CONSTITUTIONAL LAW

Waiver of Fundamental Rights

- In the U.S.A., a Fundamental Right can be waived [Boykin v Alabama,
- In Behram v State of Maharashtra. The court repudiated the doctrine of waiver, saying that the Fundamental
Rights were not put in the Constitution merely for individual benefit. These Rights were there as a matter of public
policy, and therefore, the doctrine of waiver could have no application in the case of Fundamental Rights.
ARTICLE 12- [STATE]
- 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
- The definition is not exhaustive but inclusive, which means that apart from those organs or bodies which have
been enumerated, others may also be covered by the expression State.’
- Structuralism: Structuralism, as a method of constitutional interpretation, attempts to derive constitutional rules
from the relationships and interactions between various constitutional structures or institutions.
- Functionalism: Functionalism, on the other hand, works on inductive method, developing the constitution and the
policies related to it through “case by case application of the independent normative values that the law ought to
promote.”
- Former believes Constitution as a document establishing various structures and its subsequent interaction with an
Individual,
- Later idealises Constitution as a living document thereby stressing more on idea of justice, efficiency and efficacy,
- Local Authorities: The expression as defined in Sec 3 of the General Clauses Act refers to authorities like
Municipalities, District Boards, Panchayats, etc. Rashid Ahmed vs. Municipal Board, Kairana 1950 AIR 163 is
one of the early cases in which a municipality was held to be a local authority under Article 12.
- In Union of India v RC Jain 1981 AIR 951, certain tests were laid down to determine which all authorities can
fall under the head of “local authorities”:
It has a separate legal existence;
It functions in a defined area;
Has the power to raise funds on its own;
It enjoys autonomy(self-rule); and
It is entrusted by statute with functions which are usually entrusted to municipalities.
- Other Authorities: The expression other authorities in Art. 12 are used after mentioning the executive and
legislature of Union and States, and all local authorities. Article 12 encompasses all other authorities which do
not fall into the first three categories.
- Restrictive Interpretation: In University of Madras v Shantha Bai AIR 1954 Mad. 67, the Madras Court formulated
the principle of “ejusdem generis” which meant that all things of like nature are included in that this and this also
means that bodies exercising governmental or sovereign function would only be covered under other authorities.
(girl student case). The High Court gave the decision in her favor and held that the directions given by the
university were in contravention to her fundamental rights. It was discriminatory on the ground of sex. Against
the decision of the High Court, an appeal was made by the University in the Supreme Court. The Supreme Court
held that the University of Madras is not a state within the meaning of state given in Article 12 of the Constitution
and that its regulations are not in violation of enacted in Article 15(1) as it was not discriminatory on the ground
of sex.
- Liberal Interpretation- In Ujjam Bai vs. State of UP 1962 AIR 1621, the Court rejected the principle given in the
University of Madras’s case which is ejusdem generis. The Supreme Court rejected the restrictive interpretation
of “other authorities” and held ejusdem generis to be inapplicable. The court observed that to apply the ejusdem
generis rule, there should be a different category to the heads running through the bodies already specifies. In
Article 12, the bodies have no common genus. In Electricity Board, Rajasthan v Mohan Lai (AIR 1967 SC 1857)
and Sukhdev Singh v Bhagatram (AIR 1975 SC 1331), a very restrictive interpretation of the expression ‘other
authorities’ given by court - only the authorities created by the Constitution or Statute are the ‘other authorities’,
though it is not necessary that statutory authority should be engaged in performing governmental or sovereign
functions. Thus, the Rajasthan Electricity Board, Oil & Natural Gas Commission (ONGC), Life Insurance
Corporation, Industrial Finance Corporation, etc., are held to be 'other authorities’.
- Sabhajit Tiwari Vs Union of India (1975): The question raised, in this case, was whether the Council of Industrial
and Scientific Research (CSIR) which was only registered in Societies Registration Act, 1898 would come within
the definition of “State” under Article 12. It was held that the said body was not a ‘state’ as it was registered under
a statute and not performing essential state functions and was not functioning under the pervasive control of the
government. In Sukhdev Singh’s case, the court held that the corporation was a state as they were created by a
statute and performing important state functions and had pervasive control of the government.
 - Ramana Dayaram Shetty Vs. The International Airport Authority of India (1979):
1) financial resources of the State are the chief funding source
2) existence of deep and pervasive State control
3) functional character being governmental in essence
4) if a department of government is transferred to a corporation.
5) whether the corporation enjoys monopoly status which is State conferred or State protected.
6) Not conclusive test but illustrative
7) The Supreme Court held that the International Airport Authorities were undoubtedly an instrumentality or
agency of the Central Government and falls within the definition of ‘State’ under Article 12.
- Recent Expansion of the Term ‘State’ by Judiciary: Leading Case: Som Prakash Rekhi v Union of India: Supreme
Court held that the Bharat Petroleum Corporation, though a Government Company registered under the
Companies Act, by virtue of the various provisions of the 1976 Act, was transformed into an instrumentality of
the Central Government with a strong statutory flavour super added and clear indicia of power to make it an
"authority’' falling under the expression 'State' in Art. 12. The expression ‘other authorities” in Art. 12 would
include not only a statutory body but also a non-statutory body like a Government Company if it was found that
the body or authority was an agency or instrumentality of the Government.
- The Court, through its different cases, has adjudged that BCCI is not a state.

ARTICLE 13 [LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS]

- The word judicial review was summarized in Marbury V. Madison,
- Under Article 13(2) of the Constitution of India, any law made by the parliament that abridges the right conferred
to the people under Part 3 of the constitution is void ab initio.\
- The ordinances promulgated by the President under Art. 123 or by the Governor under Art. 213 must also not be
inconsistent with the fundamental rights.
- Importance:
1) Judicial review is necessary to uphold the principle of supremacy of the Constitution.
2) The provision of judicial review prevents the misuse of power by the legislature and executive.
3) It maintains the equilibrium between the centre and state, thereby maintaining federal equilibrium.
4) The provision protects the fundamental rights of the citizens.
5) This provision ensures the principle of the independence of the judiciary.
- SCOPE OF JUDICIAL REVIEW
1) The said law infringes upon the fundamental rights guaranteed by the Constitution.
2) The said law goes against the provisions listed in the constitution.
3) The law that has been enacted goes beyond the competency of the authority that has framed it.
- Judicial review of: constitutional amendments. of legislation by the parliament and state legislatures expands to
subordinate legislation. of administrative actions of the union and state expanding up to authorities under the state.
- No retrospective effect - Every pre-constitutional law must, after the commencement of the Constitution, conform
to the provisions of Part III.
- All inconsistent existing laws become void only after the commencement of the Constitution. They are not void
ab initio. A declaration of invalidity by the Courts will be necessary to make the laws invalid.
- In Keshavan Madhava Menon v State of Bombay (AIR 1951 SC 128) – (Indian press act case): It was held that
there is no fundamental right that a person shall not be prosecuted and punished for an offence committed before
the Constitution came into force. The Constitution is to be interpreted according to its language and not according
to any supposed spirit of the Constitution. The law became void not in toto or for all purposes or for all times or
for all persons but only “to the extent of such inconsistency,”
- In Mithu v State of Punjab (1983) - As per Section 303, if a person undergoing life imprisonment committed
murder, they would mandatorily be sentenced to death.
 - Doctrine of Severability or Separability: When a part of the statute is declared unconstitutional, then a question
arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be
declared void. A.K. Gopalan v. State of Madras: The impugned Act minus this section can remain unaffected.
The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore,
the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act. State of Bombay v FN
Balsara: If valid and invalid parts are inextricably mixed, declaring the whole Act void. The primary test is
whether what remains is so inextricably mixed with the part declared invalid that what remains cannot survive
independently. Leading Case: In R.M.D.C v Union of India (AIR 1957 SC 628): Sec 2(d) of the Prize Competition
Act; competitions involving skill.; If valid and invalid parts are separate, the code remains upheld after removing
the invalid portion. If valid and invalid parts are inextricably mixed, declaring the whole Act void avoids judicial
legislation. When valid and invalid parts are independent, but the remaining statute is substantially different, the
Act fails.
- Doctrine of Eclipse: This doctrine is based on the principle that a law that violates fundamental rights is not nullity
or void ab initio but becomes only unenforceable, i.e., remains in a morbid condition. Leading Case: In Bhikaji
Narain Dhakras v State of MP (AIR 1957 SC 628) - Held that the effect of the amendment was to remove the
shadow and to make the impugned Act free from all blemish or infirmity... thus making it enforceable. The
doctrine of eclipse is applied in relation to a pre-Constitution law, which was valid when it was enacted. In Deep
Chand v. State of UP AIR 1959 648, the SC held that: A post-constitutional law made under Art 13(2) which
contravenes a fundamental right is nullity from its inception and a still-born law. It is void ab initio. The doctrine
of eclipse does not apply to post-constitutional laws and, therefore, a subsequent constitutional amendment cannot
revive it.
- Personal laws and Article 13: Leading Case: State of Bombay v. Narasu Appa Mali: personal laws were not “laws
in force” as defined by Article 13 of the Constitution.; Thus, personal laws were held to be immune from
constitutional challenge.; Courts have adopted the “non-interference approach”.
- later cases such as Mary Roy v. State of Kerala, 1986 and Danial Latifi v. UOI, 2001 etc., the courts have followed
the “scrutinizing approach”, and tested the personal laws on the touchstone of Fundamental Rights.
- Krishna Singh v. Mathura Ahir: Court adopted non-intervention approach
- Divergence in approach: C Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil: Right to
property of a Hindu female” Personal laws are derived not from the Constitution but from the religious scriptures.
The laws thus derived must be consistent with the Constitution least they became void under Article 13 if they
violated fundamental rights. Right to equality is a fundamental right” Shayara Bano v. Union of India (2017):
Practice of instantaneous triple talaq challenged. Triple Talaq was held unconstitutional. Sabarimala Judgement -
Indian Young Lawyers Association and others v. State of Kerala and others (2017). Held exclusion of women
based on custom, as unconstitutional.
ARTICLE 14 [EQUALITY BEFORE LAW]
- “The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.’’
- While “equality before law" is negative concept implying the absence of any special privilege in favour of
individuals and the equal subject of all classes to the ordinary law.
- “Equal protection of law" is a more positive concept implying equality of treatment in equal circumstances. All
persons who are in the same circumstances will be governed by the same rules. The rule is that like should be
treated alike and not that unlike should be treated alike.
- In State of W.B. v Anwar Ali Sarkar: it is difficult to imagine a situation in which violation of equal protection
of laws will not be the violation of the equality before law. Thus, in substance the two expressions mean one and
the same thing.
- In Re Special Courts Bill, 1978: "The underlying principle of the guarantee of Art. 14 was that all persons
similarly circumstanced should be treated alike both in privileges conferred and liabilities j imposed.”
- Exception of 14: The words “any person” in Art. 14 is available to any person, which includes any Company or
association, etc. However, an alien (foreign national) cannot claim equal rights (under Art. 14) with that of an
Indian national in relation: to the grant of Indian citizenship. Under Art. 359, when the proclamation of emergency
1 Art. 361 provides that President and Governors shall not be answerable to any; also enjoy immunity from
criminal and civil proceedings Members of Parliament and State legislatures are not liable.

- Article 14 permits Reasonable Classification but prohibits Class Legislation. Article 14 does not mean that
all laws must be general in character. The State can treat different persons differently if circumstances justify 1
such treatment. In fact, identical treatment in unequal circumstances would amount to inequality. By the process
of classification, the State had the power of determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular subject. Classification meant segregation in classes
which had a systematic relation, usually found in common properties and characteristics. It postulated a rational
basis and did not mean herding together of certain persons and classes arbitrarily [Re Special Courts Bill, 1978
 AIR 1979 SC 478]. Class legislation is that which makes an improper discrimination by conferring particular
privileges upon a class of persons arbitrarily selected. And no reasonable distinction can be found justifying the
inclusion of one and exclusion of other from such privilege. The classification must not be “arbitrary, artificial
or evasive”, and it must fulfil following two conditions - it must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of the group, and the differentia must
have a rational relation to the object sought to be achieved by the Act. Various decisions have established
important guidelines or principles which further clarify the “scope of permissible classification”: Special
Circumstances Exception: A law can be constitutional even if it applies to a single individual treated as a unique
class. Presumption of Constitutionality: Courts presume statutes are constitutional, but this presumption can be
rebutted if there’s no valid classification. Common Knowledge and Historical Context: Courts consider
common knowledge and historical context when assessing constitutionality. Legislative Understanding:
Legislatures are presumed to understand the needs of their people when making classifications. Degrees of Harm:
Legislatures can restrict based on varying degrees of harm, focusing on the clearest cases. Inequality and
Classification: Mere inequality doesn’t determine constitutionality; classification inherently implies inequality.
Scientific Perfection Not Required: Legislative classifications needn’t be scientifically perfect; equal treatment
≠ identical treatment. Common-Sense Judgment: Reasonableness is judged more by common sense than legal
subtleties. Selective Application: Statutes allowing discretion to administrators aren’t necessarily discriminatory.
Violation of Art. 14: Legislation violating constitutional provisions cannot be upheld. Reasonable Classification:
Classification must be reasonable both substantively and procedurally .
- Chiranjit lal chaudhary V UOl (AIR 1950 SC 41): the Apex Court said that a law may be constitutional even
though it applies to a single individual. While the traditional concept of equality is based on the doctrine of
classification, the new concept is based on the doctrine of arbitrariness. In E.P Royappa, held that equality is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and
doctrinaire limits. From a positivistic point of view, Equality and arbitrariness are sworn enemies Where an act
is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is
therefore violative of Art. 14.
- In Maneka Gandhi case, the court observed that principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness, pervades Art. 14 like a brooding
omnipresence. Art 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment Where
an act is arbitrary, it is implicit in it that it is unequal and so violative of Art. 14 The conclusion is that if the
action of State is arbitrary, it cannot be justified even on the basis of doctrine of classification.
- In RD Shetty v. International Airport Authority (1979) case, the court observed that the doctrine of classification
is merely a judicial formula for determining whether the legislative or executive action is arbitrary and so
constitutes a denial of equality.
- The new concept of equality has been criticized by HM Seervai as illogical, inadequate and unnecessary. In
consonance with these established principles, Article 14 aims at preventing arbitrary state action on both the
administrative and legislative levels as held in the Charan Lal Sahu v. Union of India case. Arbitrariness or
unreasonableness has become the yardstick with which legislative actions are compared. The test involves
analyzing for any identifiable principle that is applied in the impugned action and if yes, to check if it complies
with the test of reasonableness. Further, not complying with the principles of natural justice also amounts to
arbitrariness and is a violation of Article 14 of the Constitution. Through this doctrine, the rationality of the
legislation is proved. Individuals are equal, but the same should include a sense of rationality amidst the moral
principle. Any exception to equality is permissible only if the state has reasonable grounds to treat individuals
differently. Thus, the reason behind any state action must be analyzed and considered to understand the rationality
behind the action. In the event of arbitrary action, the action must lack rationality which violates Article 14.

ARTICLE 15 [PROHIBITION OF DISCRIMINATION AGAINST CITIZENS on grounds of religion, race, caste,

sex or place of birth.—]
- if a discriminatory action does not fall within the purview of Art. 15 (or Art. 16), it may yet be avoided if it is
obnoxious to Art. 14, which has a wider coverage.
- Only to citizens
- 15(1): The prohibition is against the State but not against private persons. Discrimination only on the grounds
provided.
- 3 issues: meaning of discrimination: Kathi Ranning Rawat v. State of Saurashtra: Discrimination means adverse
distinction, unfavourable bias. “only”: List is exhaustive and not indicative. grounds of discrimination: provided
- 15(2): access to shops, public restaurants, hotels and places of Public entertainment; or (b) the use of wells, tanks,
bathing ghats, reads and Places of public resort. It’s to be noted that while clause (1) prohibits discrimination by
State, clause (2) includes Private persons also from making any discrimination
 - 15(3): “Nothing in this article shall prevent the State from making any special provision for women and children”.
Supreme Court has upheld the validity of Sec. 497 of the Indian Penal Code under which a man is punishable for
adultery but not a woman (Yusuf v State of Bombay AIR 1954 SC 321); a woman is considered victim in such
cases. It may be noted that under clause (3), special provisions can be made in favour of and not against women.
- RESERVATION: Reservation is a democratic principle which provides representation to the unrepresented/
under privileged. Need? Who? Solution or problem? Implementation issues?
- Equal opportunity, group equality, rectification of past injustice.
- Types: Vertical Reservation; favour of BC. Horizontal; for women
- 15(4): Advancement of SEBC (added by 1st) who? Limit? “Special provisions for advancement" is of wide
import and not necessarily confined to reservation of seats in educational institutions. Balaji v State of
Mysore; special and not exclusive provisions for backward classes Clause (4) is only an enabling provision and
does not impose any obligation on the State. Caste not sole factor; social and educational backward. R.
Chitralekha v State of Mysore; basis of economic conditions and occupations. Triloki Nath v State of J&K;
struck down a government order reserving 50% of the vacancies for the Muslims of Kashmir, 40% for the Jammu
Hindus and 10% for the Kashmiri Hindus with the observation that backward class was not synonym of backward
caste or backward community. State of U.P. v Pradeep Tandon; reservation for hill, rural areas reservation
invalidated. Indra Sawhney v Union of India; caste can be an important or even the sole factor in determining
the social backwardness and that poverty alone cannot be such a criterion, SC, ST, OBC.
- 15(5): 93rd, SEBC & Educational institutions.
- 15(6): EWS
ARTICLE 16- [EQUALITY, PUBLIC EMPLOYMENT]
- guarantee against discrimination is limited to employment and appointment’ under the State.
- seven prohibited grounds (viz. religion, race, caste, sex, descent, place of birth or residence).
- Clauses (1) and (2) of Art 16 guarantee equality of opportunity to all citizens in the matter of appointment to any
office or any other employment under the State. It covers not only initial appointment but also promotion age of
superannuation, seniority, etc. [U.RS.C. v Girish Jayantilal Vagheia (2006)
- equality between members of the same class of employees and not equality between members of separate classes.
- Randhir Singh v Union of India; 'equal pay for equal work’
- 16(3) & (4): exception to (1) & (2). Kailash Chandra Sharma v State of Rajasthan; employment to the residents
of a particular district on a preferential basis is violative of Art. 16. 16(4): the class of citizens is backward, said
class is not adequately represented in service of the State.
- No Constitutional Duty on the State nor any Fundamental right to the Citizen- Indrasawhney case.
- 82nd: relaxation in reservations and promotions
- not cross the ceiling limit of 50%.
- Indra Sawhney v. Union of India (the Mandal Commission case): Article 16(4):
1. Article 16(4):
o Not an exception but an instance of classification under Article 16(1).
o Exhaustive provision for special treatment for backward classes.
o No bar to classify backward classes into different categories.
2. Reservation Limit:
o Reservation should not exceed 50%.
o Exceptions allowed in extraordinary situations with valid justification.
o Reserved category candidates based on merit not counted against reserved quota.
3. Carry Forward of Vacancies:
o Allowed but should not breach the 50% rule.
4. Backwardness Criteria:
o Mainly social backwardness under Article 16(4).
o Not solely based on economic criterion.
o Occupation cum income can be considered without caste reference.
5. Identification of Backward Classes:
o Can be done with reference to castes and sections.
 6. Exclusion of Creamy Layer:
o Creamy layer (wealthier within backward class) excluded from benefits.
7. Promotions and Reservations:
o Article 16(4) does not allow reservation in promotions.
o Reservations confined to initial appointments only12
- 77th Amendment (1995): Inserted Article 16(4A) making reservation in promotion a fundamental right. Limited
application to Scheduled Castes (SCs) and Scheduled Tribes (STs).
Union of India v. Virpal Singh Chauhan (AIR 1996 SC 448): Issue: Reservation in promotions for SC/ST
candidates. Observation: Rapid promotion of juniors over seniors due to Article 16(4). Impact: Configuration
unintended by framers of the Constitution.
Ajit Singh Januja v. State of Punjab (AIR 1999 SC 3741): Catch-Up Rule: Introduced for senior general
candidates promoted after SC/ST candidates. Regains seniority over SC/ST candidates promoted earlier.
Accelerates promotion not consequential seniority
- 85th:
Amendment to Article 16 (4A): Substituted words: “promotion to any class” → “promotion with consequential
seniority.” Nullifies Mandal case decision against reservation in promotions.
Effect on Seniority: Reserved candidates’ seniority from promotion date. General candidates remain junior in
higher echelons to reserved candidates.
UOI v. Virpal Singh Chauhan (1995): Denied SC/STs benefit of consequential seniority.
Ajit Singh Juneja v. State of Punjab (AIR 1996 SC 1189): Rule of reservation accelerates promotion, not
seniority. ‘Catch-up rule’: Balancing rights of general and reserved candidates
- 81st amendment: Added a new clause (4-B) to Article 16 of the Indian Constitution. Aimed at addressing the 50%
ceiling on reservation for SC/STs and OBCs in backlog vacancies. Clause (4-B) allows separate treatment of
unfilled vacancies as a distinct class. These vacancies can be filled in succeeding years without being counted
against the 50% limit. Intended to prevent breach of the 50% rule due to carry forward of vacancies.
- M. Nagraj v Union of India: State can provide reservation but subject to limitations. Creamy layer principle exist.
- Ashok Kumar Thakur v. Union of India, 2008 The Supreme Court clarified that the creamy layer doctrine has
no relevance in SC/ST reservation.

ARTICLE 19- RIGHT TO FREEDOM

- 19. Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted by 44th Amendment Act 1978
(g) to practise any profession, or to carry on any occupation, trade or business
- 1st aspect of liberty
- liberty to express one's views, opinions, and beliefs.
- Anwar v. St. of JK: Only citizens
- Dharam Dutt v. UOI: Only natural persons; burden of proof on state to prove the restrictions are justified
- Romesh Thapper v. State of Madras: held that right to freedom of speech and expression lay the foundation of
all democratic organisation that is essential for the proper functioning of the government, however it also
involves the risk of abuse, hence reasonable restrictions on this freedom must be placed. In this case, it was also
held it also includes the freedom of circulation.
- Shreya Singhal v. Union of India has held that any law seeking to impose a restriction on the freedom of speech
can only muster if it is proximately related to any of the eight-subject matter set out in Article 19 (2).
- REASONABLE RESTRICTION: 19(2) for 19(1)(a):
Sovereignty and Integrity of India: This talks about the safeguard present to conserve the territorial integrity and
sovereignty of the State.
Security of the State: Romesh Thapper v. State of Madras, it has been held that the expression does not refer to
the ordinary breaches of public order which do not involve any danger to the State itself. In the case of State of
Bihar v. Shailabhai Devi, it has been held that incitement to commit violence via cognizable offense would
endanger the security of the State.
Friendly Relations with Foreign States
Public Order: added by 1st; absence of disorder involving breaches of local significance in contradistinction to
national upheavals such as revolution, civil strife, or war, affecting collective security of the state.
Decency or Morality: Decency is same as lack of obscenity.
Contempt of court
 Defamation: The clause (2) of Article 19 prevents any person from making any statement that defames the
reputation of another as the right to free speech is not absolute. a) The statement must be defamatory b)
Statement must refer to the plaintiff. c) The statement must be published by the defendant
Incitement to an Offense: prohibits a person from making any statement that incites people to commit offense.
In the case of State of Bihar v. Shailabhai Devi, it has been held that incitement to commit violence via
cognizable offense would endanger the security of the State.
- What is reasonable:
Reasonableness demands proportionality: limitations imposed on a person should not be arbitrary or excessive
in nature as held in Dwarka Prasad Laxmi Narain v. State of UP.
Reasonableness: both substantive and procedural: nature of restriction and procedure prescribed by statute for
enforcing the restriction on the individual freedom
Reasonableness is an objective concept: reasonableness of a restriction has to be determined in an objective
manner in the interest of general public.
Reasonable of restriction and not of law: The court has the duty to determine the reasonableness of restriction
and not of law since the law may be reasonable but the restriction may not be
Reasonableness of tax: mere excessiveness of tax is not a ground for challenging it as a restriction
Reasonableness restriction includes prohibition
Imposition of DPSP can call for reasonable restriction
- UOI v. Naveen Jindal: national flag case; Court found that flying the national flag was a symbol of expression
that came within the right to freedom of expression.
- Freedom of speech and expression also extends to freedom of the press as been held in several cases such as
Express Newspapers (P) Ltd. v. Union of India, Brij Bhushan v. State of Delhi, Virendra v, State of Punjab,
Sakal Papers (P) Ltd. v. Union of India, etc.
- SP Gupta v. Union of India: includes right to know
- Charan Singh v. Union of India, dramatic performance is a form of speech and expression.
- Riotous or disorderly assemblies are not protected under Article 19 (1) (b).
- FREEDOM OF PRESS: Indian Express Newspapers (Bombay) Pvt. Ltd. v. UOI, Freedom of Press is the crux
of social and political inter-course.
- Evolution of Freedom of Press in India: Romesh Thapar v. State of Madras, the executive was authorized by
law to impose ban on entry and circulation of the English Journal “Cross Road”. The same was held to be
violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of
little value”. In Indian Express Newspapers v. Union of India, it was held the courts have duty to uphold the
freedom of press and invalidate all laws and administrative actions that abridge that freedom.
- Freedom of Press includes the following: 1) Right to circulate 2) Right to dissent & portray social evils 3)
Right to portray historical events 4) Right to receive information 5) Right to expression beyond national
boundaries 6) Right of press to conduct interviews 7) Right of press to report court proceedings 8) Right to
Silence
- ELECTRONIC MEDIA: In Maneka Gandhi v. Union of India, the Supreme Court considered whether Article
19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of speech and
expression is not confined to National boundaries. So electronic media also has right to expression beyond
national boundaries under Article 19(1)(a) of Indian Constitution.
- SHREYA SINGHAL CASE:
- Pre-censorship on publication of news or views is considered to be violative of the freedom of speech and
expression of the writer. In the case of Virendra v. State of Punjab, Justice Das held that prevention of a
newspaper from publishing its views or that of its correspondents was a serious encroachment on the freedom of
speech. As was held in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers,
Bombay, a pre-publication ban, even under court injunction, needs a clear and imminent danger to the
administration of fair justice. In the case of Brij Bushan v State of Delhi, the Supreme Court upheld the of press
and held that pre-censorship violates the fundamental right of freedom of speech and expression.

ARTICLE 20- RIGHTS OF ACCUSED

- 20 (1). Ex post facto laws: Kedar Nath v. State of West Bengal; The Apex Court held that under Article 20, any
law cannot be applied retrospectively. State of Rajasthan v. Mohan Lal Here, the court held that Article 20
simply forbids punishment or conviction under an ex post facto statute, not the trial or prosecution and a trial
conducted using a different procedure than that which was in place at the time the act was committed is not
subject to the same restrictions and cannot be declared unconstitutional.
- 20 (2). Double Jeopardy: The right secured under this article stems from the maxin “nemo debet bis vexai”
which means that a man shall not be brought into danger for one and for the same offense more than once.
Maqbool Hussain v. State of Bombay Here, the accused was in possession of some lex loci gold at the time. The
customs officials seized his gold. When he was later charged with the crime and appeared in court, the issue of
 whether this amounted to double jeopardy was raised. The Court ruled that the Customs Authority's proceedings
are not comparable to those of any court or tribunal and thus Article 20 (2) was not applied here.
- 20 (3). Self-Incrimination: At all times, including during the trial stage, this protection is accessible against
physical and mental compulsion. Nandini Stpathy v. PL Dani; Here, the SC held that the accused has a right to
remain silent under Article 20 (3). Lie Detector Tests- In the case of Selvi v. State of Karnataka, the court has
stated that involuntary administration of scientific tests such as narco-analysis, polygraph examination and the
BEAP for the purpose of improving investigation is violative of Article 20 (3).ARTICLE 21- RIGHT TO LIFE
AND PERSONAL LIBERTY
- INTERPRETATION OF ARTICLE 21: Munn v. Illinois (1877); life more than animal existence. Francis Coralie
Mullin v. UT of Delhi; right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life. Ak Gopalan v. State of Madras; Apex Court for the first time held that the
expression "procedure established by law" means procedure of law made by the state, which meant that Article
21 was a protection only against the executive and not against the legislature. ADM Jabalpur v. Shivkant Shukla;
Article 21 was the sole repository of the right of life and personal liberty against its illegal deprivation by the
executive and if the enforcement of Article 21 was suspended by a presential order under Article 359, the court
could not enquire whether the executive action was authorised by law. Maneka Gandhi v. Union of India; the
principle of reasonableness, which is an essential part of Article 14, must also apply equal force to the "procedure"
contemplated by Article 21, i.e., the procedure must be fair and non-arbitrary. Further, it was held that Article 21
does not exclude Article 19 as well. Also held that its not a mere existence but includes right to life with dignity.
- RIGHT TO PRIVACY: right to be left alone and express selectively without being observed and disturbed.
Kharak Singh v. State of UP; right to privacy is a part of personal liberty, however, it is not mentioned in
constitution, and thus, it was not held to be a fundamental right. Gobind v. State of MP; accepted the Right to
Privacy to be emanating from Articles 19(a), (d) and 21, but did not consider it an absolute right. R. Rajagopal v.
State of TN; right to privacy is the right to be let alone and a citizen has a right to safeguard the privacy of his
own, his family, marriage, procreation, motherhood, child-bearing, and education among other matters. PUCL v.
UOI; right to privacy includes telephonic conversations and thus, telephonic tapping amounts to its violation. X
v. Hospital ‘Z’; HIV person does not have the right to privacy against the doctor not to disclose his status, thus, it
was held that the right of others to have a healthy life justifies the breach of right to privacy. Justice KS
Puttaswamy v. Union of India; right to privacy is an integral part of right to life under the ambit of Article 21,
thus, declaring the right to privacy as a constitutional right.
- EXTENDED VIEW OF RIGHT TO LIFE: Exclusion of right to die; Gian Kaur v. State of Punjab; right to live
with human dignity and the existence of life until natural death arrives. Aruna Shaunbagh v. Union of India;
passive euthanasia allowed, active euthanasia not. Common Cause v. UOI; right to die with dignity is FR and
prescribed guidelines for terminally ill people. Recognition of DPSP under A21; Other rights; as been held in
precedents; Right of prisoners: right of a detinue to send his book, written during detention, for publication was
recognised. Handcuffing of undertrials without adequate reasons in writing has also been found against Article
21. Right of inmates of protective homes; authorities have underlying duty to maintain protective and remand
homes for women and children. Right to Legal Aid; right to free legal aid at the cost of State to an accused who
cannot afford legal services for reasons of poverty, indigence, or incommunicado situation is part of fair, just, and
reasonable procedure under Article 21. Right to Speedy Trial; Husianara Khatoon v. State of Bihar. Right against
cruel and unusual punishment; Right to release and rehabilitation of bonded labour; Right to compensation; Right
to know; Right against custodial violence and death in police lock-ups and encounters.
- ARTICLE 21-A: The state shall provide free and compulsory education to all children of the age of six to 14
years in such manner as the State, may, by law, determine. 86th Amendment in 2002; In pursuance of this right,
parliament has enacted the Rights of Children to Free and Compulsory Education Act, 2009.
- PERSONAL LIBERTY: AK Gopalan case; Narrow interpretation; mere restriction of confinement of physical
body. Kharak Singh case; „personal liberty‟ under Article 21 of the Indian Constitution included not only mere
freedom from physical restraint but all other aspects of liberty not covered by Article 19 of the Indian Constitution.
Maneka Gandhi case; overruled AK Gopalan, wide interpretation; procedural safeguard must be fair and
reasonable.
- RIGHT TO TRAVEL ABROAD: part of personal liberty
- RIGHT TO LIVELIHOOD: RIGHT TO LIFE INSURANCE POLICY IS ALSO A PART OF RIGHT TO LIFE.
- RIGHT TO SHELTER: CHAMELI SINGH V. STATE OF UP RIGHT TO SHELTER- NECESSARY OF
LIVING A DIGNIFIED LIFE
- RIGHT TO HEALTH AND MEDICAL ASSISTANCE: REFUSAL TO PROVIDE MEDICAL AID ON
GROUNDS OF NON-AVAILABILITY OF BED- VIOLATION OF RIGHT TO LIFE (GOVERNMENT
HOSPITALS)
- RIGHT TO ENVIRONMENT
- RIGHT TO CHOOSE ONE’S LIFE PARTNER
- RIGHT TO HAVE SAME SEX RELATIONSHIP WITH CONSENTING ADULT
- BAN ON SMOKING AT PUBLIC PLACES
 - SEXUAL HARASSMENT AT WORKPLACE

ARTICLE 22- PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES-

- Knowledge of arrest; right to consult; lawyer of his choice (1); magistrate in 24 hrs (2); exception to (1) & (2),
enemy alien and detained under PD (3); PD for 3 months unless exceptions (4); other clauses
- INTERPRETATION: The idea behind this right is to prevent arbitrary arrests and detention; right of arrested
person; exceptions; certain safeguards; Mohd. Sukur Ali v. State of Assam, the court has held that no court
proceedings can take place without the accused's lawyer
- EXCEPTIONS: Clause 3 of Article 22; enemy aliens; person detained under PD
- CERTAIN SAFEGUARDS: Clause 4 to 7 of Article 22 deals with the provision related to preventive detention;
object of preventive detention is not to punish a man for having done something but to intercept him before he
does it and to eventually prevent him from doing it. In the case of Ak Roy v. Union of India, the court has held
that the safeguards provided under clause 4 to 7 of Article 22 do not exclude the safeguards provided under other
fundamental rights mentioned under Article 14, 19, and 21. Those safeguards are:

1) Review by Advisory Boards: A detinue under preventive detention is not detained after trial and conviction
of an offense by a competent court. To provide this safeguard against detention, Article 22 (4) mentions role
of Advisory Board to ensure this.
2) Grounds of detention and representation: Article 22 (5) mentions two rights of detinue, these are grounds and
representation. Durga Pada Ghosh v. State of WB, it has been held that the person has a right to be
communicated about the grounds of his arrest.
3) Procedure of Advisory Boards: powers have been given under clause 7 (c) to the parliament to prescribe the
procedure to be followed by an Advisory Boards to in an enquiry.
4) Post-Detention conditions: Primarily, it is for the legislature and the executive to lay down a detailed code in
respect of treatment of persons under preventive detention.

ARTICLE 25, 26, 27, 28- FREEDOM OF RELIGION

- SECULARISM – BASIC STRUCTURE: secular means non-communal, or non-sectarian, but it does not mean
non-religious. ‘no preference doctrine’;
- Art 25: freedon of a conscience and free profession, practice and propagation of religion.
- Art 26: Freedom to manage religious affairs
- Article 27: Freedom as to payment of taxes for promotion of any particular religion.
- Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
- Case law: Hasan Ali v. Mansoor Ali; Articles 25 and Article 26 not only prevents doctrines or beliefs of religion
but also the acts done in pursuance of religion. Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 954 SCR 1005 ruled that there is no doubt that religion finds
its basis in the system of doctrines regarded by those who profess that religion, but it will not be correct to say
religion is nothing but a doctrine or belief. SP Mittal v. Union of India, 1 1983 SCR (1) 729 the court held that
Religion need not be theistic.
- Dharma V Religion: A.S. Narayan v. State of Andhra Pradesh- religion used in the sense conveyed by the word
‘dharma’. religion is enriched by visionary methodology and theology, whereas dharma blooms in the realm of
direct experience.
- The National Anthem Case: Bijoe Emmanuel v. State of Kerala- jehovah’s witness, refused to sing national
anthem, stood respectfully in silence, expelled, held violative of their freedom of religion and art 19(1)(a)
- ARTISTIC FREEDOM: amesh v. Union of India- serial (Tamas) based on book, screened 4 ep, communal
violence (hindu-muslim) writ for restraining further screening, held no violation of 21 and 25
- MOSQUE NOT EQUAL TO ISLAM: ISMAIL FARUQI V UOI- petition challenging the validity of the
Acquisition of Certain Area at Ayodhya Act, 1993, by which the Centre acquired 67.703 acres of land in and
around the Babri Masjid. upheld the acquisition, saying “any step taken to arrest escalation of communal
tension… can, by no stretch of argumentation, be termed non-secular… or against the concept of secularism — a
creed of the Indian people embedded in the ethos.” (Mosque) is not an essential part of the practice of the religion
of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is
not prohibited by the provisions in the Constitution of India.
- N. Adithayan v. Travancore Devaswom Board (2002): person qualified to perform puja can be appointed as priest
despite his caste.
- RELIGION V LAW REFORM: Shayara Bano v. Union of India 2017- practice of Talaq-e-biddat is illegal and
unconstitutional
- ENVIRONMENT VS RELIGION: Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare
Association (2000), held that nowhere in any religion, it is mentioned that prayers should be performed through
the beating of drums or through voice amplifiers which disturbs the peace and tranquility of others. If there is any
such practice, it should be done without adversely affecting the rights of others as well as that of not being
disturbed in their activities.
- Shifting of property connected with religion: Gulam Abbas v. State of UP; The Supreme Court held that the
fundamental right guaranteed under Article 25 and 26 is not absolute and is subject to public order and if the court
is of the opinion that shifting of graves is in the interest of the public then the consent of the parties is irrelevant
even though the Muslim personal law is against shifting of graves.
- FREEDOM TO CONVERT: Digyadarsan Rajendra Ramdassji v. State of Andhra Pradesh 1970 AIR 181. “the
right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose
the tenets of that faith, but would not include the right to ‘convert’ another person to the former’s faith”
- Conversion process: 1. Individual or Convertor initiates religious conversion.
2. Submit advance declaration to District Magistrate (DM):
- Individual: 60 days notice
- Convertor: 1 month notice
3. DM conducts police enquiry into conversion intention.
4. Within 60 days of conversion:
- Converted person submits declaration to DM.
- Declaration includes name, address, old, and new religion.
5. DM exhibits declaration publicly.
6. Converted person confirms declaration within 21 days.
7. Violation results in illegal and void conversion.
- Shefali Jha (EPW) suggests that there were three different sets of views on secularism in the Constituent
Assembly:
No-concern theory of secularism, which separated religion and the state.
No links theory between the state and religion, to prevent the demeaning of religion.
The equal-respect theory of 'secularism' which respected all religions alike and granted religious liberty to all
- Kesavananda Bharati v. State of Kerala- "secular and federal character of the Constitution“ were among the
main ingredients of the basic structure enumerated there in.
- S.R. Bommai v. Union of India- Secularism is the basic structure of the constitution
- ERP TEST:
1. Essential Religious Practice:
o Protected under Article 25 if integral to a religion.
o Not applicable to secular or superstitious practices.
2. Two-Fold Approach:
o Religion determines essential practices from texts.
o Courts decide if a practice violates Fundamental Rights.
3. 1954 Case (Shirur Mutt):
o Challenge to Madras Hindu Religious Endowments Act.
o Freedom of religion covers belief and practice.
o Essential aspects determined by religion itself.
4. 1995 Case (Cow Slaughter):
o Bakri-Eid cow sacrifice not mandatory for Muslims.
5. Sabarimala Case (Entry of Women):
o Test used to assess barring women’s entry.
o Balances competing rights and interests.
6. Justice Indu Malhotra’s Dissent:
o Essentiality left to religious community’s determination.

- The three essentials of a “Religious Denomination” are as follows:

It is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual
well-being;
They have a common organisation.
Collection of these individuals has a distinct name. Examples: Krishna math, Anand marghis, maths, Vallabha
Ram Krishna mission, etc
It not only includes religious denomination but also a section thereof.
DPSP V. FR

- Kazi Syed Karimuddin: "That in the heading under Part IV the word "Directive' be deleted. My submission is
that, if this Constitution is not laying down these principles for being enforced in a court of law, or if they are not
binding on the State, they are meaningless.”
- The Sapru Committee in 1945 suggested two categories of individual rights. One being justiciable and the other
being non-justiciable rights. The justiciable rights, as we know, are the Fundamental rights, whereas the non-
justiciable ones are the Directive Principles of State Policy. DPSPs are ideals for state policies and laws. They
aim to establish economic and social democracy. Courts cannot enforce DPSPs directly. They serve as guidelines,
not binding provisions. DPSPs align with the Preamble’s vision for justice, equality, and fraternity. They guide
the state in achieving these constitutional goals.

- In the Champakam Dorairajan Case (1951), the Supreme Court ruled that Fundamental Rights prevail over
DPSPs in case of conflict, and Parliament can amend Fundamental Rights to implement DPSPs.
- Harmonious construction:
1. Re Kerala Education Bill (1957):
o Doctrine of Harmonious Construction: No inherent conflict between Fundamental Rights (FRs) and
DPSPs.
o Courts should harmonize both when interpreting laws.
o If only one interpretation leads to conflict, FRs prevail over DPSPs.
2. Golaknath Case (1967):
o Parliament cannot amend FRs to implement DPSPs.
o Result: 24th and 25th Amendments allowed abridgment of FRs.
o Article 31C inserted to protect socialistic DPSPs.
3. Keshavananda Bharati v. State of Kerala (1973):
o Parliament can amend Constitution but not destroy Basic Structure.
o Second clause of Article 31C declared unconstitutional.
o Judicial review power remains intact.
4. Minerva Mills v. UOI (1980):
o Article 31C protects only DPSPs in Articles 39(b) and 39©.
o Extension to all DPSPs ruled unconstitutional.
o Upheld FRs’ supremacy over DPSP

REMEDIES

- Writ: a formal order in writing

- Article 32 - Supreme Court
- Article 226 – High Court
- Article 32 was called "the very soul of the constitution and the very heart of it" by Dr. B R Ambedkar
 - Types of Writs- Habeas corpus (“you may have the body."), Mandamus ("We Command".) (Mandamus is an
order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within
its duty.), Prohibition (prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ
is issued when a lower court or a body tries to transgress the limits or powers vested in it.), Certiorari (Certiorari
means to be certified. The writ of certiorari is issued by the Supreme Court to some inferior court or tribunal to
transfer the matter to it or to some other superior authority for consideration.), Quo-warranto (The word Quo-
Warranto literally means “on what authority one is holding the public office")

AMENDABILITY

- Simple Majority- PRESENT AND VOTING

- Special Majority: Required for all constitutional amendments not listed under Simple Majority.
- Special Majority and Ratification by States
- Procedure for Amendment:
Bill introduced in any House of Parliament.
Passed by both Houses with Absolute + Special majority.
Presented to President for assent.
Constitution stands amended upon President’s assent.
Amendments under Article 368 require ratification by half of the States.
- Shankari Prasad v UOI (1951):
• Questioned if Fundamental Rights can be amended under Article 368.
• SC upheld First Amendment Act, 1951, stating constitutional amendments are not subject to Article 13(2).
- Sajjan Singh v State of Rajasthan (1965):
• Challenged 17th Amendment Act affecting powers under Article 226.
• SC affirmed Parliament's power to amend Fundamental Rights.
- I.C. Golaknath v State of Punjab (1971):
• Over 500 acres of land taken under Punjab Security and Land Tenure Act, 1953.
• SC ruled Parliament cannot amend Fundamental Rights (overruled previous judgments).
• Introduced Doctrine of Prospective Overruling (past decisions not affected by new ones)
- 24th Amendment Act, 1971: Explicitly stated Parliament's power to amend the Constitution and clarified Article
13’s inapplicability to constitutional amendments.
- Kesavananda Bharati v State of Kerala (1973): Overruled Golaknath case. Established Basic Structure doctrine:
Constitution can be amended but not its basic structure.
- Basic Structure Doctrine: Fundamental Rights, Separation of Powers, Rule of Law, Judicial Review, etc., form
part of the Basic Structure.
- Indira Nehru Gandhi v Raj Narayan (1975):
• Challenged 39th Amendment Act barring SC’s jurisdiction over election disputes involving top officials.
• SC struck down 39th Amendment as it violated Basic Structure (Rule of Law, Judicial Review, Free and
Fair Elections).
- 42nd Amendment Act, 1976:
• Clauses (4) and (5) added to Article 368 to remove limitations on Parliament’s amending power.
• Declared no amendment under Article 368 can be questioned in court.
- Minerva Mills Ltd & Others v UOI (1980):
• Reaffirmed Basic Structure Doctrine.
• Declared amendments cannot abrogate the Basic Structure
- Conclusion:
• Basic Structure Doctrine maintains Constitution's supremacy.
• Judicial review remains an essential feature, immune from amendments.