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Question 1 :- What is Preamble? Discuss in detail of Preamble of Indian Constitution

and its objects and significance. How can you say that according to Preamble, India
is a sovereign, socialist, secular and democratic republic. How these are applied by
the courts. Refer to some decided cases? How the various ideals and goals
enshrined in the preamble have been realised in the constitution? Refer some
decided cases.

PREAMBLE OF THE CONSTITUTION:- The preamble of an Act sets out the purpose and
object for which a statute is enacted. The Preamble of the constitution declares :-
We the people of India having solemnly resolved to constitute of India into a sovereign,
socialist, secular democratic Republic and to secure to all its citizens. :- i) Liberty of
thoughts, expression, belief, faith and worship. Ii) Justice, social, economics and political. Iii)
Equality of Status and opportunity and to promote among them all.. iv) Fraternity assuring
dignity of the individual and the unity an integrity of the Nation.
I our constitution Assembly this twenty sixth day of November, 1949 do hereby adopt enact
and give to ourselves this constitution.
The Purpose of Preamble:- The Preamble to the constitution is a key to open the mind of
the makers for which they made several provisions in the constitution. In constitution
preamble occupies an important place &
The constitution should be interpreted in the light of the ideals mentioned in the
preamble.Keswanand Bharti v.State of Kerla 1973.
In Berubari case SC held that preamble is not a part of the constitution and therefore it was
never regarded as the source of limitations powers. But in Keswanand Bharti case the SC
held that Preamble is a part of the Constitution and all importance is to be attached to it in
interpreting the constitution.
The Preamble to the constitution serves the following purposes:-
i) It discloses the source of the constitution.
ii) It lays down the date of the commencement of the constitution.
iii) It sets out the rights and freedoms which the people of India wished to secure for
themselves.
iv) It declares the nature of the government which it wishes to establish in the country.
Preamble declares that people of India are the source of the constitution of India. The govt.,
derives all its authority from the people of India. Administrators are elected by the People of
India. The nature of the govornment, which the preamble establishes is a sovereign,
socialist, secular, democratic republic. Sovereign because const., does not recognise the
legal supremacy of any other country. A democratic because govornment of the people, by
the people and for the people. Secular because it treats all the religions equally. It does not
recognise any religion as a State Religion. Socialist because it implies economic equality
and equitable distribution of income. In such state important means of production is
controlled by the State. And republic because the Head of State is not a hereditary Monarch,
political sovereignty resides in the people and Head of State is President of India who is
elected by the people for a fixed term.
Objectives of the Constitution:- The objectives is to secure to its people, justice. Liberty, and
fraternity, the dignity of the individual and the unity and integrity of the nation. // In
keswaanand Bharti case it has been held that the preamble is the part of the constitution
and therefore it can be amended by the Parliament under its amending power under article
368 with the condition that it should not exercise it amending power so as to destroy the
basic features in the preamble. By 42nd amendment of the constitution of India, Parliament
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did amend the Preamble inserting the words “ socialist secular” before” Democratic Republic
and “ integrity”before of the nation. Spirit of these amendments only expressly stated what
was already present in the constitution impliedly, the additions did not impair the basic
features.In //Aruna Roy v. Union of India 2003 secularism has been held to be knowledge of
and respect for all religions and fostering feeling of respect for them. Although socialism
has nowhere been defined in the constitution.//In D.S.Nakara v. Union of India 1983 it has
been taken to mean raising the living standard of the weaker section and labourers and to
guarantee for them lifelong social security while Excel Wear v. Union of India 1979, it was
held that the effect of adding the word Socialist is that the court should give more effect to
nationalisation and state ownership. In brief our socialism is a unique combination of
Maxism.

Question 2 :- “Article 14 permits classification, but prohibits class legislation.”

Discuss this statement.
OR
What do you understand by reasonable classification in the context of “ Right of
Equality”? Can a single person be treated as a class?

Ans:- Introduction:- Classification and class legislation : The guarantee of equality before
the law and equal protection of the laws does not mean that all the laws must be universal in
application to all persons irrespective of differences in their nature and
circumstances. Equal treatment with persons in unequal circumstances amounts to
inequality and hence article 14 permits classification of people difference between those put
in class is distinct from the others and bears a reasonable relations to the object sought to
be achieved by the legislature.// But article 14 does not permit class legislation which means
undue discrimination by conferring some advantages or privileges upon an arbitrarily
selected group of people though all of them are similarly circumstanced in relation to
privilege conferred on the selected class. In other words class legislation amounts to
unequal treatment with equals and hence void under article 14.// Equality is for equals i.e. to
say those who are similarly circumstanced are entitled to an equal treatment. The
guarantee of equality does not imply that the same rules should be made applicable to all
persons in spite of differences in their circumstances and conditions. Refer case Ramesh
Prasad Singh v. State of Bihar l978. // In APBC Singh v. Jharkand state Vaishya Federation
2006, the Jharkhand state had amalgamated Extremely backward class and backward class
into one group for the purpose of reservation in professional and educational
institutions. The court has held that the decision of the state govt., amalgamating the
extremely Backward classes and Backward classes is violative of Article 14 because two
different classes have been treated similarly. Merely showing that the Council of Ministers
had applied their minds in order to arrive at the decision is not tenable and such decision is
arbitrary and unreasonable and is subject to judicial review.// In a case of chiranjeet
lal v.Union of India 1951, It was held that single individual may be considered as a class in
special circumstances. The SC ruled that a law may be constitutional even if it applies to a
single individual on account of some special circumstances or reasons applicable to him,
that individual may be treated as a class itself. Ordinarily a legislation pertaining to a single
person would not be valid unless it was possible for the court to discern the special
circumstances differentiating that particular person from the rest. If a classification is
discernible in the Act, a presumption arises in favour of its constitutionality, but the person
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affected may show that while there are others having the same differentiating attribute as
he, only he is covered by the Act and not others and the Act will then be void.
What article 14 prohibits is class legislation. But it does not forbid reasonable
classification. The classification should not be arbitrary but must rest upon some real and
substantial distinction having some relationship which is reasonable to the things in respect
of which the classification is sought to be made. The classification can be based on the
basis of geography or other objects or occupation. Refer case: Shashi Mohan v. State of
W.Bengal-1958.
In Menka Gandhi case v Union of India- 1978 SC emphasized on the content and reach
of the great equalising principle enunciated in Article 14. Warning against any attempt to
truncate its all embracing scope and meaning which might violate it activist magnitude, SC
observed that equality is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits. The court reiterated the
majority view in E.P.Royappa v.state of Tamil Nadu 1974 that Art. 14 strikes at arbitrariness
in State action and ensures fairness and equality of treatment. 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. In Ajay Hasia
v.Khalid Mujib 1981 SC struck down as constitutionally invalid, the allocation of as high a
percentage as 33 1/3 of the total marks for the oral interview for admission to the
Engineering college and declared it as infecting the admission procedure with the vice of
arbitrariness. The court firmly laid down ha “ what article 14 strikes at negation of equality”
so ruled , the court said that not more than 15% of the total marks should be allocated for
the oral interview.//In the series of cases State laws creating special Courts to deal with the
problems of law and order have been questioned. A law creating special courts can
therefore be sustained only if it makes reasonable classification either of the offences or of
the cases or of the persons, triable by the special courts. Difficulties usually arise when the
law establishing these courts fails to do so itself and instead leaves it to the govt., to decide
this matter. In such situation the courts have held that the law would not be valid if it does
not lay down the policy or principle to regulate and control administrative discretion to decide
which cases offences or persons would be triable by these courts. In Bhagwanti v Union of
India-1989 it has been held that classification between marriage during service and after
retirement for the purpose of giving family pension is arbitrary and violative of Article 14. In
state of UP v. Committee Management 2010 SC the respondents were running unaided
school which was upgraded as High School and Intermediate college in 1991-1999. After
30.6.84 Junior schools wee granted recognition covered by the Grants-in-aid scheme but
the court held that the action of the State creates class within class which is arbitrary and
violates Article 14 of the constitution. A distinction between two schools of the same
category was created while one category of schools continued to get the grants-in-aid
benefit inspite of upgradation of other junior High school were excluded from benefit.

Short Notes
A. DOCTRINE OF SEVERABILITY WAIVER.
B. DOCTRINE OF ECLIPSE.
C. CITIZENSHIP
D. WAIVER
E. Protection Against Self-Incrimination
F. PROTECTION FROM EX-POST FACTO LAW
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G. PROTECTION FROM DOUBLE JEOPARDY

CITIZENSHIP
At the commencement of this constitution every person who has his domicile in the territory
of India and i) who was born in the territory of India ii) either whose parents was born in the
territory of India iii) who has been ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement shall be a citizen of India.
According to the Federal principle, the constitution of USA provides for dual
citizenship i.e. the citizenship of the USA and the citizenship of the state. Though the Indian
constitution has adopted the federal principle of the American constitution but it had opted
for a single citizenship, that is the citizenship of India. There is no state citizenship.
The citizenship Amendment Act 2003 has paved for conferring Indian Citizenship
not only upon the persons of Indian origin but citizens of certain other countries also. The
amendment has obviously reserved the idea of single citizenship and introduced a limited
sort of double citizenship.
DOCTRINE OF SEVERABILITY
A :- Clause (1) of Article 13 provides : 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. Clause (2)
of Article 13 says that 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 this clause shall, to the
extent of contravention be void. Clause 1 and 2 of article 13 thus declare that laws
inconsistent with or in contravention of the fundamental rights shall be void to the extent of
inconsistency or contravention as the case may be. It means that where only a part of law is
inconsistent with or contravenes the fundamental rights, it is only that part which shall be
void under article 13 and not the whole of the law. The courts apply the doctrine of
severability or separability to separate the valid portion of the law from the invalid portion.
In a case State Of West Bengal v .Committee for protection Democratic Rights, W.Bengal
2010 SC held that, Any law that abrogates or abridges such right would be violative of the
basic structure. Doctrine.
In some other cases Keshavaananda Bharti v/s State of Kerla 1973, Minerva Mills v/s Union
of India 1980, Waman Rao v/s Union of India l981 and Srinivasa v/s State of Karnataka
1987, it was held by SC, The basic features” of the constitution cannot be amended by
exercising the power of amendment under article 368.
DOCTRINE OF ECLIPSE
DOCTRINE OF ECLIPSE :- A law existing at the time of coming into force of the
constitution and inconsistent with a fundamental rights though becomes inoperative from the
date of the commencement of the constitution. It is not dead altogether. Though it is
overshadowed by the fundamental rights and remains dormant, it is not wiped out from the
statute book It stands for all the transactions and for enforcement of rights incurred during
pre-constitution period. It this shadow or eclipse is removed by the appropriate constitutional
amendment the law revives. This question was considered by the SC in Bhikaji Narain v.
State of MP 1955 the court held that an existing (pre-constitution) inconsistent law is not
dead and can be revived by any subsequent amendment of the constitution. In that case a
law authorised the State Govt., to nationalize motor transport business. This law became
void on coming into force of the constitution in 1950 as it is violated article 18(1)(g) in 1951.
Art.19(b) was amended which authorised the state govt to nationalized motor transport
business. It was held that the amendment had removed the shadow and made the law
enforceable. All existing laws are continued to be valid till courts declares them to be in
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conflict with fundamental right and therefore void. Thus the declaration of validity of the court
is necessary.

THE WAIVER
?

Protection Against Self-Incrimination

It is a trite law in English & American Jurisprudence that no one should be compelled to give
evidence or be witness against himself. Article 20(3) of constitution provides,” no person
accused of any offence shall be compelled to be a witness against himself.” This means
that no accused shall be compelled to make confessions which might lead to his
conviction.
i) It is the right pertaining to a person “accused of an offender”
The privilege under article 20(3) is confined only to an accused i.e. a person against whom
there is a formal accusation relating to commission of an offence, which in the normal
course may result, in prosecution (R.K.Dalmia v. Delhi Administration 1962) Where a
custom Officer arrests a person and informs him of the ground for the purpose of holding
enquiry there is no formal accusation of an offence. ( Veer Ibrahim v. State of Maharashtra,
1976)
ii) It is protection against compulsion to be witness.
The phrase used in Art.20(3) is “ to be witness” and not “appear as witness". Every possible
volitional act which furnishes evidence is testimony and testimonial compulsion connotes a
coercion which procures the positive volitional evidentiary acts of the person as opposed to
the negative attitude of silence or submission on his part. Case : M.P.Sharma v. Satish
Chandra 1954. The interpretation of the phrase,“ to be witness” given in above case is too
wide and requires a qualification. Self incrimination can only mean conveying information
based upon personal knowledge of the person giving information and cannot include merely
mechanical process of providing documents in court.
iii) The Prohibition is only against the compulsion of the accused to give evidence against
himself.
There is not constitutional disability against an accused being a witness on his own behalf.
Case Nandini Satpathi v. P.L.Dhani-1978, It is laid down that the phrase, compelled
testimony” must be read as evidence procured not merely by a physical threats or violence
but also by phychic torture. In case: Yusafali v. State of Maharashtra-1968. Production of a
tape-recorded statement of the accused recorded without his knowledge and without use of
force or oppression was held to be not hit by art. 20(3) and hence admissible in evidence.

PROTECTION FROM EX-POST FACTO LAW

Article 20(1) of the constitution says, “ No person shall be convicted of any offence except
for violation of a law in force at the time of the commission of the act charged as an offence,
nor he subjected to a penalty greater than that which might have been inflicted under the
law in force at the time of commission of the offence.
Article 20(1) corresponds to the provisions against ex-post-facto laws of the American
constitution. Ex-post-facto-laws are laws which impose and enhanced penalties upon acts
already done i.e. retrospectively. This means that person can only be convicted of an
offence if the act was charged against him was an offence under the law in force at the date
of commission of the act. However it does not prohibit the imposition of civil liabilities
retrospectively. So a tax can be imposed with effect from a past date. This first part of
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art.20(1) simply means that if an act is not an offence at the date of its commission, it cannot
be made an offence at any date subsequent to its commission. The second part of the
clause provided that a person cannot be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission of the offence.
Case: Shiv Bahadur singh v. State of U.P.-1958 : The prohibition :- it will be noted, extends
not only to the passing of ex-post-facto laws but also the conviction or the sentence under
such laws. It was held that penalty means penalty for the offence committed. In case :
Venkataraman v. Union of India.1954: -such a trial under a procedure different from what
obtained at the time of the offence or by a court different from that which had the
competence at the time cannot ipso facto be held to be unconstitutional. Protection of
cause(1) or article 20 cannot be claimed in cases of preventive detention.
PROTECTION FROM DOUBLE JEOPARDY
English and American laws bar second prosecution of an accused for the same offence
whether he was convicted or acquitted as a result of the first prosecution. No one should be
vexed twice for the same act. But art.20(2) of the constitution of India has adopted this
principle to a rather narrower extent as its protection against prosecution for which the
accused has already been prosecuted and punished. Art.20(2) provides “ No person shall
be prosecuted for the same offence more than once.”
The constitutional protection against double jeopardy is available to the citizens and
non citizens of India. Thus the Indian provision enumerates only the principle of autrefois
convict but not that of autrefois acquit. In England and the USA both these rules operate
and a second trial is barred even when the accused was acquitted at the first trial for that
offence.
In order to bring the case of a person within the prohibition of art.20(2) it must be
shown that he had been (i) Prosecuted before a court. (ii)Punished by it (iii) The punishment
was for ,” the same offence “ for which he is being prosecuted again.
Accordingly there can be no constitutional bar to a second prosecution and
punishment for the same offence unless the accused had already been punished in the first
instance, in a case Kalawati v. State of M.P.-1953. The word prosecution has no fixed
meaning and is susceptible of both wider and narrower meanings as laid down in
Venkataraman v. Union of India 1954, but as used in art.20(2) it embodies four essentials :
1. There must be a person accused of an offence.
2. The proceedings of the prosecution should have taken place before a court or judicial
tribunal and not the executive or administrative action.
Case : Maqbool Hussain v. State of Bombay 1953 & H.H.Advani v. State of Maharashtra
1971.
3. The proceeding should have been taken before the judicial tribunal or court in reference
to the law which creates offences. Case:Venkatraman v. Union of India.-1954 & Leo Roy v.
Supdt. Of District Jail- 1958.
4. The person must have been not only prosecuted but also punished in the previous
proceeding.
Likewise, clause (2) of article 20 does not apply when the person prosecuted and punished
for the second time and subsequent proceeding is a mere continuation of the previous
proceedings, e.g. in the case of an appeal against acquittal. Case: State of M.P. vs.
Veereshwar-1957.
Similarly the conviction of the accused under section 304 IPC for the death of deceased
does not deprive the wife of the deceased to claim compensation. A decree of damages is
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not a punishment and the rule of double jeopardy has no application, Case : Suba Singh v.
Devender kaur,2011.

Question :- Discuss the importance of the speech and expression. Does the
constitution permits its curtailment? If so on what ground and o what extent?
OR
Examine the scope of freedom of speech and expression under the constitution of
India. Is right to information implies in Article 19(1)(a)?
OR
What is the scope of the right to freedom of speech and expression? On what
grounds can this right be restricted?

Answer:- INRODUCTION:- Freedom of speech and expression is a fundamental right given

under Art 19(1) A in the part III of the constitution of India. Article 19 itself contains certain
freedom for the individual. In a case LIC v/s Manu Bhai D.Shah, the apex court held that,”
That a speech is Gods- gifted to mankind. Through speech a human being conveys
thoughts, sentiments and feeling o others, freedom speech and expression is thus a natural
right which a human being acquires on birth. Art.19(2) imposes certain reasonable
restrictions on these freedom. As a general rule of law, all constitution of the world have
given certain freedoms to their individuals. The preamble of our constitution also gives the
object of the freedom of speech and expression.
Meaning :- Two things are following:-
i) right of speech
(ii) expression
Speech:- Means a speak. It means one has the freedom to speak. But this freedom is no
absolute or complete, no one can speak in such a manner which is injurious to others and
on such a matter which is prohibited by law itself.
Expression :- It means to express or propagate a thing. Expression may be done through
written or through other legal means. The communication of speech and expression is a
must. So the freedom of communication of speech and expression is also guaranteed
under Art.19(1)A.
In National Anthem Case 1986 :- It was held that the right to speak aso incudes the right not
to speak. In this case, three students of Jehyesh’s school were expelled by the governing
body of this school on he ground of not speaking national anthem with other students. The
challenged it in the court. The SC held that the freedom of speech and expression also
includes not speaking and not expressing. One cannot be compelled to speak or express.
In other case l995 In the Election Petition of Maharashtra Chief Minister. In the Election of
Manohar Joshi was challenged on the ground of freedom of religion and freedom of speech
and expression. The petitioner argued that Mr.Manohar Joshi used some words like Hindu
and Hinduism during this election. These words are against the right of freedom or religion
and also against provisions of people representative Act. 1950. In other wards, to ask for
vote in the name of religion is illegal. Bu in this case SC held that to ask votes in the name
of Hindu’s or Hinduism is not in the name of religion. The word Hindu or Hinduism do not
denote or represent religion. These words are used for particular community residing in
India. However, the statement of Balthakery chief of shiv sena, was held against
religion. So in this case two question of freedom of speech discussed Mr. Joshi was also
protected due to the freedom of speech and expression.
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Art.19(1)(a) guarantees right to freedom of speech and expression to its citizens not only
within India but even outside it. If the state action sets up barriers to its citizens freedom of
speech and expression in any country of the world such action is violative of Article 19(1) (a)
as such expression is within the country. (Per Justice Bhagwati in Menka Gandhi v. Union of
India l978)

Territorial Extent of the right :- The right of freedom & expression is available even out of
India. Case: Menka Gandhi v/s Union of India 1978. The govt argued that this right can be
restricted on the ground of out of the territory of India because this right is available only
within India. It cannot be enforced in the foreign countries. But in this case SC held that this
right could not be restricted on the ground of territorial extent. It includes the freedom of
speech and expression even out of India.
FREEDOM OF PRESS :- The right of speech and expression includes the freedom of
press. The idea of the freedom can be expressed by the way of press. Pres is the fourth
estate of the democracy the fourth essential condition or the fourth piller of the
democracy. So no restriction can be imposed on the freedom of press. The word
expression means no interference in there shall be the freedom of press. The freedom of
press shall not be violating to Art.19(1) A.
Case: Indian Express Newspaper v/s Union of India 1985:- Even imposing sales taxes on
the sale of newspaper has been held violative of Art.19(1) A. No sales Tax can be imposed
on the newspaper because the newspapers are the mode of expression or of the views of
the public so there should be no restriction on such freedom
1 Decency and morality : Any such speech expression which is against morality can be
restricted under this right. To show film is also a mode of freedom of speech and expression
qarb of film. Any such thing or scene or speech which is injurious to the society will be
prohibited under art. 19(2). Morality means some ethical rules of the society and some form
of the society by which the status of the society is maintained.
1. Public Order: Any such speech which is dangerous to the unity of country can be
restricted under ar. 19(2).
2. Contempt of Court:-Any-thing said against the interest of the court can be prohibited, if
any one interferes in courts business it is offence & Punishable.
3. Friendly relation with foreign states: Ist amendment 1951 friendly relation should be
maintained with other countries.
4. Defamation:- Any statement which gives injuries to man’s status under sec.499 IPC
5. Incitement for an offence:- Abetment or to provoke through speech It is an offence under
section 107 IPC.
6. Sovereignty & Integrity of India: By 10th amendment so any such speech which can be
dangerous to he Unity & integrity of India can be restricted
So in this way these are the reasonable restrictions, which can be imposed on the right of
freedom and speech & expression.

Question :- Define the word ,” State” as used in context of Fundamental Rights In Part
III of the constitution .
OR
What does the word, State signify as defined in Article 12? Examine.
Answer: INTRODUCTION :- Article 12 OF the constitution defines the term State, It lays
down, In this part, unless the context otherwise requires, the state includes the Government
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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.” Thus the term state includes :-
1. The Government of India i.e. the executive of the Union.
2. The Parliament of India i.e. the legislature of the Union.
3. The government of each state i.e. Executive of states.
4. The legislature of each state i.e. Legislature of states.
5. All local or other authorities within the territory of India.
6. All local or other authorities under the control of the Govt., of India
Thus the term state includes Executive and the Legislative organs of the Union and States
besides the Local or other authorities within the territory of India or under the control of the
Govt., of India.
Authorities = Means a person or body exercising power to command. In art.12 the word
authority means the person or body having the power to make laws orders, regulations, bye-
laws, notifications etc., which have the force of law and have the power to enforce those
laws.
Local Authorities :-According to sub-section 3(1) of section 3 of the General Clauses Act
1897, local authority means a Municipal Committee, District Board, Body of Commissioners
or other authority legally entitled to or entrusted by the government within the control or
management of a municipal or local fund.
Other Authorites :- It was the opinion of the Madras High Court that the term,’ other
authorities’ under article 12 should be constructed ejusdem generis with the government or
legislature and so construed it can only mean authorities exercising governmental
functions. Case :Madras University v. Santa Bai 1954, This view of the Madras High Court
has been rejected by the Appex Court. In Ujjambai v. State of U.P.1962. The SC laid down
that the doctrine of ejusdem generis cannot be applied in the interpretation of the term, other
authorities.
In Electricity Board v. Mohan Lal, 196 SC has observed that the term other authorities used
under Article 12 includes all the authorities created by the Constitution or Statute on whom
powers as conferred by law, whether or not they are engaged in performing governmental
functions.
In later decisions the Supreme Court gave a wider and more liberal interpretation of the
expression, ‘other authorities’.
In Ramanna Dayaram Shety v. The International Airport authority of India 1979:- The SC
held that if a body is an agency or instrumentality of government it is an authority within the
meaning of Art. 12, whether it is a statutory corporation, a government company or even a
registered society. In this case the SC laid down the following tests for determining whether
or not a body is an agency or instrumentality of the govt.
Whether there is any financial assistance given by the State and if so what is the
magnitude of such assistance. Whether there is any other form of assistance given by the
State and if so, whether it is of the usual kind or it is extraordinary. Whether there is any
control of the management and policies of the corporation by the State and the nature and
extent of such control.
IN ASSAM SMAL SCALE INDUSRIES DEVELOPMENT CORN., LTD V/S J.D.PHARM
2006 :- The Appex court has observed that Assam small scale Industries development
corpn. Ltd., is a statutory body, it is a State within the meaning of Art.12 of the constitution.
IS JUDICIARY INCLUDED IN THE TERM STATE ?
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The present position appears to be that when the judiciary acts in its judicial capacity, it is
not included within the term other agencies and therefore it is not ‘State’ within the meaning
of Art. 12 whereas when it acts in administrative capacity it is included within the term’ other
agency’ and therefore, it is a State, in the case of Prem chand Garg v.
Excise Commissioner 1963.
In another case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002, The
SC has held that the Council of Scientific and Industrial Research is an instrumentality of the
State within the meaning of art. 12 of the constitution.

Question: What is right to life and personal liberty ? How the new dimension Has been
given to it by Judiciary?
OR
Explain the concept of personal liberty and upto what extent it has been moulded in modern
times?
OR
No person shall be deprived of the right of life and personal liberty except according to
procedure established by law under Aar.21? Comment.
Ans. Introduction:- Personal liberty means freedom of person or body. The right of life
means to live in the world. These two things the right of life and personal liberty are the most
important rights of a person. No one has the right to take away the personal liberty of a
person. The rights are protected by the constitution itself under article 21. The concept of
personal liberty borrowed from the American constitution. Even at international level, there
wee declarations which granted personal liberty and right of life to human beings. Article 21,
has been explained now a days very liberally by the SC.
In a case P.N. Bhagwati on behalf of S. Court gave decision for the people of certain
local of Himachal Pradesh, for enforcing the right of personal liberty. In this trial village
people were prohibited during raing days bringing essential commodities, such as, food,
clothes, shelter due to water-course on the way. The court held govt., was liable for
constructing a bridge on the water-course.
Right of life and personal liberty:- Art.21 “ No person shall be deprived of the right of life a
personal liberty except according to the procedure established by law"
No Person: means that any person whether citizen or non-citizen
Deprived : means to take away or to finish or to arrogate a thing.
Right of Life : Life means to live in the world. For living in the world mainly three things Roti-
Kapra and Makan are necessary. These things are under the right of life.
Personal Liberty: It consisted two things i) Personal ii) Liberty. Personal means relating to
person or body. Liberty means freedom. So personal liberty means the freedom of the body
or bodily freedom in art. 19 there are certain freedoms, but art 21 contains certain other
types of freedoms which are particularly related with body. For exp. To eat, sleep and sit
etc., according to one’s own choice.
In A.K. Gopalan v/s State of Madras:- This freedom was restricted to bodily freedom only
but later on in Kharak Singh case, Menka Gandhi case and in certain other cases, this
concept of personal liberty was applied very widely by the Supreme Court.
Case : A.K.Gopalan v/s State of Madras: 1950 : The meaning of term personal liberty was
taken very narrowly. The court held the term liberty is lin ked with the term personal so
personal freedom is only bodily freedom. In this case certain persons including the
petitioner, A.K.Gopalan was aarrested under the Preventive Detention Act 1950. It was held
 11

by s. Court that the arrest and the imprisonment of the accused under this act is not against
Art.21.
Right of Privacy:-Case : Kharak Singh v/s State of U.P.-1963.: In this case the police of UP
state suspected that the petitioner has links with certain Dacoits. For the purpose of
investigation, the police interfered in the personal life of Kharak singh. Police even
searched his house at night and police used to ask from the petitioner at midnight about his
whereabouts. The petitioner challenged these actions of the police under art.21. He argued
that these actions of the police infringe his personal liberty.
The Supreme Court held that the police could not interfere in the private life of the
petitioner without the procedure established by law. A human being want to live with privacy.
Thus in this case, the right of privacy was included in the right of liberty.
A case Govind v/s State of M.P. 1975 in this case the same activities of M.P. state police
were held valid because they had force of law. The state govt., formed certain regulations
after taking power from police act.
A case Raj gopal v/s State of Tamil Nadu 1994 :- The S. Court held that the right of privacy
is a fundamental right under art.21 of the constitution and a citizen has the right to safe
guard the privacy of his own family, marriage, procreation, motherhood, child bearing and
education among another matters" No one can punish anything mentioned above without
his consent.
RIGHT TO TRAVEL TO ABROAD:- A case Satwant Singh v/s Delhii Pass Port Officer
1967 in this case the passport of the petitioner was confiscated by the Passport authority of
Delhi without giving any reason. The petitioner challenged this action and argued that the
travel to abroad also comes under the right of personal liberty. The petitioner was some
business in the foreign country so he used to go to abroad from time to time. Supreme
Court held that to travel to abroad also come under the right of personal liberty.
Menka Gandhi v/s Union of India. 1978 in this case also the passport of the petitioner was
confiscated by the Passport authorities giving no reason for confiscation to the
petitioner. The petitioner challenged it on the ground of personal liberty. The passport
authorities argued that there is a law for this purpose, In this law, it is not necessary to give
reason for impounding the passport. It is also not in the interest of public to give reasons of
impounding the passport.
But S. Court rejected all these arguments and said law should also be based on the
principle of natural justice. The procedure established by the law should be reasonable
& According to natural justice and the opposite party should be given opportunity of
hearing. So this case changed the concept of personal liberty dynamically.
Right of Livelihood :- A case People of democratic v/s Delhi Administration 1982 The
workers of Asaid Village 1982 were paid very minimum wages. A public interest litigation
was filed for this purpose. The petitioner said that reasonable wages are necessary for
livelihood. Therefore outright of live hood has been broken. This right comes under the
right of personal liberty. The S. Court held that the right of livelihood comes under the right
of personal liberty under art. 21, but in another case Sadan Singh v/s New Delhi Municipal
Committee 1989 the S.C, held that right to carry on any trade or business is not included in
the concept of life and personal liberty. The petitioner who was doing he business on the
pavement of the roads of Delhi had claimed the refusal by the Municipal authorities to them,
to carry on business for their livelihood resulting in the violation of their right of livelihood
under art. 21 of the constitution. The court distinguished the ruling of the court in Ollga-
Tell’s case and held that it is not applicable in this case. In another case D.K.Yadav v/s
J.N.A Industries-1993: In this case SC held that the right of life under art.21, includes right
 12

of live-hood and therefore before terminating the service of an employee a fair plea requires
that a reasonable opportunity should be given to him to explain his case.
RIGHT TO DIE : A case Marui Sripati Dubal v/s State of Maharashtra 1986 the Bombay
High court held in case that the right to die also comes under the right of personal
liberty. So committing to suicide should not be taken as an offence. It is a freedom of
human beings to live or to die. Therefore section 309 of IPC is against Art. 21. In this case
a police constable due to adverse family circumstances tried to commit suicide. He was
prosecuted for this act. The court held that he was not liable under section 309 of
IPC. Another case of P.Rathanam and Nag Bhushan Patnaik v/s.Union of India 1944 : The
S. Court confirmed the decision of Bombay High Court and held that the right to live also
includes the right to die, so it is personal liberty of a person to finish his life. But still there is
a controversy about the mercy death. The view of some writers is that this death should be
included under the right of personal liberty.
Gian Kaur v/s State of Punjab 1996:- The S. Court held that ‘right to life’ under article 21 of
the constitution does not include, ‘right to die’, right to life is natural right embodied in art. 21
which means to die a natural death and does not include the right to commit suicide which is
a unnatural extinction of life and inconsistent with the concept of right to life.
RIGHT OF EDUCATION: A CASE MISS MOHINI JAIN V/S STATE OF KARNATKA-1992 In
this case the petitioner could not get admission in the professional course due to high
capitation fees. There are some orders of the Govt., of Karnataka for taking capitation
fees. This fee was Rs.60,000/-for the out state candidates. The petitioner could not arrange
this amount of money. She challenged it on the ground that the right of education also
come under the right of personal liberty. The S.C. held its decision according to the
petitioner’s argument. In Unikrishanan v/s State of Andhra Pradesh 1993 the
court modified the scheme laid down in Mohini Jain case in relation to NRI students and
held that out of entire the seats only 5% seats can be filled up by NRI students, on the basis
of merit, to be judged by the management of the college concerned and not on the basis of
entrance examination.
Case : All India Imam Organization and others v/s Union of India The Imams of various
mosques in India challenged their wages etc., under the right of personal liberty. Their
wages were very low on which they could no exist in the world. They had no other source of
income. They were engaged in this service for the whole life time. The S. Court held that the
right to live in world is the first most important right of personal living. Here also their rights
of life had been infringed. The court ordered the Waqif Board of India for giving sufficient
wages to these Imams for their living in this world. On source basis now a day a system of
Rain Basera ( Lodging system for poor) has been started by the Rajasthan Govt., on the
orders of the Rajasthan High Court.
PROFESSIONAL DOCTOR LIABILITY:- In PARMANAND KARTARA V/S UNION OF INDIA
1989 it has been made a rule now there is no need to file FIR, according to the rules of
Cr.PC for the purpose of curing the wounded person in an accident. In this case, the SC
held that it is a duty of professional doctor whether private or govt., to cure(care) the
wounded person firt and to report to police afterwards.
SUSPENSION OF ARRTICLE 21 DURING EMERGENCY:- During National emergency(
under article 352) article 21 can be suspended. It means no one can claim personal liberty
under article 21 during national emergency. There was done in 1962(Chiana attack) in 1971
(Pakistan) and 1975 emergency in India. This has also been confined in the Case of : ABM
JABALPUR V/S STATE OF U.P.-1976: This case is known as ‘ Habeas Corpus’ case. In
this case the SC held that during emergency Art.21 can be suspended. But in 44th
 13

amendment 1978 it has been added that Art.21 cannot be suspended during emergency of
Indian government. There were many authorities to the person. This amendment adopted
the dissented views of justice Khanna given in the above mentioned cases. Thus if there is
a reasonable procedure established by law then personal liberty can be taken, otherwise
not.

Question: Constitution of India Provides freedom of Religion or Secularism to all

person. What are the restrictions which can be imposed by the State on this
freedom? OR
India is a secular state? Do you agree with it.? OR There is a guarantee of freedom of
conscience and right to profess, practice and propagate the religion under
article 25(1). Comments. Give its exceptions also.
Answer: Introdction : Right of freedom of religion is contained from Art. 25 to28 of
constitution of India, these articles are contained in the part III of the constitution. As part III
is related with the fundamental rights, Art 25(1) gives the conditions for the freedom of
religion. Under Art.2(2)there are certain restrictions on this freedom of religion. Art.26 is
related the management of the religious affairs and the maintenance of religious
institution. Art.27 says that the income earned by the way of religious activities shall not be
taxable, Art.28 says that the Govt., shall not give any aid for the religious activities. These
four Articles give the ideas of secularism. The preamble of the constitution also says that
our constitution is secular. There is freedom of thought, expression, belief and faith. That is
why India is a secular state.
DEFINITION OF RELIGION: On the basis of religious concept a state may be divided into
three categories :-
i) Anti-Religious State : A state, which is anti religious. It means where there is no
recognition to any religion in the state. In other words, the persons of that state can not
follow or adopt any religion.
ii) Religious State : A State, which has its own religion or where there is recognition of only
one religion. All people are bound to follow that one religion. For example Pakistan, and
other Muslim countries.
iii) Secular state :- A State, which is neither anti religious, nor religious. It means such a
state has not its own religion but it does not prohibit any person for adopting any religion.
Modern Democratic countries are mostly secular states. For example, America, England &
India etc.
WHAT IS RELIGION : Now question is arises that what is religion? It is very difficult to
difine in certain words of term ‘religion’ because it is based upon faith and belief. It is a
matter of inner conscience or spiritual matter. Though in various cases the SC of India has
said that,” Religion is a doctrine of belief. Religion is related with the manners, living
manners of getting peace in this world, including the manners of talking, eating even types
of dress. So religion is a variety of different things in the life of a person, which are related
with spiritual or inner conscience matters.
RIGHT TO FREEDOM OF RELIGION: According to article 25(1) there is guarantee to every
person for the freedom conscience and right to profess, practice and propagate the
religion. The words of this article give the right for the freedom of religion. Art. 25(1) gives
the guarantee for the freedom of religion. This article mainly contains the following two
things:
i) Freedom of conscience.
ii) Right to profess, practice and propagate the religion.
 14

Freedom of Conscience: Every person has the freedom of conscience. It means to think
according to one’s own will. Conscience is an internal matter upon which there is no control
of any other person, even a father cannot control his son for the purpose of religion. A
person is free to adopt any religion or he is free to adopt no religion. He may be antitheist or
anti God. But it does not, mean that it is violative of any provision of the constitution or of
any law. He is free to follow any section or any branch of religion.
RIGHT TO PROFESS, PRACTICE & PROPAGAE : Profess means to accept any thing. A
person is free to accept any religion and to declare it openly. There is no restriction on him
for this purpose. Practice Means o perform he religious activities. I mean one is free o follow
the customs or ceremonies or other activities of a religion. Propagate means o spread the
religion it means one has the right to expend or spread his religion. It means one has the
freedom to make others as his followers in this religion. For this purpose one has the right to
express his thoughts or ideas about his religion but propagation of this does not mean the
conversion of the religion. Conversion is an interference in the propagation of another
religion. In a case, conversion is allowed.
1. Case : National Anthem’s case 1984, in this case the SC held that it is the freedom of
Religion and one cannot compel any other person for obeying he directions relating with
another religion.” It is also said that the right to speak also includes right of not to speak. So
this order was held violative of Art.2(1)being against the right of freedom of religion. Case:
Ramesh v/s Union of India 1988, a PIL was filed, SC rejected this agreement and held that
it does not infringes the right of freedom of religion under article 25(1), even said that by this
serial the true picture of the partition of India comes in the knowledge of the public which will
be in the benefit of the public.
RESTRICTION OVER THE FREEDOM OF RELIGION:- Freedom of religion is neither right
nor absolute freedom. Some restrictions may be imposed on this right in the interest of
public. The article 25(2) it self lays down certain restrictions.
Restriction in the interest of public morality and health:-To maintain law & order is prime duty
of the government. The government may impose certain reasonable restriction on the
religious activities. If they are dangerous to the public. For example: to arrange route of the
religious, procession, even the force-able conversion is not in the interest of the public.
Case: Gulam Abbas V/s State of UP 1984 : The SC rejected this argument and held that to
decide a dispute between two sections such acts petition come under the reasonable
restrictions.
* Recently in election of Maharashtra Chief Minister: During Dec., 1995 the election of Mr.
Murli Manohar Joshi was challenged on the ground of religion and freedom of speech &
expression. The petitioner argued that Mr.Joshi used some words like Hindu or Hinduism
during his election speech.
SC held that o ask for votes in the name of Hindu or Hinduism do not denote or
represent religion. These words are used for a particular community residing in India.
However the statement of Bal Thakry chief of shiv-sena was held against religion. Mr joshi
was protected due to the freedom of religion and freedom of speech and expression.
1 Morality : To Practice or propagate any such activity in the name of religion which effects
the morality of persons shall be restricted. That is to practice or propagate prostitution in the
name of religion, is not valid.
2 Health :- In the shia act, there is a provision for slaughtering the cows in the public place
because of its effects on the health. So this is not reasonable even if to be related with
religion.
 15

3 Economic or secular of administrative activities : means monitory or financial matters.

Some reasonable restrictions may be imposed on the financial matters of the religious
activities. There are certain secular activities which have no link with the religion can be
prohibited under section 25(2). Case : SP Mittal v/s Union of India 1983. In this court held
that certain reasonable restrictions could be imposed in the administrative activities of any
religion. In other case :State of W.Sbegal v/s Ashutosh Lohri -1995, The SC held that the
decision of the Mohd. Hanif & Qureshi v/s state of Bihar, the slaughtering of cows no the
essential elements of Muslim religion.
4 Social Welfare Reform : Certain restricitions may be imposed for the purpose of social
reforms, for example Sati Pratha which is considered as a religious activity under Hindu
religion has been prohibited by passing the sati pratha prevention act. Similarly in south
Devdasi Pratha according to this pratha the girls were sent to the temple for entertain of
the guests in the temple under this practice, there were incidents by which these girls were
misused, so the restrictions in the name of social reforms imposed on this pratha under
section 25(2).
Article 26 Freedom to manage religious Affairs : Says that any denomination has the
freedom to manage the affairs of its religion. For this purpose, following rights have been
given:
1. To establish and maintain institution for religious or charitable purposes.
2. To maintain the religious affair in these institutions.
3. To acquire and hold movable and immovable property for these institutions.
4. To dispose of such properties according to law.
Article 2 says that no tax can be imposed upon religious income. Even state can also not
impose tax on any person o property for the promotion of religion. However Private and
govt. Aided educational institutions can give such directions for the purpose of religion but in
case of govt educational institutions no religious directions or aid can be given by the state.
There is complete freedom of religion in India except certain restrictions as explained above.
India is a secular state.
Article 25 to 28 are peculiar and most important articles which adjust all types of religious
communities castes in India that is why it is said that ,” There is unity in diversity in India.”