Q. What do you understand by right to life and liberty?

How the scope

of right to life and liberty has been expanded by the Apex court?
Discuss

Ans: 'Right to life and personal liberty' as a fundamental right is provided by

the constitution of India under Article 21. It guarantees that no person shall be
deprived of his live and personal liberty except in accordance with the
procedure established by law. Right to life and personal liberty is available to
the citizens as well as non-citizens. Supreme Court opined that 'personal
liberty' was held to mean only liberty relating to or concerning the person or
body of the individual, in the famous Gopalan case. The Supreme Court has
constantly expanded meaning and scope of Article - 21.
In Meneka Gandhi vs. Union of India case of 1978 the Supreme Court held
that the right to 'live' is not merely confined to physical existence but it
includes within its ambit the right to live with human dignity. M. C. Mehta's
case opened a new horizon by including pollution free environment as a
component of the right to life. Similar importance was given again when it was
interpreted to cover the right to education in case of uninikrishnan vs. Union of
India of 1993. Right to free legal aid and speedy trial is a part of right to life.
Even a prisoner has right to speedy trial and legal aid. Fair procedure cannot
be denied to him. Recently, a Supreme Court Bench of Justice Ajit Pasayat
and Justice S. H. Kapadia has remarked that rape is a crime against basic
human rights and is violative of the victim's most cherished fundamental right,
which is indeed right to live under Article - 21.

Article 21 reads as:

“No person shall be deprived of his life or personal liberty except according to
a procedure established by law.”

This right has been held to be the heart of the Constitution, the most organic
and progressive provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or

“personal liberty” by the “State” as defined in Article 12. Violation of the right
by private individuals is not within the preview of Article 21.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

The Article prohibits the deprivation of the above rights except according to a
procedure established by law .Article 21 corresponds to the Magna Carta of
1215(charter agreed to by King John of England at Runnymede,
near Windsor, on 15 June 1215), the Fifth Amendment to the American
Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI
of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person,

citizen or alien. Thus, even a foreigner can claim this right. It, however, does
not entitle a foreigner the right to reside and settle in India, as mentioned in
Article 19 (1) (e).

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

‘Everyone has the right to life, liberty and the security of person.’ The right to
life is undoubtedly the most fundamental of all rights. All other rights add
quality to the life in question and depend on the pre-existence of life itself for
their operation. As human rights can only attach to living beings, one might
expect the right to life itself to be in some sense primary, since none of the
other rights would have any value or utility without it. There would have been
no Fundamental Rights worth mentioning if Article 21 had been interpreted in
its original sense. This Section will examine the right to life as interpreted and
applied by the Supreme Court of India.

‘Life’ in Article 21 of the Constitution is not merely the physical act of

breathing. It does not connote mere animal existence or continued
drudgery(hard menial or dull work) through life. It has a much wider
meaning which includes right to live with human dignity, right to
livelihood, right to health, right to pollution free air, etc. Right to life is
fundamental to our very existence without which we cannot live as human
being and includes all those aspects of life, which go to make a man’s life
meaningful, complete, and worth living. It is the only article in the Constitution
that has received the widest possible interpretation. Under the canopy of
Article 21 so many rights have found shelter, growth and nourishment. Thus,
the bare necessities, minimum and basic requirements that is essential and
unavoidable for a person is the core concept of right to life.

In the case of Kharak Singh v. State of Uttar Pradesh[i], the Supreme Court
quoted and held that:

The fundamental rights referred to in the challenge were Article 19(1)(d)

(Right to move freely through the territory of India) and 21 (Right to life and
personal liberty) of the Constitution.

The main question for consideration before the bench was whether
surveillance under the impugned Uttar Pradesh police regulations constituted
an infringement of the citizen’s fundamental rights as guaranteed by the
Constitution.
Police authorities took the stand that the regulations did not infringe upon
fundamental freedoms and even if they did, they served as reasonable
restrictions in the interest of the general public and to enable the police to
discharge its duty in a more efficient way.

In a majority judgment, the court ruled that “privacy was not a guaranteed
constitutional right”. It however, held that Article 21 (right to life) was the
repository of residuary personal rights and recognized the common law right
to privacy. The provision allowing domiciliary visits was however struck down
as unconstitutional. It also noted that the bundle of fundamental rights under
the were self-contained and mutually exclusive.

In Sunil Batra v. Delhi Administration[ii], the Supreme Court reiterated with

the approval the above observations and held that the “right to life” included
the right to lead a healthy life so as to enjoy all faculties of the human body in
their prime conditions. It would even include the right to protection of a
person’s tradition, culture, heritage and all that gives meaning to a man’s life.
It includes the right to live in peace, to sleep in peace and the right to repose
and health.

Right To Live with Human Dignity

In Maneka Gandhi v. Union of India[iii], the Supreme Court gave a new

dimension to Art. 21 and held that the right to live the right to live is not merely
a physical right but includes within its ambit the right to live with human
dignity. Elaborating the same view, the Court in Francis Coralie v. Union
Territory of Delhi[iv],observed that:

“The right to live includes the right to live with human dignity and all that goes
along with it, viz., the bare necessities of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading writing and
expressing oneself in diverse forms, freely moving about and mixing and
mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on functions
and activities as constitute the bare minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found

in Bandhua Mukti Morcha v. Union of India[v]. Characterizing Art. 21 as the
heart of fundamental rights, the Court gave it an expanded interpretation.
Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human
dignity free from exploitation. This right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive Principles of State Policy
and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at
the least, therefore, it must include protection of the health and strength of
workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
State neither the Central Government nor any State Government-has the right
to take any action which will deprive a person of the enjoyment of these basic
essentials.”

Following the above stated cases, the Supreme Court in Peoples Union for
Democratic Rights v. Union of India[vi], held that non-payment of minimum
wages to the workers employed in various Asiad Projects in Delhi was a
denial to them of their right to live with basic human dignity and violative of
Article 21 of the Constitution. Bhagwati J. held that, rights and benefits
conferred on workmen employed by a contractor under various labour laws
are clearly intended to ensure basic human dignity to workmen. He held that
the non-implementation by the private contractors engaged for constructing
building for holding Asian Games in Delhi, and non-enforcement of these laws
by the State Authorities of the provisions of these laws was held to be
violative of fundamental right of workers to live with human dignity contained
in Art. 21[vii].

In Chandra Raja Kumar v. Police Commissioner Hyderabad[viii],it has

been held that the right to life includes right to life with human dignity and
decency and, therefore, holding of beauty contest is repugnant to dignity or
decency of women and offends Article 21 of the Constitution only if the same
is grossly indecent, scurrilous, obscene or intended for blackmailing. The
government is empowered to prohibit the contest as objectionable
performance under Section 3 of the Andhra Pradesh Objectionable
Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan[ix], the Court struck down a

provision of Bombay Civil Service Rules, 1959, which provided for payment of
only a nominal subsistence allowance of Re. 1 per month to a suspended
Government Servant upon his conviction during the pendency of his appeal
as unconstitutional on the ground that it was violative of Article 21 of the
Constitution.

Right Against Sexual Harassment at Workplace

Art. 21 guarantees right to life right to life with dignity. The court in this context
has observed that:

“The meaning and content of fundamental right guaranteed in the constitution

of India are of sufficient amplitude to encompass all facets of gender equality
including prevention of sexual harassment or abuse.”

Sexual Harassment of women has been held by the Supreme Court to be

violative of the most cherished of the fundamental rights, namely, the Right to
Life contained in Art. 21.

In Vishakha v. State of Rajasthan[x], the Supreme Court has declared

sexual harassment of a working woman at her work as amounting to violation
of rights of gender equality and rights to life and liberty which is clear violation
of Articles 14, 15 and 21 of the Constitution. In the landmark judgment,
Supreme Court in the absence of enacted law to provide for effective
enforcement of basic human rights of gender equality and guarantee against
sexual harassment laid down the following guidelines:

1. All employers or persons in charge of work place whether in the public

or private sector should take appropriate steps to prevent sexual
harassment. Without prejudice to the generality of this obligation they
should take the following steps:
1. Express prohibition of sexual harassment as defined above at
the work place should be notified, published and circulated in
appropriate ways.
2. The Rules/Regulations of Government and Public Sector bodies
relating to conduct and discipline should include
rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
3. As regards private employers steps should be taken to include
the aforesaid prohibitions in the standing orders under the
Industrial Employment (Standing Orders) Act, 1946.
4. Appropriate work conditions should be provided in respect of
work, leisure, health and hygiene to further ensure that there is
no hostile environment towards women at work places and no
employee woman should have reasonable grounds to believe
that she is disadvantaged in connection with her employment.
2. Where such conduct amounts to specific offences under I,P,C, or
under any other law, the employer shall initiate appropriate action in
accordance with law by making a complaint with appropriate authority.
3. The victims of Sexual harassment should have the option to seek
transfer of perpetrator or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra[xi], the Supreme

Court reiterated the Vishakha rulingand observed that:

“There is no gainsaying that each incident of sexual harassment, at the place

of work, results in violation of the Fundamental Right to Gender Equality and
the Right to Life and Liberty the two most precious Fundamental Rights
guaranteed by the Constitution of India…. In our opinion, the contents of
the fundamental rights guaranteed in our Constitution are of sufficient
amplitude to encompass all facets of gender equality, including prevention of
sexual harassment and abuse and the courts are under a constitutional
obligation to protect and preserve those fundamental rights. That sexual
harassment of a female at the place of work is incompatible with the dignity
and honour of a female and needs to be eliminated….”

Right Against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed

under Art. 21. Right to life right to live with human dignity. Right to life, would,
therefore, include all those aspects of life that go on to make life meaningful,
complete and worth living.
In Bodhisattwa Gautam v. Subhra Chakraborty[xii], the supreme court
held that

“Rape is thus not only a crime against the person of a woman (victim), it is a
crime against the entire society. It destroys the entire psychology of a woman
and pushed her into deep emotional crises. It is only by her sheer will power
that she rehabilitates herself in the society, which, on coming to know of the
rape, looks down upon her in derision and contempt. Rape is, therefore, the
most hated crime. It is a crime against basic human rights and is also violative
of the victim’s most cherished of the fundamental rights, namely, the right to
life with human dignity contained in Art 21”.

Right to Reputation

Reputation is an important part of one’s life. It is one of the finer graces of

human civilization that makes life worth living. The Supreme Court referring
to D.F. Marion v. Minnie Davis[xiii] in Smt. Kiran Bedi v. Committee of
Inquiry[xiv] held that “good reputation was an element of personal security
and was protective by the Constitution, equally with the right to the enjoyment
of life, liberty and property. The court affirmed that the right to enjoyment of
life, liberty and property. The court affirmed that the right to enjoyment of
private reputation was of ancient origin and was necessary to human society.”

The same American Decision has also been referred to in the case of State
of Maharashtra v. Public Concern of Governance Trust[xv], where the
Court held that good reputation was an element of personal security and was
protected by the constitution, equally with the right to the enjoyment of life,
liberty and property.

It has been held that the right equally covers the reputation of a person during
and after his death. Thus, any wrong action of the state or agencies that
sullies the reputation of a virtuous person would certainly come under the
scope of Art. 21.

In State of U.P. v. Mohammaad Naim[xvi], succinctly laid down the following

tests while dealing the question of expunction of disgracing remarks against a
person or authority whose conduct comes in consideration before a court of
law:

 whether the party whose conduct is in question is before the court or

has an opportunity of explaining or defending himself
 whether there is evidence on record bearing on that conduct justifying
the remarks
 whether it is necessary for the decision of the case, as an integral part
thereof, to animadvert on that conduct. It has also been recognized that
judicial pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderation and reserve

In State of Bihar v. Lal Krishna Advani[xvii], a two-member commission of

inquiry appointed to inquire into the communal disturbances in Bhaglapur
district on 24th October, 1989, made some remarks in their report, which
impinged upon the reputation of the respondent as a public man, without
affording him an opportunity of being heard. The Apex Court ruled that it was
amply clear that one was entitled to have and preserve one’s reputation and
one also had the right to protect it. The court further said that in case any
authority , in discharge of its duties fastened upon it under the law, transverse
into the realm of personal reputation adversely affecting him, it must provide a
chance to him to have his say in the matter. The court observed that the
principle of natural justice made it incumbent upon the authority to give an
opportunity to the person, before any comment was made or opinion was
expressed which was likely to prejudicially affect that person.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21
would not include right to livelihood. In Re Sant Ram[xviii], a case which
arose before Maneka Gandhi case, where the Supreme Court ruled that the
right to livelihood would not fall within the expression “life” in Article 21.The
court said curtly:

“The right to livelihood would be included in the freedoms enumerated in

Art.19, or even in Art.16, in a limited sense. But the language of Art.21 cannot
be pressed into aid of argument that the word ‘life’ in Art. 21 includes
‘livelihood’ also.”

But then the view underwent a change. With the defining of the word “life” in
Article 21 in broad and expansive manner, the court in Board of Trustees of
the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni[xix],
came to hold that “the right to life” guaranteed by Article 21 includes “the right
to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal
Corporation[xx], popularly known as the “Pavement Dwellers Case” a five
judge bench of the Court now implied that ‘right to livelihood’ is borne out of
the ‘right to life’, as no person can live without the means of living, that is, the
means of Livelihood. That the court in this case observed that:

“The sweep of right to life conferred by Art.21 is wide and far reaching. It does
not mean, merely that life cannot be extinguished or taken away as, for
example, by the imposition and execution of death sentence, except
according to procedure established by law. That is but one aspect if the right
to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood.”

If the right to livelihood is not treated as a part and parcel of the constitutional
right to life, the easiest way of depriving a person of his right to life would be
to deprive him of his means of livelihood to the point of abrogation[xxi].

In the instant case, the court further opined:

“The state may not by affirmative action, be compelled to provide adequate

means of livelihood or work to the citizens. But, any person who is deprived of
his right to livelihood except according to just and fair procedure established
by law can challenge the deprivation as offending the right to life conferred in
Article 21.”

Emphasizing upon the close relationship of life and livelihood, the court
Stated: “That, which alone makes it impossible to live, leave aside what
makes life livable, must be deemed to be an integral part of right to life.
Deprive a person from his right to livelihood and you shall have deprived him
of his life[xxii].”

Art. 21 does not place an absolute embargo on the deprivation of life or

personal liberty and for that matter on right to livelihood. What Art. 21 insists is
that such deprivation ought to be according to procedure established by law
which must be fair, just and reasonable. Therefore anyone who is deprived of
right to livelihood without a just and fair procedure established by law can
challenge such deprivation as being against Art. 21 and get it declared
void[xxiii].

In D.T.C. v. D.T.C. Mazdoor Congress[xxiv], a regulation conferring power

on the authority to terminate the services of a permanent and confirm
employee by issuing a noticing without assigning him any reasons and without
giving him a hearing has been held to be a wholly arbitrary and violative of
Art. 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd[xxv]., it was held that when a
government servant or one in a public undertaking is suspended pending a
departmental disciplinary inquiry against him, subsistence allowance must be
paid to him. The Court has emphasized that a government servant does not
his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure

established by law which must be fair, just and reasonable and which is in the
larger interest of people, the plea of deprivation of right to livelihood under Art.
21 is unsustainable. In, Chameli Singh v. State of Uttar Pradesh[xxvi], it
was held by the Hon’ble Supreme Court that when the land of a landowner
was acquired by state in accordance with the procedure laid down in the
relevant law of acquisition the right to livelihood of such a landowner even
though adversely affected, his right to livelihood is not violated. The Court
opined that, the state acquires land in exercise of its power of eminent domain
for a public purpose. The landowner is paid compensation in lieu of land, and
therefore, the plea of deprivation of right to livelihood under Art. 21 is
unsustainable.

In M. J. Sivani v. State of Karnataka & Ors[xxvii]., the Supreme Court held

that right to life under Article 21 does protect livelihood but added a rider that
its deprivation cannot be extended too far or projected or stretched to the
avocation, business or trade injurious to public interest or has insidious effect
on public moral or public order. It was, therefore, held that regulation of video
games or prohibition of some video games of pure chance or mixed chance
and skill are not violative of Article 21 nor is the procedure unreasonable,
unfair, or unjust.

HIV Not a Sound ground for Termination

In MX of Bombay Indian Inhabitants v. M/s. ZY[xxviii], it was held that a

person tested positive for HIV could not be rendered “medically unfit” solely
on that ground so as to deny him the employment. The right to life includes
the right to livelihood. Therefore, right to livelihood cannot hang on to the
fancies of the individuals in authority. Even though the petitioner might have
been a nuisance to others and conducted themselves either in a disorderly
way or unbecoming on their profession but, that in itself, it is not sufficient for
the executive to take away their source of livelihood by an executive fiat.

Right to Work Not a Fundamental Right under Art.21

In Sodan Singh v. New Delhi Municipal Committee[xxix], the five judge

bench of the Supreme Court distinguished the concept of life and liberty within
Art.21 from the right to carry on any trade or business, a fundamental right
conferred by Art. 19(1)(g) and held the right to carry on trade or business is
not included in the concept of life and personal liberty. Article 21 is not
attracted in case of trade and business. The petitioners, hawkers doing
business off the pavement roads in Delhi, had claimed that the refusal by the
Municipal authorities to them to carry on business of their livelihood amounted
to violation of their right under Article 21 of the Constitution. The court opined
that while hawkers have a fundamental right under Article 19(1) (g) to carry on
trade or business of their choice; they have no right to do so in a particular
place. They cannot be permitted to carry on their trade on every road in the
city. If the road is not wide enough to be conveniently accommodating the
traffic on it, no hawking may be permitted at all, or may be permitted once a
week. Footpaths, streets or roads are public property and are intended to
several general public and are not meant for private use. However, the court
said that the affected persons could apply for relocation and the concerned
authorities were to consider the representation and pass orders thereon. The
two rights were too remote to be connected together. The court distinguished
the ruling in in Olga Tellis v. Bombay Municipal Corporation[xxx] and held
that “in that case the petitioners were very poor persons who had made
pavements their homes existing in the midst of filth and squalor and that they
had to stay on the pavements so that they could get odd jobs in city. It was
not the case of a business of selling articles after investing some capital.”

In Secretary, State of Karnataka v. Umadevi[xxxi], the Court rejected that

right to employment at the present point of time can be included as a
fundamental right under Right to Life under Art. 21.

Right to Shelter

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society

Limited[xxxii], the right to shelter has been held to be a fundamental right
which springs from the right to residence secured in article 19(1)(e) and the
right to life guaranteed by article 21. To make the right meaningful to the poor,
the state has to provide facilities and opportunities to build houses[xxxiii].

Upholding the importance of the right to a decent environment and a

reasonable accommodation, in Shantistar Builders v. Narayan Khimalal
Totame[xxxiv], the Court held that

“The right to life would take within its sweep the right to food, the right to
clothing, the right to decent environment and a reasonable accommodation to
live in. The difference between the need of an animal and a human being for
shelter has to be kept in view. For the animal it is the bare protection of the
body, for a human being it has to be a suitable accommodation, which would
allow him to grow in every aspect – physical, mental and intellectual. The
Constitution aims at ensuring fuller development of every child. That would be
possible only if the child is in a proper home. It is not necessary that every
citizen must be ensured of living in a well-built comfortable house but a
reasonable home particularly for people in India can even be mud-built
thatched house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U.P[xxxv]., a Bench of three Judges of

Supreme Court had considered and held that the right to shelter is a
fundamental right available to every citizen and it was read into Article 21 of
the Constitution of India as encompassing within its ambit, the right to shelter
to make the right to life more meaningful. The Court observed that:

“Shelter for a human being, therefore, is not a mere protection of his life and
limb. It is however where he has opportunities to grow physically, mentally,
intellectually and spiritually. Right to shelter, therefore, includes adequate
living space, safe and decent structure, clean and decent surroundings,
sufficient light, pure air and water, electricity, sanitation and other civic
amenities like roads etc. so as to have easy access to his daily avocation. The
right to shelter, therefore, does not mean a mere right to a roof over one’s
head but right to all the infrastructure necessary to enable them to live and
develop as a human being[xxxvi].”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of
family .K. Ramaswamy J., in Calcutta Electricity Supply Corporation
(India) Ltd. v. Subhash Chandra Bose[xxxvii], held that right to social and
economic justice is a fundamental right under Art. 21. The learned judge
explained that right to life and dignity of a person and status without means,
were cosmetic rights. Socio-economic rights were, therefore, basic aspirations
for meaning right to life and that Right to Social Security and Protection of
Family were integral part of right to life.

In N.H.R.C. v. State of Arunachal Pradesh[xxxviii], (Chakmas Case), the

supreme court said that the State is bound to protect the life and liberty of
every human-being, be he a citizen or otherwise, and it cannot permit
anybody or group of persons to threaten other person or group of persons. No
State Government worth the name can tolerate such threats by one group of
persons to another group of persons; it is duty bound to protect the threatened
group from such assaults and if it fails to do so, it will fail to perform its
Constitutional as well as statutory obligations.

Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde[xxxix], it was

held that right to economic empowerment of poor, disadvantaged and
oppressed dalits was a fundamental right to make their right of life and dignity
of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa[xl], the

Supreme held that security against sickness and disablement was a
fundamental right under Art. 21 read with Sec. 39(e) of the Constitution of
India.

In L.I.C. of India v. Consumer Education and Research Centre[xli], it was

further held that right to life and livelihood included right to life insurance
policies of LIC of India, but that it must be within the paying capacity and
means of the insured.

Right Against Honour Killing

A division bench of Allahabad high court, In Surjit Kumar v. State of

U.P.[xlii], took serious note on harassment, in ill treatment and killing of a
person who was a major, for wanting to get married to a person of another
caste or community, for bringing dishonor to family since inter caste or inter
community marriage was not prohibited in law, the court said that such
practice of “honour killing” was a blot on society. The court, therefore, directed
the police to take strong measures, against those who committed such
‘honour killing’.

Right to Health

In State of Punjab v. M.S. Chawla[xliii], it has been held that- the right to life
guaranteed under Article 21 includes within its ambit the right to health and
medical care.

The Supreme Court in Vincent v. Union of India[xliv], emphasized that a

healthy body is the very foundation of all human activities.Art.47, a directive
Principle of State Policy in this regard lays stress note on improvement of
public health and prohibition of drugs injurious to health as one of primary
duties of the state[xlv].

In Consumer Education and Research Centre v. Union of India[xlvi], The

Supreme Court laid down that:

“Social justice which is device to ensure life to be meaningful and livable with
human dignity requires the State to provide to workmen facilities and
opportunities to reach at least minimum standard of health, economic security
and civilized living. The health and strength of worker, the court said, was an
important facet of right to life. Denial thereof denudes the workmen the finer
facets of life violating Art. 21.”

Right to Medical Care

In Parmananda Katara v. Union of India[xlvii], the Supreme Court has

very specifically clarified that preservation of life is of paramount importance.
The Apex Court stated that ‘once life is lost, status quo ante cannot be
restored[xlviii].’ It was held that it is the professional obligation of all doctors
(government or private) to extent medical aid to the injured immediately to
preserve life without legal formalities to be complied with the police. Article21
casts the obligation on the state to preserve life. It is the obligation of those
who are in charge of the health of the community to preserve life so that the
innocent may be protected and the guilty may be punished. No law or state
action can intervene to delay and discharge this paramount obligation of
the members of the medical profession. No law or State action can intervene
to avoid/delay the discharge of the paramount obligation cast upon
members of the medical profession. The obligation being total, absolute and
paramount, laws of procedure whether in statute or otherwise which would
interfere with the discharge of this obligation cannot be sustained and must,
therefore, give way. The court also observed:

“Art. 21 of the Constitution cast the obligation on the State to preserve

life. The patient whether he be an innocent person or a criminal liable to
punishment under the laws of the society, it is the obligation of those who are
in charge of the health of the community to preserve life so that the innocent
may be protected and the guilty may be punished. Social laws do not
contemplate death by negligence to tantamount to legal punishment…. Every
doctor whether at a Government hospital or otherwise has the professional
obligation to extend his services with due expertise for protecting life.”

In another case Paschim Banga Khet Mazdoor Samity v. State of West

Bengal[xlix], a person suffering from serious head injuries from a train
accident was refused treatment at various hospitals on the excuse that they
lacked the adequate facilities and infrastructure to provide treatment. In this
case, the Supreme Court further developed the right to emergency treatment,
and went on to state that the failure on the part of the Government hospital to
provide timely medical treatment to a person in need of such treatment results
in violation of his right to life guaranteed under Article 21. It acknowledged the
limitation of financial resources to give effect to such a right, but maintained
that it was necessary for the State to provide for the resources to give effect to
the entitlement of the people of receiving emergency medical treatment[l].

It has been reiterated, time and again, that there should be no impediment to
providing emergency medical care. In Pravat Kumar Mukherjee v. Ruby
General Hospital & Others[li], it was held that a hospital is duty bound to
accept accident victims and patients who are in critical condition and that it
cannot refuse treatment on the ground that the victim is not in a position to
pay the fee or meet the expenses or on the ground that there is no close
relation of the victim available who can give consent for medical treatment[lii].

The court has laid stress on a very crucial point, viz., state cannot plead lack
of financial resources to carry out these directions meant to provide adequate
medical services to the people. The state cannot avoid its constitutional
obligation to provide adequate medical services to people on account of
financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga[liii], the Supreme Court has
recognized that provision of health facilities cannot be unlimited. The court
held that it has to be to the extent finance permits. No country gas unlimited
resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of

India[liv], right to get free and timely legal aid or facilities has been held to be
not a fundamental right of ex-servicemen. A policy decision in formulating
contributory scheme for ex-servicemen and asking them to pay one time
contribution does not violate Art. 21 nor is it inconsistent with Part IV of the
constitution.

No Right to die

Art. 21 confers on a person the right to live a dignified life. Does, it also
confers a right not to live or a right to die if a person chooses to end his life? If
so, what is the fate of Sec. 309, I.P.C., 1860, which punishes a person
convicted of attempting to commit suicide? There has been difference of
opinion on the justification of this provision to continue on the statute book.

This question came for consideration for first time before the High Court of
Bombay in State of Maharashtra v. Maruti Sripati Dubal. In this case the
Bombay High Court held that the right to life guaranteed under Article 21
includes right to die, and the hon’ble High Court struck down Section 309 of
the IPC that provides punishment for attempt to commit suicide by a person
as unconstitutional.

In P. Rathinam v. Union of India[lv], a two judge Division Bench of the

Supreme Court, took cognizance of the relationship/contradiction between
Sec. 309, I.P.C., and Art. 21. The Court supporting the decision of the High
Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life
embodies in Art. 21 also embodied in it a right not to live a forced life, to his
detriment disadvantage or disliking. The court argued that the word life in Art.
21 means right to live with human dignity and the same does not merely
connote continued drudgery. Thus the court concluded that the right to live of
which Art. 21 speaks of can be said to bring in its trail the right not to live a
forced life. The court further emphasized that “attempt to commit suicide is in
realty a cry for held and not for punishment.”

The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian
Kaur v. State of Punjab[lvi]. The question before the court was that if the
principal offence of attempting to commit suicide is void as being
unconstitutional vis-à-vis Art.21, then how abetment can thereof be
punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’
having been included in Art.21 (Rathinam ruling), and Sec. 309 having been
declared unconstitutional, any person abetting the commission of suicide by
another is merely assisting in the enforcement of his fundamental right under
Art. 21.

The Court overruled the decision of the Division Bench in the above stated
case and has put an end to the controversy and ruled that Art.21 is a
provision guaranteeing protection of life and personal liberty and by no stretch
of imagination can extinction of life’ be read to be included in protection of life.
The court observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an

unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of right to life”

Euthanasia and Right to Life

Euthanasia is termination of life of person who is terminally ill or in a

permanent vegetative state. In Gian Kaur v. State of Punjab[lvii], the
Supreme Court has distinguished between Euthanasia and attempt to commit
suicide. The court held that death due to termination of natural life is certain
and imminent and the process of natural death has commenced. These are
not cases of extinguishing life but only of accelerating conclusion of the
process of natural death that has already commenced.

The court further held that, this may fall within the ambit of Right to live with
human dignity up to the end of natural life. This may include the right of a
dying man to also die with dignity when his life is ebbing out. This cannot be
equated with the right to die an unnatural death curtailing the natural span of
life.

Sentence of death –Rarest of rare cases

The issue of abolition or retention of capital punishment was dealt with by the
law commission of India. After collecting as much available material as
possible and assessing the views expressed by western scholars, the
commission recommended the retention of the capital punishment in the
present state of the country. The commission held the opinion that having
regard to the conditions of India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the
country, to the vastness of its area, to the diversity of its population and to the
paramount need for maintaining law and order in the country, India could not
risk the experiment of abolition of capital punishment.

In Jagmohan v. State of U.P[lviii], the Supreme Court had held that death
penalty was not violative of articles 14, 19 and 21.it was said that the judge
was to make the choice between death penalty and imprisonment for life on
the basis of circumstances, facts and nature of crime brought on record during
trail. Therefore, the choice of awarding death sentence was done in
accordance with the procedure established by law as required under article 21

But, in Rajindera Parsad v. State of U.P.[lix], Krishna Iyer J., speaking for
the majority, held that capital punishment would not be justified unless it was
shown that the criminal was dangerous to the society. The learned judge
plead for the abolition of death penalty and said that it should retained only for
“white collar crimes”

However, in Bachan Singh v. State of Punjab[lx], the leading case of on

the question, a constitution bench of the supreme court explained that article
21 recognized the right of the state to deprive a person of his life in
accordance with just, fair and reasonable procedure established by a valid law
.It was further held that death penalty for the offence of murder awarded
under section 302 of I.P.C did not violate the basic feature of the constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar[lxi], it has held that a Public Interest

Litigation is maintainable for insuring enjoyment of pollution free water and air
which is included in ‘right to live’ under Art.21 of the constitution. The court
observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it

includes the right of enjoyment of pollution free water and air for full
enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has right to have recourse to Art.32 of the
Constitution for removing the pollution of water or air which may be
detrimental to the quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a

proper environment free from the dangers of diseases and infection.
Maintenance of health, preservation of the sanitation and environment have
been held to fall within the purview of Article 21 as it adversely affects the life
of the citizens and it amounts to slow poisoning and reducing the life of the
citizens because of the hazards created if not checked.

The following are some of the well-known cases on environment under Article
21:

In M.C. Mehta v. Union of India(1988)[lxii], the Supreme Court ordered

closure of tanneries that were polluting water.

In M.C. Mehta v. Union of India(1997)[lxiii], the Supreme Court issued

several guideline and directions for the protection of the Taj Mahal, an ancient
monument, from environmental degradation.
In Vellore Citizens Welfare Forum v. Union of India[lxiv], the Court
took cognizance of the environmental problems being caused by tanneries
that were polluting the water resources, rivers, canals, underground water and
agricultural land. The Court issued several directions to deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan[lxv], the Supreme

Court held that the „right to life‟ means clean surrounding which lead to
healthy body and mind. It includes right to freedom from stray cattle and
animals in urban areas.

In M.C. Mehta v. Union of India (2006)[lxvi], the Court held that the blatant
and large-scale misuse of residential premises for commercial use in Delhi,
violated the right to salubrious sand decent environment. Taking note of the
problem the Court issued directives to the Government on the same.

In Murli S. Deora v. Union of India[lxvii], the persons not indulging in

smoking cannot be compelled to or subjected to passive smoking on account
of act of smokers. Right to Life under Article 21 is affected as a non-smoker
may become a victim of someone smoking in a public place.

Right Against Noise Pollution

In Re: Noise Pollution[lxviii], the case was regarding noise pollution caused
by obnoxious levels of noise due to bursting of crackers during Diwali. The
Apex Court suggested to desist from bursting and making use of such noise
making crackers and observed that:

“Article 21 of the Constitution guarantees life and personal liberty to all

persons. It guarantees a right of persons to life with human dignity. Therein
are included, all the aspects of life which go to make a person’s life
meaningful, complete and worth living. The human life has its charm and
there is no reason why the life should not be enjoyed along with all
permissible pleasures. Anyone who wishes to live in peace, comfort and quiet
within his house has a right to prevent the noise as pollutant reaching him. No
one can claim a right to create noise even in his own premises that would
travel beyond his precincts and cause nuisance to neighbors or others. Any
noise, which has the effect of materially interfering with the ordinary comforts
of life judged by the standard of a reasonable man, is nuisance…. While one
has a right to speech, others have a right to listen or decline to listen. Nobody
can be compelled to listen and nobody can claim that he has a right to make
his voice trespass into the ears or mind of others. Nobody can indulge into
aural aggression. If anyone increases his volume of speech and that too with
the assistance of artificial devices so as to compulsorily expose unwilling
persons to hear a noise raised to unpleasant or obnoxious levels then the
person speaking is violating the right of others to a peaceful, comfortable and
pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed
into service for defeating the fundamental right guaranteed by Article
21[lxix]”.

Right to Know or Right to Be Informed

Holding that the right to life has reached new dimensions and urgency the
Supreme Court in R.P. Ltd. v. Proprietors Indian Express Newspapers,
Bombay Pvt. Ltd., observed that if democracy had to function effectively,
people must have the right to know and to obtain the conduct of affairs of the
State.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there
was a strong link between Art.21 and Right to know, particularly where “secret
government decisions may affect health, life and livelihood.

Reiterating the above observations made in the instant case, the Apex Court
in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, ruled that the citizens who had been made responsible to
protect the environment had a right to know the government proposal.

PERSONAL LIBERTY

Liberty of the person is one of the oldest concepts to be protected by national

courts. As long as 1215, the English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those
who cherish the ideals of liberty. What can be more important than liberty? In
India the concept of ‘liberty’ has received a far more expansive interpretation.
The Supreme Court of India has rejected the view that liberty denotes merely
freedom from bodily restraint; and has held that it encompasses those rights
and privileges that have long been recognized as being essential to the
orderly pursuit of happiness by free men. The meaning of the term ‘personal
liberty’ was considered by the Supreme Court in the Kharak Singh’s case,
which arose out of the challenge to Constitutional validity of the U. P. Police
Regulations that provided for surveillance by way of domiciliary visits and
secret picketing. Oddly enough both the majority and minority on the bench
relied on the meaning given to the term “personal liberty” by an American
judgment (per Field, J.,) in Munn v Illinois, which held the term ‘life’ meant
something more than mere animal existence. The prohibition against its
deprivation extended to all those limits and faculties by which the life was
enjoyed. This provision equally prohibited the mutilation of the body or the
amputation of an arm or leg or the putting of an eye or the destruction of any
other organ of the body through which the soul communicated with the outer
world. The majority held that the U. P. Police Regulations authorizing
domiciliary visits [at night by police officers as a form of surveillance,
constituted a deprivation of liberty and thus] unconstitutional. The Court
observed that the right to personal liberty in the Indian Constitution is the right
of an individual to be free from restrictions or encroachments on his person,
whether they are directly imposed or indirectly brought about by calculated
measures.
The Supreme Court has held that even lawful imprisonment does not spell
farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a
free citizen except only those ‘necessarily’ lost as an incident of imprisonment

Right to Privacy

As per Black’s Law Dictionary, privacy means “right to be let alone; the right of
a person to be free from unwarranted publicity; and the right to live without
unwarranted interference by the public in matters with which the public is not
necessarily concerned”

Although not specifically referenced in the Constitution, the right to privacy is

considered a ‘penumbral right’ under the Constitution, i.e. a right that has
been declared by the Supreme Court as integral to the fundamental right to
life and liberty. Right to privacy has been culled by Supreme Court from Art.
21 and several other provisions of the constitution read with the Directive
Principles of State Policy. Although no single statute confers a crosscutting
‘horizontal’ right to privacy; various statutes contain provisions that either
implicitly or explicitly preserve this right[lxx].

For the first time in Kharak Singh v. State of U.P.[lxxi] question whether the
right to privacy could be implied from the existing fundamental rights such as
Art. 19(1)(d), 19(1)(e) and 21, came before the court. “Surveillance” under
Chapter XX of the U.P. Police Regulations constituted an infringement of any
of the fundamental rights guaranteed by Part III of the Constitution. Regulation
236(b), which permitted surveillance by “domiciliary visits at night”, was held
to be in violation of Article 21. A seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were
considered by this court in Kharak Singh’s case. Although the majority found
that the Constitution contained no explicit guarantee of a “right to privacy”, it
read the right to personal liberty expansively to include a right to dignity. It
held that “an unauthorized intrusion into a person’s home and the disturbance
caused to him thereby, is as it were the violation of a common law right of a
man -an ultimate essential of ordered liberty, if not of the very concept of
civilization”

In a minority judgment in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions
placed on his movements, but also free from encroachments on his private
life. It is true our Constitution does not expressly declare a right to privacy as
a fundamental right but the said right is an essential ingredient of personal
liberty. Every democratic country sanctifies domestic life; it is expected to give
him rest, physical happiness, peace of mind and security. In the last resort, a
person’s house, where he lives with his family, is his ‘castle’; it is his rampart
against encroachment on his personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for
later elaborations on the right to privacy using Article 21.
In Govind v. State of Madhya Pradesh[lxxii], The Supreme Court took a
more elaborate appraisal of the right to privacy. In this case, the court was
evaluating the constitutional validity of Regulations 855 and 856 of the
Madhya Pradesh Police Regulations, which provided for police surveillance of
habitual offenders including domiciliary visits and picketing of the suspects.
The Supreme Court desisted from striking down these invasive provisions
holding that:

“It cannot be said that surveillance by domiciliary visit would always be an

unreasonable restriction upon the right of privacy. It is only persons who are
suspected to be habitual criminals and those who are determined to lead a
criminal life that are subjected to surveillance.”

The court accepted a limited fundamental right to privacy as an emanation

from Arts.19(a), (d) and 21. Mathew J. observed in the instant case,

“The right to privacy will, therefore, necessarily, have to go through a process

of case by case development. Hence, assuming that the right to personal
liberty. the right to move freely throughout India and the freedom of
speech create an independent fundamental right of privacy as an emanation
from them that one can characterize as a fundamental right, we do not think
that the right is absolute…..

…… Assuming that the fundamental rights explicitly guaranteed to a citizen

have penumbral zones and that the right to privacy is itself a fundamental
right that fundamental right must be subject to restrictions on the basis
of compelling public interest”

In R. Rajagopalan v. State of Tamil Nadu[lxxiii], The right to privacy of

citizens was dealt with by the Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to
the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen
has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, childbearing and education among other matters.
None can publish anything concerning the above matters without his consent
– whether truthful or otherwise and whether laudatory or critical. If he does so,
he would be violating the right to privacy of the person concerned and would
be liable in an action for damages. Position may, however, be different, if a
person voluntarily thrusts himself into controversy or voluntarily invites or
raises a controversy.

(2) The rule aforesaid is subject to the exception that any publication
concerning the aforesaid aspects becomes unobjectionable if such publication
is based upon public records including court records. This is for the reason
that once a matter becomes a matter of public record, the right to privacy no
longer subsists and it becomes a legitimate subject for comment by press and
media among others. We are, however, of the opinion that in the interests of
decency [Article 19(2)] an exception must be carved out to this rule, viz., a
female who is the victim of a sexual assault, kidnap, abduction or a like
offence should not further be subjected to the indignity of her name and the
incident being publicized in press/media.”

The final case that makes up the ‘privacy quintet’ in India was the case
of PUCL v. Union of India[lxxiv], the Supreme Court observed that:

We have; therefore, no hesitation in holding that right to privacy is a part of

the right to “life” and “personal liberty” enshrined under Article 21 of the
Constitution. Once the facts in a given case constitute a right to privacy;
Article 21 is attracted. The said right cannot be curtailed “except according to
procedure established by law”.

Scope and Content of Right to Privacy:

Tapping of Telephone

Emanating from the right to privacy is the question of tapping of telephone.

In R.M. Malkani v. State of Maharashtra, the Supreme Court held that, the
telephonic conversation of an innocent citizen will be protected by Courts
against wrongful or high handed’ interference by tapping the conversation.
The protection is not for the guilty citizen against the efforts of the police to
vindicate the law and prevent corruption of public servants.

Telephone tapping is permissible in India under Section 5(2) of the Telegraph

Act, 1885. The Section lays down the circumstances and grounds when an
order for tapping of a telephone may be passed, but no procedure for making
the odder is laid down therein.

The Supreme Court in PUCL v. Union of India held that in the absence of
just and fair procedure for regulating the exercise of power under Section 5(2)
of the Act, it is not possible to safeguard the fundamental rights of citizens
under Section 19 and 21. Accordingly, the court issued procedural safeguards
to be observed before restoring to telephone tapping under Section 5(2) of the
Act.

The Court further ruled that “right to privacy is a part of the right to “life” and
“personal liberty” enshrined under Article 21 of the Constitution. Once the
facts in a given case constitute a right to privacy; Article 21 is attracted. The
said right cannot be curtailed “except according to procedure established by
law”. The court has further ruled that Telephone conversation is an important
facet of a man’s private life. Right to privacy would certainly include telephone
conversation in the privacy of one’s home or office. Telephone tapping would,
thus, infract Article 21 of the Constitution of India unless it is permitted under
the procedure established by law. The procedure has to be just, fair and
reasonable.”

Disclosure of Dreadful Diseases

In Mr. X v. Hospital Z[lxxv], the question before the Supreme Court was
whether the disclosure by the doctor that his patient, who was to get married
had tested HIV positive, would be violative of the patient’s right to privacy. The
Supreme Court ruled that the right to privacy was not absolute and might be
lawfully restricted for the prevention of crime, disorder or protection of health
or morals or protection of rights and freedom of others. The court explained
that the right to life of a lady with whom the patient was to marry would
positively include the right to be told that a person, with whom she was
proposed to be married, was the victim of a deadly disease, which was
sexually communicable. Since the right to life included right to healthy life so
as to enjoy all the facilities of the human body in the prime condition it was
held that the doctors had not violated the right to privacy.

Right to privacy and subjecting a person to medical tests

It is well settled that the right to privacy is not treated as absolute and is
subject to such action as may be lawfully taken for the preventive of crimes or
disorder or protection of health or morals or protections of rights and freedom
of others. In case there is conflict between fundamental rights of two parties
that which advances public morality would prevail.

A three-judge bench in case of Sharda v. Dharmpal[lxxvi], ruled that a

matrimonial court had the power to direct the parties to divorce proceedings,
to undergo a medical examination. a direction issued for this could not be held
to the violative of one’s right to privacy but court however said that for this
there must be a sufficient material .

Right to Privacy-Woman’s Right to Make Reproductive Choices

A woman’s right to make reproductive choices includes the woman’s right to

refuse participation in sexual activity or alternatively the insistence on use of
contraceptive methods such as undergoing sterilization procedures woman’s
entitlement to carry a pregnancy to its full term, to give birth and subsequently
raise children.

Right to go abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New

Delhi[lxxvii], the Supreme Court has included Right to travel abroad
contained in by the expression “personal liberty” within the meaning of Article
21.

In Maneka Gandhi v. Union of India[lxxviii], validity of Sec. 10(3)(c) of the

passport Act 1967, which empowered government to impound the passport of
a person, in the interest of general public was challenged before the seven-
judge Bench of the Supreme Court.

It was contended that, right to travel abroad being a part of right to “personal
liberty” the impugned section didn’t prescribe any procedure to deprive her of
her liberty and hence it was violative of Art. 21.
The court held that the procedure contemplated must stand the test of
reasonableness in order to conform to Art.21 other fundamental rights. It was
further held that as the right to travel abroad falls under Art. 21, natural justice
must be applied while exercising the power of impounding passport under the
Passport Act. BHAGWATI, J., observed:

The principle of reasonableness, which legally as well as philosophically, is an

essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence and that It must be “‘right and just and fair” and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and
the requirement of Article 21 would not be satisfied.

Right against Illegal Detention

In Joginder Kumar v. State of Uttar Pradesh[lxxix], the petitioner was

detained by the police officers and his whereabouts were not told to his family
members for a period of five days. Taking the serous note of the police high
headedness and illegal detention of a free citizen, the Supreme Court laid
down the guidelines governing arrest of a person during investigation:

An arrested person being held in custody is entitled, if he so requests to have

a friend, relative or other person told as far as is practicable that he has been
arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the
police station of this right. An entry shall be required to be made in the diary
as to who was informed of the arrest.

In the case of D.K. Basu v. State of West Bengal[lxxx], the Supreme Court
laid down detailed guidelines to be followed by the central and state
investigating agencies in all cases of arrest and detention till legal provisions
are made in that behalf as preventive measures and held that any form of
torture or cruel inhuman or degrading treatment, whether it occurs during
interrogation, investigation or otherwise, falls within the ambit of Article 21.

Article 21 & Prisoner’s Rights

The protection of Article 21 is available even to convicts in jail. The convicts

are not by mere reason of their conviction deprived of all their fundamental
rights that they otherwise possess. Following the conviction of a convict is put
into a jail he may be deprived of fundamental freedoms like the right to move
freely throughout the territory of India. But a convict is entitled to the precious
right guaranteed under Article 21 and he shall not be deprived of his life and
personal liberty except by a procedure established by law[lxxxi].

In Maneka Gandhi v. Union of India, the Supreme Court gave a new

dimension to Article 21. The Court has interpreted Article 21 so as to have
widest possible amplitude. On being convicted of crime and deprived of their
liberty in accordance with the procedure established by law. Article 21, has
laid down a new constitutional and prison jurisprudence[lxxxii]. The rights and
protections recognized to be given in the topics to follow:

Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra[lxxxiii], the Supreme Court said

while holding free legal aid as an integral part of fair procedure the Court
explained that “ the two important ingredients of the right of appeal are; firstly,
service of a copy of a judgement to the prisoner in time to enable him to file
an appeal and secondly, provision of free legal service to the prisoner who is
indigent or otherwise disabled from securing legal assistance. This right to
free legal aid is the duty of the government and is an implicit aspect of Article
21 in ensuring fairness and reasonableness; this cannot be termed as
government charity.

In other words, an accused person at lease where the charge is of an offence

punishable with imprisonment is entitled to be offered legal aid, if he is too
poor to afford counsel. Counsel for the accused must be given sufficient time
and facility for preparing his defence. Breach of these safeguards of fair trial
would invalidate the trial and conviction.

Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar[lxxxiv], it was

brought to the notice of the Supreme Court that an alarming number of men,
women and children were kept in prisons for years awaiting trial in courts of
law. The Court took a serious note of the situation and observed that it was
carrying a shame on the judicial system that permitted incarceration of men
and women for such long periods of time without trials.

The Court held that detention of under-trial prisoners, in jail for period longer
than what they would have been sentenced if convicted, was illegal as being
in violation of Article of 21. The Court, thus, ordered the release from jail of all
those under-trial prisoners, who had been in jail for longer period than what
they could have been sentenced had they been convicted

In A.R. Antulay v. R.S. Nayak[lxxxv], a Constitution Bench of five judges of

the Supreme Court dealt with the question and laid down certain guidelines
for ensuring speedy trial of offences some of them have been
listed below[lxxxvi]:

Fair, just and reasonable procedure implicit in Article 21 creates a right in the
accused to be tried speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages,
namely the stage of investigation, inquiry, appeal, revision and retrial.

The concerns underlying the right of speedy trial from the point of view of the
accused are:
The period of remand and pre-conviction detention should be as short as
possible.

The worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, enquiry or trial should be
minimal; and

Undue delay may well result in impairment of the ability of the accused to
defend him.

While determining whether undue delay has occurred, one must have regard
to all the attendant circumstances, including nature of offence, number
of accused and witnesses, the workload of the court concerned. Each and
every delay does not necessarily prejudice the accused. An accuser’s plea of
denial of speedy trial cannot be defeated by saying that the accused did at no
time demand a speedy trial

In the case of Anil Rai v. State of Bihar[lxxxvii], the Supreme Court directed
the Judges of the High Courts to give quick judgements and in certain
circumstances the parties are to submit application to the Chief Justice
to move case to other bench or to do the needful at his discretion.

Right to Fair Trial

Free and fair trial has been said to be the sine qua non of Article 21. The
Supreme Court in Zahira Habibullah Sheikh v. State of
Gujarat[lxxxviii] said that right to free and fair trial not only to the accused
but also to the victims, their family members and relatives, and society at
large.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial
incarceration to bathe present-day unsatisfactory and irrational rules for bail,
which insists merely on financial security from the accused and their sureties.
Many of the under trials being poor and indigent are unable to provide any
financial security. Consequently they have to languish in prisons awaiting their
trials.

But incarceration of persons charged with non-bailable offences during

pendency of trial cannot be questioned as violative of Article 21 since the
same is authorised by law. In the case of Babu Singh v. State of Uttar
Pradesh[lxxxix], the Court held that right to bail was included in the personal
liberty under Article 21 and its refusal would be deprivation of that liberty
which could be authorised in accordance with the procedure established by
law.

No right to Anticipatory Bail

Anticipatory bail is a statutory right and it does not arise out of Article 21.
Anticipatory bail cannot be granted as a matter of right as it cannot be granted
as a matter of right as it cannot be considered as an essential ingredient of
Article 21.

Right against Handcuffing

Handcuffing has been held to be prima facie inhuman and therefore

unreasonable, over-harsh and at first flush, arbitrary. It has been held to be
unwarranted and violative of Article 21.

In Prem Shankar v. Delhi Administration[xc], the Supreme Court struck

down the Rules that provided that every under-trial who was accused of a
non-bailable offence punishable with more than three years prison term would
be routinely handcuffed. The Court ruled that handcuffing should be resorted
to only when there was “clear and present danger of escape” of the accused
under -trial, breaking out of police control.

Right against Solitary Confinement

It has been held that a convict is not wholly denuded of his fundamental rights
and his conviction does not reduce to him into a non – person whose rights
are subjected to the whims of the prison administration. Therefore, the
imposition of any major punishment within the prison system is conditional
upon the observance of procedural safeguard.

In Sunil Batra v. Delhi Administration[xci], the petitioner was sentenced to

death by the Delhi session court and his appeal against the decision was
pending before the high court. He was detained in Tihar Jail during the
pendency of the appeal. He complained that since the date of conviction by
the session court, he was kept in solitary confinement. It was contended that
Section 30 of Prisoners Act does not authorize jail authorities to send him to
solitary confinement, which by itself was a substantive punishment under
Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by
a court of law and it could not be left to the whim and caprice of the prison
authorities. The Supreme Court accepted the argument of the petitioner and
held that imposition of solitary confinement on the petitioner was violative of
Article 21.

Right against Custodial Violence

The incidents of brutal police behaviour towards persons detained on

suspicion of having committed crimes are a routine matter. There has been a
lot of public outcry from time to time against custodial deaths.

The Supreme Court has taken a very positive stand against the atrocities,
intimidation, harassment and use of third-degree methods to extort
confessions. The Court has classified these as being against human dignity.
The rights under Article 21 secure life with human dignity and the same
are available against torture.
Death by Hanging not Violative of Article 21

In Deena v. Union of India[xcii], the constitutional validity of the death

sentence by hanging was challenged as being “barbarous, inhuman, and
degrading” and therefore violative of Article 21. Referring to the Report of the
UK Royal Commission, 1949; the opinion of the Director General of Health
Services of India, the 35th Report of the Law Commission; and the opinion of
the Prison Advisers and Forensic Medicine Experts, the Court held that death
by hanging was the best and least painful method of carrying out the death
penalty, and thus not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order directed the execution of the death
sentence of an accused by hanging at the Stadium Ground of Jaipur. It was
also directed that the execution should be done after giving widespread
publicity through the media.

On receipt of the above order, the Supreme Court in Attorney General of

India v. Lachma Devi[xciii] held that the direction for execution of the death
sentence was unconstitutional and violative of Article 21. It was further made
clear that death by public hanging would be a barbaric practice. Although the
crime for which the accused has been found guilty was barbaric it would be a
shame on the civilised society to reciprocate the same. The Court said, “a
barbaric crime should not have to be visited with a barbaric penalty.”

Right against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu[xcv], the Supreme Court held

that delay in execution of death sentence exceeding 2 years would be
sufficient ground to invoke protection under Article 21 and the death sentence
would be commuted to life imprisonment. The cause of the delay
is immaterial, the accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab[xcvi], the Supreme Court said that

prolonged wait for execution of a sentence of death is an unjust, unfair and
unreasonable procedure and the only way to undo that is through Article 21.
But the Court held that this cannot be taken as the rule of law and applied to
each case and each case should be decided upon its own faces.

Right to Write a Book

In State of Maharashtra v. Prabhakar Pandurang[xcvii], the petitioner while

under detention in jail wrote a book on science and sought the permission
from the Government to send the manuscript of the book to his wife for
publication, to which the Government refused. The Court held that this was an
infringement of personal liberty and that Article 21 included the right to write
the book and get it published.

Right against Bar Fetters

 In Sunil Batra v. Delhi Administration, the Supreme Court gave Right
against Bar Fetters and held that treatment that offended human dignity and
reduced man to a level of beast would certainly be arbitrary and could be
questioned under Article 21, but the right is not absolute.

Q. discuss the parliamentary power to ammend the constitution. Explain

the limitations of parliament to ammend the constitution
The scope and extent of Parliament’s power to amend the Constitution
of India

Ans: Practically every Constitution has some formal method of constitutional

amendment. This method consists in changing the language of the
constitutional provisions so as to adopt them to the changed context of the
social needs. In some countries, the process may be easier than in others,
and accordingly, the Constitutions are sometimes classified into flexible or
rigid. In a rigid Constitution, the process of amending the Constitution is more
elaborate and difficult than the enactment of ordinary laws.

In a flexible Constitution, the amendment may be affected rather easily. The

best example of such a Constitution is the English Constitution, which may be
amended by passing an ordinary Act of Parliament and there is no distinction
between ordinary legislation and constituent legislation. A federal Constitution
is usually of a rigid type, for it seeks to achieve a balance between the Centre
and the States.

In India, the most important process to modify and adopt the text of the Indian
Constitution is contained in Article 368. For the purpose of amendment,
various Articles of the Constitution are divided into three categories:

(1) Amendment by simple majority:

Amendments contemplated in Articles 5, 6, and 239-A, can be made by
simple majority. These Articles are specifically excluded from the purview of
the procedure prescribed in Article 368.

(2) Amendment by special majority:

Articles which can be amended by special majority are laid down in Article
368. All constitutional amendments, other than those referred to as above,
come within this category and must be effected by a majority of the total
membership of each House of the Parliament, as well as by a majority of not
less than two-thirds of the members of that House present and voting.

(3) By special majority and Ratification by States:

Articles which require in addition to the special majority and ratification by not
less than one-half of the State Legislatures come under this category. These
are fundamental matters where States have important power under the
Constitution and any unilateral amendment by Parliament may vitally affect
the fundamental basis of the system built up by the Constitution. This class of
articles consists of amendments which seek to make any change in the
provisions mentioned in Article 368. The following provisions require such
ratification by States:

(1) Election of President—Articles 54 and 55.

(2) Extent of Executive power of the Union and States—Articles 73 and 162.

(3) Articles dealing with Judiciary—Supreme Court and the High Court’s—
Articles 124 to 147 and 214 to 231, and 241.

(4) Distribution of legislative powers between the Centre and the States.

(5) Any of the Lists of VII Schedule.

(6) Representation of States in Parliament IV Schedule.

(7) Article 368 itself.

Procedure for Amendment under Article 368:

A Bill to amend the Constitution may be introduced in either House of
Parliament. It must be passed by each House by a majority of not less than
two-thirds members of total membership of that House present and voting.
When a Bill is passed by both Houses, it is presented to the President for his
assent, who shall give his assent to the Bill and the Constitution shall stand
amended.

The question whether amendment of fundamental rights are covered by the

proviso to Article 368, came for consideration in Shankari Prasad v. Union of
India, AIR 1951 S.C. 455. In this case, validity of the First Amendment which
inserted Articles 31-A and 31-B, was challenged.

The Supreme Court held that power to amend the Constitution including the
fundamental rights, was contained In Article 368 and that the word “Law” in
Article 13 (2) includes only an ordinary law and not constitutional
amendments. Therefore, a constitutional amendment will be valid even if it
abridges or takes away any of the fundamental rights.

Same line of approach was followed in SaJJan Singh vs. State of Rajas than,
AIR 1965 S.C. 845, in which the validity of Seventeenth Amendment of the
Constitution was challenged. Supreme Court approved the majority Judgment
given In Shankari Prasad case, that “amendment of the Constitution” means
amendment of all the provisions of the Constitution.

But In Golak Nath vs. State of Punjab, AIR 1967 S.C. 1643, and Supreme
Court overruled the decisions of Shankari Prasad and Sajjan Singh cases and
held that Parliament had no power to amend Part III of the Constitution so as
to abridge or take away the fundamental rights.

The Constitution (24th Amendment) Act, 1971, was passed to remove the
difficulties created by the decision of Golak Nath case. This amendment
provides that Article 13 does not include the amendment of the Constitution
made under Article 368. It added a new sub-clause In Article 368 which
provides that “notwithstanding anything in this Constitution, Parliament may,
in exercise of constituent power, amend by way of addition, variation, or
repeal any provision of the Constitution.”

The validity of this Amendment was again challenged In Keshvanand Bhartiv.

State of Kerala, AIR 1973 S.C. 1461. In this case, Supreme Court overruled
the decision of Golak Nath case and held that Article 368, even before the
24th Amendment of the Constitution, contained the powers as well as the
procedure of the amendment.

As regards the scope of the amending power contained in Article 368, the
court said that the word “amendment” has been used in various places to
mean different things. In Article 368, It means any addition or change in any of
the provisions of the Constitution. The fundamental rights cannot be
abrogated, but they can be amended reasonably. The court further said that
every part of the Constitution can be amended provided in the result the basic
structure of the Constitution remains the same.

To remove the difficulties created by the decision of Keshvanand Bharti Case,

the Constitution (42nd Amendment) Act, 1976, has added two new clauses
(4) and (5) to Article 368 of the Constitution. Clause (4) provides that no
constitutional amendment (including the provisions of Part III) or purporting to
have been made under Article 368 whether before or after the
commencement of Constitution (42nd Amendment) Act, 1976, shall be called
in question in any court on any ground.

Clause (5) declares that there shall be no limitation whether on the constituent
power of Parliament to amend by way of addition, variation or repeal the
provisions of the Constitution under this Article.

In Minerva Mills Ltd. v. Union of India, AIR 1980 S.C. 1789, the Supreme
Court held clauses (4) and (5) of Article 368 as void, because through these
clauses all limitations on the amending power of the Parliament were
removed.

The court held that Parliament cannot have unlimited power to amend the
Constitution. “Limited amending power” is the basic feature of the
Constitution. The court, however, held that the doctrine of basic structure is to
be applied only in judging the validity of the amendments to the Constitution
and it does not apply for judging the validity of ordinary laws made by the
Legislature.

Q. Explain the Preamble of the constitution of India. Whether it is part of

the constitution, whether preamble can be amended. Support your
answer with the decided case law.
Ans. Preamble to the Constitution – A Declaration of the State of India to
Secure Justice and Security to the People Every constitution begins with a
Preamble. The Preamble embodies the objectives or aims or basic purposes
of the constitution. It is a preface or the introduction to the constitution. The
interpretation of the Constitution is based on spirit of the Preamble. The
Constitution of India begins with a Preamble which has a special significance.
We cannot regard it or underestimate it as a collection of useless rhetoric. It
contains the ideal, aspirations and declaration of the nation to ensure justice
and to build up the country as a true welfare state. The Preamble declares the
aims and objectives of the Constitution and indicates the source of its
authority. It does not form part of the operative position of the Constitution. It
is a key to unlock the minds of the makers of the Constitution.

The Preamble is an integral part of the Constitution of India. Our discussion of

the 'Directive Principles of State Policy' and the 'Fundamental Rights' as
enunciated in the Constitution of India will remain incomplete, fragmental and
incomprehensive if we do not shed light on and explain the Preamble,
because the Preamble is inseparably related to both the 'Directive Principles
of State Policy' and the 'Fundamental Rights' as far as the ideas of rights,
social justice , social security and dignity of man as man are concerned .
Before discussing , explaining and analyzing the value of Directive Principles
in term of social justice, we need to discuss the implications of the Preamble.

The Preamble may not have any legal value because it cannot normally
qualify the provision of the Constitution. Yet in cases of doubt, the Supreme
Court of India has referred to the Preamble to elucidate vague provisions of
the Constitution. The real value of the Preamble lies in its psychological
appeal because it contains words surcharged with emotions – justice, liberty,
equality and fraternity. The philosophy of the Constitution is embodied in the
Preamble. As Justice Hidayatulla said, The Preamble is more than a
declaration. It is the soul of our Constitution and lays down the pattern of our
political society. It contains a solemn resolve which nothing but a resolution
can alter. Grenville Austin says that the Indian Constitution is a social
document. It aims at establishing a better society on the basis of justice,
liberty, equality and fraternity and the Preamble commits the Constitution to a
social revolution. The whole of the Indian Constitution is an elaboration and
an elucidation of the Preamble.

Legal implication of the Preamble

The Preamble is a priceless addition to the Constitution of India and hence is
recognised as a part of the Constitution but not as a part of its operative
provisions as it is stated in the Keshavananda Bharati Case, 1973. The
Preamble is not an enactment ; it is not enforceable in the court of law. It lets
the constitution framers know the evils or inconveniences which they intended
to remedy. The Preamble enables the court to dispel the ambiguity of
language or expression found in a constitutional provision and to explain and
elucidate its appropriate meaning and significance. This view was nicely
expressed by the Supreme Court in the Berubari Case (1968)25, Bhim Singh
vs. Union of India, 198126; Gopalan vs State of Madras, 1950. “The
functioning of the Preamble is illuminative and not restrictive or expansive.” In
Keshavananda Case, though the Supreme Court declared the Preamble as a
part of the Constitution, it could not suggest that the government could derive
any additional power from the Preamble. Hence, the court cannot be expected
to examine the constitutional validity of a legislative enactment or
administrative measure by keeping their attention confined to the Preamble.
The Preamble may better be looked upon as a 'guiding star' in the
interpretation of law.

The recent observation of the Supreme Court on the implication of the

Preamble in matter of rational interpretation of Fundamental Rights is quite
significant. The court is inclined to give expression to the view that since the
Preamble sets
forth the aims and objectives of the political system of India, “it may be
invoked to determine the scope of Fundamental Rights.” (Minerva Mills vs.
Union of India, 1980) and the 'Directive Principles of State Policy' (State of
Kerala vs. Thomas 1996, Waman Rao And others vs. Union of India 198028 )
; what led the Supreme Court to express this view about the Preamble is the
interrelationship between the 'Preamble' and 'Fundamental Rights'. It attaches
this importance to the Preamble because the ideals of socialism, secularism
and democracy are elaborated by the provisions of the Constitution. In the
case of Linogappa vs State of Maharastra, 1985 and Indira Swaney vs. Union
of India, 1992, the Supreme Court proceeded further in this respect. In its
view, the words 'social justice' in the Preamble makes it obligatory for the
State to enact positive measures in order to protect the tribals and the weaker
section of the community.

Summary -The Preamble to the Constitution of India is not a conventional

addition but an addition with utmost value and importance of the polity which
India as a social welfare state strives to establish . The spirit of the
Constitution has been virtually epitomized by and embodied in the Preamble.
Though the Preamble is not justifiable or enforceable, it defines the boundary
of functions of the Constitution. India cannot overstep or override the
Preamble in the formulation of laws and adoption and introduction of policies.
It can be said that to override the Preamble is definitely to override the
Constitution. The spirit of the Constitution is announced in the simple few
words of the Constitution . That India is committed to social welfare and social
justice is declared in it.

The question was raised for the first time before the supreme Court in the
historic case of Keshavanand Bharati Keshav Nand Bharti vs State of
Kerala. In this case the Attorney General argued that by virtue of the
amending power in Article 368 even the Preamble can be amended. It was
said that since the Preamble was a part of the Constitution it could be
amended like any other provisions of the constitution. The petitioner however,
contented that be amending power in article 368 is limited. Preamble creates
an implied limitation on the power of amendment. The Preamble contains the
basic elements or the fundamental feature of our constitution. Consequently,
amending power cannot be used so as to destroy or damaged these basic
features of mentioned in the Preamble. It was argued that preamble cannot be
amended as it is not a part of the constitution. The supreme court however,
held that the Preamble is part of the constitution and therefore, on this point
the Beruberi opinion was wrong.

On the question whether the Preamble can be amended the majority held
that since the Preamble is the part of the Constitution it can be amended but
subject to this condition that the" basic features" in the Preamble cannot be
amended. The Court said, "the edifice of our constitution is based upon the
basic elements mentioned in the Preamble . If any of these elements removed
the structure will not survive and it will not be the same constitution or it
cannot maintain its identity .

Q. Explain the concept of equality under rticle 14 of the Indian

constitution. What is doctrine of reasonable classification? How it is
significant for establishing the equality?

Ans: Right to equality given under article 14 of Indian law. it is one of the
fundamental right. It ensure the guarantees to every person the right to
equality before law & equal protection of the laws .it is not only right of Indian
citizens but also right of non-citizens .article 14 says “The state shall of India.”
article 14 define no one is above the law. All are equal in eye of law.
1.1 Equality before law “The state shall not deny to any person equality before
the law.

1.2 Meaning of right to equality

This means that every person, who lives within territory of India, has the equal
right before the law. the meaning of this all are equal in same line. No
discrimination based on religion ,race, caste, sex,and place of birth. its mean
that all will be treated as equality among equal .and there will be no
discrimination based on lower or higher class.

ARTICLE 14- EQUALITY BEFORE LAW

Article 14 declares that ‘the State shall not deny to any person equality before
the law or equal protection of law within the territory of India.’. thus article 14
uses the two expressions “equality before law” and “equal protection of law”.
The phrase “equality before law” find a place in almost in written constitution
that guarantees fundamental right both these expression .both this
expression aim at establishing what is called “equality of status” While both
the expression are kind of identical but they don’t give similar meaning.

EQUALITY BEFORE LAW

Its origin is from America. And somehow its negative concept. It aims at
implying the absence of any special privilege by reason of birth, sex, religion
etc in favor of individuals and the equal subject of all the classes to the
ordinary law

EQUAL PROTECTION OF LAW

Its origin is from British. And some how it is a positive concept. it aims at
equality of treatment in equal circumstances. It means whether someone is
P.M. or President he should be deal with same law as normal being deals with

RULE OF LAW
The guarantee of equality before the law is an aspect of what Dicey calls the
Rule OF Law in England. It means that no man is above the law and that
every person whatever be his rank or condition is subject to the jurisdiction of
ordinary courts.

Rule of law require that no person shall be subjected to harsh, uncivilized or

discriminatory treatment even when the object is the securing of the
paramount exigencies of law and order.

Professor Dicey gave three meanings of thr Rule Of Law

1. Absence of arbitrary power or supremacy of the law: It means the absolute
supremacy of law as opposed to the arbitrary power of the Government. In
other words-a man may be punished for a brech of law,but he cant be punish
for anything else.
2. Equality before law: It means subjection of all classes to the ordinary law of
land administrated by ordinary law courts. This means that no one is above
law all are equal in eyes of law

3. Absence of individual liberty: There are various constitution that provide

individual liberty but not provide method It means that the source of the right
of individuals is not the written constitution. U.K. don’t have provision for
individual liberty.

Rule Of Law In India

1. Supremacy of Law: The First meaning of the Rule of Law is that 'no man is
punishable or can lawfully be made to suffer in body or goods except for a
distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land. It implies that a man may be punished for a breach
of law but cannot be punished for anything else. No man can be punished
except for a breach of law. An alleged offence is required to be proved before
the ordinary courts in accordance with the ordinary procedure.

2. Equality before Law:- The Second meaning of the Rule of Law is that no
man is above law. Every man whatever be his rank or condition is subject to
the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals. Everybody under Article 14 is equal before law and have equal
protection.

3. Individual Liberty: lot of individual liberty is mention like fundamental right in

Article 21- protection of life and personal liberty, article 19- Right to freedom
etc. and courts are their to protect individual liberty.
The first and second aspect apply to Indian system but the third aspect of the
diceys rule of law does not apply to Indian system as the source of right of
individuals is the constitution of india. The constitution is the supreme law of
the land and all laws passed by the legislature must be consistent with
provisions of the constitution

The rule of law impose a duty upon state to take special measure to prevent
and punish brutality by police methodology. The rule of law embodied in
article 14 is the basic feature of the Indian constitution and hence it can’t be
destroyed even by an amendment of the constitution under article 368 of the
constitution.

Exception To Rule OF Law

The above rule of equality is however not an absolute rule and there
are number exception to it
v ‘Equality of Law’ does not mean the power of the private citizens are the
same as the power of the public officials. Thus a police officer has the power
to arrest you while no other private person has this power. This is not violation
of rule of law. But rule of law does require that these powers should be clearly
defined by law and that abuse of authority by public officers must be
punished by ordinary courts.

The rule of law does not prevent certain class of persons being subject to
special rules. Thus members of armed forces are controlled by military rules.
Similarly medical practitioners are controlled by medical council of India

Certain members of society are governed by special rules in their profession

i.e. lawyers, doctors, nurses, members of armed forces and police. Such
classes of people are treated differently from ordinary citizens.

Article 14 Permits Classification But Prohibits Class Legislation

The equal protection of laws guaranteed by Article 14 does not mean that all
laws must be general in character. It does not mean that the same laws
should apply to all persons. It does not attainment or circumstances in the
same position. The varying needs of different classes of persons often
requires separate treatment. From the vary nature of society there should be
different laws in different places and the legitimate controls the policy and
enacts laws in the best interest of the safety and security of the state. In fact
identical treatment in unequal circumstances would amount to inequality. So a
reasonable classification is only not permitted but is necessary if society is to
progress.

Thus what Article 14 forbids is class-legislation but it does not forbid

reasonable classification. The classification however must not be “arbitrary
,artificial or evasive” but must be based on some real and substantial bearing
a just and reasonable relation to the object sought to be achieved by the
legislation. Article 14 applies where equals are treated differently without any
reasonable basis. But where equals and unequals are treated differently,
Article 14 does not apply. Class legislation is that which makes an improper
discrimination by conferring particular privileges upon a class
of persons arbitrarily selected from a large number of persons all of whom
stand in the same relation to the privilege granted that between whom and the
persons not so favored no reasonable distinction or substantial difference can
be found justifying the inclusion of one and the exclusion of the other from
such privilege.

Test Of Reasonable Classification

While Article 14 frobids class legislation it does not forbid reasonable
classification of persons, objects, and transactions by the legislature for the
purpose of achieving specific ends. But classification must not be “arbitrary
,artificial or evasive”. It must always rest upon some real upon some real and
substantial distinction bearing a just and reasonable relation to the object
sought to be achieved by the legislation. Classification to be reasonable must
fulfil the following two conditions

Firstly the classification must be founded on the intelligible differentia which

distinguishes persons or thing that are grouped together from others left out of
the group Secondly the differentia must have a rational relation to the object
sought to be achieved by the act.

The differentia which is the basis of the classification and the object of the act
are two distinct things. What is necessary is that there must be nexus
between the basis of classification and the object of the act which makes the
classification. It is only when there is no reasonable basis for a classification
that legislation making such classification may be declared discriminatory.
Thus the legislature may fix the age at which persons shall be deemed
competent to contract between themselves but no one will claim that
competency. No contract can be made to depend upon the stature or colour
of the hair. Such a classification will be arbitrary.

Q. Explain the legislative relation between nation and state with the help
of decided case law?

Ans: Legislative Relations between Union and States—According to the

scheme of the division of Legislative powers the Constitution of India divides
them in two kinds —

(i) with respect to territory; and

(ii) with respect to subject-matter.

1. Territorial Jurisdiction —According to Art. 245 (2) parliament may make

laws for the whole of the territory of India. It has power also to make laws
having extra-territorial operation and a law so made is not to be deemed to be
unconstitutional merely on the ground of extra-territorial operation. According
to Art, 245 ( I ) A state can legislate only “for the whole or any part of the
State.” Hence state law would be invalid if it has extra-territorial
operation i.e., takes effect outside the State. But there is one exception to
this general rule. A state law of extra-territorial operation will be valid if there is
sufficient nexus between the object and the State.

2. Jurisdiction with respect to subject-matter—Indian Constitution. divides

the Legislative powers between the Union and the States in threes lists- I

1. Union List—The Union List consists of 97 subjects. The subjects

mentioned in the Union List are of national importance, i.e., defence, foreign
affairs, banking currency and coinage, union duties and taxes, But Entry 33
was deleted by the Constitution (7th Amendment) Act, 1956 and Entries 2-A,
92-A and 92-B were added by amendments.
2. State List-It consists of 66 subjects. But Entries 19, 20, 29 and 36 have
been deleted by constitutional amendments. These are of a local importance
such as, public order and police, local Government, public health and
sanitation, agriculture, forest, fisheries, education, State taxes and duties. The
States have exclusive power to make laws on subjects mentioned in the State
List.

3. Concurrent List—It consists of 47 subjects. New entries 11-A, 17-A, 17-B,

20-A, and 33-A have been added by constitutional amendments. Both Centre
and the States can make laws on the subjects mentioned in the Concurrent
List. But in case of conflict between the Central and the State law on
Concurrent subjects, the Central law will prevail. The Concurrent List is not
found in any federal Constitutions. The framers added this list to the
Constitution with a view to secure uniformity in the main principles of law
throughout the country. The Concurrent List was to serve as a device to avoid
excessive rigidity to two-list distribution. The Concurrent List thus, in the
words of Pyle, is “a twilight zone, as it were, for both the Union and the States
are competent to legislate in this field, without coming into conflict.

The Residuary Powers —Art. 248 vests the residuary powers in the
Parliament It says that Parliament has exclusive power to make any law with
respect-to any matter not enumerated in the Concurrent List or the State List.
Entry 97 the Union List also lays down that Parliament has exclusive power to
make laws with respect to any matter not mentioned in the State List or the
Concurrent List including any tax not mentioned in either of these Lists. Thus,
the Indian Constitution makes a departure from the practice prevalent in U. S.
A., Switzerlands and Australia wheie residuary powers are vested in the
States. This reflects the leanings of the Constitution-makers towards a strong
Centre.

How the Repugnancy(inconsistency) of Central and State Law is

removed-Although the Centre and States cannot make laws outside their
allotted subjects yet no scientific division is possible and very frequently a
question arises as to whether a particular subject falls in the sphere of one or
the other government. This duty in a federal constitution is vested in the
Supreme Court of India. The Supreme Court has evolved the following
principles of interpretation in order to determine the respective power of the
Union and the States under the three Lists —

1. Predominance of the Union List —The opening words ofArt. 246 (i)
“notwithstanding anything contained in Cl. (2) and (3)” and the opening words
ofCl (3) “subject to Cl. (1) & (2)” expressly secure the predominance of the
Union List over the State List and the Concurrent List and that of flue
Concurrent List over the State List. Thus, in the case of overlapping between
the Union and the State List it is the Union List which is to prevail over the
State List. In case of overlapping between the Union and the Concurrent List,
it is again the Union List which will prevail. In case of conflict between the
Concurrent List and State List, it is the Concurrent List that shall prevail.

2. Each Entry to be interpreted broadly—Subject to the overriding

predominance of the Union List, entry in the various lists should be interpreted
broadly. In Calcutta Gas Ltd. Vs. State of West Bengal, A.I.R. 1962 the
Supreme Court said that the “widest possible” and “most liberal” interpretation
should be given to the language of each Entry, A general word used in an
Entry must be contrued to the extent to all ancillary or subsidiary matters
which can fairly and reasonably be held to be included in it. The Court should
try, as far as possible, fo reconcile entries and to bring harmony between
them. When this is not possible only then the overriding power of the Union
Legislature— the non-obstante clause applies and the federal power prevails.

In Union of India Vs. H. S. Dhillon,A.I.R. 1972 the question involved was

whether Parliament had legislative competence to pass Wealth-tax Act
imposing wealth tax on the assets of a person in agricultural land. The Court
held that in case of a Central Legislation the proper test was to inquire
whether the matter fell in List II (State List) or List III (Concurrent List). Once it
is found that the matter does not fall under List II, Parliament will be
competent to Legislate on it under its residuary power in Entry 97 of List I, In
such a case it becomes immaterial whether it falls under Entries 1 — 96 of
List I or not.
2. Pith and Substance —Since within their respective spheres’ the Union
and the State legislatures are made supreme hence they should not encroach
into the sphere reserved to the other. If a law passed by one encroaches upon
the field assigned to the other Court will apply the doctrine of pith and
substance to determine whether the legislature concerned was competent to
make it. If the ‘pith and substance’ of law i.e., the true object of the legislation
or a Statute, relates to a matter with the competence of Legislature which
enacted it, it should be held to be intra vires even though it might incidently
trench on matters not within the competence of Legislature, In order to
ascertain the true character of the legislation one must have regard to the
enactment as a whole, to its object and to the scope and effect of its
provisions.

The Privy Council applied this doctrine in Profulla Kumar Mukerjee Vs.
Bank of Khulna, A.I.R. 1947 P.C. 60. In this case the validity of the Bengal
Money Lenders Act, 1946, which limited the amount and the rate of interest
recoverable by a money lender on any loan was challenged on the ground
that it was ultra vires of the Bengal Legislature in so far as it related to
‘Promissory Notes’, a Central subject. The Privy Council held that the Bengal
Money-leaders Act was in pith and substance a law in respect of money-
lending and money-lenders —a State subject, and was valid even though it
trenched incidently on “Promissory note” —a Central subject.

In State of Bombay Vs. F. N. Balsara, A.I.R. 1951, the Bombay, Prohibition

Act. which prohibited sale and possession of liquors in the Stale, was
challenged on the ground that it incidently encroached upon import and export
of liquors across custom frontier —a Central subject. It was contended that
the prohibition, purchase, use, possession and sale of liquor will effect its
import. The Court held that Act valid because the pith and substance of the
Act fell under the State List and not under Union List even though the Act
incidently encroached upon the Union Powers of Legislation.

4. Colourable Legislation — In. K. C. G Narayan Dev Vs. State of Orissa,

A.I.R. 1953, the Supreme Court explained the meaning and scope of the
doctrine of Colourable Legislation i.e., “If the,Constitution distributes the
legislative power amongst different Legislative bodies, which have to act
within their respective spheres marked out by specific legislative Entries, or if
there are limitations on the legislative authority in the shape of fundamental
rights, question arises as to whether the Legislature in a particular case has or
has not, in respect to the subject-matter of the statute or in the method of
enacting it, transgressed the limits of its constitutional powers.” Such
transgression may be patent, manifest or direct, but it may also be disguised,
covert or indirect, or and it is to this latter class of cases that the expression
colourable legislation has been applied in judicial pronouncements. The idea
conveyed by the expression is that altIptiO apparently a legislature in passing
a statute purported to acl, within the limits of its powers, yet in substance and
in reality it transgressed these powers, the transgression being veiled by what
appears, on proper examination, to be a mere pretence or disguise, ”

Thus, the whole doctrine of colourable legislation is based upon the maxim
that “you cannot do indirectly what you cannot do directly”. In these cases the
Court will look in the true nature and character of the legislation and for that its
object, purpose or design to make law on a subject is relevant and not its
modve. If the Legislature has power to make law, motive in making the law is
“irrelevant”.

In State of Bihar Vs. Kameshwar Singh, A.I.R. 1952 S.C. 2S2 the Supreme
Court for the first time has declared State Law invalid on the ground of
colourable legislation. In this case the Bihar Land Reforms Act, 1950, was
held void on the ground that though apparently it purported to lay down
principle for determining compensation yet in reality it did not lay down any
such principle and thus indirectly sought to deprive the petitioner of any
compensation.

Repugnancy between a Central Law and a State Law—Art. 254 (1) says
that if any provision of law made by the Legislature of the State is repugnant
to any provision of a law made by Parliament which is competent to enact or
to any provision of the existing law with respect to one of the matters
enumerated in the Concurrent List, then the law made by Parliament, whether
passed before or after the Law made by the Legislature of such State or, as
the case may be, the existing law shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy be void.

According to Fazal Ali, J, a repugnancy would arise between the two statutes
in the following situations —

I . It must be shown that there is clear and direct inconsistency between the
two enactments [Central Act and State Act] which is irreconcilable, so that
they cannot sland together or operate in the same field.

2. There can be no repeal by implication unless the inconsistency appears on

the face of the two statutes.

3. Where the two statutes occupy a particular field, but no room or possibility
of both the statutes operating in the samefield without coming into collusion
with each other, no repugancy results.

4. Where there is no inconsistency but a statute occupying the same field

seeks to create distinct and separate offences, no question of repugnancy
arises and both the statutes continue to operate in the same field.

The above rule of repugnancy is, however, subject to the exeption provided in
Cl. (2) of Art. 252; According to CI. (2) if a State Law with respect to any of the
matters enumerated in the Concurrent List contains any provision repugnant
to the provisions of an earlier law made by Parliament, or an existing law with
respect of that matter, then still law if it has been reserved for the assent of
the President and has received his assent, shall prevail notwithstanding such
repugnancy: But it would still be possible for the Parliament under the proviso
to [cl.(2)] to override such a law by subsequently making a law on the same
matter. If it makes such a law the State Law would be void to the extent of
repugnancy with the Union Law.

In Deep Chand Vs. Slate of U.P.,A.I.R. 1959 the validity Transport Service
(Development) Act was involved. By this Act the state Government was
authorised to make the Scheme for nationalisation of for the Motor Transport
in the State. The law was necessitated because Motor Vehicles Act, 1939, did
not contain any provision nationalisation of Motor Transport Services. Later
on, in 1956 the Parliament with a view to introduce a uniform law amended
the motor Vehicles Act, 1939, and added a new provision enabling the
Government to frame rules of nationalisation of Motor Transport. Court held
that since both the Union Law and the State occupied the same field, the
State Law was void to the extent of repugnancy to the Union Law.

Under what circumstances Parliament can Legislate on Subjects?

The Parliament can legislate on state subjects on the following circumstance’s

1. Power of Parliament to legislate in the national interests According to Art

249, if the Rajya Sabha passes a resolution support by 2/3 of the members
present and voting that it is necessary or expedient in the national interest that
Parliament should make laws with respect to any matter enumerated within
State Law, then it shuld be lawful for the Parliament to make laws for the
whole or any part of the territory of India with respect to that matter so long as
the resolutio remains in force. Such a resolution normally lasts for a year; it
may be renewed as many times necessary but not exceeding a year at a time.
These laws of Parliament will, however, cease to have effect on tha expiration
of the period of six months after resolution has ceased to operate.

2. During a Proclamation of Emergency —According to Art. 250 while the

Proclamation of Emergency is in operation the Parliament shall have power to
make iaws for the whole or any part of the territory of India with respect to all
matters in the State List. Such a law, however, shall cease to have effect on
the expiration pf six months after the proclamation of emergency has ceased
to operate.

3. Parliament’s power to legislate with the consent of the States—

According to Art. 252 ;f the Legislature of two or more States pass resolution
to the effect that it is desirable to have a law passed by Parliament on any
matters in the State List, it shall be lawful for Parliament to make laws
regulating that matter. Any other State may adopt such a law by passing a
resolution to that effect. Such law can only be amended or repealed by the
Act of Parliament.

4. Parliament’s power to legislate for giving effect to treaties and

international agreements—Art, 253 empowers the Parliament to make any
law for the whole or any part of the territory of India for implementing treaties
and international agreements and conventions. In other words, the normal
distribution of powers will not stand in the way of Parliament to pass a law for
giving effect to an international obligation even though such law relates to any
of the subject in the State List.

5. In case of failure of constitutional machinery in a State— Under Art 256

Parliament is empowered to make laws with respect to all matters in the State
List when the Parliament declares that the Government of the State cannot be
carried on in accordance with the provisions of the Constitution.

The above provisions enable the Centre to legislate in exceptional

circumstances on the State subjects without amending the Constitution. They
set up a certain amount of flexibility in the scheme of distribution of powers.
Moreover, they are only resorted to in most cases with the consent of the
States. Again, they arc invoked only where there are exceptional
circumstances and that too for a limited period. Thus, the framers have
incorporated the federal principle in our Constitution in a modified form in the
light of the experience in another federations and in view of the peculiar
requirement of our country.

Q. President is the executive head but actual power is vested in council

of ministers, Discuss.

Ans: The position of President is that of the head of the state. He is the formal
executive as all the decisions taken by the government are taken under his
name. According to Art. 53(1), "The executive power of the Union shall be
vested in the President and shall be exercised by him directly or through
officers subordinate to him in accordance with this Constitution". According to
Art. 74(1), “there shall be a Council of Ministers with the Prime Minister at its
head to aid and advise the President who shall, in the exercise of his
functions, act inaccordance with such advice.” The provision clearly denotes
that the Council of Ministers should be there all the time. The President does
not have the power to dispense the Council of Ministers. Even when the Lok
Sabha is dissolved, the Council of Ministers should keep working.

In U.N.R. Rao v/s Smt Indira Gandhi , the Supreme Court clearly ruled out
the possibility of the President ruling with the help of his advisers in case of
absence of the Council of Ministers. The SC rejected the argument that the
“shall” in Article 74(1) can be read as “may”.7 SC said that as the position of
President is compulsory according to Article 52, the position of Council of
Ministers is also necessary and rejected the argument that when there is no
Lok Sabha, Council of Ministers are not responsible to anyone and the
position can be done away with.8 The rationale behind this order is very clear.
Had the SC accepted the above argument then the whole concept would have
changed. It would meant that the position of President has the power to rule
the country without the Council of Ministers till he is impeached for the same.
Therefore, the court prudently interpreted the word “shall” strictly to make sure
that the President does not function without the Council of Ministers at any
point of time.

Article 361 protects the President from any action by the court for any ban that
he places on the legal actions.10 According to Article 74(2), the Courts are
barred from enquiring or investigating about the advice given by the Council of
Ministers to the President. Therefore, the courts are helpless in this particular
case and no remedy can be pursued from the court in case the President
does not take cognisance of the advice given by the Council of Ministers. The
only fear that the President has in case he ignores the advise given by the
Council of Ministers is that the Lok Sabha can start impeachment proceedings
against him for “violation of constitution” under Article 56(b) of the
Constitution. But the process of impeachment is very complex and requires a
very strong government enjoying majority in one house with support of two-
third of total membership in other house as it is requisite to pass a motion with
no less than two-third majority of the total membership of the House.

Q. may the fundamental right be suspended during emergency

Ans: Fundamental rights which the constitution guarantees to the citizen of
India are called fundamental because they are the basic to the development
of human personality. These rights are guaranteed to the citizen of India by
the Constitution and no one can encroach upon them and infringe the right of
a citizen. Our legal system also provides remedies to those citizens whose
fundamental rights have been violated. But only when an emergency is
declared in the country, these rights can be suspended by the Central
Government. These rights of the citizens can be suspended only up to the law
which is related to the emergency and is mentioned in the Presidents order.
But even during the period of emergency there are two rights which cannot be
suspended are right to life and personal liberty under Art 20 and 21 of the
Constitution of India. These rights can be enforced during the period of
emergency by moving the court under Art. 32 of the Constitution of India.
suspension of art.20,21
A.D.M. Jabalpur Vs. shivkant shukla
The President issued orders under the Constitution of India, art. 359(1)
suspending the right of any person to move any court for enforcement of
fundamental rights under arts. 14, 21 and 22 and 19 for the duration of the
emergency. Following this declaration hundreds of persons were arrested and
detained all over the country under the swoop of the Maintenance of Internal
Security Act, 1971.

Various persons detained under Maintenance of Internal Security Act, 1971,

s. 3(1) filed petitions in different high courts for the issue of the writ of habeas
corpus.

The high courts broadly took the view that the detention may be challenged
on the grounds of ultra vires, rejecting the preliminary objection of the
government. Aggrieved by this the government filed appeals, some under
certificates granted by high courts and some under special leave granted by
the Supreme Court. Despite every high court ruling in favor of the detenus36.
The Supreme Court ruled in favor the government. What the court except for
Khanna, J. failed to realise is that the right to personal to life and liberty are
human rights and is not a ‘gift of the Constitution’. International Covenant on
Civil and Political Rights ,art. 4 recognises the right to life and personal liberty
to be a non- derogable right even during times of
emergency.

Q. Discuss the jurisdiction and power of the supreme court of India.

Ans: The Supreme Court consists of the Chief Justice of India and not more
than twenty five other Judges. According to the Article 127, the Chief Justice
of India, with the previous consent ot the President, appoints ad-hoc Judges
for such period as may, in his opinion be necessary. the Constitution of India
provides an unified Judicial system keeping the Supreme Court at its apex.
Therefore, the Supreme Court of India exercises enormous powers and
functions which can be discussed as follows :

1. Courts of Record : The Supreme Court is a court of record and has all the
powers of such a court including the power to punish for contempt of itself. A
court of record is a court whose acts and judicial proceedings are recorded for
perpetual memory and which are not to be challenged or questioned when
presented before any court for purpose of evidence. Article 142(2) provides
that the Supreme Court shall have “all and every power to make any order for
the purpose of securing the attendance of any person, the discovery of
production of any documents or the investigation or punishment of any
contempt of itself.

2. Jurisdiction :
(i) Original Jurisdiction : Article 131 provides that the Supreme Court shall,
to the exclusion of any other court, have original jurisdiction in any dispute –
(1) between the Government of India and one or more states, or
(2) between the Government of India and any State or States on the one side
and one or more States on the other
(3) between two or more States. Such disputes cannot be taken to any other
Court of Law in India.

The disputes relating to the election of the President and Vice-President are
also included in the original jurisdiction of the Supreme Court.

The Supreme Court is the protector of the Fundamental rights of the citizens.
So, the Supreme Court has the jurisdiction to entertain an application under
Article 32 for the issue of a constitutional writs ,n the form of Habeas Corpus,
Mandamus, Prohibition, Quo-warranto and Certiorari for the enforcement of
Fundamental rights. Any disputes regarding these rights comes within the
original jurisdiction of the Supreme Court; in this respect, the State High
Courts, too, have been given same powers.

There are certain limitations to the Supreme Court's original jurisdiction, The
original jurisdiction does not extend to a dispute arising out of any treaty,
agreement, covenant, engagement, sanad or other similar instruments
executed before the commencement of the 97 Constitution of India. Even in
respect of the Fundamental Rights, only the legal aspects are within the
Supreme Court's jurisdiction.

It has nothing to say about the administrative or political disputes.

(ii) Appellate Jurisdiction : The Supreme Court as the highest court of

appeal enjoys three kinds of appellate powers - Constitutional Appeals,
Appeals regarding civil cases, Appeals regarding criminal cases.

(a) Constitutional Appeals : Article 132 provides that an appeal shall lie to the
Supreme Court, from any judgement, decree or final order of a High Court;
whether in a civil, criminal or other proceeding if the High Court certifies that
the case involves a substantial question of law as to the interpretation of the
Constitution. The Supreme Court may grant special leave of appeal even if
the High Court refuses to issue such a certificate. The Supreme Court,
however, cannot grant special leave of appeal against a verdict given by a
Martial Court.

(b) Civil Appeals : An appeal shall lie to the Supreme Court if the High Court
certifies (i)that the case involves substantial question of law,(ii)
that in the opinion of the High Court the case needs to be decided by the
Supreme Court. Moreover, the party concerned may appeal on the ground
that a substantial question of law has been wrongly decided.
At the beginning, civil cases involving values of not less than Rs. 20,000/-
were deemed to be fit to be decided by the Supreme Court on appeal, but
these provision has now been abolished.

(c) Criminal Appeals : According to Article 134(1) an appeal shall lie in the
Supreme Court from any judgement, final order or sentence in a criminal
proceeding of a High Court if the latter (a) has an appeal reversed an order of
acquital of an accused person and sentenced him to death; or (b) has
withdrawn for trial before itself any case from a subordinate court and has in
such trial convicted the accused person and sentenced him to death, or (c)
has certified that the case is fit for appeal to the Supreme Court. The
Parliament may also confer by law, on the Supreme Court, power to entertain
and hear appeals on other cases decided by the High Courts.

Again under Article 136, the Supreme Court may grant leave to appeal
against any judgement, decree etc. passed by any court or tribunal other than
by courts or tribunals constituted under any law relating to the Armed Forces.
No appeal, however, shall lie to the Supreme Court from the judgement,
decree or final order of a single - Judge bench of a High Court.

According to the Constitution (Article 136), the Supreme Court can enlarge its
appellate jurisdiction. The Supreme Court can grant special leave of appeal
from any other court than the tribunals specially set up for the defence army.
Again, under Article 138 Parliament can enlarge the jurisdiction of the
Supreme Court m respect of any subject included in the Union list and in
respect of any other subject with the consent of the states.

(iii) Advisory Jurisdiction : The Supreme Court’s Advisory Jurisdiction has

been discussed in Article 143 of the Constitution. Under this Article the
President may approach the Supreme Court for advice on questions of law or
fact of public importance which may have arisen or are likely to arise. The
Supreme Court may, after due enquiry, report to the President its opinion on
such mattors Thom are instances of the Supreme Court having given its
advice to the government on many occasions.

(iv) Miscellaneous powers and Functions : There are some other powers
and functions of the Supreme Court which may be mentioned as follows:
(1) The Supreme Court is the defender of the Constitution The
interpretation of the Constitution given by the Supreme Court is
considered final.

(2) The Supreme Court is the guardian of the Fundamental Rights of the
citizens. Any citizen can approach it in case of infringement of any of
his Fundamental Rights by the government.

(3) The Supreme Court is a court of record as mentioned earlier It means

that the decision of the Supreme Court must be accepted by all other
courts in India. The ruling of the Supreme Court will be upheld and
 accepted by all High Courts and Lower Courts as precedents. The
decision of the Supreme Court is regarded as law.

(4) The Supreme Court enjoys partial power of judicial review. It can
declare void a law passed by Parliament or a state legislature if it
contravenes any provision of the Constitution or if the law is passed in
exercise of jurisdiction which Parliament or the state legislature does
not, in fact, possess.

(5) Article 137 has empowered the Supreme Court to review its own
orders or judgements given earlier. It can review its decisions if u)
some new facts or evidences come to light, (ii) a fact is found
according to its records, (iii) there are sufficient reasons for review The
Supreme Court itself observes, “There is nothing in the Indian
Constitution which prevents the Supreme Court departing from its
previous decisions if it is convinced of its error or its baneful effects on
the general interest of the public”.

(6) The Supreme Court has also the power to make rules for regulating its
practice and procedure.

(7) Article 146 authorises the Supreme Court to appoint its officers and
servants. Accordingly, the Chief Justice of India or such other Judges
or officers of the court appointed by him, can appoint the officials and
the servants of the Supreme Court.

(8) Article 129 deals with contempt of court. The act of criticising the
Judge and the court or any judgement of the court, passing derogatory
remarks against the court and refusing to abide by the decisions of the
court constitute contempt of court.

(9) The Supreme Court enjoys the power to withdraw cases pending
before a High Court, or more than one High Court, for disposal by
itself. This can be done if (a) cases involving the same or substantially
the some question of law are pending before the Supreme Court and
one or more than one High Court, and (b) The Supreme Court is
satisfied on its own opinion or on the application made by the
Attorney-General of India or by one of the parties that the case
involves substantial question of general importance

(10) Appeals also lie to the Supreme Court under the Peoples
Representation Act. Thus the Supreme Court of India controls the
entire judicial system in the country and occupies a very significant
place as it stands at the apex of the integrated judicial system of India.
Q. discuss the provision relating to trade commerce and intercourse as
laid down in the constitution of India.
Ans: Freedom of “Trade, commerce and intercourse throughout the territory of
India,” subject to other provisions of Part XIII, is assured and declared by
Article 301 of the Constitution.

Article 301: Freedom of Trade & Commerce etc. Article 301 reads: “subject
to the other provisions of this part, trade, commerce and intercourse
throughout the territory of India shall be free.”

The “freedom” declared under article. 301 may be defined as a right to free
movement of persons or things (goods), tangible or intangible, commercial or
non-commercial, unobstructed by barriers, inter-state or intra-state or any
other impediment operating as such barriers. Thus, ‘freedom of trade,
commerce and intercourse’ means the free movement/transport and
exchange of goods. It means that there shall be no prior restraint upon trade
and commerce. article 301 guarantee it throughout the territory of India, inter-
state as well as intra-state (within a state).

Article 301 promises that there shall be no hindrance for conducting

meaningful trade, commerce and intercourse throughout the territory of
India subject to the authorized restrictions U/A 302-307.

Art. 302 confers power on Parliament to restrict Freedom u/a 301 in public
interest from one state to another or within any part of the territory of India.
Here to curtail the freedom all that is needed by parliament is to justify the law
in public interest.

Article 303 (1) restricts the legislative powers (including sub- delegation) of
Parliament & State Legislatures to give preferential treatment to any state by
virtue of any entry relating to trade and commerce in any of the Lists in the
Seventh Schedule (re: Article 246). It must be highlighted that this restriction
on legislative power does not extend to freedom of intercourse, hence,
weakens the Freedom of intercourse throughout the Indian Territory.

Article 303 (2), bends a little in favour of Legislative Powers of parliament.

Parliament is allowed to make/ authorize any discriminatory law {as per Art.
303 (1)} if it is declared by such law that it is necessary to do so for dealing
scarcity of goods in any part of India. This power is very sweeping as it only
requires a declaration in the law itself that the law is necessitated by scarcity
of goods, without going into the reality of it. The Essential Commodities Act,
1955 is probably justified under this Article.
Article 304, again bends in favour of Legislative powers of States. It
supersedes Article 301 & 302. Art. 304 (a) allows the States to impose tax on
goods imported from other States/ Union territories, to which similar goods
manufactured in that State are subject. But this should not be done in a
manner so as not to discriminate between goods- imported or manufactured.
Besides this clause deals with taxes on goods only. One peculiar point to note
is that, Union Territory has appeared for the first time in this Chapter. And to
the disadvantages of Union Territory, while the goods originating from Union
Territories can be taxed by other states, no such corresponding power has
been conferred upon the Union Territories to protect its domestic
manufacturers.

Though Art. 304 (a) seems a fair power conferred on states to create a level
playing field for Domestic manufacturers by subjecting all competitors to same
tax regime in the same market, thereby keeping it competitive, Art. 304 (b) on
the other hand is quite sweeping in nature. It authorizes the State Legislatures
to impose reasonable restrictions in the public interest on the freedom of
trade, commerce or intercourse with or within that State. Hence, the only
requirements needed to curtail the Freedoms under Art. 301 is that the law
should be in Public Interest and impose reasonable restrictions.

However, U/A 304 (b) there is a bit of hierarchal- procedural hiccup for the
States in form of Presidential assent, which also acts as a leash on its
legislative power. Without previous sanction of the President, no Bill/
amendment can be introduced/ moved in the Legislature of a State.

Article 305 upholds existing laws as valid irrespective of Articles 301 & 303,
unless otherwise directed by the President. Article 305 was amended by
the Constitution (Fourth Amendment) Act, 1955 and it was added that laws
made before theAmendment will also be saved despite Art. 301. Furthermore
Article 301 will not come in the way of the laws enacted by Parliament & State
Legislatures u/a 19 (6) (ii) {which itself was amended by Constitution (Fourth
Amendment) Act, 1955}, which includes restricting freedom on practise any
trade & profession to the extent of State Monopoly of any trade, business,
industry or service under the State’s power.
This amendment was brought in light of the question raised inSaghir Ahmed
v. the State of U.P. as to whether an Act providing for a State monopoly in a
particular trade or business conflicts with the freedom of trade and commerce
guaranteed by article 301, though the Supreme Court left the question
undecided.

Article 306 dealt with the Power of Part B States of the First Schedule to
impose restrictions on trade and commerce, which was repealed by the
Constitution (Seventh Amendment) Act,1956.

Article 307 envisages National/ Inter-state authority for carrying out the
purposes of articles 301, 302, 303 and 304, and conferring of corresponding
powers and duties under parliamentary law. Observing closely, I wonder if the
word ‘authorizing’ in Article 303 refers to the Authority contemplated under
this Article. At present no such Authority is in existence in India.

Q. What do you mean by court of record? Discuss in which situation

certificate of High Court is required to go for appeal to Supreme Court?

Ans: A court of record is a court whose acts and proceedings are enrolled for
perpetual memory and testimony. These records are used with a high
authority and their truth cannot be questioned. In Indian constitution article
129 make the Supreme Court the ‘court of record”. Article 129 says: Supreme
Court to be a court of record.-The Supreme Court shall be a court of record
and shall have all the powers of such a court including the power to punish for
contempt of itself. Article 215 empowers the High Courts of te states to be
courts of record.

APPEALS ON CERTIFICATE BY HIGH COURTS

CONSTITUTIONAL CASES

An appeal can be filed against any judgment, decree or final order of a High
Court in a civil, criminal or other proceedings if the concerned High Court
certifies that the case involves a substantial question of law as to the
interpretation of the constitution. Where such a certificate is given any party in
the case may appeal to the Supreme Court on the ground that any such
question has been wrongly decided.

CIVIL CASES

An appeal may be filed against any judgment, decree or final order in a civil
proceeding of a High court if the High Court certifies that the case involves a
substantial question of law of general importance and that in the opinion of the
 High Court the said question needs to be decided by the Supreme Court.
However, no appeal can be filed from the judgment, decree or final order of
single judge bench of the High Court. The party making the appeal can urge
as one of the grounds that a substantial question of law as to the
interpretation of the Constitution has been wrongly decided.

PROCEDURE
1. The party desirous of filing an appeal on a certificate by High court as
aforesaid is required to file a petition of appeal in the court.
2. The Petition should contain concise information regarding the
proceedings in the Subordinate Courts and the High Court in a
chronological order with relevant dates and should as well state the
amount or value of the subject matter of the suit in the Subordinate
Courts, High Court and the Supreme Court.
3. The particulars showing the computation of the said valuation have to
be mentioned as well. However, where the appeal is incapable of
valuation, this fact has to be mentioned in the appeal instead of the
said valuations.
4. The petition of appeal should be accompanied by seven copies of:
i.a certified copy of judgment and decree appealed from;
ii.a certified copy of certificate granted by High Court; and
iii.a certified copy of the order granting the said certificate
5. In cases where the High Court has passed a summary order (that is a
brief order on a superficial level without hearing the matter in details) or
the High Court has not recorded the reasons or grounds for granting
the certificate and in certain appeals in the Contempt Cases, four
certified (or uncertified copies if such copy is affirmed to be true copy
upon affidavit) of the judgment or order and decree of the subordinate
Court are also required to be filed with the petition of appeal.
COURT FEE

The person filing an appeal is required to pay Court Fee as per the scheduled
table of Court Fees.

LIMITATION

The petition of appeal on the basis of the certificate by High Court have to be
presented within sixty days from the date of grant of the certificate of fitness.
But in computing the period of limitation, time spent in obtaining a copy of the
certificate and the order granting the said certificates excluded. Furthermore,
if the petition of appeal is delayed, the person filing the appeal may seek
condonation of delay from the Supreme Court by explaining the reasons for
the delay.

CRIMINAL CASES

An appeal can be filed against any judgement, final order or sentence of a

High Court in a criminal proceeding in following situations.
1. Firstly, if the concerned High Court has an appeal reversed an order of
acquittal of an accused person and sentenced him to death.
 Imprisonment for life as to imprisonment for a period of not less than
ten years.
2. Secondly, if the High Court has withdrawn for trial before itself any
case from any of its subordinate courts and in such trial has convicted
the accused person and sentenced him to death or to the imprisonment
for life or for a period of not less than ten years.
3. Thirdly, if the High Court certifies that the case is a fit one for appeal to
the Supreme Court.
4. Lastly, a person convicted on a trial held by the High Court in its
extraordinary original criminal jurisdiction can also appeal to the
Supreme Court.
5. However no appeal can be filed by a convicted person if the sentence,
passed against him by the HC does not exceed the term of 6 months
as fine not exceeding 1000 as both such imprisonment and fine.
6. The criminal appeal can be filed if the High Court disregarded or
misapplied the established principles of criminal law.

PROCEDURE
1. The memorandum of appeal should be in the form of a petition and
should contain concisely and as far as possible, in a chronological
order the principal steps in the proceedings from its commencement in
the subordinates courts till its conclusion in the High Court.
2. The petition of appeal has to be accompanied by a certified copy of the
judgement/order challenged in the appeal and as well the certified copy
of the certificate of the High Court in case appeal is filed on a
certificate.
3. In cases where the High Court has passed a summary order (that is a
brief order without hearing the matter in details) or where the High
Court has not recorded reasons as grounds for granting the certificate
and in certain appeals in the contempt cases 4 certified (or uncertified
copies if such copies are affirmed to be true copy upon affidavits of the
judgement or order and decree of the subordinate court are also
required to be filed with the petition of appeal.
4. Where the appellant has been sentenced to a term of imprisonment,
the petition of appeal is required to state if the appellant has
surrendered. If the appellant has not surrendered to the sentence, the
appeal cannot be registered unless the court on a written application
orders its registration where the appellant is in jail; he may present his
petition of appeal through the offices-in-charge of the jail.

COURT FEE

No court fee is payable in Criminal appeals.

LIMITATION

A Criminal appeal in which a certificate has been granted by the High Court is
required to be filed within 60 days from the date of the said certificate. In other
cases, appeal is to be filed within sixty days from the date of the judgement;
final order or sentence appealed from.
But in computing the period of limitation, the time spent for obtaining a copy of
the judgement as order appealed from or the time spent on obtaining the
certificate and order granting the certificate are excluded.

Again, if sufficient cause is shown, delay in filing the criminal appeal may be
condoned by the Supreme Court.