Fundamental

Rights

Right to Cultural and Right to

Right to Right to Right Against
Freedom of Educational Constitutional
equality Freedom Exploitation
Religion Rights (Articles. remedies
(Articles. 14-18) (Articles. 19-22) (Articles. 23-24)
(Articles. 25-28) 29-30), and (Articles. 32)
 PYQs on the topic “Fundamental Rights”
1. Examine the scope of Fundamental Rights in the light of the latest
judgement of the Supreme Court on Right to Privacy. (2017,250 words)
2. Does the right to clean environment entail legal regulations on burning
crackers during Diwali? Discuss in the light of Article 21 of the Indian
Constitution and Judgement(s) of the Apex Court in this regard. (2015)
3. What do you understand by the concept “freedom of speech and
expression”? Does it cover hate speech also? Why do the films in India
stand on a slightly different plane from other forms of expression?
Discuss.
4. Discuss -Section 66A of IT Act, with reference to its alleged violation of
Article 19 of the Constitution. (2013,200 words) 10
“Rights, in fact, are those conditions of social life
without which no man can seek, in general, to be
himself at his best.”
 Privilege

Immunities Claims

Facets
of
Rights

Liberties Entitlements

Power
 Natural
Rights

Theories
of Rights
Historical Legal
Rights Rights
“Each is an end in
itself . No one ought
to treat the other as a
means to an end”
 UDHR
Universal

Inalienable

Permanent

Equality
Total Article -30

Non transferable
Universal Declaration of Human Rights, 1948

International Covenant on Economic, Social and Cultural

Rights (1966), and
the International Covenant on Civil and Political Rights (1966)
and
Two Optional Protocols.
 Civil - Political Rights

Social – Economic Rights

Cultural Rights
Constitutional rights
Fundamental rights
Legal rights
Origin of
Fundamental Rights
• 1215 Magna Carta
• 1689 Bill of rights
• 1791, 1st ten
amendments USA bill of
rights
• Nehru report 1928
Suspension, Amendment, Denial

Article
33 –
Article
34 –
Article
358,
Article
359 –
Distinction Between Articles 358 and 359

Article 358 Article 359

Suspension of Article 19 only All those Fundamental Rights whose
enforcement is suspended by the
Presidential Order

Automatically suspends No automatic suspension , only empowers

President to suspend the FRs

Operates only in case of External Operates in case of both External

Emergency Emergency as well as Internal Emergency.

Suspends Article 19 for the entire duration of For specified period or the entire period as
Emergency per Presidential order.

Entire country For entire or part of the country

44th CAA : Article 20 and 21 is never suspended.

Defining other instrumentalities :

Functionality Test
• University of Madras v. Shanta Bai 'ejusdem generis'
'of like nature’.
• Whosoever be performing the governmental function.

Creation Test:
• Electric Board of Rajasthan v. Mohan Lal
• A body or department formed by the virtue of any
statute or by the Constitution.
• For example: CBI is established under DSPE Act,
1946.
Instrumentality Test:
• Ajay Hasia v. Khalid Mujeeb

If either the condition is fulfilled then it will fall under the term State:
1. Entire share capital is held by the Government
2. Financial assistance provided is that it meets almost entire
expenditure of the corporation.
3. Is the corporation is enjoying monopoly either by state conferred or by
state protected.
4. Deep and pervasive control of State which indicates that corporation
is a state agency.
5. The function of the corporation is in public interest and closely related
to governmental function.
6. Any corporation is formed by breaking down of any of the
department.
Zee Telefilms Ltd. &Anr vs Union Of India
• Zee Telefilms v. Union of India,2005
• 5 judge bench: BCCI was not a “State” under the
Constitution of India. However, the Supreme Court
did observe that the BCCI carries out “state-like”
functions.

Whether judiciary come under state?

BCCI comes under RTI
 Geeta Rani vs Ministry Of
Youth Affairs & Sports Case,
2018
 ‘substantial financing’ it has
received from appropriate
Governments
 N.S.Mirajkar v/s State of Maharashtra: when
rule making power of judiciary is concerned it
is State but when exercise of judicial power is
concerned it is not State.
 CJI comes under RTI but with conditions.
 The office of the Chief Justice of India (CJI) is a
public authority under the Right to Information
(RTI) Act, 2005.
Article 13(1)pre constitutional laws

Article 13(2) post constitutional laws.

Article 13(3)  laws in force before or after

the commencement of the constitution .

NarasuAppu Mali Case , 1951

• Muslim Personal Law does not come under Article
13(3)

Shayra Bano Case Vs UoI case

• Struck down the practise of Triple Talaq
• Not nullified the NarasuAppu Mali Case : Muslim Personal law
as such is not void . Shariat Act is void only to the extent it
recognises Triple Talaq as a valid form of divorce.
Sabarimala Case (Indian Young Lawyers’ Association v. State of Kerala)
• Declared unconstitutional the custom of prohibiting women in their 'menstruating years'
from entering.
• Review petitions pending.

In a 4:1 majority, the court ruled that Rule 3(b) of the Public Worship Rules was unconstitutional.
Justice Indu Malhotra observed that in a secular polity, it was not for the Courts to interfere in
matters of religion and the same must be left to those practicing the religion.

It has tagged three other pending cases –

• Muslim women’s right to enter mosques,
• Parsi women's right to enter a Fire Temple after having married a non-Parsi,
and
• The practice of female genital mutilation (FGM) among the Dawoodi Bohra
community.
Navtej Singh Johar vs. Union of India,2018
 Five-judge Bench partially struck down Section 377 of the Indian Penal Code,
decriminalising same-sex relations between consenting adults.
 Violating Articles 14 and 15, Article 21

Doctrine of severability
The doctrine of severability means that when some particular provision of a statute
offends or is against a constitutional limitation, but that provision is severable from
the rest of the statute, only that offending provision will be declared void by the Court
and not the entire statute.
Doctrine of Eclipse
The Doctrine of Eclipse states that any law which is inconsistent with fundamental
rights is not invalid. It is not totally dead but overshadowed by the fundamental right.
The inconsistency (conflict) can be removed by constitutional amendment. The
amendment to the relevant fundamental right will remove the eclipse and the entire
law becomes valid.
Pre-constitution laws – Bhikhaji Narayan Vs State of MP, 1955
Post-constitution laws – State of Gujarat Vs Ambika Mills , 1974

Whether Article 13 applies to laws in ninth schedule ?

I.R Coelho Case , 2007 , also known as Ninth Schedule Case . The acts placed in 9th
schedule are not beyond the scope of Judicial Review . The SC declared that the
doctrine of JR will apply to the acts placed within the 9th schedule , after the day after
Keshavanand Bharati Case (24 April, 1973).
Doctrine of waiver
The doctrine of waiver explains that a person, entitled to a right or privilege, is
free to waive that right or privilege. It is voluntary relinquishment or
abandonment of a known existing legal right or privilege. Once a person has so
waived his right, he would not be allowed to claim it afterwards.
In March 2018, the Supreme Court in a landmark judgement passed in the case
Common Cause (A Regd. Society) v. Union of India, recognized right to die with
dignity as a fundamental right. The Bench has hence recognized the concepts of
passive euthanasia and living will in India.
The need to change euthanasia laws was triggered by the famous Aruna
Shanbaug case.

Doctrine of Void ab initio

Fundamental Rights are prospective in operation. There were no FR prior to the
commencement of the constitution.
Article 14 is a part of basic structure Indira
Gandhi Vs Rajnarayan Case, 1975
  Above rights are available to,
o Citizens
o Non-citizen
o Legal person

 Equality before law  Equal protection of law means

o Negative Concept o Positive Concept
o Taken from Britain o Equal protection of law is taken
o Second Principle of Dicey’s Rule of from USA
Law o Likes to be treated alike.
o Absence of special privilege in favour o Equality of treatment
of any person o Similar application of same law
o No person is above the law to similarly situated
o Equal subjection of all person to
ordinary law of land
Article 14 prohibits class classification but permits reasonable
classification

Criteria of reasonable classification

• Anwar Ali Sarkar Vs State of West Bengal , 1952

• The classification must be based upon intelligible
differentia that distinguishes persons or things that are
grouped from others that are left out of the group. This
differentia must have a rational relation/ nexus to the
object of classification. There should be a relation
between the differentiations to the object of the
classification. If there are no such relations, the
reasonable classification would fail.
Exception
to the Article 361, 361A
Right to
Equality Article 105, 194
is
Article 31A
Article 31B
Article 31C
The new concept of Equality
E.P. Royappa Vs State of Tamil Nadu, 1974
Equality is anti thesis to arbitrariness.
Example :
 Triple Talaq – Shayra Bano Case, 2016
 Section 377 – Navtej Singh Johar Case,
2016.
 Temple entry – Sabarimala Case , 2018
Above prohibition is against both against
state and private person
Exception to Article 15(1)  women and children are treated
as separate class. For example - Domestic Violence Act and
the Prevention of sexual harassment of women at workplace

Be seen in association with Article 42.

Not an exception to Article 15(1)

Reasonable classification  facet of equality .

Protection from Article 29(2).

1stCAA, sequel to State of Madras v. Srimathi Champakam

Dorairajan, 1951 special provision for advance of any
Socially and Economically Backward Class or for SC and ST
 “Central 93rd CAA
Private unaided Educational Only exception challenged in
93rd CAA, 2005
to nullify TMA
educational Institutions  minority Ashoka Kumar
institutions Reservation in institutions  Thakur v. Union
Pai Case 2003
No such law Admission Act Article 30(1). of India
2006” Validity upheld
‘Reservation is not a fundamental right’
NEET Exam for Medical
Entrance
Article 15 (6)
• 103rd CAA, 2018  EWS
 Petitions filed by NGOs Janhit Abhiyan, Youth for Equality and others :
violated the basic structure of the Constitution
economic classification cannot be the sole basis for
while breaching the overall 50 per cent ceiling
reservation.
Indra Sawhney case.

Centre:

to bring about “social equality”.

Residence –> temporary and Domicile –> home

Article 16 (3) – Exception and has to constructed strictly

Article 16 (4) – Not an exception.

Article 16 (5) – Exception to Article 15.

Article 16 (6) - EWS

Important judgments related to
Reservations
 Indra Sawhney vs Union Of India, 1992
 Not to exceed 50% except in some exceptional situations.
 Only at entry level , not in promotions .
 No carry forward
 caste is class.
 Government’s response
 Tamil Nadu Reservation Act in 9th Schedule (69% reservation)
– 76th CAA 1994.
 Reservation in promotion for SC & ST – 77thCAA 1995 
Article 16(4A)
 Carry Forward of Backlog vacancies – 81st CAA 2000 
Article 16(4B)
 Relaxation in Marks 82n - CAA 2000  Exception to Article
355
 Reservation in promotion for SC & ST + Consequential
Seniority –85thCAA 2001
 Reservationfor EWS category - 103rd CAA 2019  Article 16
(6) 10% reservation to EW sections
 Nagaraj Case, 2006

M. Nagaraj, a retired Bengaluru-based PWD

engineer won a court battle against reservation
in promotions in 2006. According to the
judgment, states are not required to provide
reservation in promotions to Schedule Castes
and Schedule Tribes in government sector jobs.

However, states could

make such provisions
wrt SC/STs if :

Current Inadequate Administrative

backwardness representation efficiency
Jarnail Singh vs Lachhmi Narain Gupta Case, 2018 –
o Nagaraj judgement challenged
o 5-judge Bench,unanimously :
 Nagaraj Judgment do not need reconsideration by a larger seven-judge Bench.
 Struck the demonstration of further backwardness criterion from Nagaraj.
 Introduced the principle of creamy layer exclusion to SC/STs.
B K Pavitra vs Union of India (2019)
• Upheld the Karnataka Extension of
Consequential Seniority to Government
Servants Promoted on the Basis of Reservation
(to the Posts in the Civil Services of the State)
Act 2018.
• “a ‘meritorious’ candidate is not merely one
who is ‘talented ‘or ‘successful’ but also one
whose appointment fulfils the constitutional
goals of uplifting members of the SCs and STs
and ensuring a diverse and representative
administration”.
• Creamy layer for SC/ST only at the stage of
reservation in promotion and not at the stage
of consequential seniority
Reservation for EWS category - 103rd CAA 2019  Article 16 (6)  10%
reservation to EW sections

SC, ST, OBC – Women,

Article 15 (3)
Article 16(4) trangenders , PwD

Horizontal Quota
applied separately
Vertical
Horizontal Reservation to each vertical
Reservation
category and not
across the board.
Saurav Yadav vs State of Uttar Pradesh, 2020
• Person belonging to an intersection of vertical and horizontal reserved
category and has secured high marks enough to qualify without vertical
reservation , would be counted as without vertical reservation , cannot be
excluded from horizontal quota in general category .
• Candidates belonging to reserved categories can be appointed under open
or general category, if they qualified on their own merit.
OBC Sub-
categorisation
• For “equitable
distribution” among all
OBC communities.
• Justice Rohini
Commission
 Localisation of
jobs

“sons of the soil”

subnational nativism.
 22nd July, 2019 - Andhra Pradesh Employment of Local Candidates in Industries/Factories Act,
Andhra 2019

Pradesh
75% quota for local Andhra Pradesh youths in private industrial jobs.

If an industrial unit fails to find enough skilled local workers, then it will have to train them.

A quarterly compliance report.

Haryana November 2020, Haryana State Employment of Local Candidates Bill,
2020

All the companies, societies, trusts, limited liability partnership firms,

partnership firms and any person employing 10 or more persons and an
entity, as may be notified by the government from time to time

“Local candidate”  “who is domiciled in State of Haryana”

For the posts where the gross monthly salary or wages are not more than
Rs. 50,000 or as notified by the government from time to time.

Exemption from this 75% recruitment restriction if adequate number of

local candidates of a desired skill, qualification or proficiency are not
available  After government’s approval.

A quarterly compliance report.

Charu Khurana v Union
of India case, 2014 
SC renders restrictions
based on residence for
the purposes of
employment
unconstitutional.
Maratha Reservation Issue

The Marathas
• Politically dominant
• 32% of Maharashtra’s
populationdivision of
land and agrarian
problems
• Historically identified
as a ‘warrior’ caste
with large landholdings.
• 11/19 state’s 19 CMs.
 2018
• Justice N.G. Gaikwad
Commission which
recommended 16% reservation
to Marathas: “the Maratha
community is socially,
economically and educationally
backward.”
 Maharashtra assembly
unanimously passed
Maharashtra State Reservations
(of seats for admissions in
educational institutions in the
State and for appointments in
the public service and posts
under the State) for Socially
and Educationally Backward
Classes (SEBC) Act 2018
2019, Bombay HC : March , 2021, Supreme Court
• upheld the constitutional • A 11 Judge Constitution Bench
validity of the Maratha quota will look into the question of
under the Socially and whether states can exceed
Educationally Backward Classes the 50% limit on quotas that
(SEBC) Act, 2018. was set by a nine-judge Bench
• 16% quota granted by the state in the landmark Indra Sawhney
was not “justifiable”, and vs Union of India (1992) case.
reduced it to 12% in education
and 13% in government jobs, as
recommended by the MSBCC.
• “the limit of reservation should
not exceed 50%”; however, “in
exceptional circumstances and
extraordinary situations, this
limit can be crossed subject to
availability of quantifiable and
contemporaneous data
reflecting backwardness,
inadequacy of representation
and without affecting the
efficiency in administration”.
Jaishri Laxman Rao Patil Vs Chief Minister of Maharshtra, 2020
5-judge Constitution Bench  unanimously declared a Maharashtra law which provides reservation
benefits to the Maratha community, taking the quota limit in the State in excess of 50%, as
unconstitutional.
The SC struck down the findings of the Justice N.G. Gaikwad Commission which recommended 16%
reservation to Marathas and led to the enactment of Maratha quota law

Even the reduced percentages of reservation granted by the High Court were ultra vires.

Violates Articles 14 (right to equality) and 21 (due process of law).

The SC declined to re-visit the its 1992 Indira Sawhney judgment, which fixed the reservation limit
at 50%.

“There was no “exceptional circumstances” or “extraordinary situation” in Maharashtra which

required the Maharashtra government to break the 50% ceiling limit to bestow quota benefits on the
Maratha community.”
The Centre alone is empowered to identify socially and educationally backward classes (SEBC) and
include them in the Central List for claiming reservation benefits
Article 17
The Untouchability (Offences) Act 1955

The Protection of Civil Rights Act – 1955

Not in literal or grammatical sense but the

practise as it had developed historically in
the country.
Even against private individuals.
The Scheduled Castes and Kashinath
Tribes (Prevention of Mahajan Case.
Atrocities) Act, 1989
• Prohibit discrimination, prevent
atrocities and hate crimes against No automatic
SC/STs arrest
• The preamble of the Act : "to
prevent the commission of
offences of atrocities against the preliminary
members of Scheduled Castes and enquiry before
Tribes, to provide for Special registration of
Courts for the trial of such FIR
offences and for the relief and
rehabilitation of the victims of
such offences and for matters Anticipatory
connected therewith or incidental bail to the
thereto". accused

Investigation only with

the approval of senior
officer/SSP rank
August, 2018, Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Bill, 2018, to
bypass the ruling

Introduced Section 18A to nullify the safeguards.

Prithvi Raj Chauhan vs Union Of India Case, 2019,

validity of Section 18A challenged.

1 October 2019, the Court recalled its directions in

Kashinath Mahajan case.
Balaji Raghavan case 1996

Padma Awards are not considered as titles .

Article 19
1stCAA 1951

• Friendly relation with Foreign States

• Incitement to offence –

16th CAA 1963

• Sovereignty and Integrity of India

Meaning of freedom of speech and
expression
Right to know and to obtain information
• People's Union for Civil Liberties vs Union of India, 2004.

Voters right to know the antecedents

• Union of India v. Association for Democratic
Reforms, 2002
Shreya Singhal v. Union of
India Case, 2015
• Section 66-A of the Information Section 66A made posting "offensive"
comments online a crime punishable by jail
Technology Act struck down
• Read down Section 79 of the IT
Act
• Affirmed the constitutionality
of Section 69A of the Act.

Vague and over-broad statutory language as a rationale for

striking down the provision or law.

Only to 'incitement', specifically incitement which has a

proximate relation to public disorder.
 Empowers the central
government to block the
Section 69( A)
online content and arrest the
culprit .

Section 79 Protection to intermediaries

Anuradha Bhasin vs. Union of India
Case, 2020
• FRs need to be balanced with national
security.

Ghulam Nabi Azad vs. Union of

India Case, 2020
• No fundamental right to internet access.
• Fundamental right to freedom of speech and
expression and to carry profession using
internet are constitutionally protected.
• Internet shutdown cannot be arbitrary
• Proportionate to imminent threat to law and
order.
• Temporary suspension  emergency in the
interest of public safety.
Freedom of silence
• Bijoe Emmanuel vs state of Kerala 1987
Freedom of press
• No censorship  Brij Bhushan vs The State Of Delhi, 1950

Freedom of circulation
• Romesh Thapar v. State of Madras, 1950

Volume of news
• Sakal Papers v. Union of India, 1962
Press Freedom Index
2020
• Reporters Without Borders
• 142nd/180 countries
• Bhutan, Nepal and Sri Lanka
ranked higher.
 Pre censorship of films
• K.A. Abbas v. Union of India, 1971
• Censorship – Cinematograph Act 1952

“The treatment of motion ,pictures must be different from

that of other forms of art and expression due to the
instant appeal of the motion picture, its versatility,
realism (often surrealism), and its coordination of
the visual and aural senses. The motion picture is able to
stir up emotions more deeply than any other product of
art.”
Right to fly the national flag
• Union Of India vs Naveen Jindal, 2004
Right to Demonstrations or
picketing but not Right to
strikes.
• Must not be violent and disorderly

No right to call or enforce

bandh
• CPI(M) Vs Bharat Kumar, 1998
• HARTAL not illegal a part of
right to protest
Sedition
Section 124(a) of IPC
1962 2015
• Kedarnath Singh vs State of • Shreya Singhal vs UoI
Bihar • Only “incitement” was
• “disaffection, however punishable not “advocacy”.
strongly worded, was not
seditious unless it incited
public violence.”
‘Hate speech repudiates right to equality’ —
Amish Devgan vs Union Of India , 2020
Decency / Morality

Hicklin Test
material tending "to deprave and
corrupt those whose minds are
Regina v. Hicklin (1868) open to such immoral influences"
was obscene, regardless of its
artistic or literary merit.
 Miller Test : Miller v. California(1973)

Obscene only if all three conditions are satisfied:

Whether "the average Whether the work depicts or

person, applying
contemporary community
standards", would find that
the work, taken as a whole,
appeals to the prurient defined by applicable state
interest,
describes, in a patently
Whether the work, taken as
offensive way, sexual
a whole, lacks serious
conduct or excretory
literary, artistic, political,
functions specifically
or scientific value.
law,
Contempt of court
 Contempt
Article Article
of Courts
129 215
Act, 1971
The Contempt of Courts Act, 1971

"contempt of court" means civil contempt or criminal contempt

Section 3: Innocent publication and distribution of matter not contempt.
Section 4. Fair and accurate report of judicial proceeding not contempt.
Section 10 : Every High Court shall have and exercise the same jurisdiction, powers and authority, , in respect
of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself.
Exception : When the contempt is an offence punishable under the Indian Penal Code (45 of 1860).
Section 11 : A High Court shall have jurisdiction to inquire into a contempt , even if the contempt is alleged
to have been committed outside the local limits of its jurisdiction.
Section 12. Punishment for contempt of court  simple imprisonment for a term which may extend to six
months, or with fine which may extend to two thousand rupees, or with both. The accused may be
discharged on apology being made to the satisfaction of the Court.
An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes
it bona fide.
Section 13. Contempts not punishable if the contempt is not of such a nature that it substantially
interferes, or tends substantially to interfere with the due course of justice
The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it
is satisfied that it is in public interest and the request for invoking the said defence is bona fide.(2006)
Section 16. Contempt by judge, magistrate or other person acting judicially.: Ajudge, magistrate or other
person acting judicially shall also be liable for contempt in the same manner .

Section 18. Every case of criminal contempt under section 15 shall be heard and determined by a Bench of
not less than two judges.

Section 20. No court shall initiate any proceedings of contempt, either on its own motion or otherwise,
after the expiry of a period of one year from the date on which the contempt is alleged to have been
committed.

Section 21. The Act shall not apply in relation to contempt of Nyaya Panchayats or other village courts for
the administration of justice, established under any law.
 kinds of contempt
of court

Civil Criminal

Wilful
Disobedience “scandalise”

“interferes”

“obstructs”
S. Mulgaonkar vs Unknown 1978

Mulgaonkar court will act with severity where justice is jeopardised by

Principles gross/unfounded attack on judges.

There is a need to establish the balance between constitutional

values of freedom of speech and expression and fearless judicial
process.
There is a need to avoid confusion between the personal protection
of libelled judge and obstruction of public justice.

Press has key role in democracy and should have freedom within
reasonable limits .

Judges should not be hypersensitive.

While deciding the contempt of courts, totality of factors will be

taken into considerations
Fair and accurate reporting of judicial proceedings will not amount
to contempt of court. Nor is any fair criticism on the merits of a
judicial order after a case is heard and disposed of.

2006 Amendment  truth as a valid defence, if it was in

public interest and was invoked in a bona fide manner.
Defamation

Subharamanyam Swami Case

Right to Reputation is part of Article 21
Section 499, IPC

Section 500, IPC

Freedom of assembly
• Article 19(1)(b), 19(3)
• To assemble peaceful
without arms
• Reasonable Restriction –
Article 19 (3)
• Public order
• Sovereignty and Integrity
 No fundamental
Ramlila Maidan
rights to strike Right to protest
Incident v. Home
Legal right under but no right to
Secretary, Union
Industrial Dispute bandh
of India, 2012
Act, 1947
• Citizens have
fundamental right to
form association and
peaceful protest
which cannot be taken
away by an arbitrary
executive or
legislative action.
Shaheen Bagh Protests
Need to balance the right to protest against the right
to public movement

Right to protest not “absolute.

Right to protest can’t be anytime, everywhere

Roads and public spaces couldn’t be blocked

indefinitely and demonstrations had to be in
designated places.
 Freedom to form
associations

Article 19
(1) (c) and
19 (4)

Included
cooperatives Reasonable Restrictions Article 19 (4)
• 97th CAA 2011 • Public order
• Morality
• Sovereignty and Integrity

Association has no right to be recognised

by state
Freedom of movement and residence

19 (1) (d) – Freedom to move

throughout territory

19 (1) (e) – Right to

reside and settle in
any part of the country

19 (4)
• General public
• Protection of interests of ST
Inner Line Permit (ILP)
• Arunachal Pradesh,
Nagaland,Mizoram, Manipur
• Bengal Eastern Frontier
Regulation Act (BEFR), 1873

No CAA in tribal areas of Assam

, Meghalaya , Mizoram ,Tripura
of 6th schedule and the areas
falling under inner line permit
Freedom to practise any profession, carry any occupation, trade or business

Article 19 No right to carry anti-social

(1) (g) and
19 (6) –
Professional or tech qualification which
are not arbitrary
In the interest of general public

State may carry on any trade exclude

general public
Surrogacy Allows “willing” woman to be a surrogate mother
(Regulation)
Bill, 2020
Aimed at banning commercial surrogacy and allowing
altruistic surrogacy”

A National Surrogacy Board and State Surrogacy Boards

and appropriate authorities in the States and UTs

Insurance cover to 36 months from 16 months earlier.

RTI AND ITS IMPLICATION ON FUNDAMENTAL RIGHT

Case of Raj “the Right to Know, which should make one

Narain: wary, when secrecy is claimed for
transactions which can, at any rate, have
no repercussion on public security.”

Romesh “fundamental principle is the people’s

Thapar v. right to know’.”
State of
Madras :
RTI AMENDMENT ACT 2019
Protection in respect of conviction for
offences
• No ex-post facto (criminal)
• No double jeopardy (not in departmental
inquiry)
• No Self-incrimination
• Selvi vs State of Karnataka,2010
• narco-analysis, the lie-detector test, and
brain-mapping
• Citizens + Non-citizens
Interpretations in
A. K. Gopalan Maeneka Gandhi
Case (1950) Case (1978)
Right to privacy

Kharak Singh vs State of UP, 1962 and M.P Sharma vs Union of India, 1954.

Right to Privacy , not a fundamental

right.
Right to privacy
• A facet of Right to life and personal liberty
• Justice K. S. Puttaswamy (Retd.) vs Union Of India, 2017

Backed by law

Legitimate aim
3 tests
of the state

Proportionality
“The right to privacy is protected as an
intrinsic part of the right to life and
personal liberty under Article 21 and as
a part of the freedoms guaranteed by
Part III of the Constitution”

Fundamental right but not absolute

right  reasonable restrictions
Constitutionality
of Aadhaar
(Targeted Delivery
of Financial and
Other Subsidies,
Benefits and
Services) Act, 2016
Justice K. S. Puttaswamy v Union of India

A 4:1 majority upheld the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act,
2016.But struck down individual sections of the Act as unconstitutional.
The Aadhaar scheme was challenged by retired Justice K.S. Puttaswamy:
 Aadhaar infringes upon FRs  No adequate privacy safeguards.
 No checks on the power of the government to use the biometric data collected.
 Entitlements granted to the individuals by the State's social sector schemes are themselves a fundamental right.

26th September 2018, the Court upheld the Aadhaar Act:

The Act empowers disenfranchised sections of society by providing them better access to fundamental entitlements, such
as State subsidies.
Section 7 of the Aadhaar Act, making the Aadhaar number mandatory for receiving subsidies, benefits and services
from the Government satisfied the condition of Article 110 of the Constitution, the Aadhaar Act was validly passed as
Money Bill. The Act does not violate the fundamental rights guaranteed under Articles 14, 15, 19 and 21.
The Aadhaar Act was held to be constitutional to the extent it allowed for Aadhaar number-based authentication for
establishing the identity of an individual for receipt of a subsidy, benefit or service given by the Central or State
Government funded from the Consolidated Fund of India.
However, the Supreme Court disallowed the use of individual Aadhaar numbers by any private entities for establishing
the identity of the individual concerned for any purpose pursuant to a contract, on the basis that it was contrary to the
fundamental right to privacy.
The right to privacy cannot be impinged without a just, fair and reasonable law. This required existence of a law, which
serves a legitimate state aim and is proportionate to the objective sought to be achieved. The Supreme Court further
clarified that the proportionality test includes the following four aspects:
1. Legitimate goal
2. Rational connection
3. Necessity
4. Balancing
Some Related Judgements
Right to Francis Coralie Mullin v. The Administrator,
live with
dignity
Union Territory of Delhi (1981)

Right to Olga Tellis vs. Bombay Municipal

livelihood
Corporation, 1985

Right to Mohini Jain v. State of Karnataka, 1992

education
Unni Krishnan vs. State of Andhra Pradesh, 1993
No right to die Gian Kaur v. State Of Punjab,
1996
Arun Shaunbagh vs Union of India Passive Euthanasia allowed
Case 2011
Common Cause Case, 2018 Right to die with dignity is
fundamental right
Shatrughan Chauhan Case, 2014 Excessive delay
 Capital punishment

Principle of retributive justice

Europe is almost death-penalty-free .Even

in the US, 16 States have abolished

China - largest executioner

In South Asia, Nepal and Bhutan have

abolished

103 countries have abolished

 “The death penalty
has no place in the
21st century.”

UN and Capital Punishment

 UN General Assembly resolutions

In a series of resolutions adopted in 2007, 2008, 2010, 2012, 2014, 2016 and 2018,
the General Assembly urged States to respect international standards that protect
the rights of those facing the death penalty, to progressively restrict its use and
reduce the number of offences whichare punishable by death.
On November 17,2020, 120 UN member states voted in favor of a
resolution in the Third Committee of the UN General Assembly
reiterating a call for a moratorium on the use of capital punishment
India voted against the abolition

The seven General Assembly resolutions calling for a moratorium on

executions adopted since 2007 demonstrate a growing global consensus
against the death penalty.
• Bachan Singh vs State Of Punjab, 1980
• rarest of rare
• Machhi Singh And Others vs State Of Punjab, 1983

Guidelines laid down in the case of Bachan Singh:

When a sentence
Gravest cases of
Circumstances of life
extreme
matter imprisonment
culpability.
seems inadequate.
In Bachhan Singh, the court laid down the principle of the rarest of rare
cases. In Machhi Singh formulated the principle into five definite categories .

Guidelines: Manner of Commission of Murder: Extremely brutal, grotesque,

diabolical,revolting, or dastardly manner so as to arouse intense and extreme
indignation of the community.
Motive for Commission of murder: When the murder is committed for a motive
which evince total depravity and meanness.

Anti Social or Socially abhorrent nature of the crime

Magnitude of Crime When the crime is enormous in proportion.

Personality of Victim of murder : When the victim of murder is an innocent

child, a helpless woman,old aged, committed for political or similar reasons
other than personal reasons.
Section 377
• Navtej Singh Johar&Ors. v.
Union of India, 2018
• corrected  Suresh
Kumar Koushal vs. Naz
Foundation, 2013
Right to personal liberty

• AK Gopalan vs The State Of

Madras, 1950
• Maneka Gandhi vs Union Of India,
1978

Right to travel

• Maneka Gandhi vs Union Of India,

1978

Right to speedy trial

• Hussainara Khatoon vs Home

Secretary, State Of Bihar, 1979
 14

Golden
Triangle

19 21

Golden triangle - Has to I.R. Coelho vs State TN

satisfy the requirement
of all the three Articles
Minerva Mills
86th CAA 2002
Check on executive

Citizens + non citizens 

enemy aliens
Arrests without warrant

Criminal law , civil or land

revenue.
 grounds of arrest

consult the legal

Ordinary law
practitioner of choice
Detentions
Preventive detention produced before the
laws nearest magistrate
 Preventive detention
Union List Entry 9: Preventive detention for reasons connected
with Defence, Foreign Affairs, on the security of India; persons
subjected to such detention

Concurrent List Entry 3: Preventive detention for reasons

connected with the security of a state, the maintenance of
public order, or the maintenance of supplies and services
essential to the community; person subjected to such detention.

Safeguards: grounds of detention

earliest opportunity to make representation against the order

of detention.
Maximum time 3 months/prescribed by Parliament  Advisory
board
“enemy Any native, citizen, denizen or subject of any foreign nation
or government with which a domestic nation or government
alien” is in conflict and who are liable to be apprehended,
restrained, secured and removed.

Article 22 • warrant of a court

not applied • quasi criminal and criminal offence
if • revenue or civil cases
A. K. Roy v/s Union of India, 1982 – “Detention under Preventive
Detention laws be subjected to judicial review only on limited grounds”
 Citizens + Non-
Devdasi system
citizens

Census 2011:
3.9% of children
under the age of
14 were engaged
in child labour.
Constitutional & legislative provisions:
• Article 23 (1)
• The Immoral Traffic (Prevention) Act, 1956 (ITPA)
• Protection of Children from Sexual offences (POCSO) Act,
2012
UN
• India ratified the United Nations Convention on
Transnational Organised Crime (UNCTOC) which has as one
of its Protocols Prevention, Suppression and Punishment of
Trafficking in Persons, particularly Women and Children.
SAARC
• India has ratified the SAARC Convention on Preventing and
Combating Trafficking in Women and Children for
Prostitution.
Article 24
Be read along DPSP 39(e) and (f)
Special Article 24 protection from child labour
rights
available to Article 39(e) protection from being abused forced by eco
children necessity
under Article 39(f) protection from abandonment
constitution
Article 21A free and compulsory education from 6 to 14 years

Article 45 free and comp 0 to 6 years

Article 47 right to nutrition

Article 25
Citizens + non-citizens

Not absolute  Public order,

Morality, Health, Other provisions
related to Fundamental Rights in
the Part III
“essential Right to propagate does
practices” not mean right to
doctrine conversion

Shirur Mutt Rev Stanislaus vs State of

Case,1954 Madhya Pradesh, 1977

term “religion” will cover

all rituals and practices
“integral” to a religion.

“essentiality
test”.

Tandava is not essential practise

• Commissioner Of Police vs Acharya
JagdishwaranandaAvadhuta, 2004
The Uttar Pradesh
Prohibition of
Unlawful Religious
Conversion
Ordinance, 2020
 The Uttar Pradesh Prohibition of Unlawful Religious Conversion
Ordinance, 2020

Section 3: no person shall convert or

attempt to convert directly or
otherwise any person from one
religion to another by use or any
practice of misrepresentation, force,
undue influence, coercion, allurement
or by any fraudulent means or by
marriage, nor should any person abet
convince or conspire such conversion.

Makes religious conversion a

cognizable and non-bailable
Article 16 of UDHR
India is a signatory,
recognizes inter-faith
marriages.

Constitution of India
also guarantees
freedom of religion
from article 25 to 28.
Article 26
 Religious denominations
S.P. Mittal vs Union Of India, 1982

Collection of individuals who have a

A common
system of beliefs which they consider as A distinctive name
organisation
conducive to their spiritual well-being

Under the above criteria, the Supreme Court held that the
‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious
denominations within the Hindu religion. It also held that
Aurobindo Society is not a religious denomination.
Article 27
secular nature of state
Acquisition of land
Tax/Fee
Article 28
Types of Wholly maintained by
educational state funds
institution

Administered by state
but established under
trust or endowment
Recognised by state

Receive aid out of

state funds
Difference in religious
education and instructions

State education institution

Patronise a particular religion

2011 Census : Hindus are a minority in six States — Mizoram (2.75%), Nagaland (8.75%), Meghalaya
(11.53%), Arunachal Pradesh (29%), Manipur (31.39%), Punjab (38.40%) — and in the Union Territories of
Jammu and Kashmir (28.44%) and Lakshadweep (2.5%).
Christians are in majority in Mizoram, Meghalaya and Nagaland and there is a significant Christian
population in Arunachal Pradesh, Goa, Kerala, Manipur, Tamil Nadu and West Bengal.
Likewise, Sikhs are in majority in Punjab and there is a significant Sikh population in Delhi, Chandigarh and
Haryana
Muslims are a majority in Lakshadweep (96.20%), Jammu and Kashmir (68.30%) and there is a significant
representation of the community in Assam (34.20%), West Bengal (27.5%), Kerala (26.60%), Uttar Pradesh
(19.30%) and Bihar (18%).
 Article 29(1) Article 29(2)

Individual Group Ground to deny admission  Sex

Article 30
 Nothing in this Declaration may be interpreted as implying for any State,
group or person any right to engage in any activity or to perform any act
aimed at the destruction of any of the rights and freedoms set forth herein.
Article 30(1)(a), 44thCAA 1978

Minority institutions
can be classified as

Neither recognised,
Recognised by state Only recognised by
nor receiving aid by
and receiving aid state
the state
National Commission for
Minority Educational
Institutions
Statutory  NCMEI Act, 2004

Quasi-judicial body+ powers of a Civil Court.

Headed by a Chairman who has been a Judge of the High Court and
three members are to be nominated by Central Government.
With regard to affiliation of a minority educational institution to a
university is concerned, the decision of the Commission would be final.

3 roles
adjudicatory advisory function recommendatory
function, and powers.
Functions of Commission
• Advise the Central/State Government on any question relating to the education of minorities
that may be referred to it;
• Enquire, suomotu, or on a petition regarding deprivation or violation of rights of minorities
to establish and administer educational institutions of their choice and any dispute relating
to affiliation.
• Intervene in any proceeding involving any deprivation or violation of the educational rights of
the minorities before a court with the leave of such court;
• Review the safeguards provided by or under the Constitution, or any law for the time being in
force, for the protection of educational rights of the minorities and recommend measures for
their effective implementation;
• Specify measures to promote and preserve the minority status and character of institutions of
their choice established by minorities;
• Decide all questions relating to the status of any institution as a Minority Educational
Institution and declare its status as such
• Make recommendations to the appropriate Government for the effective, implementation of
programmes and schemes relating to the Minority Educational Institutions; and
• Do such other acts and things as may be necessary, incidental or conducive to the attainment
of all or any of the objects of the Commission.
Powers of Commission

The Commission shall have all the powers of a civil court.

Every proceeding before the Commission shall be deemed to be a judicial proceeding

The Commission is also vested with the powers of appeal against order of competent authority
to decide on minority status of educational institutions , power to cancel the status granted and
to investigate matters relating to deprivation of educational rights of minorities
The Commission has also powers for calling for information from the Central Government or any
State Government or any other authority or any organization subordinate thereto, while
enquiring into complaints, violation or deprivation of educational rights of minorities.
No court (except the Supreme Court and a High Court exercising jurisdiction under Articles 226
and 227 of the Constitution) shall entertain any suit, application or other proceedings in respect
of any order made by the Commission .
The powers of a civil court means-
• Summoning and enforcing the attendance of any
person from any part of India and examining him on
oath;
• Requiring the discovery and production of any
document;
• Receiving evidence on affidavits
• requisitioning any public record or document or copy
of such record or document from any office;
• Issuing commissions for the examination of witnesses
or documents; and
• Any other matter which may be prescribed.
D. A. V. College v. State of Punjab : minority under article 30 1) would
necessarily mean distinct and identifiable group of citizens of India

Bal Patil & Anr vs Union Of India , 2005

Minorities based on language  statewise
Religious minorities  Nationwise
Important Cases

Aziz Basha Case AMU is not a minority institution

AMU Act was amended in 1972 and was given minority status

Allahabad High Court : not a minority institution in 2006.

January 2020, SC Government aided minority institutions do not have absolute right in deciding the
examined the appointment of the teachers
validity of West
State can regulate.
Bengal Madarasa
Service
Commission Act, Minority institution cannot ignore legal regime in the name of fundamental rights
2008
Azeez Basha versus Union of India case of 1968 : A university incorporated under the Act
of Parliament cannot claim minority status.

In 2011, the National Commission for Minority Educational Institutions (NCMEI) granted
minority institution status to Jamia Milia Islamia University. According to the
commission, Jamia Millia Islamia was founded by Muslims for the benefit of the community
and it never lost its identity as a Muslim minority educational institution. The commission
said the institution was covered under “Article 30 (1), read with Section 2 (g) of the
National Commission for Minority Educational Institutions Act”.
On March 5,2018,government filed an affidavit in Delhi HC claiming that Jamia Millia
Islamia is not a minority institution as it was set up by an Act of Parliament and funded by
the central government.

Jamia was started in 1920 and declared a Central

University by an Act of Parliament in 1988 — to
reserve up to 50 per cent seats for Muslims.
UPA government had gone in appeal to the
Supreme Court against the Allahabad high court
decision in Naresh Agrawal (2005) in which it
denied AMU’s minority character and struck
down a few provisions of the 1981 amendment
to the Aligarh Muslim University Act, 1920.

The Modi government has not only withdrawn

this appeal but submitted a fresh affidavit
stating that AMU is not a minority institution.
Article 31 (repealed  44th CAA)
Right to Property
Laws under 9th Schedule are
subjected to JR on the ground of
doctrine of basic structure.
• Case IR Coelho vs T N 2007
 Protector and guarantor of
fundamental rights
sentinel on the qui vive

Article 32
“soul of the
constitution”
I.R. Coelho vs state of Tamil Nadu (2007):
Integral part of basic structure.

Ramesh Thappar vs state of Madras (1950):

supreme court cannot refuse to entertain the
application
Right to move to the court is itself a
fundamental right
Supreme courts power is not only injunctive
but also remedial under article 32
• M.C. Mehta vs Union Of India, 1986
Doctrine of Res Doctrine of Laches
Judicata: :
• There should be finality • Court protects rights of
to the binding decision those who are vigilante
of court of competent about their rights.
jurisdiction.
Curative petition :

Rupa Ashok Hurrah Vs Ashok Hurrah Case , 2002:

Journalist Siddique Kappan
Arnab Goswami Case

Bombay HC rejected the interim relief sought by Goswami and held that Goswami may approach the Alibag
sessions court and apply for regular bail  Special leave petition to the SC

“There has to be a message to High Courts. Please exercise your jurisdiction to uphold personal liberty. We
are seeing case after case. High Courts are failing to exercise jurisdiction. People are in jail for tweets!”.

Siddique Kappan Case

UP police booked Siddique Kappan, under the Unlawful Activities Prevention Act (UAPA), 1967

SC: “ go to lower court”. The SC stated that it was trying to discourage Petitions under Article 32 of the
Constitution and sought the Uttar Pradesh (UP) Government’s response to journalist Siddique Kappan’s
habeas corpus petition.
Article 32 (1) “appropriate
proceedings”  no definite meaning.
• Bandhua Mukti Morcha Vs Union Of India Case:
• constitution makers deliberately did not lay
down any specific proceedings because in a
country like India with illiteracy, ignorance, any
rigid formula would have been self defeating
• Epistolary proceedings
• PIL  SP Gupta case
• suo-moto cognisance
 The concern should have
significance for large number
of people

Affected person should

belong to weaker
section

Balco Employees
Where law making is
Union Vs Union of
necessary.
India Case
Article 32, 226, and under section 133 of CrPC.
Where Judicial
intervention is
necessary.

Where administrative
institutions are
harmful
 Writs:

Habeas Quo
Mandamus Prohibition Certiorari
corpus warranto
 HABEAS CORPUS
Against both
public + Not when
private.

detention is contempt of outside the

lawful court jurisdiction
ADM Jabalpur v. Shivakant Shukla
case (HABEAS CORPUS CASE):
• MISA (1971)
• HC: habeas corpus is maintainable.
• SC : with the proclamation of emergency
and suspension of enforcement of article
21, no writ lies in a court.
Puttuswamy over ruled ADM Jabalpur case
Vs Union of
India Case
(2017)
“right to life existed even before the
commencement of the constitution. In
recognising the right, constitution does not
become the sole repository of the right.”
Mandamus to compel
performance
Against lower court or a governmental
officer or body; statutory authorities

Against a private individual or body

Cannot be
issued : Departmental instructions without
statutory force
Where duty is discretionary

To enforce contractual obligation

Against president of India or state

governor
Against CJI or Chief Justice of High Court
in Judicial capacity.
Prohibition to a lower court/body

preventive nature

Only against judicial and quasi judicial

Not against administrative , legislative and private.

Can be issued on the following grounds:

Certiorari: Against lower judicial or quasi-judicial body. Since
1991 also against administrative authorities.
Not against legislative bodies and private
individuals.
Negative + affirmative actionà preventive as well
as curative
The grounds on which the writ of certiorari may be
issued are:
Quo Claim of a public office
Warranto
Only in case of a substantive public office of a permanent
character created by statute or constitutional provision

Not for ministerial or private office.

by any interested person and not only by the aggrieved

person.
Suspension of FRs
Suspension of Fundamental Rights under Article 19
44th CAA, External emergency  war or external
1978 aggression and not on the ground of
restricted armed rebellion.
the scope
of Article
358 in
two ways:
Only those laws which are related with
the Emergency are protected from being
challenged and not other laws. Also, the
executive action taken only under such a
law is protected.
Suspension of other
Fundamental Rights
FRs not
suspended,only
their
enforcement.

44th CAA, 1978: Articles 20 to 21.

Only those laws which are related with the emergency are
protected from being challenged and not other laws and the
executive action taken only under such a law, is protected.
Article 33
Article 34
Article 35