4/16/2019

Presented by: Dr. Atmaram Shelke

Salient features of the Constitution:

1) Largest Constitution /Comprehensive document/Modern Constitution
–Represents herculean task

2) Preamble-
Preamble- Establishment of Sovereign, Social, Secular and Democratic
Republic/Welfare State

3) Written Constitution

4) Unique Blend of Rigidity and Flexibility

5) Federal Constitution-
Constitution-

6) Fundamental Rights/Fundamental Duties and Directive Principles

-FR- America/DPSP_ Ireland/FD-42nd -1979

7) Independence of Judiciary

1
 4/16/2019

1) Largest Constitution /Comprehensive document–

document–Represents herculean task/Modern
Constitution- America-
America-7 Articles/Austria-
Articles/Austria- 128/Canada -147
-India-
India-original-
original-Art. 395/12 parts/9 Schedule
problem:-Population –diversity-language, Culture, religion, custom etc.
Peculiar problem:
-Princely states- JK/ Junagadh/Hyderabad *

2) Preamble-
Preamble- Establishment of Sovereign, Socialistic, Secular and Democratic Republic
-Sovereign – Internal/ external -Member
Member of Commonwealth-
Commonwealth- Kind Ki UK –Symbolic Head
- Socialistic- 42nd- 1976
Socialistic
Secular-
-Secular -42nd
-Democratic Republic

3) Written Constitution

4) Unique Blend of Rigidity and Flexibility

US-
US-2/3 majority vote in both the House of Representatives + ratification 3/4of
3/4of the
States (38 of 50 States).
India-
India-
1) Simple Majority-
Majority-Art. 5-
5-Citizenship at commencement -, 169- 169-Abolution of legislative
council /239A
/239A-
239A-Creation of local legislatures or council of ministers –Union Territories:
Majority:: Majority of total member
2) -Special Majority member-- 2/3
states-
3) 2/3 + ratification half –states president-
-368/Election of president -54/55/Extend of executive
power -73/162/Sup-
73/162/Sup-HC/Distribution of leg. Power-
Power- etc.

5) Federal Constitution-
Constitution-
-K.C. Whear-
Whear- Quasi Federal
-Federal with Unitary Features
-Jennings-Federation
Jennings with strong centralizing tendency

Federation –derived Latin Foedus.

derived from –Latin
Latin-
-Treaty,
Treaty, Agreement –by states-intended
intended to federate
= Constitution –federation
=To accommodate –needs-
needs- Pakistan-
Pakistan- Srilankan

Definitions-
Definitions
K.C. Wheare-
Wheare
“In a federal constitution the powers of government are
divided between government for the whole country and
governments for parts of the country in such a way that each
government
governmen is legal independent within its own sphere”
sphere
*

2
 4/16/2019

Essential Characteristics-
Characteristics-federalism :
1) Distribution of power-List
power –I, II, III
Quasi –States are not independent =Appointment of Governer-155/156:
Governer
Power of parliament to legislate in national interest-
interest-249:Parliaments
249 power
to form new state/alter-
state/alter-Art.3:
Art.3 Emergency-352-war
Emergency etc./356-failure
constitutional mechanism/360 financial

S.R. Bommai v. Union of India-

India-(1994) 3 SCC 1
Ramaswamy: -Both
J. Ramaswamy: Both are co-
co-coordinating institutions and ought to
exercise –powers
powers with adjustment, understanding and accommodating -
constitutional goals –including secularism.
secularism

2) Dual Polity-
Polity Union -States
2) Written Constitution-
Constitution-
3) Supremacy of the Constitution

4) Rigid constitution –Art. 368-

5) Constitutional Status of unit-Art.
unit 2 & 3-Schedule -I
6) Authority of the Court/Federal Court-Art.
Court 131, 141, 129 etc.-
Special Position of Judiciary-(Independence
Independence of the Federal Court)
Court

6) Fundamental Rights/Fundamental Duties and Directive

Principles
-FR- America/DPSP- Ireland/FD-42nd -1976

7) Independence of Judiciary :

3
 4/16/2019

PREAMBLE:
WE, THE PEOPLE OF INDIA,
INDIA having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
to secure to all its citizens:

JUSTICE,
JUSTICE social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,

1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
CONSTITUTION

4
 4/16/2019

Objectives Resolution-
Resolution- then adopted –
Rajendra Prasad-
Prasad- Preamble –Part of the Constitution – Keshwanda Bharati
*
WE, THE PEOPLE OF INDIA-
INDIA-Source-
Source- Social Contract Theory

SOVEREIGN –External /Internal-

/Internal- commonwealth –King -UK

SOCIALIST -42: Mixed Economy-

Economy-DP/FR
- ownership of material resources…
-Samatha v. AP-
AP-AIR 1997 SC 3297-
3297-Socialism-
Socialism- Establishment of egalitarian social
order through rule of law –basic structure…
structure…

SE CULAR -42-
42-76: America –wall of separation…
State-
State-No official religion – not atheistic –neutral…Relation
neutral…Relation between –man and
man…God
man…God

SR Bommai v. Union AIR 1994 SC 1918=basic

1918=basic structure
Aruna Roy v. Union AIR 2002 SC 3176-
3176-Eduction policy-
policy-2002-
2002-Secularism –
religion-Sarva Dharma
developing, understanding and respect for different religion-
Sambhav – rather than Sarva Dharma Abhav…

DEMOCRATIC-
DEMOCRATIC-rulers –elected-
elected-

REPUBLIC –Elected Head/not hereditary

Preamble –Interpretation
Interpretation –re
re Berubari –AIR 1960
SC 845:
845 Key to open the mind of the makers-
makers- not
a part of the Constitution - not a source of
substantive power – ambiguity..
ambiguity.

Kesavananda Bharati v. Ker. 1973 SC 1461:

Part of the Constitution/368-imposing
imposing
limitation-
limitation Indira Neharu Gandhi…

Can Preamble be Amended: Question –

Keshnanda Bharti- Yes…part of constitution
*

5
 4/16/2019

Fundament Rights: Megna Carta- India- Shukla &

other …???
Available against –state
state-
state- west-
west- non-
non-state action-
action-

Article -12:
12. Definition.—In
Definition. this Part, unless the context
otherwise requires,
requires “the State’’ includes the
Government and Parliament of India and the
Government and the Legislature of each of the
States and all local or other authorities within the
territory of India or under the control of the
Government of India.
India

Includes-
Includes not exhaustive

1) Government and Parliament of India –

Executive and Legislature –Union

2) Government and the Legislature of each of

the States-Executive
Executive and legislature -States

3) Local or other authorities within the

territory of India or under the control of the
Government of India.

6
 4/16/2019

The General Clauses Act, 1897

Section 2 (31) “Local authority” shall mean a
municipal committee, district board, body of port
commissioners or other authority legally entitled
to , or entrusted by the Government with, the
control or management of a municipal or local
fund.
fund

Ordinary Law v. Constitutional interpretation. Is it

binding?
Article 367 (1)-
(1) Interpretation –Constitution of
India: General Clauses Act/ Help of Ordinary
Law…

Other Authorities:
-University
University of Madras v. Santa Bai AIR 1954 Mad. 67:
67 Madras
HC- Authorities –only like nature-
nature ejusdem generis..
generis of or as the
same kind..

Vehicle -refers to automobiles, trucks, tractors, motorcycles and

other motor-powered
motor vehicles,

-"vehicles" would not include airplanes, missile,

missile since the list
was of land-
land-based transportation-
transportation- bicycle

-Authority performing –Governmental

Governmental or sovereign function

Ujjammbai v. UP AIR 1962 SC 1621-

1621-
Ejusdem generis- no common genus…cannot
genus -one signal
category –rational
rational basis
*

7
 4/16/2019

(Authorities –Created, empowered /recognized)

Electricity Board, Rajasthan v. Mohan Lal AIR 1967 SC 1621-

1621-
-SC-All
All authorities –created
created & empowered by the
Constitution and Statute-
Statute including –Electricity Board..

Sukhdev Singh v. Bhagatram AIR 1975 SC 1331

Held –Oil
Oil & Natural Gas Commission, Life Insurance
Corporation and Industrial Finance Corporation-
Corporation are
authorities…

Regulation-have
Regulation have force of law-
law statutory status…Art.
Art. 14/16

Mathew J. –Corporation
Corporation –Public
Public importance and closely
related to government function…should
function be treated –
agency or instrumentality…of
instrumentality Govt.

Ramana Dayaram Shetty v. Internatioal Airport Authority1979 SC

1628
International Airport Athority Act 1971 --Statutory corporation –
registered..society
.society –capital –provided-
provided-state
/Ajay
Ajay Hasia v. Kahlid Mujib Sehravardi (1981) 1 SCC 722:
7
What is instrumentality of state?
1) Entire share capital of the corporation is held by Govt.

2 Where financial assistance is so much-

much- meet entire
expenditures-
expenditures -

3) Corporation enjoys monopoly-

monopoly-status-
status- conferred-
conferred- protected by
state.

4) Existence of Deep and pervasive state control..

control.. State Transport
Corporation

5) Function of corporate –Public importance-

importance-closely –related to
Govt. function…
function…Adhar/
Adhar/

6) Department of Govt. Transferred..

Transferred.. to a corporate –TATA-
TATA-
passport *

8
 4/16/2019

Zee Telefilms Ltd and Anr vs. Union of India and Ors case in 2005 Apex Court
elaborately discussed about the position of BCCI as an instrumentality of State
under Article 12.
- N.Santosh Hegde;
Hegde; S.N. Variava;
Variava; B.P.Singh;
B.P.Singh; H.K.Sema & S.B. Sinha

- Board of Control for Cricket in India-

India December 1928 as a society, registered
under the Tamil Nadu Societies Registration Act. (1860)

Mr. K.K. Venugopal - Board is not created by any statute and is only registered
under the Societies Act.
-Monopoly
Monopoly –but not conferred by Statute

- Mr. Harish N. Salve-rules

Salve rules and regulations framed by the Board indicate that the
Board has extensive powers in selecting players for the Indian National team
representing India- inviting foreign teams to play in India/
Indi Disciplines

-Game
Game and sports being a subject under the control of the States,
States in substance
the Board exercises governmental functions in the area of Cricket.
- sending a team outside India or inviting foreign teams to India is subject to the
India de-
prior approval of the Government of India- de-facto.
-Union of India has pervasive control over the activities of the Board.

-held that since BCCI is not financially, functionally and administratively

controlled by government cumulatively and so it cannot be held as a State and
thus writ petition under Article 12 is not maintainable.

5 people
1) Introduction –background- 3 M.
2) Issues- Laws- legislation – 3 M.
3) Argument -1 Side- 3 M
4) Argument -2- side- 3 M
5) Judgment -3 M.

Question –ans. 15% (individual –marks –only

for questions…)

9
 4/16/2019

Judiciary?
H. M. Seervai-
Seervai State- Constitutional body-
creation/appointment/protection/payment etc./ requirement of
democratic state…

Naresh v. Mah.
Mah. AIR 1967 SC 1-
- Not a state- erroneous decision –corrected…

A.R. Antulay v. R. S. Nayak AIR 1988 SC 1531-

-state in general – cannot pass order –violation of fundamental
rights.
(Khoday
Khoday Distrilleries Ltd. v. Registrar … SC (1996) 3 SCC
114/Rupa
114/Rupa Ashok Hurra v. Ashok Hurra-
Hurra- (2002) 4 SCC 388)-
388 Not
maintainable -32

Non-
Non-Judicial Function –appointment -146/Rules
146/Rules 145 etc.

Art. 14- ‘The

The State shall not deny any person
equality before law and equal protection of
law’
law
Art. 7 – Universal Declaration of HR.

Any person:
person Natural –Citizens /Non-citizens
Legal –
-Negative –wording…

10
 4/16/2019

1) Equality before law –UK

UK-
UK negative –no
no special
privileges… only on ground -of birth, creed, colour,
privileges colour,
nationality,
nationality etc…
..subject
subject to ordinary laws…Dicey
laws Dicey…
Dicey

Absolute-
Absolute equality –not
not possible – Society not equal..
-Jennings-
Jennings ‘...that among equals the law should be equal
and should be equally administered,
administered that like should be
treated alike’
- law is not universally-
universally equality applied to all…
*
2) Equal protection of law-
law America- 14 amendment –
positive –equality of treatment equal
circumstances…arrest…no
circumstances no discrimination … birth…etc…
birth…etc

Equality before law-

law-Jennings-
ennings ‘...that
..that among equals the law should be
equal and should be equally administered, that like should be treated
alike’

=Reasonable classification-
classification-
-All persons are not equal- differently abled=
abled
-Class
Class –requires
requires-
requires different/separate treatment..
treatment.
=Class
Class legislation –privileges..not
not permitted

Classification –based –real

real and substantial distinction –not – ‘arbitrary,
artificial or evasive’-R.K.
evasive’ R.K. Garg v. Union –AIR 1981 Sc 2138

K. Thimmappa v. Chairman Central Board of Director SBI AIR 2001 SC

467-
467-
Test:
Test
A) Classification- founded –on an intelligible differentia
Differential-
B) Differential - must have a rational relation –objectives
objectives sought to be
achieved…objectives-just..

11
 4/16/2019

Permissible classification:
Ram Krishana Dalmia v. Justice R.S. Tendolkar AIR 1958 SC 538
*
1) Single individual –a class-special circumstances-reason
reason to apply him-
him-not
others (Charanjit
Charanjit Lal Chowdhury v. Union –AIR 1951 SC 41-
41 ordinance -
mismanagement of company)

2) Presumption favour of the Constitutional validity of law- legislature –correctly

appreciate-
appreciate- need of people-
people
-Not only treated different from other –treated
treated differently from similar
circumstances-
circumstances- with justification…
justification

3) Constitutional validity -the court –may

may considered-
considered-common knowledge, history
etc.

6) Validity-
Validity overall effect and not by picking exceptional cases…
cases taking all aspect
consideration –can be justified- reservation –one or two may not
farmers-
backward/farmers
farmers subsidy

3) Legislature is free to recognize the degree of harm-

harm-
5) A classification need not be scientifically perfect or logically complete-
complete-

7) Palpable arbitrariness-
arbitrariness- 50% reservation

8) There is no right of equality in illegal acts-obtained

acts illegal benefit

9) Equality is available for grant of favour as well as the imposition of burden.

burden

New Dimension to –right of equality:

E.P. Royappa v. TM. AIR 1974 SC 555-
555-
Bhagawat- “Equality is a dynamic concept-
concept with
many aspects and dimensions –cannot be
cribbed, cabined and confined-with
confined traditional –
limit’

Equality is antithesis to arbitrariness

Equality and arbitrariness are sworn enemies –

One belong –rule
rule of law in republic
Another belong-whim
belong whim and caprice of an absolute
monarch..

12
 4/16/2019

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth.:

1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or
any of them,
them be subject to any disability, liability, restriction or condition with
regard to—
to

(a) access to shops, public restaurants, hotels and places of public entertainment;
entertainment
or

(b) the use of wells, tanks, bathing ghats,

ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.
public

(3) Nothing in this article shall prevent the State from making any special
provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Tribes…1st Amend 1951
Scheduled Tribes…1

13
 4/16/2019

1) The State shall not discriminate against any

citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.
State-
-Any
Any citizen
-Discriminate- adverse distinction –unfavorable
-On Grounds only
◦ -State of Raj. V. Pratap Singh AIR 1960 SC 1208--
Disturb area-
area notification –additional
additional police station-cost
–public-exempted
exempted –Harijans
Harijans and Muslims –SC- invalid.
invalid

14
 4/16/2019

(2) No citizen shall, on grounds only of religion, race,

caste, sex, place of birth or any of them,
them be subject
to any disability, liability, restriction or condition with
regard to—
to

(a) access to shops, public restaurants, hotels and

entertainment or
places of public entertainment;

(b) the use of wells, tanks, bathing ghats,

ghats, roads and
places of public resort maintained wholly or partly
out of State funds or dedicated to the use of the
general public.
public
-No citizen- Caste system -
-State & individuals-

(3) Nothing in this article shall prevent the State

from making any special provision for women
and children..

-Enabling
Enabling and not obligatory

-Special
Special treatment –on account of their very
nature –Maternal
Maternal Function –Art. 42-
42- Women
workers –special
special maternity relief

-Special Treatment –because of social situation

-Children Special need-

need- because of very need…

15
 4/16/2019

(4) Nothing in this article or in clause (2) of article 29 shall

prevent the State from making any special provision for the
advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled
Tribes… 1st Amend 1951

-State of Madras v. Champakam Dorairajan AIR 1951 SC 2

26
- reserved seats –different community-
community- religion, caste-
caste- etc.
-State-
State- social justice -46 promote social justice to all its
citizens.
-DPSP-
DPSP-cannot override FR
-Held-
Held- violation of 15 (1)
-Backward-
Backward- not defined –Art. 340 President –commission
-only for backward- not for all…

employment.—
16. Equality of opportunity in matters of public employment.

(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.
State.
*
(3) Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an
office under the Government of, or any local or other authority within, a State or
Union territory,
territory, any requirement as to residence within that State or Union
territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State,
State, is not adequately represented in the
services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion,
promotion, with consequential seniority,
seniority, to any class or
classes of posts in the services under the State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of the State,
State, are not adequately
represented in the services under the State…Amend
State…Amend-
Amend-77-
77-95

16
 4/16/2019

Article 16:
(4B) Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being filled up
in that year in accordance with any provision for reservation made
under clause (4) or clause (4A) as a separate class of vacancies to be
filled up in any succeeding year or years and such class of vacancies
shall not be considered together with the vacancies of the year in which
they are being filled up for determining the ceiling of fifty per cent.
reservation on total number of vacancies of that year….Amend -81-
2000
-Unfilled- New= 50%

(5) Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs
of any religious or denominational institution or any member of the
governing body thereof shall be a person professing a particular
religion or belonging to a particular denomination.

15(4)-
15(4)- first case
Balaji v. State of Mysore AIR 1963 SC 649: more backward –classification –
permitted.
Quantum of researvation-68%
researvation 68%
-50%-
50%-backward and more backward
-15% SC
-3% ST
-32% for merit pool

Argued-
Argued-State-
State 15(4)-does not contain –limitation
limitation as to percentages

Held-
Held while –advancement
advancement of those classes-
classes state cannot ignore altogether
advancement of rest. (advancement of backward-
backward-shall not lead to injustice to
rest)

-Reasonable
Reasonable limit-national
limit national interest-
interest-and interest of community as whole cannot be
ignored in determining reasonableness for 15(4)
-shall not go beyond 50%
(Merit –quality =Good
=Good doctors/Eng.-
doctors/Eng.- National/Social -interests)

17
 4/16/2019

Indra Sawhney v. Union of India AIR 1993 SC 477-

477- Known as Mandal case

-1979
1979-
1979- Govt.
Govt appointed backward classes commission –Art.
Art. -340-
340 B.P. Mandal -
Chairman

-to investigate socially backward classes and recommend –steps

steps
Indentified 3743-
3743 castes-socially
socially and educationally backward-
backward recommended-
27% reservation in seats

-PM-V.P.
V.P. Singh-
Singh 1990-emplemented:
emplemented: issued-
issued- memorandum of
acceptance Challenged
acceptance…Challenged
Govt. (Janta)
Janta)-collapsed
collapsed -defections

- P.V. Narsimha Rao-

Rao-1991:
1)-introduced
introduced economic criterion-
criterion 27%
2) -10%
10% - economically backward of higher caste.

Held –creamy layer among them-cancan be eliminated..

eliminated.
-10%
10% -unconstitutional-
unconstitutional- only economy cannot be basis
-Total
Total should not be more -50%
50%

Court Further Held:

1) 16(4)-
16(4)- any authority-
authority- state-
state-12

2)Backward
2)Backward classes –may be on the basis of caste (caste can be a class) but not
only on economic basis…
-caste can be and quite often a social class in India

3) Article 16(4) not an exception -16(1)-

16(1)-instance of classification
- (There shall be equality of opportunity for all citizens-----
citizens-----Jennings
-----Jennings-
Jennings- equality
amongst -equals).

4) Creamy layer must be excluded from backward classes-

classes-Backward –and more
backward-
backward -permitted..
5) Backward classes –Art.16(4) not similar 15(4)-
15(4)-educational and social
(word –educational and social is not used in 16(4))

6) Backwardness cannot be only and exclusively –economic criterion

7) No reservation in promotions…16
promotions…16-
16-4A-
4A-Amend-
Amend-77-77-95

8) Permanent statutory body-

body- to examine complaints

9)Critic: 2-
2-Nani A. Palkhiwal-
Palkhiwal-will review casteism –which constitution –
emphatically intended to end.

18
 4/16/2019

Reservation for single –post

post –OBC-
OBC- not
permitted…
permitted
Chattra Singh v. State of Raj AIR 1997 SC 303

High caste Girl marring ST –Not entitle for

reservation –Dr. Neelima v. Dean of P.G.
Studies AP Agriculture University -Hyderabad.
-Born –Reddy
Reddy-
Reddy forward cast- Married –
Erukala…

19
 4/16/2019

19. Protection of certain rights regarding freedom of speech etc.

(only like nature-
nature- ejusdem generis..
generis.. of or as the same kind..)
kind..)

1. All citizens shall have the right:

right:

a. to freedom of speech and expression;

b. to assemble peaceably and without arms;

c. to form associations or unions;

d. to move freely throughout the territory of India;

e. to reside and settle in any part of the territory of India; and

f. omitted..(Property…44-
omitted..(Property…44-1978)

g. to practise any profession, or to carry on any occupation,

trade or business *

Reasonable –restriction: 2-
2-6:

Standard is an elastic one-

one it varies with time, space and conditions and
from –case to case.
case Golak Nath v. Pun. 1967 SC 1643
-No
No absolute definition:
definition

Principles by court:
1) Reasonable demands proportionality
( Modern Dental college & Research Center v. MP 2016 7 SCC 353
353)

2) Reasonable:
Reasonable Both -Substantive
Substantive and Procedure
(Krishn
Krishn Chand Arora v. Com. Of Police 1961 SC 705)

3) Reasonableness is an objective concept

4) Reasonableness of restriction and not law/ reasonableness of tax

4) Reasonable restriction includes prohibition

5) Reasonableness is not equivalent to due process of US

6) Reasonableness –DPSP -State

State of Bombay v. Baslsara AIR 1951 SC 318

20
 4/16/2019

19.1.a. to freedom of speech and expression;

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the
said sub clause in the interests of the sovereignty and integrity of India,
India the
security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or
incitement to an offence

19. 1. b. to assemble peaceably and without arms;

(3) Nothing in sub clause (b) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any
law imposing, in the interests of the sovereignty and integrity of India or
public order, reasonable restrictions on the exercise of the right conferred by
the said sub clause (Arrest of sambhaji Guruji...allegedly
Guruji...allegedly involved in Bhima-
Bhima-Koregaon incident)

19. 1. c. to form associations or unions;

(4) Nothing in sub clause (c) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any
law imposing, in the interests of the sovereignty and integrity of India or
public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub clause *

d. to move freely throughout the territory of India;

e. to reside and settle in any part of the territory of India; and

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making any
law imposing, reasonable restrictions on the exercise of any of the rights
conferred by the said sub clauses either in the interests of the general public or
for the protection of the interests of any Scheduled Tribe

g. to practise any profession, or to carry on any occupation, trade or

business

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub clause, and, in particular, nothing
in the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,((i) the professional
or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise
(Ram
Ram Jawaya Kapoor v. Pun. 1955/rail/business-
1955/rail/business- transportation..etc.)

21
 4/16/2019

19.1.a. to freedom of speech and expression;

Ramesh Thappar v. State of Madras AIR 1950 SC 124

-Thappar
Thappar-
Thappar Right to circulate-
circulate Notification banning circulation –
newspaper –crossroads
crossroads-
crossroads

-Speech
Speech and expression means:
-Expression –Mouth,
Mouth, writing, printing, pictures or any other
mode
-Expression/press: lay –foundation –)
-Democratic state-
state- (Accountable –Govt./Political liberty and
functioning democracy )

-Expression –includes
includes-
includes freedom of propagation of
ideas…circulation…
ideas…circulation
Printer (Mysore) Ltd. v. Assistant commercial Tax- cherished as
right in all democratic states

Prabhu Dutt v. Union AIR 1982 SC 6/Sheela

6/Sheela
Barse v. Mah.
Mah. (1997) 4 SCC 373
-Right to Know news and information –
regarding Govt.

22
 4/16/2019

Bennett Coleman & co. v. Union (1972) 2 SCC 788-

788-
-Policy
Policy for newsprint for 1972-
1972-73; Newspaper control
order, 1962; Essential commodities Act, 1955:

1) Bar on starting newspaper/ editions -by common

ownership units.
2) Limitation of -10
10 pages .
3)Bar on interchangeability –within common ownership
units.
4) Allowance of 20% page increase only –newspapers –
having below -1010 pages.
pages

-Speech & Expression –notnot only in the volume of

circulation but also in the volume of news and views.
views
*

Pre-
Pre-Censorship-
Censorship- invalid –unless justified-
justified- 19(2):
Brij Bhushan v. State of Delhi AIR 1950 SC 129:

Order -Section 7- by chief commissioner of

Delhi-Under
Delhi East Punjab Safety Act, 1949:
1949

-Ordered
Ordered-printer,
Ordered printer, publisher, editor-
editor- submit
submi for
scrutiny- in duplication –before
before publication

Held: …imposition of pre-censorship of

journals-is
is restriction on liberty of press-which
press
is an essential freedom under …19(1) (a)

23
 4/16/2019

Secretary, Ministry of I & B v. Cricket Association

of West Bengal-AIR
Bengal 1995 2 SCC 161
1993-DD
1993 arrangement for telecasting of all
matches-CAB-royalty
matches royalty-
royalty- DD. Arrangement –Trans
Trans
World International...without
International without –permission of
Govt. –to telecast.

-Govt. has no Govt. monopoly –electronic media

-Right to use best means
-(Right to received) include –communication
communication
abroad-
abroad

Right to Information Act,

24
 4/16/2019

Sakal Papers v. Union 1962 SC 305

-The
The Newspaper (Price and Page) Act, 1956
-Regulate number of pages-
pages- price
-Price
Price –depend- pages…

=lead- reduction of space-

space advertisement = impact on
price= circulation…

-Argued: –directly
directly affect the –expression…

Held: Not only circulation-

circulation- but volume (Pages)= Not
connected – reasonable restriction- 19(2)
“Right of Speech and Expression cannot be taken away
with object of placing restriction on business activities”
activities”

Indian Express Newspaper v. Union of India

(1985) 1 SC 641:
Imposition –Tax
Tax-
Tax-news-
news-print =freedom of
press… affected the circulation…
circulation
-Reasonable
Reasonable –Tax-does not affect –freedom
of speech and expression

25
 4/16/2019

Right to Bandh and Judicial Responses:

Calling for Bandh-
Bandh- not a fundamental rights-
rights-unconstitutional-
unconstitutional-
violates fundamental rights of others:

Communist Party of India (M) v. Bharat Kumar and others AIR

1998 SC 184:
Kerla HC-calling
HC bandh-political
political party –illegal
illegal-
illegal- violates citizens
rights -19(1) (a) and 21.
21.

Additionally causing national loss..

loss..
-Traders
Traders are prevented-right
right to business 19(1) (g)
-Not
Not in the interest of the nation-national
nation national loss of production…
production

(FR-
(FR-Again political party?)-
party?)-(-State fail to prevent/regulate…)
prevent/regulate

People’s Union for Civil Liberties v. Union of

India (1997) 1 SCC 301:
Telephone Taping:
Telephone is also means of expression –
Telephone taping –unless
unless it comes within
grounds for restriction -19(2) would violate
Article 19(1)(a)

26
 4/16/2019

____________________________________________

13. Laws inconsistent with or in derogation of the fundamental rights:

(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such
inconsistency, be void

(2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of
o this
clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or
usages having in the territory of India the force of law;

laws in force includes laws passed or made by Legislature or other

competent authority in the territory of India before the commencement
of this Constitution and not previously repealed, notwithstanding that
any such law or any part thereof may not be then in operation either at
all or in particular areas

(4) Nothing in this article shall apply to any amendment of this

Constitution made under Article 368 – 24 Amend 1971

27
 4/16/2019

___________________________________________

28
4/16/2019

29