple entry had been challenged now
and then.
 Kerala High Court upheld an age-old restriction on women of a certain age-group entering
Sabarimala temple. A two-judge bench decreed (on April 5) that the prohibition by the Travancore
Devaswom Board that administers the hill shrine does not violate either the Constitution or a
pertinent 1965 Kerala law.
 The India Young Lawyers Association filed a PIL with the Supreme Court, contending that Rule 3(b)
of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 that states
“Women who are not by custom and usage allowed to enter a place of public worship shall not be
entitled to enter or offer worship in any place of public worship” violates constitutional guarantees of
equality, non-discrimination and religious freedom.
 Further, this cannot be saved under Article 26 2 (b) since it is controlled by article 25. Barring of the
menstruating women is violative of their right to equality (Article 14), right to freedom of religion
(Article 25) and is patent discrimination on grounds of sex(Article 15(2)).
 Principles of Law
 According to the court, Sabarimala temple is not a separate religious denomination because it
does not satisfy the requirement of a distinctive name. It is controlled by the States under Article
290-A of the constitution and regulated by a statutory Board constituted under Travancore-Cochin
Hindu Religious Institutions Act, 1950.
 25 1 is violated – right to practice religion and worship.
 Banning of entry of women is not an essential and integral part of religion- it violates A25 2 b.
 A15 1 and 14 violated – sex discrimination
 A 17 violated - social expulsion
26. Shayara Bano vs Union of India, 2017.08.23
 Talak-ul-Biddat which is the issue of controversy. This is known as Tripe Talaq which was
challenged before the SC in this case. Talak-ul-biddat is although banned in Shias. However, in
Hanafi School is thought as sinful but is practiced by a large Muslim community who follow Hanafi
school. In this type of Talaq the Husband does not follow the approved form of Talaq i.e. talaq-ul-
 sunnat and he neither waits for iddat period nor to the abstention from sexual intercourse. This was
an escape route developed by the Islamic patriarchal society to avoid their marriage.
 In this form of Divorce husband repudiates his wife by three divorces in one sentence. The biggest
problem with this type of talaq is that it is one of irrevocable nature unlike its counterparts.
 This immediate appeal was filed in the apex court by ShayaraBanoa victim of this demonic practice.
She claimed the enforcement of the Fundamental Rights mentioned under Article 14. In the mean-
time there were numerous petitions challenging the same issue therefore, SC clubbed all the petitions
in one and heard it. Various NGO’s and even union government was supporting the cause.
 The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the practice
of Triple Talaaq unconstitutional.
 While the majority upon lengthy discussion came to the conclusion that Triple Talaq is not an
essential religious practice but minority bench found this practice to be an essential religious
practice.
 Under Article 25 of the Constitution the state cannot take away the essential religious practice of a
person. Therefore, if a practice which is arbitrary and not an essential religious practice it will be hit
by the exception laid down u/a 25. Therefore, the whole issue was whether or not the practice is an
essential religious practice of Islam
 Therefore, as per majority it was held that the Triple Talaqor Talaq-e-biddatis not protected by the
exception laid down in Article 25 i.e. the court found the said practice not an essential element of
Islamic religion. The court justified its point of view in the sense that although it is practiced by the
Hanafi School but it is considered sinful in it.
 Article 25 in it carries the right of every person to freely practice and propagate any religion of
choice and such practice is only restricted in the context of the following exceptions:
a) Public Order
b) Health
c) Morality
d) Other Provisions of Part III of the Constitution
 Although the said practice has no relevance to the first three exceptions but the said practice is surely
against other provisions of Part III namely Article 14. The said practice is in violation of the
Fundamental Right of equality since it is against the rights of women as they have no say in the
declaration of divorce unlike in other religions.
 Essential religious practices are those on which the religion is founded upon. Essential religious are
those which are fundamental to the profession and propagation of the religion. If taking away of a
practice causes a substantial change in the religion then such practice can be called as ‘an essential
religious practice.’ Only such practices are protected in Article 25(1).
Article 29 and 30
27. Re Kerala Education Bill
 The Supreme Court opined that while it is easy to say that minority means a community which is
numerically less than 50 per cent.
 The Court has ruled that a minority has to be determined, in relation to the particular legislation
which is sought to be impugned. If it is a state law, the minorities have to be determined in relation to
the state population.
 Supreme Court has observed: "The right conferred on the religious and linguistic minorities to
administer educational institutions of their choice is not an absolute right". It has to be read with
regulatory power of the state. Regulations which do not affect the substance of the guaranteed rights,
but ensure the excellence of the institutions and its proper functioning in matters educational, are
permissible.
 The right to administer cannot obviously include the right to maladminister. The minority cannot
surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings.
 The right conferred on minorities to establish education institutions of their choice doesn’t mandate
that religious minorities need to establish schools that impart teaching of their religion, or linguistic
minorities schools that teach their language.
 It leaves the choice up to the minorities to determine what kind of schools they need in order to
preserve their religion, language, or culture, and in order to give a thorough general education to
their children.
 Establishment can also involve recognition and affiliation of an educational institution. Affiliation
and recognition cannot be denied or subjected to conditions that would rob the minorities’ right
under Art. 30(1) of its substance.
 An institution established by a minority and receiving aid from the state would not lose its minority
character by admitting members of any other community.
 The right conferred on religious and linguistic minorities to administer educational institutions of
their choice, though couched in absolute terms, is not free from regulation.
28. D.A.V.college vs. State of Punjab 1971
 The Arya Samaj is a reformist movement, believes in one God and in the Vedas as. the books of true
knowledge, It has a distinct Organisation the membership of which is open to all those who subscribe
to its aims and objects.
 The Dayanand Anglo Vedic College Trust, formed to perpetuate the memory of the founder of the
Arya Samaj runs various institutions in the Country. The petitioners-colleges managed and
administered by the Trust and the Managing Society were, before the Punjab Reorganisation Act,
affi- liated to the Punjab University constituted under East Punjab Act 7 of 1947.
 In exercise of the powers conferred by s. 5 the first respondent specified the districts in the State of
Punjab over which the University was to exercise its power and notified the date on which the
 colleges in the areas so specified ceased to be affiliated to the Punjab University and were to be
associated with and admitted to the privileges of the new university.
 In petitions filed under Art. 32 of the Constitution it was contended that the main object of the Act
was to propagate Sikh religion and to promote Punjabi language in Gurumukhi script and that since
the petitioners institutions belonged to a minority based on religion and language their compulsory
affiliation violated Arts. 29(1) and 30(1) of the Constitution.
 A reading of Arts. 29(1) and 30(1)would lead to the conclusion that a religious or linguistic minority
has a right to establish and administer educational institutions of its choice for effectively conserving
its distinctive language script or culture subject to the regulatory power of the State and cl. (2) of Art.
29. While this is so, these two articles are not inter-linked nor does it permit of their being always
read together.
 Religious or linguistic minorities are to be determined only in relation to the particular legislation
which is sought to be impugned; if it is State Legislature these minorities have to be determined in
relation to the population of the State.
 linguistic minority for the purpose of Art 30(1) is one which must at least have a separate spoken
language; it is not necessary that the language should also have distinct script.’
Principles
 A 29 and 30 are not interlinked and are mutually exclusive.
 Religious or linguistic minorities are to be determined only in relation to the particular legislation
which is sought to be impugned
29. Saint Xavier College vs. State of Gujrat
 Gujarat University imposed following conditions on every college affiliated to university
a) One nominee in governing body by vice chancellor of university
b) If college takes any action against any teacher, suspend or remove, no such action can be taken
by any member of staff except for approval of vice chancellor
c) If any dispute arises between the management of college and teaching staff such dispute shall be
referred to arbitration and the adjudicator will be the nominee of vice chancellor
 Court held that these provisions are inapplicable to a minority institute rights. However minority
institutes under Article 30(1) were not free from regulation and regulatory measures necessary to
ensure orderly, efficient and sound administration. The court decided that the minority
institute possess the following rights:
a) Right to choose the personnel of the 0 Right to choose the personnel of the members of
Governing Body
b) Right to admit students of their choice 0 Right to appoint teachers
c) Right to take disciplinary action against the staff and students
d) Right to use property and assets for the benefit of the institution.
 The court also held that minority institutes are subject to the following:
 a) Regulations relating discipline, health, sanitation, morality, public order, observance of labour
standards, syllabi, courses of study, qualification of teachers are permissible as they promote the
excellence of the institution.
b) Minority institutions can also be required to follow general laws relating to contract, industrial
laws, norms of natural justice and norms of fair employment.
 Court also held that no regulations could be imposed on minority institutions on grounds of national
interest.
30. Mohini Jain v Karnataka (1992)
 In this case, a resident of Uttar Pradesh state challenged a notification issued by the Karnataka
government that permitted private medical colleges to charge higher fees to students who were not
allocated 'government seats'. The Supreme Court of India held that the charging of a ‘capitation fee’
by the private educational institutions violated the right to education, as implied from the right to life
and human dignity, and the right to equal protection of the law. In the absence of an express
constitutional right, the Court interpreted a right to education as a necessary condition for fulfilment
of the right to life under Article 21 of the Indian Constitution. In addition, the Court held that private
institutions, acting as agents of the State, have a duty to ensure equal access to, and non-
discrimination the delivery of, higher education.
31. Unni Krishnan J.P & ors. vs. State of Andhra Pradesh & ors., 1993
Facts
 The case comes into subsistence through petitions filed by the private educational institutions to
challenge the state laws. These state laws were enacted to regulate the capitation fee charges in the
states of Tamilnadu, Karnataka, Andhra Pradesh and Maharashtra. Some educational institutions in
those states have resisted and challenged the same before the Apex Court. It also served as the
platform to question the precedent established in this concern, Mohini Jain v. State of Karnataka.
Moreover, the ambit of Article 21 of Constitution of India is discussed with its extension to the right
to Education. The important question posed before the Court is whether the right to education under
Article 21 extends to adult professional education.
 Judgement
 Part III and Part IV are not mutually exclusive but are complementary to each other and thus any
directive state policy can be converted to a fundamental right of a citizen.
 Only exception to not approach the court is that the denial of the right to life and liberty is supported
by a just and fair piece of legislation.
 education has to be interpreted and incorporated into life, it has to be interpreted with the directive
principles. The court has taken a view that there must be harmonious interpretation of the
fundamental rights vis-à-vis the directive principles of state policy.
 The right to establish an institution is allowed under Article 19(1)(g) of the Constitution of India but
it cannot be equated with right to form education institutions by religious and linguistic minorities as
 it is special right conferred on minority citizens which is in pursuance of providing security and
confidence to them in this society. It is based on the doctrine of Tolerance and Catholicity of
outlook.
 The nature of the duty of the educational institutions is discussed by analyzing Article 226 of the
Constitution of India and held that these educational institutions discharge public duties irrespective
of institutions receiving aid or not.

32. TMA PAI FOUNDATION vs. State of Karnataka

 Held education is an occupation under Article 19(1)(g) of constitution
 Under article 26 every religious denomination has the right to establish educational institution since
education is a charitable organization
 Minority has an additional right under Article 30(1) to establish an educational institution of their
choice
 Unaided private schools (minority or not) cannot be compelled to follow reservation policy of the
state
 Unaided institute can have any reasonable fee structure and state cannot interfere with it
 Defined Minority Minorities would constitute numerically less than 50% of the population of a State.
Minority to be determined on basis of population in a state and not whole of nation
 Regulations can be framed in national interest and such regulations should equally apply to minority
institutions.
 Pai Foundation has held that minority unaided institutions can legitimately claim unfettered
fundamental right to choose the students to be allowed admissions and the procedure therefor subject
to its being fair, transparent and non-exploitative. The same principle applies to non-minority
unaided institutions.
Riqhts of Unaided Minoritv Institutes:
 These institutions may have their own admission procedure but such method or procedure should not
tantamount to maladministration.
 Such institutions have right to admit students without interference of the State so long as it is on
transparent basis and merit is adequately taken care of.
 In such institutions regulations are permissible only for ensuring educational standards and
maintenance of academic excellence. Qualifications may be prescribed for appointment of teachers.
 Such institutions have to comply with the conditions of recognition and affiliation State cannot
interfere in appointment of teachers and other staff. However, a rational procedure should be adopted
for selecting teachers by the management itself. There cannot be any external controlling agency in
this matter as they pertain to the autonomy of the minority institution.
 For redressing the grievances of employees in case of punishment or termination of services a
tribunal has to be evolved to be presided over by a judicial officer of the rank of District Judge.
  These institutions can have their own reasonable fee structure, Fees to be charged by an unaided
minority institution cannot be interfered with by the State but capitation fee cannot be charged’
Rights of Aided Minority Colleges:
 Such institutions can admit minority students as well a reasonable number of non-minority students
for balancing the rights under Article 30(1) and 29(2).
 The State government shall notify the percentage of non-minority students to be admitted. lnter-se
merit amongst the applicants belonging to minority groups should be ensured. Common Entrance
Test (CET) by State agency for both minority and non~minority students for admission to
professional Colleges should be held.
 Regulations governing service conditions of teachers and other staff can be framed by the State but
without interfering with overall administrative control of management of the minority over the staff.
 Appropriate Tribunal to be presided over by a Judicial Officer of the rank of District Judge for
deciding disputed between management and employees should be established.
 AH citizens have right to establish and administer educational institutions under Article 19(1) (9) and
26 (a) subject to conditions of Article 19(6) and 26 but the minorities have additional right under
Article 30(1).
 Not Good law- Article 15(5) (Inserted by 93rd Amendment) State by law can provide for reservation
in private (aided or unaided) institutions but minority unaided institute can refuse to provide
reservation
33. P.A. Inamdar & Ors vs State Of Maharashtra & Ors on 12 August, 2005
The Supreme Court in its judgement on August 12, 2005 ruled on the following issues in relation to minority
and non-minority unaided higher education institutions.
1) reservation policy,
2) admission policy,
3) fee structure,
4) regulation and control by the state and
5) the role of committees dealing iwth admission and fees,
Reservation Policy
 Neither the policy of reservation can be enforced by the State nor any quota or percentage of
admissions can be carved out to be appropriated by the State in a minority or non-minority unaided
educational institution.
 A limited reservation of seats, not exceeding 15%, in our opinion, may be made available to NRIs
depending on the discretion of the management subject to two conditions. First, such seats should be
utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the
merit should not be given a complete go-by
Admission Policy
  Upto the level of undergraduate education, the minority unaided educational institutions enjoy total
freedom.
 However, different considerations would apply for graduate and post-graduate level of education, as
also for technical and professional educational institutions. Such education cannot be imparted by
any institution unless recognized by or affiliated with any competent authority created by law
 Admission Procedure- fair, non-exploitative, Transparency and merit shall have to be assured. The
State can also provide a procedure of holding a common entrance test in the interest of securing fair
and merit-based admissions and preventing mal-administration.
Fee structure
 Every institution is free to devise its own fee structure subject to the limitation that there can be no
profiteering and no capitation fee can be charged directly or indirectly, or in any form.
 a provision for reasonable surplus can be made to enable future expansion. The relevant factors
which would go into determining the reasonability of a fee structure, in the opinion of majority (in
the judgement in the Islamic Academy Case) are:
(i) the infrastructure and facilities available,
(ii) the investments made,
(iii) salaries paid to the teachers and staff,
(iv) future plans for expansion and betterment of the institution etc.

Regulation and Control by state

 there cannot be interference in the day-to-day administration. The essential ingredients of the
management, including admission of students, recruiting of staff and the quantum of fee to be
charged, cannot be regulated.