LEGAL ASPECTS OF BUSINESS

ASSIGMENT 1

Submitted By :
Abhijeet Mukherji – 42104
Anisha Goel – 42128
Archit Sinha – 42144
Avneet Anand – 42152
Varun Dave – 42167
Dharmavarapu H R S S S S Manikanth – 42172
Harshraj Sejpal – 42188
 TOPIC: The Constitution of India guarantees
Fundamental rights to its citizens.
These rights are not absolute. Discuss with relevant
case laws

Introduction

What are the Fundamental Rights?

Fundamental Rights are basic human rights that have been recognized
by the Supreme Court. These rights are defined in PART III of the
Constitution of India. Every citizen of the country has the right to lead
a peaceful and harmonious life irrespective of his / her caste, color,
religion, race, sex or place of birth.
Fundamental Rights are aimed at overturning inequalities faced by
Indians during the pre-independence social practices that were believed
and followed at that time. Most effectively, these rights were
implemented in order to abolish untouchability, gender bias, human
trafficking, and forced labor. The rights given to its citizens protect the
cultural and educational rights of ethnic and religious minorities by
securing languages and allows people to establish and administer their
own education institutions. It has been considered as one of the most
critical parts of the Constitution of India, which have originated from
France’s Declaration of Bill of Rights of Man, England’s Bill of Rights,
Development of the Irish Constitution, and lastly, the United State of
America’s Bill of Rights.
Features of Fundamental Rights that make them non-absolute:
1. Some rights are applicable only to the citizens of India, whereas
some are available to the Indian citizens, foreign citizens, or even
companies/corporations.
2. The state can impose reasonable restrictions on these rights, thus
making them qualified and not absolute.
 3. The Fundamental Rights are defended by the Supreme Court of
India, thus making the aggrieved party able to move to the
Supreme Court on the violation of these rights.
4. These rights can be suspended at the time of the National
Emergency and can be restricted when a military rule is imposed
under abnormal circumstances. However, both situations are
different from each other.

The Fundamental Rights of every citizen are:

 Right to Equality: Where every citizen is treated without any
bias and prohibition based on color, sex, race, religion, place of
birth, or caste.

 Right to Freedom: Every individual has the freedom to express

his / her opinion and has the freedom of speech, assembly,
association and can practice any profession or occupation.

 Right to Freedom of Religion: This includes freedom of

conscience, and the right to choose a practice and follow any
belief/religion.

 Right against Exploitation: This right frees every person from

child labor, forced labor, and traffic of citizens.

 Right to Culture and Educational Rights: Every Indian citizen

has the right to preserve their culture, language, script, and allows
minorities to establish and administer educational institutions of
their choice.
  Right to Constitutional Remedies: It grants the right to
remedies of the enforcement of the fundamental rights of a citizen
of India who as suffered. This becomes enforceable in the court
of law.

 The Right to Privacy protects the life and liberty of the citizens.
It is an important and integral part of Article 21 in the constitution
under Right to Life and Personal Liberty.

Right to Equality
 It is listed in the Indian Constitution in Articles 14 to 18.
 It covers equality before the law, prohibits discrimination on
grounds of race, religion, gender, and caste or birthplace. It also
covers equality in opportunities in matters of employment, the
abolition of untouchability and titles. It basically gives the
citizens the right to live with equal opportunities by simply
treating all the people to be the same and giving no one special
privileges, which will dishonor any individual or group.
 Article 14 gives a general idea of equality whereas the articles
15, 16, 17 and 18 give for a specific condition.

Article 14:
 It states that ‘ The state shall not deny to any person equality
before the law or the equal protection of laws within the
territory of India[1] i.e. no man is above the law.
 It provides classification (for e.g. Different pay scales for
trained employees and untrained employees) but prohibits class
legislation (for e.g. Higher pay scales for men and lower for
women i.e. which affects a particular set/class of people)

Article 15:
It prevents every sort of discrimination by the State on the grounds of
religion, race, caste, sex, etc.
  It does not restrict the state from making special provisions for
women and/or children.
 It gives the state the power to extend special provisions for the
socially and economically backward classes to help them in
their advancement.

Article 16:
It guarantees the equality of opportunity in matters of public
employment for all citizens and says that no citizen shall face
discrimination on the basis of race, caste, sex, etc.

Article 17:
It abolishes untouchability and disallows its practice in any form.

Article 18:
It restricts the state to present titles to anybody whether a citizen or a
non-citizen. Exemptions only made in case of Military and academic
distinctions(for e.g. Bharat Ratna, Padma Vibhushan, etc..).

Case Example :

State of Bombay Vs F.N. Balsara

This case deals with the consideration that does the Prohibition Act
allows the keeping of alcohol mixed medicines and toilet good their
selling and buying and using or not.

Facts of the Case :

 Balsara, showing himself as a citizen of India, presented a
petition in the Bombay High Court, requesting for passing an
order forbidding the State and Prohibition Commissioner from
enforcing the provision of the Bombay Prohibition Act, 1949
against him and also from passing orders to the effect.
 That Balsara should be given assent to use his right to keep
Whisky, Brandy, Wine, Beer, Wine mixed with medicine, U.D.
Colon, etc., and to use them and also import and export them
within the Custom Limits.
  That the Government may not obstruct under the Prohibition
Act in the use of his personal rights and may not take any action
against him.
 The Petitioner (F.N. Balsara) also requested for passing similar
orders under the Specific Relief Act

High Court :
 The High Court, agreeing with some of the petitioner’s
allegations and not agreeing with some others, declared some
provisions of the Act as legal while some others as illegal.

Aggrieved with the decision of the High Court both the State
Government as well as Balsara, with the permission of the High
Court, filed appeals before the Supreme Court, against the decision.

Supreme Court :
 It was observed by the Supreme Court that the State Legislature
has the power to completely prohibit the keeping, selling and
using intoxicating wine under the Entry 31 in the List-II or the
State List. There is, therefore no dispute between the
jurisdictions of the State and the Centre.
 The Supreme Court held that any Act is illegal if the Act passed
by the State Legislature, prohibited or controlled the export of
the items mentioned in Entry 27 or 29 of the List-II beyond the
boundaries of the State, but the Act in question has been passed
on the basis of the Entry 31 of the List, Section 297(1)(a),
therefore, does not apply to it.
 Exemption is only allowed to the soldiers of the Army, the
messes of the Land Forces and Water Ships and can, therefore,
not be declared illegal under Section 37.
 The Supreme Court, therefore, declared only those provisions of
the Bombay Prohibition Act as illegal which entailed keeping
alcohol-mixed medicines and toiletries, selling and buying also
using them etc., and the rest of the provisions were declared as
legal. It was also decided that if certain provisions of the Act are
declared as illegal, the Act cannot be wholly declared as illegal.
  Appeal No. 182 (by the State of Bombay) was sufficiently
admitted while Appeal No. 183 (by the Petitioner) was rejected.

Right to Life
Limited by the “procedure established by law”
 Article 21 provides citizens of India with the right to life and
personal liberty. However, it is succeeded by the words “except
according to the procedure established by law”.
 This allows for the possibility of limitations on various rights
that come under the right to life and liberty.
 For example, putting a person in jail is a limitation that can be
placed on the right to liberty.
 However, it cannot be limited in any way except by following
the procedure that is laid down by the act that prescribes such
detention.
 Any deprivation of liberty within the framework of this law
needs to be ordered with the purpose of subjecting the person to
judicial control.

Case Example: Jagmohan Singh v, State of U.P

 In the case of Jagmohan Singh v. State of U.P, which was the

first case, dealing with the question of the constitutional validity
of capital punishment in India. The counsel for the appellant, in
this case, put forward three arguments which invalidate section
302 of the IPC.
 Firstly, that execution takes away all the fundamental rights
guaranteed under Clauses (a) to (g) of Sub-clause (1) of Article
19 and, therefore the law with regard to the capital sentence is
unreasonable and not in the interest of the general public.
 Secondly, he also mentioned that the decision of the Judges to
impose capital punishment is not based on any standards,
policies or protocols required by the Legislature for imposing
capital punishment in preference to imprisonment for life.
  He also argues that the uncontrolled and unguided discretion in
the Judges to impose capital punishment or imprisonment for
life is in defiance of Article 14 of the Constitution.
 Lastly, it was stated that currently, the law does not provide a
procedure for trial of factors and circumstances which are
paramount in a case and allow the judge to make the choice
between the capital penalty and imprisonment for life. The final
decision under the Criminal Procedure Code is limited by the
question of guilt. Since there was no protection given by Article
21 of the Constitution was violated and hence for that reason
also the sentence of death is unconstitutional.
 After looking into the arguments the five-judge bench decided
to uphold the constitutionality of the death penalty and held that
deprivation of life is permissible under the rule of law and is
allowed to be punishment by the drafters of our Constitution.
Case Example: Bachan Singh vs. the State of Punjab

 The concept of capital punishment also known as the death

penalty is a highly debatable matter till now.
 In the above-mentioned case, SC announced important
limitations on the death penalty by setting the 'rarest of rare'
doctrine. This case is a landmark judgment given by 5 Judges
Bench of the Hon’ble Supreme Court. The apex court then
announced “A real and abiding concern for the dignity of
human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done except in the rarest of
rare cases where the alternative opinion is unquestionably
foreclosed”.
 The judge finally sentenced Bachan Singh to death under
Section 302, Indian Penal Code for the murders of Desa Singh,
Durga Bai, and Veeran Bai by the Sessions Judge. His death
was confirmed, and appeal denied. Bachan Singh then appealed
to the SC by Special Leave, which came up for hearing before a
Bench of the Hon’ble Supreme Court (consisting of Sarkaria
and Kailasam, JJ.). The appeal debated if the court would find
"special reasons“ for awarding the death sentence as required
under Section 354(3) of the Code of Criminal Procedure, 1973
  Indian Judiciary has made it clear that the death penalty must
strictly be restricted to “rarest of rare” cases.
 Though this view favors the right to life under Article 21 the
minimization of the imposition of death sentence has led to an
increase in crimes. Heinous offenses committed are awarded a
lesser penalty and the offenders are not serious about their
consequences.
 National discussion about the death penalty is a topic that is
always debated. “The Bachan Singh’s Case decision did not
elaborate the criteria for identifying "rarest of rare"
cases. Bachan Singh's case also does not explain as to what falls
under the purview of “rarest of rare cases”.

Right to Freedom of Speech and Expression

Article 19(1) (a) of the Constitution of India states that “all citizens
shall have the right to freedom of speech and expression”. The
thinking of this Article lies in the Preamble of the Constitution, where
a definite resolve is made to protect all citizens of their liberty of
thought and expression. However, this right can be exercised subject
to “reasonable restrictions” for certain purposes being imposed under
Article 19(2) of the Constitution of India.

The main elements of the right to freedom of speech and

expression are as under:
 This right is available only to a citizen of India and not to
foreign nationals.
 The freedom of speech under Article 19(1) (a) includes the right
to express one’s views and opinions at any issue through any
medium, e.g. by word of mouth, writing, printing, picture, film,
movies and so on.
 This right is, however, not absolute and the framing of laws is
allowed to the Government to impose reasonable restrictions in
the interest of sovereignty and integrity of India, state and its
security, with reference to amicable relations with foreign states,
 public order, decency and morality and contempt of court,
defamation and incitement to an offense.
 This restriction on the freedom of speech of any citizen may be
imposed as much by an action of the State as by its inaction.
Thus, failure of the State to guarantee to all its citizens the
fundamental right to freedom of speech and expression would
also constitute a violation of Article 19(1)(a).

Case example: Freedom of Silence- National Anthem Case:

Freedom of speech does include the right to silence. In one such case,
3 children belonging to Jehovah’s Witnesses were expelled from the
school for refusing to sing the national anthem. In their defence, they
stood respectfully when the same was being sung. They challenged
the validity of their expulsion before the Kerala High Court which
upheld the expulsion as valid and on the ground that it was their
fundamental duty to sing the national anthem. On appeal, the
Supreme Court held that the students did not commit any offence
under the Prevention of Insults to National Honour Act, 1971. Also,
there was no law under which their fundamental right under Article
19(1) (a) could not be exercised.
Accordingly, it was held that the children’s expulsion from the school
was a violation of their fundamental right under Article 19(1) (a),
which also includes the freedom of silence.

Case example: Indian Express Newspapers vs Union of India:

The Court, in this case, observed that Article 19 of the Indian

Constitution does not use the phrase “freedom of the press” in its
language, but it is a part of Article 19(1) (a). There cannot be any
interference with the freedom of the press in the name of public
interest. The objective of the press is to supplement the public interest
by publishing facts and opinions without which a democratic
electorate cannot take responsible decisions.
It is, therefore, the primary duty of courts to uphold the freedom of
the press and invalidate all laws or administrative actions which
interfere with it contrary to the constitutional mandate.

Right to Freedom of Religion

1. This right guarantees religious freedom and ensures secular states

in India. The Constitution states that the States should treat all
religions equally and impartially and that no state has an official
religion. This right also guarantees all people the freedom of
conscience and the right to preach, practice and propagate any
religion of their choice.
2. Although Article 25 makes sure for equal right to profess,
practice and propagate any religion, but such freedom cannot be
used to do acts which are harmful to public order, health, and
morality.
3. Generating hatred among groups in the name of religion, which
can have possible ramifications over public order as well as
health, is deemed to be outside the scope of freedom of religion.
4. There is a phrase stating,” Limited by other Fundamental Rights”
in Article 25 which resulted in positioning the Freedom to
Religion on a lower niche than other Fundamental Rights. For
example, the playing of loud preaching was considered to
promote noise pollution and conflict with other people’s liberty to
not hear such preaching.
Case Examples :
Lily Thomas vs Union of India:
 In the case of Lily Thomas vs Union of India, the judge ruled
that while converting is permissible and within the scope of this
freedom, conversion to another religion for the purpose of
taking the benefit of polygamy, while a marriage in the previous
one subsisted, was not held to be valid.
 The Supreme Court considered second marriage without prior
divorce from the first marriage to be void because men were
 converting their religion to Islam to legally get married the
second time and according to the Hindu Marriage Act, this was
considered void and it would be acceptable only if the first
marriage was dissolved.
 If the husband still goes ahead with it, he would be liable for
bigamy under section 494 and 495 of the Indian Penal Code.
The reason was that converting to Islam would not dissolve the
first marriage and the husband is liable to all the obligations as
he would be prior to converting to Islam.
Church of God vs K. K. R. Majestic Colony Welfare Association:
 Church of God was a prayer hall for the Pentecostal Christians(a
sect of Christians) located in Madhavram High Road, Chennai.
They recited prayers using drums, guitars and other musical
instruments. They also used loudspeakers for the recital of their
prayers.
 This locality had K. K. R. Majestic Colony Welfare Association
which made a complaint to the Tamil Nadu Pollution Control
Board stating that the church was causing noise pollution and
was thereby creating a nuisance for the residents.
 Many people considered it as a religious issue and that it was a
violation of their right to practice religious freedom.
 The Supreme Court felt that contention with respect to the rights
under Article 25 and 26 need not be dealt with in detail. It stated
that no religion prescribes or preaches that prayers are required
to be performed through voice amplifiers or by beating of
drums. In any case, if there is such practice, it should not
adversely affect the rights of others and further substantiated
that enjoyment of no rights is absolute. Enjoyment of one’s
rights must be consistent with the enjoyment of rights by others.

Right to Privacy
Although an exact definition of privacy is not available, it is defined
by some legal experts as a right, which by the virtue of his or her
existence, is enjoyed by every human being. It depends on no
instrument or charter. Personal autonomy, confidentiality, compelled
speech, informational self-determination, bodily integrity, protection
from state surveillance, dignity and freedom to dissent or move or
think can also be jotted under the title of right to privacy.
Internationally, privacy enjoys a very robust legal framework. By the
Article 12 of the Universal Declaration of Human Rights, 1948 and
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR), 1966, a legal protection is provided to people against
“arbitrary interference” with one’s privacy, home, family,
correspondence, honour and reputation. ICCPR was signed and
ratified by India on April 10, 1979, without reservation. The respect
for private and family life, home and communications was recognised
by the Article 7 and 8 of the Charter of Fundamental Rights of the
European Union, 2012. While the protection of personal data and its
collection for a specified legitimate purpose is mandated by the
Article 8.

Recent Debates:
Some of the recent debates around the right to privacy are concerned
with whether the threats of terrorism serve as a valid excuse to spy on
the general public and whether the co-existence of privacy with the
current capabilities of intelligence agencies for the access and analysis
of many details of an individual's life is a possibility.
Private sector actors such as Amazon, Apple, Facebook, Google, and
Yahoo that use and collect personal data can also threaten the right to
privacy. The growth in concern in regard to such technological
companies has also been strengthened by scandals such as Facebook–
Cambridge Analytica data scandal which was used to influence
masses.

The Supreme Court of India has been taking steps time and again with
respect to upholding the rights of the public. On 24th August 2017, A
nine-judge bench of the Supreme Court of India which was headed by
Chief Justice Jagdish Singh Khehar, ruled that the Right to Privacy is
a fundamental right for the citizens of India under the Indian
Constitution (mostly under Article 21 and little of Part III rights).
Through the adoption of three-pronged test, which consider legality,
necessity and proportionality, for any encroachment with regard to
article 21, the Supreme Court provided clarification which is crucial
in order to prevent the dilution of the right at any point henceforth
based on the whims of the government in power. This ruling further
paved way for decriminalization of homosexuality in India on 6
September 2018. The new data sharing policy of WhatsApp with
Facebook after the former was acquired by the latter in 2014, has also
been challenged in the Supreme Court.
Case Example :
Central Government vs PIL challenging Aadhaar scheme:

The major trigger for the debate on right to privacy in India and for
the ruling of 24th august, 2017 was the Government’s Aadhaar
scheme. It was criticized of collecting the biometrics and personal
details to identify beneficiaries for the welfare schemes of the
Government. Terming Aadhaar as a breach of privacy, petitions were
filed in the Supreme Court in 2015. It was argued by the petitioners
that Aadhaar enrolment would only serve as means to a “totalitarian
state” and a means for a massive leakage of the personal data.
The counter made by the Government was that informational privacy
is not of consideration before compelling interests of the state and that
it is not an absolute right. It stood with a reasoning that collection and
use of personal data of citizens for Aadhaar scheme was only to
provide benefits millions of poor. Plagued by the contradictions in
regard to Right to Privacy, the five-judge bench decided to refer the
case to the nine-judge bench. Led by Chief Justice of India, Jagdish
Singh Khehar, this nine-judge bence engaged in an intense debate
with prominent lawyers and legal scholars on whether privacy is a
fundamental right in the Constitution or not.
The apprehension regarding privacy is best expressed in the words of
Justice Chandrachud on the nine-judge Bench: “I don’t want the state
to pass on my personal information to some 2,000 service providers
who will send me WhatsApp messages offering cosmetics and air
conditioners... That is our area of concern. Personal details turn into
vital commercial information for private service providers.”The risk
of data leakage is enhanced as both the government and the service
providers are prone to collect individual’s data.

The government has repeatedly been questioned by the Supreme court

on whether or not it plans to set up a “robust data protection
mechanism.” The court gave an example of how a person accesses his
smart phone or tablet by using his fingerprints and pointed to a great
risk of possible exploitation due to presence of a huge chunk of
personal information in the public domain. It was also stated by
Supreme court that the “state is obliged to put a robust personal data
protection mechanism in place in this digital age.”

CONCLUSION :
From the above cases, we can come to the conclusion that the
Fundamental Rights given to each citizen by the Constitution of India
are not absolute and can have restrictions, if necessary, to safeguard
the public interest. The restrictions-imposed help in striking the right
balance between upholding the individual's Fundamental Right and at
the same time in maintaining public welfare.

REFERENCES:

[1] --
https://en.wikibooks.org/wiki/Constitution_of_India/Fundamental_rig
hts#Right_to_Equality
[2] -- http://lawtimesjournal.in/state-of-bombay-and-ors-vs-f-n-
balsara/