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Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040


(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

CLASS & SEMESTER: B.A LL.B IV SEMESTER


NAME OF THE SUBJECT: CONSTITUTIONAL LAW-II
PAPER CODE: LLB 204
UNIT I
TOPIC: FUNDAMENTAL RIGHTS

FACULTY NAME : Dr. Shalini Tyagi


Dean, School of Law
UNIT -I

A. Definition of “State” for Enforcement of Fundamental Rights:


Justifiability of Fundamental Rights, Doctrine of Eclipse, Severability,
Waiver

B. Right to Equality (Articles14-18): Doctrine of Reasonable Classification


and the Principle of Absence of Arbitrariness, Legitimate Expectations,
Principle of Compensatory Discrimination

C. Fundamental Freedom (Article 19): Freedom of Speech and Expression,


Freedom of Press and Media; Expansion by Judicial Interpretation of
Article19; Reasonable Restrictions(Article19 clause (2)to(5)

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 12
Article 12 defines the term “STATE”. State includes:

 The Govt. & Parliament of India i.e., Executive & Legislature of the Union.

 The Govt. & Legislature of each State i.e., Executive & Legislature of States.

 All local or other authorities within the territory of India. All local or other
authorities under the control of the Govt. of India. The term STATE includes
Executive as well as the Legislative organs of the Union and States. So, the
action of these bodies that can be challenged before the courts as violating
Fundamental Rights.

Authorities: means the power to make laws, orders, regulations, bye-laws,


notifications etc which have the force of law and power to enforce those laws.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Local Authorities :It is defined as in section 3(31) of the General clauses Act
refers to authorities like Municipalities, District Boards, Panchayats,
Improvement, Trust & Mining Settlement Boards.

Other Authorities : E JUSDEM GENERIS rule

UNIVERSITY OF MADRAS Vs SANTA BAI

Madras High Court held that other authorities could only indicate authorities
of like nature i.e., E JUSDEM GENERIS. It could only mean authorities
exercising Governmental or Sovereign function. It can not include persons,
natural or Juristic, such as University unless it is maintained by the State.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
STATUTORY BODIES

ELECTRICITY BOARD RAJASTHAN Vs MOHAN LAL (AIR1967 SC1857)


The Supreme Court held that the expression “Other Authorities” is wide enough
all authorities created by the constitution or Statue on whom powers are conferred
by Law.

It is not necessary that the statutory authority should be engaged in performing


Govt. or Sovereign functions.

The President when making order under Article 359 comes within the ambit of
the expression “Other Authorities”. In effect the Rajasthan Electricity Board
decision has overruled the decision of the Madras High Court in Santa Bai’s case.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
What is the test to determine whether a Body is an Agency or
Instrumentality?

The court held laid down the following test to determine whether a body is an
Agency or Instrumentality of the Govt.
• Financial resources of the state is the chief funding source i.e., if the
entire share capital of the corporation is held by the Govt.
• Existence of deep and pervasive state control.
• Functional character being Govt. is essence i.e., if the functions of the
corporation are of public importance and closely related to Govt.
functions.
• If a dept. of Govt. is transferred to corporation.
Whether the corporation enjoys monopoly status.

However, these tests are not conclusive but illustrative only and will have to be
used with care and caution.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
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AUTHORITIES UNDER THE CONTROL OF THE
GOVT. OF INDIA
• It is meant to bring into definition of State all areas outside Indian Territory, but
which are under or may come under the control the Govt. of India.
• Is the JUDICIARY included in the Word “STATE”?
• This question was arisen for consideration of the Supreme Court in NARESH Vs
STATE OF MAHARASTRA.
• It was held that even if court is the state a writ under Article 32 cannot be issued
to a High Court of competent Jurisdiction against its judicial order. Because such
orders cannot be said to violate the Fundamental Rights.

• But in A.R.ANTULAY Vs R.S NAYAK


• The court has been held that the court cannot pass an order or issue a direction
which would be violation of Fundamental Right of citizen. It can be said that
expression “state” as defined in Article 12 includes Judiciary also.
• The Judiciary should be included with in the purview of Article 12 since the
courts are setup by statue and exercise power conferred by Low.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
The Article 12 clearly defines the term “State” which includes for categories. The
Article 12 clearly includes only the executive and Legislative. It doesn’t include
Judiciary anywhere. Therefore, the judges or the magistrates are not States while
they are functioning as Judiciary. But if they are also functioning as a
Administrator then they will be treated as “State” with in the meaning of Article
12.

The chief Justice of High Court shall have function in dual role:
As the Chief Justice of High Court As the chief Administrator of the High Court.
If any citizen aggrieved by the Act of the Chief Justice as the Chief Justice, he has
no remedy. If the Fundamental Right of citizen are violated by the Chief Justice
while he was functioning as chief Administrator of the High Court, then that
Chief Justice shall be treated as State within the meaning and definition of the
Article 12 and citizen shall make have the remedy against the State.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ART13:- LAWS INCONSISTENT WITH OR IN DEROGATION
OF THE FUNDAMENTAL RIGHTS

It is consisting of four clauses.

Article 13 (1): Pre-Constitutional Laws


Article 13 (1) declares that all Laws in force in the territory of India immediately
before the commencement of this Constitution shall be void to the extent to which
they are inconsistent with the provisions of the part-III of the Constitution.

Article 13 (2): Post- Constitutional Laws


Article 13 (2) state shall not make any Law which takes away or abridges the
Fundamental Rights conferred by part-III of the

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Constitution and any Law made in contravention of Fundamental Rights shall to
the extent of inconsistency be void.

Article 13 (3) (a): Law


“Law “a very broad connotation which includes any Ordinance, Order, Bye-laws,
Rule, Regulation, Notification, Custom or Usage having the force of Law.
(b) “laws in force” includes laws passed or made by a Legislature or other
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, not withstanding 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. (Twenty-fourth Amendment) Act, 1971

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
POWER OF JUCIAL REVIEW:

In fact, Article 13 provides for the judicial review of all Legislations in India, past
as well as future.

This power has been conferred on the High Courts (U/a 226) and the Supreme
Court (U/a 32) which can declare a Law un-Constitutional if it is inconsistent
with any of the provision of part-III of the Constitution.

MEANING OF JUDICIAL REVIEW:

Judicial Review is the power of Courts to pronounce upon the Constitutionality


of Legislative Acts which falls within their normal jurisdiction to enforce and the
power to refuse to enforce such as they find to be unconstitutional and hence
void.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
JUDICIAL REVIEWS IN OTHER CASES

In KESAVANANDA BHARATI’s case


Justice KHANNA said that judicial review has become an integral part of our
Constitutional system and power has been vested in the High Courts and
Supreme Court to decide about the Constitutional validity of provisions of
statute.

Judicial review is judicial restraint on the Legislative as well as Executive


organs.

The Court held that judicial review is the basic feature of Indian Constitution
and therefore it cannot be damaged or destroyed by amending the Constitution
U/A 368.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
PRE-CONSTITUTIONAL LAWS

Article 13 (1) all Pre-Constitution or existing Laws i.e., Laws which were in
force immediately before the commencement of the Constitution shall be void
to the extent to which they are inconsistent with Fundamental Rights from the
date of the commencement of the Constitution.

Article 13 (1) not retrospective in effect: Article 13 (1) is prospective in nature.


All Pre-Constitution Laws inconsistent with Fundamental Rights will become
void only after the commencement of the Constitution. They are not void-ab-
initio.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
The Supreme Court in
KESHAVA MADHAVA MENON (AIR1951 SC128)
Vs
STATE OF BOMBAY

Observed that there is no Fundamental Rights that a person shall not be prosecuted
and punished for an offence committed before the Constitution came into force, so
as far as the past Acts are concerned the Laws exists not withstanding that it does
not exist with respect to the future exercise of Fundamental Rights.

It was held that Article 13 (1) could not apply to his case as the offence was
committed before the present Constitution came into force and therefore the
proceeding started against him in 1949 was not affected. The Supreme Court held
that “the Fundamental Rights became operative only on and from the date of the
Constitution”.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
DOCTRINE OF SEVERABILITY

When a part of the statute is declared inconsistent with part III, then a question
arises whether the whole of the statute or only that part which is
unconstitutional should be declared as void.

To resolve this problem, the Supreme Court has devised the doctrine of
Severability.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
It means if an offending provision can be separated from that which is
Constitutional then only that part which is offending is to be declared as void
and not the entire statute.

Article 13 contains the word “to the extent of such inconsistency to void”. It
means when some provision of Law is held to be unconstitutional then only
repugnant provisions of the Law in question shall be treated as void and not the
whole statute.

Exception: if the valid portion is so closely mixed up with invalid portion that it
cannot be separated, then the Court will hold the entire Act void.

This doctrine was elaborately considered in R.M.D.C Vs UNION OF INDIA


(ss. 4 and 5 Of the Prize Competitions Act (42 of 1955). The Court held that
where after removing the invalid provision from the statute what remains
constitutes a complete code, there is no necessity to declare the whole Act
invalid.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
DOCTRINE OF ECLIPSE

It is based on the principle that a law which violates Fundamental Rights is not
nullity or void ab initio but becomes only unenforceable i.e., it remains in a
moribund condition. It is overshadowed by the Fundamental Rights and remains
dormant, but it is not dead.

Such laws are not wiped out entirely from the statute book. They exist for all past
transactions and for the enforcement of rights acquired and liabilities incurred
before the present Constitution came into force and for determination of Right of
person who have not been given Fundamental Right by the Constitution.

It is only as against the citizen that they remain in a dormant or moribund


condition, but they remain in operation as against non-citizens who are not
entitled to Fundamental Rights.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
POST CONSTITUTION LAWS

• Article 13 (2) prohibits state to make any law which takes away or abridges
rights conferred by part III of the Constitution.
• If state makes such a law, then it will be ultra-virus and void to the extent of
the Constitution.
• It is still born law and cannot be revived by removal of the Constitutional
prohibition by subsequent amendment of the Constitution.
• Though Post Constitutional law inconsistent with Fundamental Rights is void
from. their very inception yet a declaration by the court of their invalidity will
be necessary.
• As distinguished from clause (1), clause (2) makes the inconsistent laws void
ab initio and even conviction made such unconditional laws shall have to be
set aside.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
DOCTRINE OF WAIVER

It does not permit any citizen to Waive any Fundamental Right because they are
conferred by the Constitution.

Can a citizen waive his Fundamental Rights?


The doctrine of waiver has no application to the provision of law enshrined in part
III of the Constitution.

In BASHESHERNATH Vs INCOME TAX COMMISSIONER and


MUTHIAH Vs INCOME TAX COMMISSIONER
The Supreme Court held that it is not open to citizen to waive any of the
Fundamental Rights conferred by part III of the Constitution. These rights have
been put in the Constitution not merely for the benefit of the individual but as a
matter of Public policy for the benefit of the general public.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
RIGHT TO EQUALITY: ARTICLE 14 TO 18
• Article 14 embodies the general principles of equality before law and prohibits
unreasonable discrimination.

• Article 15, 16, 17 and 18 lay down specific application of general rules laid
down in Article 14.

• Article 15: Prohibits discrimination on grounds of religion, race, caste, sex or


place of birth.

• Article 16: Equality of opportunity in matters of Public employment.

• Art 17: Abolition of untouchability

• Art 18: Abolition of titles.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 14

Article 14 declares that “State shall not deny to any person equality before the law
or equal protection of Laws within the territory of India". Article 14 consists of
two expressions. The first expression “Equality before the Law” is of English
origin. The second expression “Equal protection of Law” has been taken from the
American Constitution. Both these expression aims at establishing “Equality of
status”. Both expressions seem to be identical; they do not convey the same
meaning. The Equality before the Law is a negative concept. It implies the
absence of any special privilege in favour of individuals and the equal subject of
all classes to the ordinary law.

Equal protection of the Law is more positive concept. It implies the equality of
treatment in equal circumstances.

But the aim of both expressions is that of equal justice.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
EQUALITY BEFORE THE LAW

The concept of equality does not mean absolute equality among human beings
which is physically not possible to achieve. It implies the absence of any special
privilege by reason of birth, creed or in favour of any individual and also the
equal subject of all individuals and classes to the ordinary law of the land.

According to Dr. Jennings, Equality before the Law means that among equals
the law should be equal and should be administered. Like should be treated
alike. The right to sue and be sued, to prosecute and be prosecuted for the same
kind of action should be same for all citizens of full age without distinction of
race, religion, wealth, social status etc.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
EQUAL PROTECTION OF LAWS:
It means all persons in similar circumstances shall be treated alike both in the
privileges conferred and liabilities imposed by the Laws. Equal Law should be
applied to all in the same situation and there should be no discrimination between
one person and another. Like should be treated alike and not that unlike should be
treated alike.

INDIRA GANDHI Vs RAJ NARAIN


Article 14 is the basic feature of the Indian Constitution and it cannot be destroyed
even by an amendment of the Constitution under Article 368 of the Constitution. The
word “any person” in Article 14 includes any Company or Association or Body of
individuals.

The protection under Article 14 extends to both citizens and non-citizens and to
natural persons as well as legal persons. Corporations being Juristic persons are also
entitled to the benefit under Article 14.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
RULE OF LAW

The Equality before the Law is called as RULE OF LAW in ENGLAND. It means
no man is above the Law and every person is subject to the Jurisdiction of ordinary
Courts. Every official from Prime Minister down to constable or a Collector of taxes
is under the same responsibility for every act done without legal justification as any
other citizen. A person shall not be subjected to harsh, uncivilized or discriminatory
treatment even when the object is the securing of the paramount exigencies of Law
and Order. According to Prof. DICEY, the Rule of Law has three meanings they are
as follows:
1. Absence of arbitrary power or Supremacy of the Law: A man may be
punished for a breach of Law, but he can be punished for nothing else.
2. Equality before Law: No one is above the Law.
3. Constitution is the result of the ordinary Law of Land: It means source of
right of individuals is not the written Constitution, but the rules as defined and
enforced by the courts.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 15 (2):
SPECIFIC APPLICATION OF THE
GENERAL PROHIBITION CONTAINED IN ARTICLE 15 (1)

Article 15 (2) declares that “no citizen shall be subjected to any disability, liability,
restriction or condition on ground only of religion, race, caste, place of birth or any
of them with regard to access to shops, public restaurants, hotels and places of
public entertainment (or) the use of wells, tanks, bathing ghats, roads and place of
public resort maintained wholly or partly out of the state funds or dedicated to the
use of the general public.

Article 15 (2) prohibits citizen as well as the states from making such
discrimination with regard to access to shops, hotels etc. it prohibits both state and
the private individuals whosoever is in the control of the above-mentioned places.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 15 (3):
SPECIAL PROVISION FOR WOMEN AND CHILDREN

• Article 15 (3) is one exception to general rule laid down in clause (1) and (2)
of Article 15.

• Article 15 (3): “Nothing in Article 15 shall prevent the State from making
any special provision for women and children”.

Women and children require special treatment on account of their very nature.
Article 15 (3) empowers the State to make special provision for them. The
reason is women’s physical structure and performance of maternal functions
places her at a disadvantage in the struggle for subsistence and her physical well
being becomes an object of public interest and care in order to preserve the
strength and of the race.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 15 (4):
SPECIAL PROVISION FOR CLASSES

THE ADVANCEMENT OF BACKWARD CLASSES.


Article 15 (4) is another exception to clauses (1). It was added by the 1st
Amendment Act 1951 as a result of the decision in

STATE OF MADRAS Vs CHAMPAKAM DORAIRAJAN


Madras Govt. has reserved seats in state medical and engineering colleges for
different communities in certain proportions on the basis of religion, race and
caste. The State defended the law on the ground that it is purported to promote
the social justice for all sections of the people as required by Article.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 16:
EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT

Article 16 (1) & (2) lay down the general rule that no citizen can be discriminated
against or be ineligible for any employment or office under the state on grounds
only of religion, race, caste, sex, descent, place of birth or residence.

Article (3), (4), (4a), (4b) and (5) are the five exceptions to this general rule of
equality.

Article 16 (1): “There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State”.

Under Article 16 the guarantee against discrimination is limited to employment


and appointment under the State.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLE 16 (2) :“No citizen shall discriminate against or be ineligible for or in
respect of any employment or office under the state on grounds of only religion,
race, caste, sex, descent, place of birth or residence or any of them.”

Article 15 doesn’t contain the words “descent & residence”. This is just to assure
that parochialism (interested in a limited area only) and nepotism (favoritism) is
eliminated in the matters of appointment in Govt. securities.

ARTICLE 16 (3):“Parliament may make a law to prescribe a requirement as to


residence within a state or union territory for eligibility to be appointed with respect
to specified classes of appointments or posts”.
Article 16 (3) is an exception to Article 16 (2) which forbids discrimination on the
grounds of residence.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
(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, is not adequately represented in the
services under the State”.

This is the second exception to article 16 (1) & (2). It empowers the state to
make a special provision for the reservation of appointments of posts in favour
of any backward class which in the opinion of the State are not adequately
represented in the services under the state.

Thus article16 (4), these are to be satisfied


1. The class of citizens is backward and
2. The said class is not adequately represented in the services of the state.

However, the second test cannot be the sole criteria.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
ARTICLES 19 TO 22 RIGHT TO FREEDOM

Articles 19 to 22 deal with different aspects of right to freedom.

• Art19:- Protection of certain rights regarding freedom of speech, etc.

• Art20:- Protection in respect of conviction for offences.

• Art21:- Protection of life and personal liberty.

• Art 21A:- Right to education.

• Art22:- Protection against arrest and detention in certain cases.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
The first and foremost aspect of personal liberty is article 19 which
guarantees six fundamental freedoms. They are Art 19 (1)
(a) Freedom of speech and expression.
(b) Freedom of assembly Vs (3)
(c) Freedom to form associations Vs (4)
(d) Freedom of movement Vs (5)
(e) Freedom to reside and to settle Vs (5)
(f) Right to property (44Th amendment 1978)
(g) Freedom of profession, occupation, trade or

1. These six freedoms are not absolute. Absolute individual rights cannot be
guaranteed by any modern State. Article 19 clauses (2) to (6) empowers
the State to put reasonable restrictions on the grounds mentioned under
that Article.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
2. A law which arbitrarily or excessively invades the right of a person cannot
be said to contain the quality of reasonableness and unless it strikes a proper
balance between the right guaranteed in Art 19 and the social control.

3. There is no exact standard or general pattern of reasonableness that can be


laid down for all cases. Each case is to be judged on its own merit.

4. The court should consider the circumstances under which and the manner in
which that imposition has been authorized.

5. Restriction which is imposed for securing the objectives laid down in DPSP
may be regarded as reasonable restriction.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
6. The restriction must have rational relation with the object which is sought to
be achieved by the statute.

7. Restrictions may also amount to prohibition under certain circumstances.


For example, the state can prohibit a person to carry out dangerous traits or
cultivation of narcotic plants or trafficking women.

The right guaranteed under Art 19 is available only to the citizens but not to
foreigners. A corporation or a company cannot claim a right under Art 19
because they are not natural persons.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
86th Amendment Act, 2002: Right to education a fundamental right: - This
amendment has added a new Art 21A, after Art. 21 of the Constitution which
has made the right to education a fundamental right provides—"The State shall
provide free and compulsory education to all children of the age of 6 to 14
years in such manner as the State may, by law, determine.“

The right guaranteed in Article 21 is available to 'citizens' as well as 'non-


citizens’.

PERSONAL LIBERTY: MEANING AND SCOPE

Prior to Maneka Gandhi’s Decision.—The meaning of the words "personal


liberty came up for consideration of the Supreme Court for the first time in A.
K. Go-palan Vs. Union of India In that case the petitioner, A. K. Gopalan, a
communist leader was detained under the Preventive Detention Act. 1950.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
PREVENTION OF SEXUAL HARASSMENT
OF WORKING WOMEN

In Vishaka Vs State of Rajasthan The Supreme Court laid down the following
guidelines :
(1) All employers' persons incharge of workplace whether in the public or
private sector, should take appropriate steps to prevent sexual harassment
without prejudice to the generality of his obligation he should take the
following steps.

(2) Where such conduct amounts to specific offences under the Indian Penal
Code or under any other law, the employer shall initiate appropriate action in
accordance with law by making a complaint with the appropriate authority.

(3) The victims of sexual harassment should have the option to seek transfer of
the perpetrator or their own transfer.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
INTEGRAL PARTS OF RELIGION

1. Ethical rules

2. Rituals

3. Observances

4. Ceremonies

5. Modes of worship.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
THE CONSTITUTION (44TH AMENDMENT) ACT, 1978

• This Amendment has abolished the right to property as a fundamental right


guaranteed by Articles 19 (1) (f) and 31 of the Constitution.

• Consequently, Articles 19 (1) (f) and 31 were omitted from Part III of the
Constitution.

• However, it has taken care that the removal of property from the list of
fundamental rights would not affect the right of minorities to establish and
administer educational institutions of their choice.

• For this purpose, the Amendment has inserted a new clause (1-A) in Article
30 of the Constitution.

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
THANK YOU

Chanderprabhu Jain College of Higher Studies & School of Law


Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

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