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Download the documents covers the constitutional law syllabus of rights of citizens and more Study notes Law in PDF only on Docsity! Constitution Module 3- fundamental rights Fundamental rights was developed from the west like several other ideas and concepts. The fundamental rights are claimed against the state, unlike the other rights which are created by the state and given to the individuals against one another. Hence, even if the constitution states them or not, it is generally assumed that the fundamental rights can be available only against the state or the government officials. Although there are some rights in the constitution which are expressly applicable to non-state action and some others are not expressly confined to state action. Article 12- 35 of the constitution provides the fundamental rights which are similar to the bill of rights available in the US constitution. But the former cover a much wider ground than the latter. Fundamental rights have dual aspects; one is that they confer certain rights which are justiciable to the citizens and can be used against the government and the other is that it imposes restrictions on the functions of the government. In the case PD Shamdasani V Central Bank Of India ltd., the petitioner sought the protection of the court in enforcing the rights given under article 19(1) (f) and 31 against the central bank of India. The court rejected it saying the structure of article 19 was such that it was intended to protect those freedoms against state action. Violation of right to property by individuals does not fall within the purview of this article. Fundamental rights may be violated directly or indirectly. The former case it’s violated by officials or agents and in the latter case, the rights may be violated by others either through its inaction or active connivance. The violation in the latter type is just as injurious as the former. In such situations the state cannot escape the responsibility or liability for the protection of fundamental rights on the appeal that they are actions of individuals and not the state. Due to this in several cases the courts have given relief to the petitioner without questioning if the violation of the fundamental right was carried out by the state or not. This development is consistent with the rise and evolution of rights and with the spirit of the Indian constitution. Most constitutions are adopting horizontal application of fundamental rights or the application to fellow individuals just as much as to the state. The fundamental rights are part of the basic structure and cannot be extinguished by any constitutional provision. However, during emergency some curtailment of the fundamental rights is allowed but it’s of a temporary nature. The fundamental rights have been provided under 7 categories in the Indian Constitution: 1. Right to equality- from article 14- 18, with article 14 being the most important. 2. Right to freedom- article 19- 22 3. Right against exploitation- article 23 and 24 4. Right to freedom of religion article 25 5. Cultural and educational rights- article 29 and 30 6. Right to property- which has now been diluted and provided as a constitutional right under article 30 (A), 31 (B), 31 (C) 7. Right to constitutional remedies- article 32- 35 The fundamental rights place a huge limitation on the government, thus achieving a proper balance between the rights of the individual and that of the state or society or between individual liberty and social control is the pressing issue that rises up in courts when interpreting these rights. Overall, though, one could argue that the line has been shifting in favour of the individual in non-economic subjects such as freedom of expression and the right to life, while the line has been consistently shifting in favour of societal control in economic matters. However, the most noticeable trend in the post-1977 era has been that a greater emphasis has been placed on the right to life and personal liberty, i.e., the freedom guaranteed by Article 21. Judicial interpretation has given Article 21 a new depth. The Court stated in Maneka Gandhi, the landmark case that started the process of expanding the scope of Article 21, that the court should attempt to expand the ambit of fundamental rights than reduce their value through a process of judicial construction. In Unni Krishnan V State of Andhra Pradesh the court stated that in order to treat a right as a fundamental right in not necessary for it to be defined in the constitution as a fundamental right. Political, social and economic development will lead to the rise of several new rights and laws thus, implied fundamental rights were also emphasised by the courts. The Supreme Court plays a very significant role when it comes to fundamental rights. First, the courts act as a protector and guardian of the rights. Second the court interprets he fundamental rights. Thus, the Supreme Court is the ‘sentinel on the qui vive’ of the fundamental rights. The state includes the government and parliament of India and the government and legislature of the states and all local or other authorities within the territory of India or under the control of the Indian government. Article 12 gives the definition of the term state and that it includes i. The government or parliament of India ii. The government or the state legislatures iii. Local authorities iv. Other authorities within the territory of India or under the control of the central government. The actions carried out by any of these authorities, which falls under the ambit of ‘state’ in article 12, can be challenged before the courts under article 13 (2) for the violation of fundamental rights. government could not order a quasi-judicial body to behave in a certain way in a specific situation before it. As a result, it concludes that no Fundamental Right may be asserted against a quasi-judicial organisation operating outside of India. Doctrine of eclipse The legal provision enacted in 1948, authorising the state government to exclude all private motor transport business because it became inconsistent with article 19 (1) (g) when the constitution came into effect on 1950. To permit the state government to monopolise any businesses, in 1951, article 19 (1) (g) was amended. In Bhikaji v. State of Madhya Pradesh, the Supreme Court established the theory of eclipse to address this issue. The doctrine of eclipse holds that a pre-Constitution law that violates a Fundamental Right was not completely erased from the statute book after the Constitution was enacted because it continued to apply to rights and obligations that had accrued before to the Constitution's date of enactment. As a result, the applicable Fundamental Right will be seen to have 'eclipsed' the relevant law for the time being. For the time being, it was in a dormant or moribund state. For all intents and purposes, such a statute was not dead. The consequence of amending the relevant Fundamental Right would be to "remove the shade and make the assailed Act free of all blemish or defect." The law would then be resurrected and enforced, and it would no longer be unconstitutional. The doctrine of eclipse is only applicable to pre- constitutional laws which were governed by 13(1) and not the laws made after the commencement of the constitution which were governed under article 13 (2). This is because pre- constitutional laws were valid when they were created, they became void when the constitution came into effect, and thus they were not void ab initio. A post-Constitutional law that infringes on a Fundamental Right is unlawful and void from the starticle As a result, it cannot be resurrected by a subsequent constitutional amendment that eliminates the flaw in the law-making process. Because the phraseology of Arts. 13(1) and 13(2) differs, the Supreme Court has made a distinction between them. If a legislation violates a Fundamental Right that is only applicable to citizens, it will apply to non-citizens as well, but it will not be revived qua-citizens simply by amending the Fundamental Right in question. Because Article 13(2) affects the legislature's ability to adopt laws impacting the people, the law will have to be re-enacted following the constitutional amendment if it is to be effective qua citizens as well. In the Shama Rao case an act was challenged on the ground of excessive delegation. The legislature passed an amendment act aiming to remove this defect. The Supreme Court ruled that if an act is considered bad because of excessive legislation then the act is void ab initio and cannot be revived by an amending act. The entire act must be re-enacted in a modified form. This ruling supports the proposition that an article held invalid under article 13 (2) could not be revived merely by amending it but will have to be re- enacted as a whole. This same proposition will apply when an act infringes a fundamental right which is applicable to only the citizens. Such a law will be regarded as still- born the citizens even though it may be operative qua the non- citizens, thus it will have to be re-enacted. In Hari Singh V Military Estate Officer Delhi, the Punjab premises act was declared void by the Supreme Court as it was inconsistent with article 14. A law was also made in 1958 by the parliament. In 1971, Parliament re-enacted its own legislation. A new clause was also included, stating that any orders issued under the old law would be considered legal and effective as if issued under the new law. This section was contested on the grounds that the 1958 Act was invalid, and that anything done under an unlawful Act could not be validated. The Supreme Court upheld the clause, calling it a fallacious argument because it ignored the crucial point that the 1971 Act went into effect retroactively from the date of the 1958 Act, and any action taken under the 1958 Act was deemed to have been taken under the 1971 Act, and the new Act was valid under Article Doctrine of severability According to article 13, law is considered only till the extend of the inconsistency in relation to the relevant fundamental right. This means that only a part of the act can be made void rather than the whole act itself and if that part is severable from the rest of the act, then the rest may continue to remain valid and the act will be considered as if the invalid portion does not exist. However, if it is not possible to separate the valid part from the invalid portion, then the whole of the statute will have to go. 1. The Legislature's intent is the deciding factor in whether the legitimate elements of a statute may be separated from the invalid parts. The question is whether the Legislature would have passed the valid parts of the statute if it had known the rest was invalid. "The severability test asks the Court to determine whether the legislature would have adopted the statute at all if the severed element was not part of it." It will be acceptable to consider the history of the legislation, its goal, the title, and the preamble to it in assessing the legislative intent on the matter of severability. 2. If the valid and invalid sections are so intricately intertwined that they cannot be separated, the invalidity of a portion of the Act must result in the Act's total invalidity. 3. However, if they are sufficiently distinct and separate that, after striking out the invalid, what remains can stand alone and be implemented—the component that remains is a full code in and of itself, independent of the rest—it will be upheld even if the remainder has become unenforceable. If the objective of the legislation does not get altered even after declaring a portion void, then that portion will be severed from the rest. 4. But even if the valid and invalid parts of a statute are independent and may not affect the entire scheme, what is left after omitting the invalid portion is so thin or does not contain any significant substance compared to the original statute, then the entirety of the law will be rejected. 5. If the portion remaining after severing the invalid portion has to still undergo modifications, then the whole statute will be struck down. This is because the court is not equipped to make alteration in the law in order to implement the remaining portion after expunging the invalid part; otherwise it would be judicial legislation. Between the Romesh Thappar v State of Madras case and the R.M.D.C. case, there is some contradiction. According to the Thappar case, an offending provision cannot be split up if it has the potential to be applied for purposes not sanctioned by the Constitution, but according to the R.M.D.C. case, such a provision is valid if it is severable in its application to an object that is clearly demarcated from other objects falling outside the constitutionally permissible limits. In Supdt. Central Prison v. Dr. Lohia, the Supreme Court acknowledged this aspect of the case, but left the question open. The Court, on the other hand, noted that in the R.M.D.C. case, the distinction between the two types of competitions, namely those that are gambling in character and those that are skill-based, was apparent and had long been recognised in legislative practise. But, whether the approach adopted in the Romesh Thappar or the R.M.D.C case is followed, when the difference between what is acceptable and what is not permissible is not very precise, the entire provision has to be ruled void. Amendments In the developing world social mores and ideals change quite frequently creating new problems in society. It is therefore, possible that the constitution drafted in a particular context and era will be considered inadequate in future generations. So the constitution needs to undergo amendments from time to time to accommodate the new circumstances, the mode of which could be formal or informal. Informal methods are judicial interpretations while formal method is the constituent process. Depending on their relevance and significance, different degrees of rigidity are attached to certain parts of the Constitution. As a result, the Constitution allows for the following three types of modifications to its provisions: (1) Simple legislative processes, such as those used to pass ordinary legislation in Parliament, can be used to change constitutional clauses of fairly minor importance. (2) Those provisions that are material and crucial are made reasonably stable because they can only be altered under the special majority rule set out in Article 368; (3)There are certain constitutional provisions relating to the federal character that can be described as "entrenched provisions," which require, in addition to passage of the amending Bill by a special majority in both Houses of Parliament, ratification by half of the State Legislatures, for their amendment. Article 368 also specifies this procedure. In India, the more complicated referendum or constitutional convention procedures have been eschewed. As a result, the drafters (2) A law enacted under Article 368, like any other law, would be subject to Article 13(2);94 (3) The term 'amend' implied only small changes to existing provisions, not large ones; (4) To modify the Fundamental Rights, Parliament should call a Constituent Assembly. Kesavananda Bharati In Kesavananda Bharati v. State of Kerala, the constitutional validity of both Amendments, namely XXIV and XXV, was challenged in the Supreme Court through an Article 32 writ- petition. The Court now holds that the ability to change the Constitution is rooted in Article 368 of the Constitution itself. The clauses relating to constitutional modification were underlined as being among the most significant characteristics of any modern constitution. The Court also acknowledged that there is a difference between ordinary and constitutional law. It was claimed that the framers of the Constitution did not use the term "law" in Article 13 to include "constitutional law." As a result, Article 368 grants the ability to abridge a Fundamental Right or any other right. Thereby overruling the Golak Nath case to this extent. Under Article 368, Kesavananda did not grant Parliament limitless modifying power. The amending power was now constrained to one very important condition: it could not be used to destroy or emasculate the Constitution's essential or fundamental features. Ultra vires is a constitutional amendment that violates the Constitution's core framework. In at least two key ways, the Kesavananda judgement is an improvement above the formulation in Golak Nath: There are several other portions of the Constitution that are just as vital, if not more significant, than the Fundamental Rights, but Golak Nath's formulation only included the Fundamental Rights and left out the rest. Kesavananda filled this void by asserting that the Constitution's 'fundamental' elements are unamendable. All Fundamental Rights were declared non-amendable by Golak Nath. This was a too strict formulation. In this regard, Kesavananda introduces considerable flexibility. Not all Fundamental Rights are to be considered non-amendable at the same time, but only those that can be described as forming fundamental rights. Even a Fundamental Right, according to Kesavananda, can be amended or changed if the Constitution's core framework is not harmed in any way. It is up to the Court to decide which Fundamental Right is to be recognised as a 'basic' element from case to case. The Fundamental Right to Property has been abrogated since the right to property has not been treated as such. 42nd amendment The Supreme Court's decision in the Indira Nehru Gandhi case, ruling Cl. 4 of the Thirty-ninth Amendment illegal, did not sit well with the Central Government. The government was particularly keen to ensure that the courts would never be able to declare a constitutional change illegal in the future. As a result, the Forty-Second Amendment, enacted in 1976, altered Article 368 once again. The Forty-Second Amendment was enacted to ensure that no constitutional amendment may be contested in court on any grounds. Two new clauses were introduced to Article 368.40 to achieve this goal. These sections were quite liberally phrased, and they were intended to make it obvious to the judiciary that Parliament's constituent power under Article 368 should be unrestricted in any way.  Clause 4 even went so far as to reinstate constitutional changes that had previously been declared unconstitutional by the Supreme Court, such as the second limb of Article 31C in Kesavananda and a few clauses of the Thirty-ninth Amendment in Indira Nehru Gandhi. Originally, Clause 4 allowed a constitutional amendment to be challenged on the grounds that it "has not been made in accordance with the Constitution." hoever, that part of the clause was dropped by the parliament and the next objective was that a constitutional amendment should not be challenged in any court. Module 1 What is constitution, introduction to constitution of India. Constitution refers to a document having a special legal sanctity which creates the legal framework and the principal functions of the organs of the government of a country and defines the principles governing the operation of those organs. Rule of Law Introduction Article 14-18 guarantees equality before law. Article 14 is the embodiment of the general principles of equality that everyone is equal before the law and is given equal protection before the law. Article 15, 16, 17 and 18 lay down the particular application of the general rules laid down in Article 14. Article 15 prohibits discrimination on the grounds of race, caste, sex or place of birth. Article 16 prohibits discrimination in places of employment, article 17 abolishes untouchability and article 18 abolishes title. Article 14 mentions ‘equality before the law’ and ‘equal protection of the law’ these two terms are coined to fulfil the concept of ‘equality of status’ as given in the preamble. The phrase ‘equality before the law’ is provided in every constitution which guarantees fundamental rights. Equality before the law is taken from the English constitution while equal protection of the law is derived from the American constitution. Equality before the law is a more negative concept implying there is no special privileges that would act in favour of an individual and people of all classes are subject to ordinary law. While equal protection of the law is a more positive concept implying equal treatment of all in equal circumstances. However, a dominant concept common to them is that of equal justice. Equality before law and rule of law: Equality before law is an aspect of what Dicey referred to as rule of law in England. The phrase "rule of law" has no definite or defined meaning, despite the fact that Indian courts use it frequently. The lack of any centre of unlimited or arbitrary power in the country is the focus of Rule of Law. Government involvement in many citizens' daily activities is increasing, posing the risk of state action being arbitrarily implemented. Because the main emphasis of Rule of Law is on excluding arbitrariness, lawlessness, and unreasonableness on the part of the government, it is useful as a reaction to this circumstance. Rule of law has 3 aspects as defined by Dicey:  Supremacy of law: this means that law is considered absolutely supreme rather than arbitrary power of the government. An individual can be punished for breach of law but cannot be punished for anything else.  Equality before the law: every individual irrespective of their rank or class is subjected to the ordinary law enforced by the ordinary courts of the state. No one is above the law with the sole exception being the monarch who can do no wrong. Thus, the state official has no privilege in Great Britain.  Constitution is the result of ordinary law: this means that the source defining the rights of the citizens is not the written constitution but the rules and principles enforced by the courts. The first and second aspects apply to the Indian system but third one doesn’t. The constitution is the supreme law of the land and the laws passed by the legislature must be consistent with the provisions of the constitution. Equal protection of the laws: this term is similar to the 14 th amendment given in the American constitution this has been interpreted to imply subjection to equal laws implying that the people in similar circumstances will be treated equally in terms of privileges conferred and liabilities imposed. Thus, the rule is that like should be treated alike not that unlike should be treated alike. The rule of law embodied in article 14 is the basic feature of the Indian constitution and thus, cannot be removed even by an amendment under article 368 of the constitution. Exceptions to the rule of law: equality before law does not mean that powers of ordinary citizens are same as the powers of public officials. This means that a police officer has the power to arrest while an ordinary citizen does not, however, this is not a violation of the rule of law. Nevertheless, rule of law requires for these powers to be defined by the law and an abuse of power by public officers must be punished in the same manner that illegal acts by private individuals are punished. equality before the law or the equal protection of the laws within the territory of India.” This article highlights two parts being: equality before the law and equal protection of the law. The first part which is equality before the law is a more negative aspect in the sense everyone is to be treated equally before the law and no special privileges will be awarded to anyone irrespective of their social position. It refers to equal subjection before the law. While equal protection of law is a more positive concept because it involves treating all equals must be treated in equal circumstances both in terms of privileges and liabilities imposed. It also includes providing reservations or other such options to some sections of the society to give equal opportunities. Landmark judgments: EP Royappa v state of Tamil nadu and another: in this case it was held that article 14 is one of the main pillars of the constitution and therefore, must be given a wide interpretation. The surety against arbitrariness was provided through this case. Chirranjit lal Choudhary v union of India: equal protection refers to equal protection under equal circumstances; the state can make reasonable classification for purposes of legislation; the reasonableness of this classification is up to the discretion of the legislation. Coming to this reasonable classification: the classification should not be arbitrary, artificial or evasive. It should be a real and substantial distinction. The differentia on the basis of which the classification is made must be rational. Affirmative action Affirmative action in India owes its origin to the British rule, which in addition to starting caste based quotas in some parts of the country, had also started a nationwide legal system with the norm of ‘equality before the law’. Affirmative action in India is primarily based on caste. There is constant debate surrounding affirmative action and it is either considered to be the root of all evil in the society or as the cure-all for eradicating discrimination. Thus, with regards to scheduled castes and tribes the affirmative action is taken in the form of reservation. This is provided under article 15(4) and 16(4). Affirmative action for 3 groups have gained the most attention- SC’s, ST’s and recently OBC’s. In CHOKI V STATE OF RAJASTHAN the court held that specific rules for women are also acceptable to promote equality. Thus, women and children are another demographic in India that enjoys preferential treatment. However, the implementation of affirmative action is slightly faulty due to which majority of the dalits are not directly affected by affirmative action however, it is equally true that the programme enables many Dalit families to escape subservient roles. Political reservation has increased redistribution of resources in favour of the beneficiary groups. Problems: merely providing entry to jobs and educational institutions through reservations is not sufficient. Supplementary measures, must be integrated to the affirmative action program such as counselling, remedial teaching etc. Module 4- right to equality Article 14 and reasonable classification Article 14 guarantees the right to equal treatment before the law and equal protection of law for all citizens of India. Thus, being the cornerstone ensuring equality for all citizens of India. Article 14 also bars discrimination or discriminatory laws and is functioning as a bulwark against any discriminatory actions of the state. The horizons of equality as embodied in article 14 and this has been continuously expanding as a result of the judicial pronouncements resulting in article 14 a ‘highly activist magnitude’. Article 14 and 15 read with reference to the preamble throws light on the thinking of the constitution makers and prevent any discrimination on the basis of religion, caste, place of birth. Article 14 mentions ‘equality before the law’ and ‘equal protection of the law’ these two terms are coined to fulfil the concept of ‘equality of status’ as given in the preamble. The phrase ‘equality before the law’ is provided in every constitution which guarantees fundamental rights. Equality before the law is taken from the English constitution while equal protection of the law is derived from the American constitution. Equality before the law is a more negative concept implying there is no special privileges that would act in favour of an individual and people of all classes are subject to ordinary law. While equal protection of the law is a more positive concept implying equal treatment of all in equal circumstances. However, a dominant concept common to them is that of equal justice. The Supreme Court noted in Sri Srinivasa Theatre v. Government of Tamil Nadu, that the terms "equality before the law" and "equal protection of the law" do not mean the same thing, despite their similarities. "Equality before the law" is a multi-faceted notion. One aspect is that there will be no favoured individuals or classes, and no one will be above the law. Another component is "the State's obligation to bring about a more equal society through the mechanism of law.....For, equality before the law can be premised meaningfully only in an equal society." Article 14 guarantees equality however it is a known fact that everyone is not equal in nature and circumstance. Thus, mechanical application of equality will result in inequality. Thus, guarantee of equal protection of law does not imply that the same rules of law should be made applicable to all irrespective of their differences in circumstances. The varying needs of different sections of the society needs to be addressed differently which will require unequal treatment. The legislature is expected to deal with such problems arising due to diversity in the country by making laws to attain particular objectives by distinguishing and classifying persons for their benefit. But when the challenge was raised for treating diploma and degree holders in the same category, the Supreme Court suddenly said that article 14 cannot be stretched so far as it will paralyse the administration and repelled the challenge. Reasonable classification Equality of opportunity embraces two concepts that is nondiscriminatory principle and affirmative action. A legislature is entitled to make reasonable classification for purposes of legislation and treat all in one class on an equal footing. The supreme court has thus highlighted that article 14 aims in treating equals equally’ its aim is to protect people placed in similar circumstances and does not operate against rational classification. Appointment on the basis of compassion is never a right of a person. In fact if such an appointment is made to a government or semi government or to a public office, it is a violation of the right guaranteed under article 14. Cases of all the candidates must be considered equally in such a situation. At the same time, in certain cases, the appointment of dependants of the deceased employee on compassionate grounds is considered unavoidable so that the deceased employee's family does not go hungry. The main goal of such a scheme is to protect the bereaved family from a financial catastrophe brought on by the death of the lone breadwinner. As a result, it is an exception to the general rule of equality rather than a separate and additional source of employment. The court has distinguished between descent and compassionate appointments since the latter is based on an extra element, namely the death or medical invalidation of a serving employee, leaving the family in distress, and such a condition may be a legal basis of classification. Article 14 prohibits class legislation, but it does not preclude the Legislature from classifying people, things, and transactions for the purpose of achieving certain goals. To be reasonable, classification must pass the following two tests: (1) It should not be capricious, artificial, or evasive in any way. It should be founded on an understandable differentia, a real and substantive contrast that separates those who are placed together in a class from those who are not. (2) The differentia used to classify anything must have a rational or reasonable connection to the goal that the act is attempting to achieve. Article 14 is the fountainhead of justice. Differential treatment only violates article 14 when it is unreasonable and one of the tests to find out if the differentiation is reasonable or not is to see if it is conducive to the functioning of modern society. It is not required for a classification's foundation to exist on the face of the legislation in order for it to be legitimate. The court may consult relevant material, such as the objects and reasons appended to a Bill, parliamentary debates, affidavits of the parties, matters of common knowledge, the background circumstances leading to the passage of the Act, and so on, to determine the reasons and justification for the classification. The Supreme Court stated in Deepak Sibal v. Punjab University, that a classification does not have to be formed with "mathematical precision." However, classification cannot be considered logical if there is little or no difference between those who have been put together and those who have been left out of the group. The Court also stated that when determining the validity of a categorization, it is crucial to assess the classification's goal. Thus, state of Kerala vs. N.M. Thomas symbolises a new trend—a high water mark—in terms of reserving services for the poor and granting additional concessions to them. Module 5- right to Freedom (article 19) Article 19 of the Indian constitution provides for freedom which means absence of control by the state. Clauses (a) to (g) of article 19(1) guarantee the citizens with 6 freedoms which are: a) Freedom of speech and expression b) Peaceful assembly without arms c) Form associations and unions d) Free movement within the territory of India e) Residence within the territory of India g) Practicing any profession and carrying out any business. Article 19 guarantees some of the basic and natural rights of a human which is necessary for promoting the democratic principles and oneness of the country. Article 19 possess a new dimension because though some rights may not be mentioned explicitly it may be present implicitly in the various clauses of article 19. The aim of article 19 is that a group of rights are listed and recognized to be fundamental rights but they are not placed on a common pedestal, they have varying dimensions and philosophies. They are conferred to the inherent status of a citizen but not uncontrolled or absolute in nature, just like any other right which are subject to limitations. The freedoms can be curtailed, regulated and restricted to some extent by the parliament and state legislatures. Article 19 is provided only for the citizens of India, thus, foreigners, a municipal cooperation or deity cannot invoke these rights. Moreover, article 19 protects the violation of these freedoms from a state action, its breach by the private conduct of an individual is not within its purview. Reasonable restrictions Thus, clause (2) to (6) of article 19 talk about the grounds on which the legislature can place ‘reasonable restrictions’ on the freedoms provided in 19 (a) to (g). It has been held that the state cannot go beyond the ambit of clause of (2) to (6) in restricting the fundamental rights. The court is not concerned with the necessity of implementing the rights but only if the restriction is beyond the constitutional limitations. The onus of proof to show that the legislation passed comes within the permissible limits of restrictions provided from clause (2) to (6) under article 19 and therefore, the restriction is reasonable, would fall on the respondent state. The constitutional court expects the state to provide sufficient material that would justify the restriction and its reasonability. Test for reasonableness In the state of madras v VG Row AIR 1952, it was observed that there is no definite test to determine the reasonableness of a restriction and there is no definite definition for the term ‘reasonable. Each case has to be judged individually based on its own merits since there is no general pattern which can be applied uniformly to all cases. However, the court has laid down a few broad propositions which was held in Chintaman Rao v state of Madhya Pradesh AIR 1951: For determining the reasonableness of a restriction, courts will take into account, the duration and the extent of the restrictions; the circumstances and manner in which the restrictions are being imposed; the nature of the right being restricted; underlying purpose of imposing a restriction; the extent and level of urgency of the evil meant to be remedied; disproportion of the imposition; prevailing conditions of the time. When confronted with a case where constitutional validity of a legislative enactment is being questioned, the courts must consider if the right canvassed falls within the fundamental rights provided under article 19 clause (1) (a) to (g). If it does then, the court must consider if the restriction imposed by the impugned law falls within the scope restrictions given under clauses (2) to (6) of article 19. But if the right canvassed does not fall within the sweep of fundamental rights but is a mere concomitant of that right then validity does not have to be tested by referring to the clauses (2) to (6). The test which should be carried out to determine its constitutional validity was propounded in VG Row v State of Madras AIR 1952. Thus, the reasonableness has to be decided with reference to the subject- matter of the legislation in question, economics and social conditions prevalent in India during those times. In Pathumma v state of Kerala AIR 1978 the Supreme Court held that the court should keep the social conditions in mind while interpreting the constitution so as to show a deep understanding of the rising requirements of the society, burning problems experienced by the people and complex issues which the legislature is aiming to resolve. The judicial approach should be dynamic rather than static and pragmatic. The limitation on a right must not be arbitrary or excessive because such a restriction cannot be characterized as reasonable. There must be a balance between the freedom granted by the rights and social control, so that the freedom is restricted only to the extent required to protect the society that the individual is a part of. This is known as the principle of proportionality which was scene in Director General of Doordarshan V Anand Patwardhan AIR 2006. Onus of Proof The burden to prove that the restriction imposed is reasonable lies on the state and the courts are entitled to consider the ‘proportionality’ of these restrictions which means that it should not be beyond what should be required for obtaining the objects of the legislation. Moreover, for the restriction to be reasonable there must be a direct connection or a rational relation with the object that the legislation seeks to achieve and must not be in excess of the object. The direct, inevitable and real effect on the fundamental right must be taken into consideration. As was ruled in in Dharm Dutt v Union of India 2004. Any restriction to a right which promotes directive principles of state policy is considered reasonable as shown in Kasturi Lal Lakshmi Reddy v State of Jammu and Kashmir AIR 1980. (a) Freedom of speech and expression Maneka Gandhi v Union of India AIR 1978, Bhagwati J emphasized the significance of the freedom of speech and expression by saying that democracy is built on debate and open discussion since that is the only corrective of the government in a democratic system. Under article 19 (1) (a) the constitution guarantees the right to express ones views and opinions on any issue using any medium including writing, painting, media etc. therefore it includes the right to propagate and publish opinions and freedom of communication. Nevertheless, this right is subject to reasonable restrictions under Article 19 (2). Freedom to express cannot be equated to with a license to make unfounded and irresponsible allegations against judiciary. It is also contained that the freedom of speech and expression provided to the members of the parliament under article 105 (1) is wider in scope than the freedom of speech provided under Article 19 (1) (a) because the freedom under 105 (1) guaranteed to the members on the floor is not subject to the restrictions under article 19 (2). In Mian Bashir V State of Jammu and Kashmir, it was argued that defection being banned is a violation of article 19 (1) on the ground that it unreasonably curbs the right of dissent and violates the freedom of speech and expression of a legislator. Rejecting the case, the court held that the totality of rights enjoyed by a legislator is protected by article 105 (1) and not fundamental rights. Right to fly national flag and sing national Anthem The right to fly the flag is regulated by the Emblems and Names Act, 1950 and Prevention of Insults to National Honour Act, 1971. Unrestricted use of the national flag can result in commercial exploitation of the flag and indiscriminate use of it in processions, meetings etc. since the flag represents the supreme collective expression of commitment and loyalty to the nation it must be treated with utmost respect and dignity and this might not be possible without restrictions in place. In Union of India v Naveen Jindal it was held that hoisting of the national flag is a manifestation of their sentiments of pride and patriotism for the country that came within the ambit of rights provided under article 19 (1) (a). With this in mind the court held that as long as the flag code is being followed, hoisting the flag is allowed. Freedom of Press In India there is no specific provision which guarantees freedom of press, it is considered to be a right that flows from the freedom of speech, therefore freedom of speech enjoys no such privilege which is distinct from the freedom of speech and expression. The Supreme Court has stated that freedom of press is benefit for the citizens of India rather than a benefit for the press because the community has the right to be provided with information and the government owes the duty to educate the people within the limits of its resources. Since article 19 (1) (a) is only available to the citizens of India, a non- citizen running a newspaper cannot seek the guarantee of this constitutional provision. Union of India v association for democratic reforms. Right to know about the electorate candidate is within the rights given under article (a) along with details such as background of the candidate, the assets and liabilities of the candidate and their family members. The educational qualifications of the candidate should be made available to the voters. Grounds of Restrictions No freedom is absolute or unrestricted. Thus, article 19 (2) allows the state to make laws imposing ‘reasonable restrictions’ on the exercise of the freedom provided under article 19 (1) (a) in the interest of national or state security, decency, morality, public order etc. In the US if a law restricting freedom of speech may pass muster but in India it would not pass muster if it is merely in the interest of the public. Such a restriction must be covered under the 8 subject matters covered under article 19 (2). The term used in article 19 (2) ‘in the interest of’ gives a wide ambit to the law which can be enacted to impose ‘reasonable restrictions’ on the right guaranteed. No restriction can be placed on the freedom of speech and expression unless specified under article 19 (2). The burden is on the authority to justify the restrictions imposed. Contempt of Court In a democratic country freedom of speech and expression is a valued aspect but so is the maintenance of the integrity of the judiciary and the public confidence in the administration of justice. Thus, it becomes important to strike a balance between the two. Article 129 guarantees the Supreme Court and article 215 guarantees the high court protection against contempt of court. Thus freedom provided under article 19 (1) (a) is subject to restriction under 19(2) and articles 129 and 215. Therefore, while the constitution guarantees freedom of speech and expression under article 19 it also make sure that contempt of court is not committed. The underlying idea is that authority of courts have to be preserved and obstructions to the administration of justice must be removed. Defamation Defamation is both a crime as well as a tort. As a crime defamation is defined in section 499 and section 500 provides the punishment in IPC. The law seeks to protect a person in his reputation, this refers to his person or property. In Submranian swami v union of India AIR 2016 SC 2728, it was held that defamation given in section 499 is not excessively restrictive under article 19 (2), criminal defamation is not a disproportionate restriction since protection of one’s reputation is a fundamental right as well as a human right. Legislative wisdom mandates that the aspect of individual liberty has to be balanced with the society at large. Decency and Morality Section 292 to 294 of the IPC mentions the offences such as selling obscene books or things to young persons, committing an obscene act, or singing an obscene song in a public place. Section 292 is considered to be valid because it only seeks to promote public decency and morality. In R. v Hicklin, the test of obscenity was to check whether the matter charged as obscene aims to corrupt and deprive those whose minds are subjected to such immoral influences and into whose hands a publication of this sort is likely to fall. In the case Ramesh Prabhoo V Prabhakar Kashinath Kunte the Supreme Court widened the ambit of the term decency and morality. The court held that these terms not only refer to sexual morality but that the action must conform to the current standards of behavior or propriety. Press The court ordered the superintendent of Tihar Jail to allow the top reporter of the Hindustan Time to interview two consenting death convicts in prabha dutt v Union of India, under article 19 (1) (a). The right claimed by the petitioner is not the right to express any particular opinion or viewpoint, but the right to obtain knowledge through an interview of two death row inmates. The court termed the media as a friend of society and thereby cannot be denied the right to interview the prisoners. But it does not mean Article 19 (1) (a) is an absolute right nor does it mean that the press has unrestrained right to access the information. 2. FREEDOM TO ASSEMBLE PEACFULLY ARTICLE 19(1) (b) Article 19 (1) (b) guarantees the right to assemble peacefully without arms to the citizens of India. Following this Article 19 (3) can impose reasonable restrictions on the exercise of this right in the interests of public order, sovereignty and integrity of India. There are some overlapping features between article 19 (1) (a) and (b). For instance demonstrations, protests and processions which fall under article 19 (1) (a) also amounts to an assembly under (b) due to which the same principles apply under both the articles. The right to strike is not provided under either of these articles. In Himmat Lal v Police Commissioner it was held that placing a ban on public meeting in public streets without police permission is bad. Section 141 of IPC defines unlawful assembly as when a group of 5 or more persons come together and the members of the assembly share a common object, as well as must commit any of these 5 activities: To resist the execution of any law or legal process; mischief; by means of force tries to overawe the government, or any public servant in the exercise of its lawful powers. 3. FREEDOM TO FORM ASSOCIATIONS ARTICLE 19(1) (C) Article 19 (1) (c) guarantees to the citizens of India the right to form associations or unions or cooperative societies. The right to form associations is a crucial element of a democracy because without such a right, political parties cannot be formed and without such parties a democratic form of government particularly the parliamentary form of government cannot exist. In Kulkarni v state of Bombay it was held that freedom to form association also includes freedom to form/not form/ join/ not join an association. However, if joining the association is for the citizen’s own good or benefit and if reasonable conditions were placed in you joining the association then the person must join. Ramleela Maidan Incident V Home Secretary Union of India (2012). Citizens have a fundamental right to assembly and peacefully protest which cannot be removed by arbitrary, executive or legislative action. RESTRICTIONS While recognizing the importance of forming associations the courts have not vested absolute power to this right due to which this freedom is subject to restrictions imposed under article 19 (4). Adding to this, absolute discretion is also not given to the executive to interfere with this fundamental right. In O.K.A Nair v Union of India the court held that civil employees in the defence establishments such as cooks, barbers, tailors etc. could not form associations as their unions were considered to be unlawful. The petitioners challenged this saying it’s a violation of their fundamental right under article 19(1) (c) because their actions were regulated by the civil service rules. The Supreme Court rejected the contentions and held that the appellants were members of the armed forces and were not entitled to form trade unions. Thus, under the Army Act the central government was competent to make rules restricting or curtailing fundamental rights provided under article 19 (1) (c). In Haj Mohd. V District Board it was ruled that if a teacher had to take prior permission to engage in political activities then it is a reasonable restriction because it aimed at restricting teachers from getting mixed up with political institutions. Damayanti v Union of India challenged the validity of Hindi Sahitya Sammelan Act, 1962 as violative of article 19 (1) (c). The court ruled that the new rule of the association was violative of the fundamental right to form association because those who joined the association also had the right to continue to be associated with only those whom they voluntarily admit to the association. The act therefore, violates the right of the original members of the society to form an association. Right to Protest The Supreme Court of India ruled in Amit Sahni v Commissioner of Police dissenting public marches and demonstrations shall take place only in authorised areas. The Court granted lawyer Amit Sahni's request to have a protest against the Citizenship Amendment Act and the National Register of Citizens removed from Shaheen Bagh, a Delhi area. The appellant claimed that the protest blocked the public road and caused commuters significant annoyance. Accepting this argument, the Court declared that public routes and public spaces cannot be taken permanently, even if the right to peaceful protest against laws exists. It was found that under Article 19 of the Constitution, the rights to freedom of expression and protest are subject to reasonable constraints relating to India's sovereignty and integrity, public order, and the regulation of the respective police agencies. In 1989 Sodan Singh v New Delhi Municipal Committee challenged the right of street hawking. The supreme court held that street trading falls within the fundamental right provided in article 19 (1) (g), however, the traders cannot choose the area for selling themselves as it may obstruct the right of other citizens to move freely given under article 19 (1) (d). This is for the state to designate the areas for street trading. Restriction Freedom to profession is also not unqualified and can be restricted or regulated by authority of law. Article 19 (6) provides that the state is not prevented from making a law that:  Relating to professional or technical qualifications necessary for practising a profession or carrying on any occupation  Relating to carrying on by the state, or an occupation owned or occupied by it, trade, business or service whether to the exclusion, complete of citizens. The right to profession can have reasonable restrictions keeping in mind several directive principles of state policy. Consequently, the right carry out trade is quite regulated in India and the courts have upheld a good deal of social control over private enterprises. A citizen has no right to demand that the government or any other person do business with him. The right to close a business, like all other rights, is not absolute and can be restricted, regulated, or controlled by the government in the public interest. As a result, the right to close a business cannot be equated or compared to the right not to create and run a business. A person cannot be forced to start a business if he does not want to. However, if he began and has been operating a business, he may be controlled by putting reasonable limits. In the case State of Andhra Pradesh V Macdowell AIR 1996 SC 1627, even though the sale of intoxicating liquor falls within the scope of article 19(1) G, the state can nonetheless impose severe limits or even outright prohibitions on the sale of intoxicating liquor, according to the court. Taxation is not a restriction The fundamental right to carry out a profession is not free from the taxation power of the state. No citizen has the right to carry out his trade or business with lawfully paying the stipulated taxes to the government. Article 20 protection for conviction of offences Article 20 (1) provides protection against ex post facto law. Article 20 (1) provides that no person shall be convicted for an offence except for violating a law in force at the time of committing the act which is charged as an offence. A person will not be convicted for an act done earlier when the law was not enacted. Thus, if an act is not an offence on the date of its commission a law enacted in future cannot make it so. The term offence is not defined by the constitution by is defined in the General Clauses Act as any act or omission made punishable by law for the time being in force. The term ‘penalty’ is used in a narrow sense referring to a payment to be made or deprivation of liberty which has to be the consequence suffered by the person for being guilty of the crime charged. In Prahlad v State of Bombay: the immunity of this article extends only against the punishment under ex post facto law and cannot be claimed under preventive detention. Article 20 (1) only prohibits conviction or sentence but not trial under an expost facto law. A trial conducted under a procedure different from that in effect at the time the offence was committed, or by a court other than that which had jurisdiction at the time, cannot be deemed unconstitutional ipso facto. A person accused of committing a crime has no Fundamental Right to be tried by a certain court or method, unless there is a constitutional objection based on discrimination or a breach of any other Fundamental Right. In order to punish corrupt government officials, the constitution has enacted the Prevention of Corruption Act, which creates the offence of criminal misconduct. Section 5(3) of the act was challenged in Sajjan Singh V State of Punjab stating it’s a violation of article 20 (1). It was contended that although S. 5(3) refers to the accused having pecuniary resources or property disproportionate to his known sources of income, it solely refers to assets or property acquired after the Act's effective date. To believe differently would be to apply the Act retroactively, which would be unjustifiable. The Supreme Court rejected the argument that taking into account pecuniary resources or property in the custody of the accused, or any other person acting on his behalf, that were acquired before the Act's effective date gives the Act retrospective effect. A law enacted on September 30 but taking effect on August 1 cannot be considered a law in force on August 1, and hence an act committed on August 1 cannot be punished under it. A law that was not in fact in force at the time it was enacted, but was 'deemed' to have become operative from an earlier date (by a fiction of law), cannot be considered a law that was 'factually' in force earlier than the date of its enactment, and the infirmity that applies to an ex-post-facto law also applies to it. The reason for this is that if such a fiction were to be accepted, and a law passed subsequently were to be treated as if it had existed earlier, the entire objective of the legislation would be defeated. A retrospective effect would be given to law in such an instance. The second section of Article 20(1) protects a person against a punishment that is greater than the penalty he might have faced at the time of the offence. As a result, an ex-post-facto legislation cannot subject a person to higher punishment than he would have faced at the time of the offence. The provision pertains to the punishment of criminal offences. In 1947, X broke the Prevention of Corruption Act, which stipulated a penalty of either imprisonment or a fine, or both. The penalty was increased in 1949 when the statute was amended. Because of the ban established in Article 20 of the Constitution, the Supreme Court concluded that the additional sentence could not be applied to the offence committed in 1947. In the case K Satwant Singh v state of Punjab, the scope of article 20 (1) was fully examined. According to section 420 of IPC, no minimum fine has been provided while under it an unlimited fine can be imposed. S committed an offence punishable under the provision and later in 1943, an ordinance stipulated the minimum fine which a court must compulsorily inflict upon the convict. The supreme court held that article 20 (1) was not violated because the minimum fine laid down by the ordinance is not more than what could be inflicted on S under section 420 in force at the time the offence was committed. All that needs to be considered under article 20 (1) if a penalty greater than what might have been inflicted under the law in force at the time of the commission of the offence. MP Sharma v Satish Chandra, held that this right is pertaining to a person accused of an offence, the family and relatives cannot claim this constitutional protection. Protection against compulsion to be a witness. It also elaborated that the person charged annot furnish evidence against themselves. Double jeopardy The root of this doctrine is found to be in the well- established maxim of the English common law, Nemo debet bis vexari, meaning that a man must not be put twice in peril for the same offence. When a person is convicted of an offence by a competent court, the conviction prevents him from being prosecuted for the same offence in the future. The concept is that no one should be punished twice for the same crime. If a person is indicted again in court for the same crime, he can plead his formal acquittal or conviction as a complete defence, or, as it is properly stated, he can plead autrefois acquit or autrefois convict. The principle of protection against double jeopardy was available in India prior to the constitution in force, and this has now been given constitutional status rather than statutory guarantee. For Article 20(2) to be effective, both prosecution and punishment must exist. A prosecution without a penalty would not fall within the scope of Article 20. (2). If a person has been charged with a crime but acquitted, he can be charged with the same crime again and punished. Furthermore, Article 20(2) can only be used as a bar if the second prosecution and punishment is for the same offence for which the person has already been prosecuted and punished. The term "identical offence" refers to an offence with the same components. If the offences are unique, the law of double jeopardy does not apply. If a person commits two separate offences with the same act, the punishment for one offence does not preclude prosecution and punishment for the other. The ingredients of the offences in the first case and the second case must be the same and not different in order to invoke the provisions of Article 20(2). The test to know if the two offences are same is not to identify the allegations but to compare the ingredients of the case. In some circumstances, the identical set of facts can be considered criminal offences under two separate statutes. An act or omission might amount to and be considered an offence under the Indian Penal Code while also being considered an offence under any other legislation. As the Supreme Court noted in the Murad Ali case, Section 27 is thus considered to be outside the ambit of article 20 (3), if an accused provides evidence without any threat, then the evidence is admissible and will not be a violation of article 20 (3). Various methods of investigation are now available to the police and other investigative agencies as a result of technological advancements, which have raised and continue to raise interesting questions about the legitimacy of the processes used. The Bombay High Court87 recently reviewed whether three of these innovative technologies, namely Lie Detector or polygraphy tests, P-300 Test or Brain Mapping testing, and Narco Analysis or Truth Serum Tests, violate the constitutional restriction on testimonial coercion under Article 20. (3). None of the tests, according to the court, violated Article 20. (3), because it cannot be considered as a statement of the witness, at best it’s an information received out of a witness. Right to life and liberty- article 21 Article 21 lays down that no person shall be deprived of right to life and liberty except by procedure established by law. Emphasis is given for the expression ‘procedure established by law’. Interpretation of these words became popular in the A.K Gopalan v State of Madras in which the validity of preventive detention Act 1950, was challenged. On behalf of Gopalan, an attempt was made to persuade the Supreme Court that the courts had the authority to decide whether the Preventive Detention Act, or any other statute depriving a person of his liberty, was reasonable. For this, a three-pronged argument was developed: (1) The term 'law' in Article 21 refers to more than just passed legislation; it also refers to natural justice principles, such that a law depriving a person of his or her life or personal liberty cannot be valid unless it includes these principles in its operation (2) The legislation of preventive detention should be judged on the basis of Article 19. (3) Procedure established by law introduces in India the American concept of procedural due process which enables the courts to see whether the law fulfils the requisite elements of a reasonable procedure. In the Gopalan case an attempt was made to win him better procedural safeguards than which were provided under article 22, but the attempt failed as the Supreme Court rejected all such arguments. Gopalan to Maneka From 1950 until 1978, Gopalan dominated the field for over three decades. In connection to Article 21, Gopalan clarified two main things. One, Articles 19, 21, and 22 were mutually exclusive and independent of one another, and Article 19 did not apply to a legislation affecting personal liberty to which Article 21 applied. Two, a 'law' that affects life or personal liberty cannot be considered unconstitutional simply because it lacks natural fairness or due process. Any procedure could be established by the legislature for this purpose. In the field of preventive detention, the courts adopted some Administrative Law components in order to exercise some control over the executive power to impose preventive custody. As a result, Article 21 provided a safeguard against executive action that was arbitrary or tyrannical. Its main benefit was that it allowed a person whose life or personal liberty had been jeopardised in a way that was not consistent with legal procedure to promptly use Article 226 or 32. In this way, a person whose personal liberty had been infringed upon in violation of the law might be assured of a quick and efficient remedy. Personal liberty violations by private individuals were not covered by Article 21, and in such cases, a remedy had to be sought under the Constitution. The case of Maneka Gandhi v. Union of India is a watershed moment in the post-emergency era. This case demonstrates how liberal tendencies influenced the Supreme Court's interpretation of Fundamental Rights, namely Article 21. After the horrific events of the emergency in 1975- 77, when personal liberty had reached its nadir, the Supreme Court's decision in Shukla revealed a significant shift in judicial attitudes toward the protection of personal liberty. This case demonstrated that, as understood in Gopalan, Article 21 could not provide any protection against a harsh law that sought to rob a person of his life or personal liberty. The facts in the case of Maneka Gandhi were as follows: Section 10(3)(c) of the Passport Act authorises the passport authority to impound a passport if it deems it necessary in the interest of India's sovereignty and integrity, security, friendly relations with any foreign country, or the general public. In the public interest, Maneka's passport was seized by the Central Government under the Passport Act. Maneka filed a writ suit challenging the order, claiming that it infringed on her fundamental rights under Article 21. One of the main points of contention was that the order impounding the passport was void since it was issued without due process. Following this the court made the following interpretation: The Court reaffirmed that Articles 14, 19, and 21 are not mutually exclusive. Between these three articles, a link has been established. The theme of Arts. 21 and 19's mutual interrelation has already been examined. This means that a law establishing a procedure for depriving someone of their "personal liberty" must comply with Article 19, in addition, the procedure established by law in Article 21 must satisfy Article 14's criterion. Article 21's word 'personal liberty' was given a broad interpretation. The Court highlighted that the term "personal liberty" has the "widest amplitude," encompassing a wide range of rights "that go to make up man's personal liberty." Some of these characteristics have been elevated to the level of distinct Fundamental Rights and are now protected further under Article 19. The term 'personal liberty' should not be construed in such a way that it excludes those aspects of personal liberty that are particularly addressed in Article 19. Article 21 deals with the right to go abroad. The Court's reinterpretation of the words "process established by law" used in Article 21 is the most significant and original part of Maneka. The Court has now given this phrase a new meaning. Article 21 would no longer allow the government to impose any semblance of procedure, however arbitrary or whimsical, in order to deprive someone of their liberty. It now means that the procedure must meet specific criteria in terms of fairness and reasonableness. "It cannot be arbitrary, unfair, or irrational," the protocol states. In the approach described by Article 21, the concept of reasonableness must be projected. The Court now has the authority to rule on the fairness and justice of a legal procedure for depriving someone of their liberty. The Court arrived at this result by concluding that Articles 21, 19, and 14 are not mutually exclusive, but rather are interrelated. Thus, since Maneka, the Supreme Court has exhibited a strong commitment to personal liberty preservation. In Maneka Gandhi, the Supreme Court reinterpreted Article 21 and effectively rejected Gopalan, which can be viewed as a very creative judicial declaration. Furthermore, since Maneka, the Supreme Court has given Article 21 a far broader interpretation, implying many more Fundamental Rights. Article 21 has shown to be a very productive source of people's rights over time. Post maneka Gandhi The now-famous Supreme Court ruling in Maneka Gandhi resurrected Article 21, which had been dormant for nearly three decades. It has provided people with a plethora of substantive rights and procedural safeguards. Every person's right to life and personal liberty is guaranteed under Article 21. The term 'life' has taken on a very broad definition. The phrase 'personal liberty' has been given a fairly broad definition, encompassing a wide range of rights that contribute to a citizen's personal liberty. Preventive detention This refers to detention of a person without trial and conviction by a court merely because they seem suspicious in the mind of an executive authority. Preventive detention is fundamentally and qualitatively distinct from imprisonment following a criminal trial and conviction. Preventive detention and criminal prosecution are not the same thing. An accused is sought to be punished for a past act in a conviction. The crime must be proven beyond a reasonable doubt in court. Preventive detention, on the other hand, is when a person is held without charge for the executive's subjective pleasure in order to keep him from performing an undesired act in the future. It is not the intention to punish him for his previous actions. In preventive detention, the detainee's previous actions are just used to make inferences about his or her likely future behaviour. Because directive principles are so important to the country's governance, what is directed as state policy cannot be considered irrational or opposed to public policy. The Supreme Court stated in Laxmi Khandsari v State of Uttar Pradesh that one key factor that courts must consider when considering the reasonableness of a restriction is that it must not violate the Directive Principles. The Directive Values strive to create an egalitarian society in order to create a welfare state, and these principles should be considered while determining whether or not the restrictions are acceptable in relation to Article 19. In general, a review of the case law reveals that the Courts have used Directive Principles to enlarge rather than limit the extent and meaning of Fundamental Rights. The explanation of Article 2185, as well as the discussion of Directive Principles below, bear this out. Right to religion Article 25(1) protects "freedom of conscience" and "the right freely to profess, practise, and promote religion" to everyone, not just Indian nationals. However, this is subject to public order, health, morality, and other fundamental rights provisions. The state, on the other hand, is not prohibited from enacting any law regulating or restricting any economic, financial, political, or other secular activity that may be associated with religious practise [Article 25(2) (a)], or any law providing for social welfare and reform, or for opening Hindu religious institutions of a public character to all classes and sections of Hindus [Article 25(2)(b)]. The wearing and carrying of kirpans by Sikhs is part of the Sikh religion's vocation. However, it is clear that the rights granted to individuals and religious denominations under Article 25 are not absolute. Their use is restricted by the need to maintain public order, among other things. Every person's and every religious denomination's religious rights are subject to public order, etc. Lecture notes 368- Power to amend the constitution. Equal protection of law- USA constitution, affirmative action, providing reservations or other options to provide opportunities to all. Equals must be treated equally and unequal must be treated alike. Charan Lal Sahu V Union of India- Provides substantial and procedural equality. Charanjit lal choudhary v union of india EP Royappa V State Of Tamil Nadu Article 15- prohibition of discrimination. – 93rd amendment 2005 Cases- for reservations MR Balaji v state of mysore. R. chitralekha- case Triloki nath v state of J and K Indra Sawhney v union of india (9 judges case) – based on the mandal commission Article 16- equal opportunity in matters of employment to any office under the state KC Vasanth kumar v state of Karnataka Carry forward rule: the reservations are extra, then it will be carried forward to the next year. Judgement of indra shawney is flawed and criticised because the judgement said the reservation cannot cross 50 percent. 7/5/22 Wesley Hohfeld: privilege, power, amenities and claims. Landmark judgment: Balaji Ragvan V Union Of India AIR 1986 SC 770; national awards do not amount to titles; they cannot be used as suffixes or prefixes. Habeas corpus case; 5 basic issues of rights. Any case about violation of rights will include: 1. Actors who passed the rights and who these rights can be used against. 2. Form question 3. Effect question 4. Content question 5. Remedies question State: an agreement between the people to govern themselves. People obey the state because they AGREED to do so; Theory of implied consent. Fundamental rights cannot be taken down: basheshwar nath v income tax officer Not all rights are guaranteed to all the people, article 19 is guaranteed only to CITIZENS; non- citizens cannot claim the freedoms mentioned in article 19. Person: a legal entity recognised by law; lord Ram case: yogendra nath naskar v commissioner of income tax: deity is a person in the eyes of law; however, deities do not possess fundamental righst; they have constitutional rights and property rights. It is a fiction in the eyes of law. This includes companies- recognised as persons with constitutional rights but no fundamental rights. Animals are also recognised as persons in the eyes of law- but not yet conferred with fundamental rights. Rivers is a person- no fundamental rights. Anything can be taken as a person sometimes they’ll have constitutional rights but no fundamental rights. Indian express newspapers v union of India Bennett coleman and co ors v union of india. Romesh Thappar v state of madras. AIR 1950- when emphasising on the importance of speech and expression, freedom of speech and press is basis of all democratic organisations for without free political discussion, no public education so essential for the proper functioning of the government is possible. Freedom of speech and expression is to express once own convictions and opinions freely by words of mouth, writing, printing pictures or any other mode. 4 fold purpose of freedom of expression: 1. Helps an individual attain self fulfilment 2. Assists in the discovery of truth 3. Increases the capacity of an individual participating in decision making 4. Helps in the exchange of idea and progressive society. Brij bhusan v state of delhi 1950 AIR 129 – concerned with the circulation of newspaper. (In these two cases the restrictions were unjustified.) Kishori mohan v state of west bengal Liberty: john Stuart mills idea on liberty- what are the limits of the power exercised by an individual; to what extent can the state control my liberty; who exercises power over you- 1. control by the governments and Om Prakash v state of UP AIR 2004: ban on non-vegetarian items within the city limits of Haridwar and Rishikesh. UP municipality act had imposed a total ban and was challenged. It was held that it is a reasonable restriction because of religious and cultural beliefs. Ban on pan masala: Godawat Pan Masala Ltd V Union of India AIR 2004: food and health authority act; prevention of food adultery act; COTPA. State Of Gujarat V Mirzapur Moti Kureshi Kassab AIR 2006: Bombay animal preservation Gujarat amendment act 1994 was challenged. Under this act, it imposed a total ban on the slaughter of cow, calf and other mulch cattle. The state held that it is the duty of the state to preserve animal husbandry. Ban on selling dangerous goods/ noxious goods State Of Kerala V Kandanath Distilleries AIR 2013. Trading liquor is not a fundamental right. State can create a monopoly when it comes to selling liquor and this monopoly cannot be challenged as an infringement to right to profession. Hinsa Virodhak Sangh v mirzapur moti kureshi kassab AIR 2008 SC1892 Jamshed Ansari V High Court of Judicature Allahabad AIR 2016: in order to file a case before a court, aid and assistance of a local advocate needs to be taken. ARTICLE 20 – protection in respect of conviction for offences. Pareet lubba v Nelambaram AIR 1967: the bar under 20(1) only applies to conviction, thus the person can be tried but not punished. Retrospectively applying a law and retrospectively convicting someone. Mohan lal v state of Rajasthan AIR 2015: narcotics act came into use on 1985, Mohan lal committed a theft in 1985 one day before the act came into effect. When he was tried for theft he was also tried for possessing narcotics. The court held that when he was arrested he was in possession of narcotics which is a crime under narcotics act. Kedar Nath v state of west Bengal AIR1953: an offence which happened in 1947, it was punishable by one year in prison. An amendment in 1949 resulted in a punishment of 3 years. The SC held that only the law of 1947 will be applied to the offence. Constitution came into effect on 1950 so the beneficial provision was applied- the accused can be put in a better position than they were when they were arrested. T. Barai vs Henry Ah Hoe AIR 1983 Ratanlal v state of Punjab AIR 1965 20 (2): double jeopardy. ‘No man should be put in peril twice for the same offence’ nemo debet bis vexari. Ingredients: - offence: in general clauses act an act or omission made punishable by law for the time being in force. The person must be prosecuted and punished The offence must be the exact same. Maqbool hussain v state of Bombay AIR 1953: customs confiscated gold from him and was found to be in violation of FERA act. But benefit under 20 (2) was not applicable. Appeal is different from filing a fresh case. It is a grievance mechanism. 300(1) of CRPC and 20(2) - double jeopardy, no convict should be tried again and no aquict should be tried again. Article 20(3) – prohibition against self-incrimination. Cannot force them to provide incriminating evidence. Provides the accused the protection that they will not be forced to incriminate themselves. Inspired from the 5th amendment of the US constitution. MP Sharma v Satish Chandra: this right is pertaining to a person accused of an offence, the family and relatives cannot claim this constitutional protection. Protection against compulsion to be a witness. Cannot furnish evidence against themselves. State of Bombay v Kathi Kalu AIR 1961: giving mechanical form of evidence, such as providing the agency with hair/ nail sample is not actively providing evidence against oneself. Self- incrimination refers to conveying information based on the personal knowledge of the person and cannot include the mechanical process of furnishing evidence which do not contain any statement of the accused based on his knowledge. Nandini Satpathy V PL Dani – under IPC 179 (161 of IPC) it is a punishable offence refusing to answer questions asked by authorities. SC expanded the purview of 20 (3) and that it extends to the period of enquiry not just the trial. By not answering the questions she is not violating section 20 but only exercising her rights. Guidelines for carrying out tests No lie detection test should be administered except without the consent of the accused, an option should be given to the accused whether he wishes to avail the test or not. If the accused volunteers for a lie detection test, should have access to a lawyer and the physical, emotional and legal implications of these tests should be explained to him by the police and the lawyer. The consent should be recorded by a judicial magistrate. During the hearing before a magistrate the person should be represented by a lawyer. At the hearing the person should be told in clear terms, that the statement made by him is not a confidential statement to the magistrate but a statement made to the police. The magistrate will consider all factors pertaining to the length of detention and nature of interrogation before allowing the same. The recording of these tests should be done by an independent agency in the presence of a lawyer. The full medical and factual narration must be taken on record. Article 21 revolves around: Right to life, personal liberty and procedure established by law. Initially Supreme Court would not question why the legislature is curbing right it liberty because it is established by law. Except procedure established by law- problematic. Kharak singh v state of UP: petitioner was put in a history sheet which included surveillance. The police entered his house in the middle of the night and conducted a raid. The SC held that the police conducting surveillance was allowed but domicile visits were held to be unlawful. So domicile visits in UP police act was struck down. Govind v state of MP: the police act of 1861 was challenged. If the DSP believes any person leads a life of crime they can be put under surveillance. Merely on the suspicion of the DSP. It was held that domiciliary visits were allowed, it is a reasonable restriction. Satwant Singh Sawney v Assistant Passport Officer: right to travel abroad is part of article 21 because it involves the right to travel abroad. The liberty includes the liberty to travel abroad as well. Maneka Gandhi v union of india: the SC changed its stance. It was not only that there must be a law, an additional test for due process of law was introduced post- maneka Gandhi. Francis coralie v union territory of delhi: if prisoners can interact with family, friends. The law was struck down because it was not reasonable and unconstitutional. Olga tellis v Bombay municipal corporation AIR 1986. AK Roy v Union of India AIR 1982: rights of the people detained. Kartar singh v state of Punjab 1994: procedure contemplated by article 21 is that it must be ‘just, right and fair’ for this it must conform to natural justice. Hussainara khatoon v home secretary, state of Bihar Permanand Katara v Union of India AIR 1989: right to first aid, right to medical assistance provided under article 21. Subash kumar v state of Bihar: right to live in a clean environment is also provided under article 21. Unnikrishnan v state of Andhra Pradesh: right to education is provided under article 21. The content and parameters were deduced in the light of article 41, 45, 46. Thus, education is available to 6-14 years.