Vol 5

Date and Time: Sunday 26 December 2021 1:46:00 AM IST
Job Number: 160603507
Documents (11)
1. Art. 20. Protection in respect of conviction for offences.-

Client/Matter: -None-
2. Art 21 . Protection of life and personal liberty.-
3. [Art. 21-A. Right to Education.-
4. Art.22 . Protection against arrest and detention in certain cases.-
5. Art.23. Prohibition of traffic in human beings and forced labour.-
6. Art.24. Prohibition of employment of children in factories, etc.-
7. APPENDIX I THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976
8. APPENDIX II THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
9. APPENDIX III THE NATIONAL COMMISSION FOR WOMEN ACT, 1990
10. APPENDIX IV THE PROTECTION OF HUMAN RIGHTS ACT, 1993
11. APPENDIX V THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009
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Art. 20. Protection in respect of conviction for offences.-
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 5, Articles 20 - 25
D D BasuJustice S S Subramani
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 5, Articles 20 - 24 > DD Basu:
Commentary on the Constitution of India, 9th ed, Vol 5, Articles 20 - 24 > Commentary on the
Constitution of India > PART III FUNDAMENTAL RIGHTS (contd.)
Commentary on the Constitution of India
PART III FUNDAMENTAL RIGHTS (contd.)
(1) 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 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.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
[Art 20.1] Scope of Article 20
This Article imposes certain constitutional limitations upon the power of the State to enact and enforce criminal
laws, which it otherwise possesses, under Article 21, post.The three clauses deal with three different
safeguards against arbitrary action against the individual, affecting his life and personal liberty.
[Art 20.2] CLAUSE (1) OTHER CONSTITUTIONS (A) U.S.A.—
Article I, section9(3) of the Constitution of the U.S.A. says—
U.S.A.
No... ex post facto law shall be passed.

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There is a similar prohibition against the States in Article I, section 10.
This Article is confined to penal legislation1. and has no application to legislation relating to civil action.2.“The
ex post facto clause has been interpreted to pertain exclusively to penal statutes. If the Act does not implicate
punishment, its application does not raise ex post facto concerns”.3. But the learned author C.K. ALLEN in his
book on ‘LAW IN THE MAKING’4. has said thus:- “It is true also that the prohibition of ex post facto legislation
contained in Article I section 9(3) of the Constitution of United States has been applied principally to penal
statutes, though on the other hand there are many famous dicta of longstanding from American Judges of the
highest eminence enunciating the same rule of construction (which of course is not same thing as a
constitutional prohibition) as is accepted in English Courts and the Constitutional rule in America extends in any
case, beyond penal statutes to any enactment which impairs the obligation of contracts”. The true rule of both
English and American law, it is submitted, is stated by MAXEWELL:5. “It is chiefly where the enactment would
prejudicially affect vested rights or the legality of past transaction or impair contracts that the rule in question
prevails. Every statute, it has been said which takes away or impairs vested rights acquired under existing laws
or creates new obligation or imposes a new duty or attaches a new liability in respect of transactions or
consideration already passed, must be presumed out of respect to the legislation to be intended not to have
retrospective operation. A fortiori, the presumption is against the imposition of novel penalties for wrongs
invented ‘ex post facto’ and it is a matter of regret that in several cases this salutary principle, though not
actually repudiated, has been endangered by decisions which have held that a man may be liable through ex
post facto application, for heavier penalties than those which existed when he committed the offence”.6.
I. Thus, the expression ex post facto law has been interpreted to include—
(i) Every law that makes an action done before the passing of the law and which was innocent when done,
criminal, and punishes such action.
(ii) Every law that aggravates a crime, or makes it greater than it was when committed.
(iii) Every law that changes the punishment and inflicts a greater punishment,than the law annexed to the crime
when committed.
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(iv) Every law that alters the legal rules of evidence,and receives less, or different testimony, than the law
required at the time of commission of the offence, in order to convict the offender.
There is distinction between ex post facto laws and retrospective laws. Every ex post facto law must
necessarily be retrospective, but every retrospective law is not ex post facto law; the former only are prohibited.
In Phillips v Eyre,7.JUSTICE WILLIES appears to regard the term ex post facto as properly applied only to
statutes designed to make unlawful and to penalise criminal sanctions acts which were lawful when they were
done; whereas retrospective legislation he considers to be of a more general nature as affecting the rights and
duties of different varieties. Both kinds, of course, have a retroactive effect, but the one attaches to past events
penalties which did not previously apply to them, and thus creates an entirely new situation, while the other
merely alters a situation arising from pre-existing circumstances. The distinction, however, is one of degree,
rather than by kind and affects the strength, rather than the existence of the rule of construction.8.Every law
that takes way or impairs rights vested, agreeably to existing laws, is retrospective and is generally unjust and
may be oppressive; and there is a good general rule that a law should have no retrospect; but there are cases
in which law may justly relate to a time antecedent to their commencement; as statutes of oblivious or of
pardon. They are certainly retrospective and literally both concerning and after facts committed. But I do not
consider any law ex post facto within the prohibition, that mollifies the rigour of the criminal law, but only those
that create or aggravate the crime or increase the punishment or change the rule of evidence for the purpose of
conviction. Every law that is to have an operation before the making thereof has to commence at an antecedent
time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed
and the like, is retrospective. But such acts may be proper and necessary, as the case may be. There is a great
and apparent difference between making an unlawful act lawful and the making of an innocent act criminal and
punishing it as a crime. The expression ex post facto is technical; they have been in use long before the
Revolution, and had acquired an appropriate meaning, be legislators, lawyers and authors.9.
To the above 4 rules, COOLEY10.adds two others:
(v) Every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the
deprivation of a right for something which when done was lawful.
(vi) Every law which deprives persons accused of crime of some lawful protection to which they have become
entitled: such as the protection of a former conviction or acquittal, or the proclamation of amnesty; or takes
away a defence.11.
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According to CRAIG R. DUCATin his Constitutional Interpretation: “Ex post facto law” means “a law that makes
something a crime that was not illegal at the time when the act was done or that increases the penalty after the
crime was committed”. It means laws that declare an action a crime after it had been performed.12. The ex post
facto clause has been interpreted to pertain exclusively to penal statutes. If this Act does not impose
punishment, its application does not raise ex post facto concern.13.
It has been said by COKE: “Nova constitutio futuris formam imponere debet, non practeritu”(a new law ought to
impose form on what is to follow, not on the past). The characteristic of a law is that it prescribes a rule of
conduct by which persons are to govern themselves in respect of their civil rights and are warned in advance of
the penalties that may incur under the criminal law”.14.
But according to Pakistan Supreme Court, there is no fundamental difference between retrospective law and ex
post facto law; the former expression is used in respect of civil matters and the latter in respect of criminal
matters which by their very natures are more serious.15.
IIBut the prohibition against ex post facto law—(a) does not apply against retroactive laws which may operate to
the advantage of the accused, e.g., by modifying the procedure or reducing the punishment;16. (b) does not
apply against laws which merely change the practice or procedure17.or the rules of evidence,18. without
affecting the substantial rights19. or the defence20. of the accused; or which takes away merely technical
privileges;21. (c) does not invalidate a statute permitting punishment to be enhanced on proof of a previous
conviction even though the previous conviction took place before the passing of the statute;22. (d) does not
invalidate a statute declaring that no person after conviction of a felony shall carry on a business (e.g., practice
of medicine), even though the person was convicted before the passage of the law,23. because the guarantee
under the ex post facto clause does not affect the power of the Legislature to lay down qualifications for the
carrying on of a profession or business;23 (e) does not apply to deportation, since deportation is not a criminal
punishment24. or to extradition proceedings;25. similarly, it does not apply to detention of the insane26. or to
forfeiture for non-payment of taxes;26 or barring a person from public employment;27. or cancelling his
naturalisation.28.
Article 9 of the American Convention on Human Rights read as follows:

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No one shall be convicted of any act or omission that did not constitute a criminal offence under the applicable law, at
the time when it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time
the criminal offence was committed. If subsequent to the commission of the offence the law provides for the imposition
of a lighter punishment, the guilty person shall benefit therefrom.
(B) England.— U.K.
Under the English Constitution, there is no legal bar to the power of Parliament to enact any law whatsoever,
and Parliament is competent to give retrospective effect to any of its laws.
Nevertheless, BLACKSTONE29.denounced this method of legislation as “unreasonable”:
“There is a still more unreasonable method…which is called making laws expost facto;when after an action (indifferent
in itself) is committed, the Legislature then for the first time declares it to be a crime, and inflicts punishment upon the
person who committed it.”30.The learned author described laws “ex post facto” as those by which “after an action
indifferent in itself” is committed, the Legislature then for the first time declares it to have been a crime and inflicts a
punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action,
innocent when it is done, should be afterwards converted into guilty by a subsequent law, he had therefore no cause to
abstain from it and all punishments for not abstaining must of consequence be cruel and unjust.31.
The word “ex post facto” law is a technical expression and meant every law that made an act done before the passing
of the law and which was innocent when done, criminal or which aggravated a crime and made it greater than it was
when committed, or which changed the punishment and inflicted a greater punishment than the law annexed to the
crime when committed.32. There is a great and apparent difference between making an unlawful act lawful and
making of innocent action criminal and punishing it as a crime.33.
It is because it manifestly shocks one’s sense of justice that an act legal at the time of doing it should be made
unlawful by some new enactment.34. Therefore, if an Act creates a new offence, it will bring into its fold only
those offenders who commit all ingredients of the offence after the Act came into operation.35.
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The enforcement of Human Rights Act 1998 in England from 2 October 2000 (section 7) which enables the
victim of an unlawful act by a public authority to rely on the Act in proceedings brought by or at the investigation
of a public authority whenever the acts in question took place were held not to apply when the person
complaining had been convicted before the enforcement of the Act, though the appeal was pending before the
Act came into force.36.
It was further observed: “Here it is impossible that the party could foresee that an action, innocent when it was
done, should be afterwards converted to guilt by a subsequent law; he had, therefore, no cause to abstain from
it; and all punishment for not abstaining must of consequences be cruel and unjust”.
Being against equity and all notions of fair play and justice, ex post facto laws over a period of time came to be
abhorred. It was observed: “Retrospective laws are no doubt prima facie of questionable policy, and contrary to
the general principle that legislation by which the conduct of mankind is to be regulated ought not to change the
character of past transactions carried on upon the faith of the then existing law”.37.
So, though it is within the competence of the English Parliament to enact ex post facto legislation, courts are
loth to give such an interpretation to a statute, unless such effect is clearly intended and expressed by the
Legislature.38. As observed by our Supreme Court:39.
“In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated
as a ground ‘not’ for invalidating the law itself but as compelling a beneficent construction thereof where the language
of the statute by any means permits it.”40.
The rule of interpretation is that a new Act which penalises what otherwise is not an offence must be so
construed as to make it strike at future acts or commissions, unless the Legislature has clearly said so.41. If,
however, the Legislature expressly gives retrospective effect to the penal provision, the court would be
powerless to protect the subject from the operation of the law on the ground that it is ex post facto.42. In fact,
during World War II, statutes were passed increasing the penalty for offence committed before the passing of
such statutes, and their validity was upheld.43.Retrospective laws are contrary to the general principle that
legislation by which the conduct of mankind is to be regulated ought to deal with future acts and ought not to
change the character of past transaction carried upon the faith of the then existing law. Accordingly the court
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will not ascribe retrospective force to new laws affecting the rights unless by express words or necessary
implication it appears that such was the intention of the Legislature.44.
Although Article 7 of European Convention of Human Rights provides that no one shall be held guilty of a
criminal offence for conduct which did not constitute an offence at the time when it was committed, Parliament
has power to legislate retrospectively in breach of this, but as LORD REID said: “It is hardly credible that any
Government department would promote or that Parliament would pass retrospective criminal legislation”.45.
The Immigration Act 1971 was held to have empowered the Home Office to deport Commonwealth citizens
who had entered in breach of earlier immigration laws, but against whom no such action had been taken at the
time when 1971 Act was enforced; but the Act did not make it punishable by criminal sanction conduct which
had occurred before the Act was passed.46.
Generally such laws are construed as prospective because it manifestly shocks one’s sense of justice that an
act, legal at the time of doing it should be made unlawful by some new enactment.47.
Retrospective criminal legislation is against Article 11(2) of the Declaration of Human Rights of the United
Nations and Article 7 of the European Convention for the Protection of Human Rights and Fundamental
Freedom.48. The principle that penal provisions may not have retroactive effect is one which is common to all
the legal orders of the member States.49. Any provision which increases the penalty particularly if coupled with
additional liability to imprisonment cannot be construed retrospectively.
Paragraph 7(2) of European Convention provides an exception which reads thus:- “This Article shall not
prejudice the trial and punishment of any person for any act or omission, which at the time when it was
committed was criminal according to the general principles of law recognised by civilised nations”. Commenting
on the above provision, it is stated, “Perhaps 7(2) provides an exception which appears to or be if a person is
convicted retrospectively for an offence recognised in other countries, but not the one in question at the
material time. This exception is potentially quite wider and therefore if it is not to undermine the principle of non-
retroactivity, it may be argued that it should be interpreted. In other words, it may be argued that it should
connote a crime recognised in virtually “all” countries and which reflects fundamental legal principle”.50. The
second part of Article 7 allows the trial of persons whose conduct viewed objectively, ought to be criminal, but
may not be so viewed by the law of his home State. For example, War Crimes Tribunals could not exist if they
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were forced to apply the law of the State in which the crimes were committed, domestic law must sometimes be
subjected to international law in order to uphold the common good.51.
By reason of Article 7 of ECHR applied by Human Rights Act of 1998 (in UK), it is not possible that delegated
legislation should retrospectively create new offences or impose additional penalties.52.
According to EDWIN SHORTS AND CLAIRE DE THAN in their book on “CIVIL LIBERTIES—LEGAL
PRINCIPLES OF INDIVIDUAL FREEDOM”53. : “But from time to time there are criminal cases which appear to
breach this principle of non-retroactivity. In Shaw v D.P.P.,54. the defendant was convicted of a common law
offence which does not appear to have existed prior to that case itself. In R. v R.,55. the defendant was
convicted of rape of his wife and the House of Lords upheld the conviction as the basis that the previous
common law rule that a woman could not refuse to consent to sex with her husband was anachronistic and
wrong. In SW v UK,56. was also a similar case, where the husband was convicted for committing rape of his
wife. It was contended that there was no offence of marital rape in English law, no law had been broken. The
Commission recognised that in number of cases, the immunity area in this area had been some what diluted
over the years and there was no reason to believe that further “inroads as the immunity was probable”. Apart
from this, the Commission considered the “progressive development” of equal rights for women generally within
marriage, and hence, due to the above, the offence of rape within marriage was reasonably foreseeable in the
circumstances. The court stated that a law prohibiting a particular behaviour must exist before a prosecution
can be brought for that specific crime. However, although the law must be clearly defined, it need not
necessarily take into account all variation and situations, such that it allows the defendant a defence by arguing
that since a law is not exact in these circumstances, no crime has been committed. It was further observed that
“Article 7 of the convention cannot be read as outlawing the gradual clarification of the rule of criminal liability
through judicial interpretation from case to case, provided that the resultant development is consistent with the
essence of the offence and would reasonably be foreseen. The court agreed with the decision in R. v R.57.
holding that their decision did “no more than continue a perceptible line of case law development dismantling
the immunity of a husband from prosecution for rape upon his wife” and in general was in accordance with the
object and purpose of the convention namely respect to human dignity and human freedom. It was held that
therein no violation of Article 7.
Article 7 contains an important principle and it is, therefore, non-derogable although it is subject to the single
exception contained in para 2. It divides into two separate principles: (1) The law in question must have existed
at the time of the act the question for the conviction to be based on it. (2) No heavier penalty for the
infringement of the law may be imposed than was in force at the time the act was committed.
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As far as the first principle is concerned, this also means that an existing part of the criminal law cannot be
applied by analogy to act it was intended for. Allowing such extension would fall foul of the general principle that
the law must be unambiguous, which is part of the principle that some one should not be convicted if he or she
could not have known before hand that the act in question is criminal.58.
Although Article 7 of the European Convention on Human Rights provides that no one shall be held guilty of a
criminal offence for conduct which did not constitute at the time when it was committed, Parliament has power
to legislate retrospectively in breach of this. It is hardly credible that any Government department would
promote or that Parliament would pass retrospective criminal legislation.59.
The principle declared in Article 7 is not applied generously. A rape committed by a person in 1983 was
prosecuted in 1995. The House of Lords held that a sentence heavier than the maximum available in 1983
could not be imposed, but allowed a higher sentence than the “equivalent” in 1983.60.
The enforcement of Human Right Act, 1998, in England from 2 October 2000, section 7 of which enables the
victim of an unlawful act by a public authority to rely on the Act in “proceedings brought by or at the
investigation of a public authority whenever the act in question took place”, was held not to apply when the
person complaining had been convicted before the enforcement of the Act, though his appeal was pending
when the Act came into force.61. But this decision was not unanimous and was later followed with considerable
hesitation.62.
(C) Dominions.—
Likethe English Parliament, the Dominion Parliaments are competent to pass ex post facto laws,63. unless
fettered by any constitutional limitations.
Australia
In Australia,it has been held 63 that the legislative power of the Commonwealth Parliament under section
51(xxxix) of the Constitution Act is not fettered by any prohibition against ex post facto legislation and that the
courts cannot add any such limitation to the Constitution Act. In the result, it is competent for the Legislature to
make a past act unlawful and penalise it, retrospectively.64.It was held in Milner v Raith,65.that legislative
power of Commonwealth Parliament is not limited by the prohibition against ex post facto legislation.
Canada
The sovereignty of the Canadian Parliament, in this behalf, has however been sought to be curtailed, by
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incorporating in Clause 2(g) of the proposed (not yet adopted) Canadian Charter of Human Rights,66. a
guarantee corresponding to Article 20(l) of our Constitution.
Under the Constitution of Canada (adopted in 1982) Article 11(g) provides that any person charged with an
offence has the right not to be found guilty on account of any act or omission unless at the time of the act or
omission, it constituted an offence under Canadian or International Law or was criminal according to the
general principles of law recognised by the community of nations.
(D) Eire. (Ireland)—
Article 15(5) of the Constitution of 1937 says:
Eire
The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their
commission.67.
(E) Japan—
ArticleXXXIX of the Japanese Constitution of 1946 says—
Japan
No person shall be held criminally liable for an act which was lawful at the time it was committed…
(F) Government of India Act,1935.—
Government of India, Act, 1935
There was no prohibition in this Act or in any law prior to the commencement of this Constitution, against ex
post facto laws. So the Legislature was competent to pass such laws.68. The courts, however, used to lean
against a retrospective interpretation.69.
[ART 20.3] INTERNATIONAL CHARTERS (A) Universal Declaration.—
Universal Declaration
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Article II(2) of the Universal Declaration of Human Rights 1948, says:
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal
offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time when the criminal offence was committed.70.
Article 7 of the European Convention read thus:
Article 7(1):“No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute offence under national or international law at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal offence was committed.
(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which at the
time when it was committed, was criminal according to the general principles of law recognised by civilised
nations.”
(B) Covenant on Civil and Political Rights.—
Covenant on Civil and Political Rights
Article 15(1) of the U.N. Covenant on Civil and Political Rights, 1966, reproduces the foregoing provision with
the addition of:
“If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty,
the offender shall benefit thereby.”
[ART 20.4] INDIA [Art. 20.4.1] Scope of Clause (1): Prohibition of retroactive criminal laws
Criminal offences and punishments are governed by the Statute. The offender will be liable only if he comes
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within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy
or by extension of common law principle.71.
The clause embodies the basic principle of criminal jurisprudence of nullum crimen nulla poena sine praevia
lege poenali which means that there can be no crime or punishment unless it is in accordance with law that is
certain, unambiguous and not retroactive. This maxim further says that there should be no crime except
according to predetermined, fixed law. According to Professor L. TRIBE:
It is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of
their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with
law enforcement is limited by clear and explicit legislative standards.72.
Penal statutes which create offences or which have the effect of increasing penalties for existing offences will
only be prospective.73. Wherein it was held that section 304B of Indian Penal Code provides for a new offence
of dowry death and it is not retrospective. It was held that it is not a rule of evidence since simultaneously
Evidence Act was also amended by inserting section 113B. Retrospective creation of an offence is not
permissible nor can punishment be higher than what was prescribed by the law in force at the time of
commission of offence. However, if any subsequent legislation tones down punishment for an offence,
legislative benevolence can be extended to the accused who awaits judicial verdict.74. But, while considering
the scope of sections 7 and 16 of Prevention of Food Adulteration Act, wherein an amendment of statute which
modifies the prescribed standard in the place of old standards cannot be given retrospective effect by giving
benefit to the accused, court said that penal statute modifying the rigour of the penal law will have only
prospective effect.75. In that case, Supreme Court also overruled the few decisions of High Court which took a
contrary view.
Terrorist and Disruptive Activities (Prevention) Act 1987 was amended by Act 43 of 1993 which came into force
on 23-5-1993. In view of the amendment, all the ingredients will have to be satisfied against the accused for
being convicted as a terrorist under section 3(5) of the amended Act and must have committed the offence after
the amendment Act came into force.76.
The above principle is applied in the case of service tax cases. Agents to broadcasters were made liable to pay
service tax with retrospective effect. A liability to pay interest so payable was also demanded with retrospective
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effect. It was held that liability to pay interest would arise only from the date of default and is really in the nature
of quasi-punishment. Such liability although created retrospectively, could not entails the punishment of
payment of interest, with retrospective effect.77.
Article 20(1) guarantees that no person shall be convicted of any offence except for the violation of a law in
force at the time of commission of the act charged as an offence, not be subjected to a penalty greater than
which might have been inflicted under the law in force when it was committed. If an act was not an offence
when it was committed, a subsequent law cannot make it criminal. Similarly, the penalty attached to an act
when it was committed cannot be enhanced by a subsequent law. In a 2009 case it was held that a person
cannot be charged of an offence under a statute which was not brought into force.78.
A distinction has also been made between a criminal and quasi-criminal proceedings, between a conviction and
punishment on the one hand and imposition of penalty or food forfeiture on the other hand. Disciplinary action
against Government servant is in a disciplinary proceeding and not in a criminal trial. The dismissal of a
Government servant is a penalty and not a sentence imposed after conviction. Taking note of this difference, it
was held in earlier cases that the provision under Article 20(1) has no application to quasi-criminal
proceedings.79. But the above legal position has changed and it is now settled that the principle of Article 20(1)
is applied also to laws which provide for other penal consequences of a severe nature, namely, termination of
service.80.
A sovereign Legislature has the power to enact prospective as well as retrospective laws (see, further, under
Article 245, post).But the present Article sets two limitations upon the law-making power of every legislative
authority in India as regards retroactive criminal legislation. The present clause thus follows the American
precedent but it does not use the expression ex post facto laws; it goes beyond that and enumerates the two
consequences which a criminal law must avoid. These are—
(I) No person shall be convicted of any offence under any law not in force at the time of the commission of
the offence.81.In that case, court declared that what was prohibited under Article 20(1) is a conviction
or sentence under an ex post facto law and that too substantive law. A change of procedure is not
guaranteed against. Therefore, a trial can be held under procedure which is different from that which
existed at the time of the commission of offence provided the substantive law remains the same. No
one has a vested right in procedure. But recently Supreme Court clarified the above position and held
that procedural provision in penal statutes, an amendment cannot be given retrospective effect unless
after strict construction, legislative intent to give retrospective effect is clear beyond any ambiguity.82.
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(II) The penalty for an offence shall not be greater than that which might be inflicted for the offence under
the law which was in force when the offence was committed.83.
Where by virtue of an amendment, no new offence has been enacted for the same offence, but provided for a
reduced punishment, this article has no application since only retroactive criminal legislation that is prohibited
under Article 20(1).84. In such cases, the accused will have the benefit of reduced punishment.85.
Section 433A of Code of Criminal Procedure requires that where a sentence of imprisonment for life is imposed
on conviction of a person for an offence for which death is one of the punishments, such person shall not be
released from the prison unless he had served at least 14 years of imprisonment has been held to be
applicable to sentences imposed after coming into force of the section and not to a person convicted before its
coming into force.86. But if any subsequent legislation downgrades the harshness of the sentence for the same
offence, benefit of the new legislation could be extended to the accused committing the offence, prior to the
new legislation, who is still to be finally sentenced.87.
Enlarging the definition of rape under section 375 IPC would violate the constitutional guarantee under Article
20(1).88. But a statute is not properly called retroactive statute because a part of the requisition for its action is
drawn from a time antecedent to its passing. Such a provision can be called prospective and not retroactive.89.
Recently it was held that an ex post facto law may be retrospective if it is ameliorative.90.
(I) No conviction under Retroactive Law
1. The Clause prohibits the Legislature from making an act a crime for the first time and then applying it to an
act which had been committed before such law came into force. In other words, a person cannot be convicted
for an act which was not an offence under the law which was in force when that act was committed.91.
On the other hand,—
The appellants were prosecuted for certain offences which were alleged to have been committed in 1949; the
trial continued after commencement of the Constitution, leading to the conviction of the Appellants in 1951. The
charges were under certain sections of the IPC, as adapted by the Vindhya Pradesh Ordinance XLVIII of 1949,
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and the trial was held by a SpecialCourt under the Vindhya Pradesh Criminal Law Amendment (SpecialCourt)
Ordinance V of 1949. It was contended that the acts for which the appellants had been convicted were
committed before the V.P. Ordinance XLVIII of 1949 had adapted the IPC, and that the Ordinance hit the
alleged acts by retrospective operation which is prohibited by Article 20(1).
To this, the court pointed out by an analysis of the law prior to the passing of the Ordinance that the alleged
acts were already offences under pre-existing law in the State. Of course, the impugned Ordinance had added
a definition to the effect that a Minister was a “public servant”, but this proposition had been laid down by a
decision of the Privy Council long before the impugned Ordinance. Held, there was no violation of Article 20(1),
since no new offence had been created by the retrospective adaptation.92.
2. The words “convicted” and “offence” make it clear that the limitation applies to a criminal proceeding and to a
judicial punishment therein.92The word “offence” under Article 20(1) of the Constitution has not been defined in
the Constitution. But Article 367 of the Constitution states that unless the context otherwise requires, the
General Clauses Act 1897 shall apply for the interpretation of the Constitution as it does for the interpretation of
the Act. Under the General Clauses Act 1897, “offence” shall mean any act or an omission made punishable by
any law for the time being in force. Under Criminal Procedure Code section 2(n), “offence” has been defined as
any act or omission made punishable by any law for the time being in force and includes any act in respect of
which a complaint may be made under section 20 of Cattle Trespass Act 1871. On a comparison of these two
provisions, an offence would always mean act or omission or commission which would be punishable by any
law for the time being in force. What is prohibited is the conviction of a person or his subjection to a penalty
under ex post facto laws. The prohibition under the article is not confined to the passing or validity of the law,
but extends to conviction or sentence and is based on its character as an ex post facto law.93.
The very wording of Article 20 and the words used therein convicted: “commission of the act charged as an
offence”, “prosecuted and punished”, “accused of any offence” would indicate that the proceedings therein
contemplated are of the nature or criminal proceedings before a court of law or a judicial tribunal and the
prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court
of law or a judicial tribunal in accordance with the procedure prescribed in the Statute which creates the offence
and regulates the procedure.94.
It follows, therefore, that the guarantee has no application to retrospective legislation—

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(a) Affecting civil rights or liabilities with respect to property or contract.95. Even where a statute imposes
a civil obligation, the failure to discharge it is not an “offence” unless the statute expressly makes it
so.96. Hence, the insertion of section 25FFF(1) in the Industrial Disputes Act, 1947, with retrospective
effect, does not constitute a violation of Article 20(1) because the failure to pay the compensation
required to be paid by the section is not made an “offence” though the money may be recovered by a
coercive process, and the person may be imprisoned for failure to pay, under the revenue law for
coercive recovery of the amount.1. Article 20(1) avails only against punishment for an act which is
treated as an “offence”, which when done was not an offence.1
Even if penalty is imposed after an adjudicatory proceeding, person on whom such penalty is
imposed cannot be called as an “accused”. It has been held that proceedings under section 23(1-
A) of Foreign Exchange Regulation Act 1947 are adjudicatory in nature and not criminal
proceedings. Persons who are subjected to such penalties are not entitled to the protection of
Article 20(1) of the Constitution.2. A person who has been merely restrained from associating with
corporate body in accepting securities market and has also been prohibited from buying, selling or
dealing in securities for a specific period is not entitled to protection under Article 20(1) in respect
of ex post facto laws since such a person is not accused of an offence nor he is an accused.3.
(b) Imposing any sanction other than a judicial punishment,such as preventive detention4. or externment5.
or deprivation of business or forfeiture of property6. by an administrative authority or cancellation of a
naturalisation certificate by reason of an act committed prior to the operation of the penal law in
question.
The immunity under this article cannot be claimed by an order demanding security from a press
under a press law for acts done before the relevant law was passed.7.
If, however, a “civil law” creates an “offence”, Article 20(1) will come into operation in relation to
conviction for that offence,8.e.g., where the failure to discharge a civil liability is made an offence.1
In Shiv Bahadur v State of Vindhya Pradesh,9. Supreme Court held that Article 20(1) prohibits conviction and
sentence under ex post facto legislation and not a trial under a procedure different from what was obtained at
the time of commission of offence. The accused has no fundamental right for any particular procedural law or to
be tried by a particular court. Likewise, a change in the courts which are entitled to try the offences or change of
rule of evidence is also not affected by the prohibition under Article 20(1).10.A somewhat more different
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application of Article 20(1) came up before the Delhi High Court. In that case, the petitioner was originally
charged in 1963 under sections 120B and 161 of IPC and section 5(2) read with section 5(1)(d) of the
Prevention of Corruption Act that the assets possessed by him were disproportionate to his means. This raised
a presumption of criminal misconduct under section 5(3). By an amendment in 1964, section 5(3) was repealed.
The accused was acquitted because no specific instance of bribe taking was proved and the presumption of
guilt arising from the possession of disproportionate assets had ceased to exist by the repeal of section5(3)
after the trial of the accused had commenced, but before the judgment could be delivered. During the pendency
of appeal before the Delhi High Court an amendment was made in 1967 which restored section5(3)
retrospectively. The question was whether such an amendment was contrary to Article 20(1). High Court held
that since the section existed when the offences were alleged to have been committed and the trial started, the
only right of the accused was the one given to him by the amendment, namely, that trial should be resumed
from the stage when section 5(3) was repealed, so that the accused had full opportunity to rebut the
presumption thereunder. The Supreme Court in appeal pointed out that section 5(3) was a rule of evidence and
as such a procedure and the appellant could not object if the procedure at the time of trial or conviction was
different from what it was at the time of commission of offence.11.
3. Another important consequence follows from the present clause being worded differently from the American
clause. The prohibition under the present clause is not confined to the passing or the validity of the law, but
extends to the conviction or the sentence based on its character as an ex post facto law.12. The clause,
therefore, must be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of
an ex post facto law whether the same was a post-Constitution or a pre-Constitution law.13. The result is that
the future operation of the fundamental right declared in Article 20 may also in certain cases result from acts
and situations which had their commencement in the pre-Constitution period. This, however, does not in any
way affect the general principle that the fundamental rights conferred by the Constitution have no retrospective
operation,14. for, Article 20(1) does not authorise the reopening of pre-Constitution convictions;15. what it does
is to hit all post-Constitution convictions and sentences, under whatever law they might take place.
If an act was done before the commencement of the Constitution in contravention of the provisions of any law
which after the Constitution becomes void with respect to the exercise of any of the fundamental rights, the
inconsistent law is not wiped out so far as the past act is concerned, for to say that it will be to give the law
retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an
offence committed before the Constitution came into force. So far as the past acts are concerned, the law exists
notwithstanding that it does not exist with respect to this future exercise of fundamental rights.16.
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Under the American Constitution, a conviction under a retrospective law would be quashed only if the law is
liable to be struck down as an ex post facto law.17.
Applicability to law of procedure
4. What is prohibited under Clause (1) is only conviction or sentence under the ex post facto law and not the
trial thereof. Hence, trial under a procedure different from what obtained at the time of the commission of the
offence or by a court different from that which had competence at that time cannot ipso facto be held to be
unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a
particular court or by a particular procedure, except in so far as any constitutional objection by way of
discrimination or the violation of any other fundamental right may be involved.18.It is now held that
retrospective effect even in regard to procedural provision in criminal law statutes cannot be given unless even
after strict construction, legislative intent to give retrospective effect is clear beyond any ambiguity.19.
The prohibition under Article 20(1) is applicable in respect of substantive law inflicting conviction and sentence
and it does not apply to the procedural law. A change in the courts which are entitled to try the offence or
change of rule of evidence would not be affected by the prohibition of the Article.20. Just as a person accused
of the commission of an offence has no right to trial by a particular court or to a particular procedure, the
prosecutor has no right to insist upon that the accused be subjected to an enhanced punishment under a
repealed Act.21.
Section 5(3) of Prevention of Corruption Act was challenged before the Supreme Court in Sajjan Singh v State
of Punjab.22. It was contended that when section 5(3) speaks of the accused being in possession of pecuniary
resources or property disproportionate to his known sources of income, only the pecuniary resources or
property acquired after the date of act are to be considered. To think otherwise would be to give the Act
retrospective operation. The court rejected the contention that to take into consideration the pecuniary
resources or property in the possession of the accused or any other person on his behalf, which were acquired
before the Act in any way giving the Act retrospective operation. The court concluded that a statute cannot be
said to be retrospective because a part of the requisites for its action is drawn from a time antecedent to its
passing. Court also held that section 5(3) does not create any new offence, and it is only a rule of evidence.
In Rao Shiv Bahadur Singh v State of Vindhya Pradesh,23. court relied on an early English decision24. wherein
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it was held that a statute which in its direct operation is prospective cannot properly be called a retrospective
statute because a part of its requisites for its action is drawn from a time antecedent to its passing and said that
the general principle that fundamental rights have no retrospective operation is not in any way affected by
giving the fullest effect to the wordings of Article 20. This Article must accordingly be taken to prohibit all
convictions or subjection to penalty after the Constitution in respect of ex post facto laws whether the same was
a post-Constitution law or a pre-Constitution Law.
Difference of opinion exists between the High Courts on the question whether a person staying in India after the
period for which he had been granted a permit to stay had expired was punishable under a law enacted after
the period of the permit had expired. The Allahabad High Court held that if a permit had expired and a person
has overstayed in India, he could not be punished for overstaying under a rule or law enacted after he had over
stayed.25. But the High Court at Hydrabad took a contrary view in State v Hyder Ali.26.
The procedure prescribed for trial of offence under a new Act may be applied for trial of similar offences under
the repealed Act. Thus sanction for prosecution granted under the provision of the new Act will be good for
prosecution of an offence requiring sanction under the repealed Act, for sanction pertains to procedure.27.
The above prohibition would not, therefore, prevent the Legislature from altering matters of procedure,28.which
do not make an act which was not an offence to be an offence, nor increase the penalty.29.
The general rule is that an accused person is triable under the procedural law which is in force at the time of the
trial and not when the offence was committed and that no person has any vested right in a form of
procedure.30. But there may be cases where the change in the procedure may make the penalty more
onerous,31. by taking away a substantial protection with which the existing law surrounds the person
accused.31
The principle enunciated under Article 20(1) was applied to a case where a Government servant was punished
by not issuing or withholding of integrity certificate, which punishment is not provided by relevant rules.32.
(A) U.S.A.—
U.S.A.
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As to what changes in procedure will come under the inhibition against ex post facto legislation, the American
Supreme Court has observed:
Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition
cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree.But the
constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive
legislation… and not to limit the legislative control of remedies and modes of procedure which do not affect matters of
substance.33.
Thus, in the U.S.A.,it has been held that there is no violation of the ex post facto Clause where the Legislature,
with retrospective effect, merely
(a) changes the place of trial;31 or
(b) abolishes courts and creates new ones;34. or
(c) confers upon the State a right of appeal;35.
(d) provides for joint trial of persons accused of committing the same offence both before and after the
enactment;36.
(e) changes the qualifications for jurors;37.
(f) enlarges the classes of admissible witnesses, even where it means admitting witnesses who were
previously disqualified by law;38. or
(g) renders admissible evidence which was previously inadmissible;39. or
(h) provides for a longer period of incarceration between conviction and execution;40.
On the other hand, the American Supreme Court has annulled legislation as violative of the ex post facto
Clause—
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(i) where the change in the law of evidence takes away a substantial advantage from the accused, e.g.,
where the change results in requiring less evidence than was required when the offence was
committed;41. or takes away a defence42. which was available to the accused at the time when the
offence was committed;
(ii) where the number of the jury was reduced from twelve to eight, even for offences committed prior to
the enactment.43.
(B) India.—
India
In Shiv Bahadur v State of V.P.,44.our Supreme Court has observed:
What is prohibited under Article 20 is only conviction or sentence under an expost facto law and not the trial thereof.
Such trial under a procedure different from what obtained, at the time of the commission of the offence… cannot
ipsofacto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to
trial… by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation
of any other fundamental right may be involved.45.
Hence, it has been held that Article 20(1) does not prohibit a law from retrospectively changing:46.
(a) the place of trial;43
(b) the mode of execution or carrying out of the sentence,47. or
(c) mollifying the rigours of a criminal law.48.

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But while it is true that owing to the use of the word “convicted” in Article 20(1), our courts may not interfere with
a retroactive procedural law merely on the ground that it operates to the disadvantage of the accused in some
substantial matter; it should, nevertheless, be the duty of the courts to be watchful if the Legislature, in the
guise of changing the procedure, is seeking to penalise what was innocent when committed or to create a new
offence49. or to increase the penalty as it existed at the commission of the offence. Article 20(1) will be
attracted if a new offence is created.50.
5. The gist of the guarantee is that a person may be penalised only for conduct which is subsequent to the
coming into operation51. of the penal law. In the case of continuing52. or recurring wrongs, however, some acts
may constitute “subsequent” conduct, even though some part of the same transaction took place prior to the
enforcement of the penal law. Thus, a law may penalise the continued possession of liquor even though it might
have been acquired prior to the coming into operation of that law;53. or penalise the continued performance of
a contract which had been entered into prior to the enforcement of that law.54. In such cases, what the law
penalises is a course of conduct, if continued after the enactment.55.
[Art.20.4.2] What is a continued offence?
A penalty for default in not filing wealth-tax returns is a single default and to a single penalty, the measure of
which is geared up to the time lag between the last date on which the returns are to be filed and the date on
which it is filed. The default is committed when the return is not filed on the last date and the same cannot be
committed thereafter. It is not a continuing offence.
A wrong or default which is complete but whose effect may continue to be felt even after its completion, is not a
continuing wrong or default. The courts should not be eager to hold that an act or omission is a continuing
wrong or default “unless there are words in the statute concerned which make out that such was the intention of
the Legislature”. In the case of acts amounting to crime, the punishment to be imposed cannot be enhanced by
any subsequent legislation. Where a wrong complained of is the omission to perform a positive duty legislation
requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether
the duty in question is one which requires him to continue to do that act.
Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is
committed once and for all. It is one of these offences which arise out of a failure to obey or comply with a rule
or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement
is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs,
there is the offence committed.56. A continuing offence is one which continues and non-continuous offence is
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one which is committed once and for all.57. Payment of tax deducted at source is an obligation and duty
covered by statute and the default of such payment which has been made an offence continues from day to day
till payment is made.58.
If an act committed by an accused person constitutes an offence and if that act continues from day-to-day, then
from day-to-day a fresh offence is committed by the accused so long as the act continues. Normally, and in the
ordinary course, an offence is committed only once. But we may have offences that can be committed from
day-to-day and it is offences falling in this category that is described as continuing offences.
In Gokak Patel Volkart Ltd v Dundayya Gurushiddaih Hiremath,59. it was held: “According to BLACK’S LAW
DICTIONARY,60. ‘continuing’ means enduring, not terminated by a single act or fact, subsisting for a definite
period or to cover or apply to successive similar obligations or occurrence. Continuous offence means type of
crime which is committed over a span of time, continuous crime means one consisting of continuous series of
acts which endure after the period of consummation, as the offence of carrying concealed weapons”.61.
Hence the law prevailing on the date when the default to file the return is to be applied, though for measuring
the penalty the time lag between the last date for filing the return and the date of filing is to be considered. If in
between there is a change in law, it could not be applied retrospectively.62.
An innocent act cannot be made criminal by a law made after the commission of the act, but the guarantee
does not prohibit the Legislature from drawing part of the requisites for an offence from a time antecedent to the
passing of the law, which is respective in its direct operation cannot be said to be retrospective.63. Hence,
while prescribing the punishment for an offence, the Legislature is not debarred from prescribing a higher
punishment for “old offenders”; it is, in essence, not prescribing a higher penalty for an offence committed prior
to the law, but laying down an effective punishment for an offence committed after the enactment.64.
It is based on the principle that no man has such a vested right in his past crimes and their consequences as
would entitle him to insist that in no future legislation shall have any regard whatever be had to his previous
history.65. In such cases if a statute increased penalty as second conviction of an offence, a conviction before
commencement of statute could be taken into consideration. Similarly, if the object of a statute is not to inflict a
punishment, but to protect the public from the activities of undesirable persons who bear the stigma of a
conviction or misconduct on their character, the conviction or misconduct of such a person before the operation
of the statute may be relied on.66.
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[Art.20.4.3] Offence
None of the clauses of Article 20 applies unless there is an “offence”.67.
There being no definition in section 3(37) of the General Clauses Act is to be applied. It, therefore, means an
act or omission which is punishable by any law by way of fine, imprisonment or death. But unless there is a law
forbidding the doing or the omission to do something, no question of “punishment” comes.67
The word “offence” in Article 20(1) of the Constitution of India means something which is a violation of a law in
force and for the violation of which law prescribes a penalty.68. Contempt of court is not an offence within the
meaning of section 4 of CrPC.69.
An offence only means the commission of an act contrary to or forbidden by law. It is not confined to the
commission of a crime alone. It is an act committed against law or omitted where the law requires it and
punishable by it. In its legal signification, an offence is the transgression of a law, a breach of the law
established for the protection of the public as distinguished from an infringement of mere private rights; or
punishable violation of law, a crime the doing that of which a penal law forbids to be done or omitting to do what
it commands.70.
Offence generally implies infringement of public duty, as distinguished from mere private rights, punishable
under criminal law.71.
Principle under this Article was applied in a case of disciplinary proceedings. In that case an employee of a
private bank was charge-sheeted for some misconduct, where the punishment was prescribed. The private
bank was later amalgamated to State Bank of India after the charge-sheet was given. In the disciplinary
proceedings, punishment as provided in State Bank of India Rules was imposed, which was different from the
punishment as prescribed by the private bank. It was held that the employee cannot be imposed a punishment
as prescribed by the State Bank of India.72. In Pyare Lal Sharma v M.D., Jammu & Kashmir Industries Ltd.,73.
service regulation was amended which added some more grounds for terminating the services of the employee.
In construing the amendment, it was held that the period of unauthorised absence (which was added as a
ground for termination) prior to the date of amendment could not be taken into consideration for terminating the
service of the employee. It was observed: “It is the basic principle of natural justice that no one can be
penalised on the ground of a conduct which was not penal on the day when it was committed”.
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Section 24 of Bombay Rents, Hotel and Lodging House Rates Control Act 1947 required the landlord to ensure
that essential supplies to the tenant were not withdrawn or cut-off. Interpreting the provisions, it was held that
the Act attracts Article 20(1).74.
Hence, where a law of irrigation provides for the levy of a special rate for “unuthorised use”, with retrospective
effect, it cannot be held that the Legislature was imposing a higher penalty in contravention of Article 20(1),
inasmuch as there was no law prohibiting the use of water and no “punishment” for an “offence”.75.
What this Clause prohibits is the creation of a new offence with retrospective effect. It does not prohibit the
creation of a rule of evidence or a presumption for an existing “offence”.76.
[Art.20.4.4] Laws in force
1. This expression refers to the law factually inoperation at the time when the offence was committed and does
not relate to a law “deemed to be in force” by the retrospective operation of a law subsequently made.77. Article
20(1), in fact, controls the power of the Legislature to enact such retrospective legislation so far as the
punishment for crimes is concerned. The prohibition contained in Article 20 is not confined in its operation to
post-Constitution laws, but also applies to ex post facto laws passed before the Constitution in their application
to pending proceedings.78.
When court interprets a law, it relates back to the date of legislation and cannot be prospective from the date of
judgment since court does not legislate but gives only an interpretation to an existing law. In Sarla Mudgal v
UOI,79. Supreme Court held that when a Hindu converts himself to Islam and contracts a second marriage
during the subsistence of first marriage, it will amount to bigamy. It was contended that the said interpretation
amounts to judge made law and cannot affect marriages contracted prior to the judgment. The contention was
rejected and it was held that the judgment of a court only interprets a law in force.80.
By using the expression “law in force” in both parts of Article 20(1), and the Constitution has clearly indicated
that even if a criminal law was enacted by any Legislature retrospectively, its retrospective operation would be
controlled by Article 20(1). A law in force at the time postulates actual factual existence of the law at the
relevant time and that excludes retrospective application of any subsequent law.81.
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When the law says that whether an act constitutes an offence is to be considered on the date on which it is
committed, it follows that mere change in law after that date, i.e., when the act has ceased to be an offence
thereafter cannot have any effect on the offence which has already been committed. In such cases, the
subsequent change in law will be considered while awarding a lesser sentence.82.
Where a later statute again describes an offence created by a statute enacted earlier and the later statute
imposes a different punishment, the earlier statute is repealed by implication. The later Act will have no
application if the offence described therein is not the same as in the earlier Act i.e., if the essential ingredients
of the two offences are different. If the later Act creates a new offence or enhances the punishment for the
same offence, no person can be convicted under such ex post facto law nor can the enhanced punishment
prescribed in the later Act be awarded to a person who had committed the offence before the enactment of the
later law.83.
A penal provision providing for enhancing the sentence does not operate retrospectively, especially when the
amendment provides for a procedure which may enhance the punishment. Any application to the amending law
would be violative of Article 20(1).84.
2. The law for the violation of which a person is sought to be convicted must “have been” in force at the time
when the act with which he is charged was committed. It follows, therefore, that a person cannot be convicted
for an act which was not an offence under the law which was in force when that act was committed.85.
3. But rules and regulations made under a statute which is repealed but continued in force under section 24 of
the General Clauses Act is a “law in force” within the meaning of Article 20 (1).86.
T was prosecuted, in 1956, for an alleged offence under section 73 of the Mines Act, 1952, arising out of an
accident, in February, 1955. The offence was that of violation of Regulations made under the Act. In February,
1955, however, no Regulations under the 1952 Act were yet framed, but there were Regulations made under
the Mines Act, 1923, which had been repealed and re-enacted, with modifications, as the Act of 1952. If the
Regulations made under the 1923 Act survived its repeal, the alleged offence would have fallen under Reg. 29
of those Regulations. The contention on behalf of T was that the 1923 Regulations had ceased to operate with
the repeal of the Act of 1923. Repelling that contention, the Supreme Court held that, notwithstanding the
repeal of the 1923 Act, the Regulations made under that Act would continue to be in force and “deemed to have
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been made” under the new Act of 1952, by virtue of section 24 of the General Clauses Act, which deals with the
effects of repeal and re-enactment of Act. It was then contended that to “deem” the Regulations of 1923 to be in
force in 1955, when no Regulations had been framed under the 1952 Act would contravene Article 20(1) of the
Constitution. This contention was also rejected on the view that Article 20(1) could be attracted only if a penal
law penalises, with retrospective effect, an act which was not an offence when it had been committed; no such
thing had happened here. The Mines Act 1952 did not make an offence with retrospective effect. The alleged
act was an offence under the Regulations of 1923, which continued to exist by virtue of the General Clauses
Act. Hence, it could not be said that the violation of the Regulations of 1923 did not constitute an offence, in
1955.87.
When an offence is committed when a law was in force, but after the charge-sheet was filed, that law was
repealed and a new Act was passed, the prosecution has to be under the old Act in view of section 6 of General
Clauses Act especially when the new Act is more stringent than the earlier law. Section 6(c) of General Clauses
Act says that if any Central Act repeals any enactment, the repeal shall not affect any right, privilege, obligation
or liability acquired, accrued or incurred under any enactment so repealed. A right which was acquired when
the earlier legislation was in force enables the investigation agency to continue the proceeding, right, privileges,
investigate under the earlier law in spite of the repeal as if the repealing Act had not been passed. The accused
cannot claim the immunity under Article 20(1).88.
A person cannot be subjected to a penalty greater than that which might have been inflicted under the rule in
force at the time of commission of delinquency or misconduct. The rule of construction against retroactivity of
penal laws is not restricted to acts providing for criminal offences, but also applies to laws which provide for
other penal consequences of a severe nature, namely, termination of service. Where the rules provides for
imposing maximum penalty i.e., removal from service, dismissal from service or compulsory retirement when
charge-sheet was filed, but pending proceedings, the rule was substituted which provides for imposition of
lesser punishment, Article 20(1) is not attracted. Even though the word “substitution” is used, it also amounts to
amendment and will also have prospective effect. Since the punishment was lesser than that could be imposed
under the earlier rule, the immunity under Article 20(1) is not attracted.89.
4. Nor would Article 20(1) be attracted where, though an Act is given effect to from a date earlier than the date
of its enactment, the liability under the penal provision thereof arises only from a later specified date, and the
act for which a person has been prosecuted was committed subsequent to the enforcement of that penal
provision.90.
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5. By reason of the guarantee in Article 20(1), a law which creates a new offence [e.g., section304B, IPC]
cannot be so interpreted as to punish a person for an act done by him prior to the creation of the new
offence.91.
A literal interpretation of Article 20(1) would mean that the protection available is only against conviction for an
act or omission which was not an offence under the law in force when the same was committed and infliction of
greater penalty than what was provided under the law in force when the offence was committed. Constitution
being a living organic document needs to be construed in a broad and liberal sense. A construction most
beneficial to the widest possible amplitude of its powers may have to be adopted. Of all the instruments, the
Constitution has the greatest claim to be construed broadly and liberally concerned as it is with the liberty of a
person, a liberal construction has to be given to the language used in Article 20(1) and not narrow one. The
interpretation given to section 9 of Article I of American Constitution by the US Supreme Court may also be kept
in mind for the purpose of understanding the true content and scope of the guarantee enshrined in Article 20(1)
of the Constitution of India.92.
[Art.20.4.5] Converse case of law making lawful an act which was an offence
1. It is obvious that in this case, Article 20(1) is not attracted because it does not make a new offence but
makes lawful an act which constituted an offence under the law as it stood at the time when that act had been
committed.93. Article 20(1) does not prohibit the Legislature from mollifying the rigours of the criminal law.93
2. But the question is whether and how far the person who had committed an act which made him an offender
would get the benefit of a subsequent change in the law which renders such act lawful. The general rule in such
cases is that whether an act is an offence has to be determined on the basis of the law as it existed at the time
when that act had been committed.94. Hence, if there is a subsequent change in the law, which would make
that act if committed now innocent, that can have no effect on the offence which had already been
committed.95. This principle has been embodied in section 6(c) of the General Clauses Act.96.
It follows that such subsequent change in the law would not affect the right of the State to prosecute the person
for the act which was an offence when it had been committed. Hence, even after the repeal of a penal law,95 or
its expiry or substitution by a new law (which is not retrospective), the State may prosecute the person nor does
the court lose jurisdiction to convict him 93 even if the change takes place during pendency of the criminal
proceeding and before the judgement is passed.93
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Sub-clause (c) of section 6 of General Clauses Act says that if any Central Act repeals any enactment, the
repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed. Where the right which had accrued to the investigating agency to investigate the crime
which took place prior to the coming into force of new Act and which is covered by earlier legislation remains
unaffected by reason of clause (c) of section 6, clause (e) says that the repeal shall not affect any investigation,
legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or
punishment or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment may
be imposed as if the repealing Act had not been passed. By virtue of section 6 of General Clauses Act, the right
to investigate and corresponding liability incurred are saved. The said provision qualifies the effect of repeal
stated in sub-clauses (a) to (e) of section 6 by the words “unless different intention appears”. Different intention
must appear in repealing Act.1. If the repealing Act discloses a different intention, the repeal shall not result in
situation stated in clauses (a) to (e) of section 6. If no different intention is disclosed in the provisions of new
Act, the prosecution and investigation already commenced will continue as if there is no new law.2.
A particular act was an offence, but the statute was repealed. The repealing Act was repealed by another
enactment which revived the earlier statute. In such case, there could be no objection in reviving the procedure
which was in force when the offence was committed.3. It was held that no new law was created with
retrospective effect and hence Article 20(1) has no application.
Under section 24 of the General Clauses Act, notification, rules, etc. of a repealed enactment will be deemed to
have been re-enacted under the new enactment unless and until they are superseded by another notification,
rules, etc. Mines Act 1923 was repealed and another Mines Act of 1952 was passed. Prosecution launched
under the old Act will not be affected by the new law and Article 20(1) will have no application.4.
3. Nevertheless, in the matter of awarding or assessing the punishment, the court may take a beneficial
construction of the changed law5. and take it as a mitigating circumstance to reduce the punishment for an act
which has since ceased to be an offence.
It is also based on the general principle that the doctrine of retrospectivity operates only to prevent unfairness
and when the effect of law is not unfair, the presumption against retrospectivity will not apply.6. Article 15(1) of
the International Covenant reads: “Nor shall a heavier penalty be imposed than the one that was applicable at
the time when the criminal offence was committed. If, subsequent to the commission of offence, provision is
made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” Article 7 of the
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European Convention for the Protection of Human Rights reads thus: “7(1): No one shall be held guilty of any
criminal offence on account of any act or omission which did not constitute a criminal offence under national or
international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that
was applicable at the time of the criminal offence was committed.”
(II) The penalty not to be made higher by retroactive legislation
1. The second part of Clause (1) lays down that a person may be subjected to only those penalties which were
prescribed by the law which was in force at the time when he committed the offence for which he is being
punished. If an additional7. or higher8. penalty is prescribed by any law9. made subsequent to the commission
of the offence, that will not operate against him in respect of the offence in question.10.
2. Owing to the use of the word “penalty” in the latter part of Article 20(1), a question was raised in some cases
as to whether the prohibition extends to penalties other than punishments awarded in a judicial proceeding. No
such question will arise if the word “penalty” is read with the word “convicted” in the earlier part of the Clause.
While the first part bars the conviction, the second part relates to the punishment or sentence that may be
inflicted upon such conviction.11. A “penalty”, therefore, comes within the purview of Article 20(1) only if the
earlier part of the Clause is satisfied.12. Hence—
This Clause does not bar retrospective legislation imposing the following penalties:
(i) Forfeiture of property for a statutory offence, ordered by an administrative authority.13.
(ii) Summary eviction of landlord who has contravened the provisions of a Rent Control law.14.
(iii) Liability to pay an enhanced water rate in case of an unauthorised use of water.15.
(iv) Loss or deprivation of any business16. or cancellation of naturalisation certificate17. by reason of act
committed prior to the operation of the penal law in question.
(v) Eviction from unauthorised occupation of public property.13
(vi) Externment of habitual criminals.18.
(vii) Preventive detention.19.
(viii) Heavier penalties for failure to pay taxes.20.
3. A law which enhances the punishment for an offence shall not be retrospective. If an additional,21. or higher
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20 penalty is prescribed by any law made subsequent to the commission of an offence, that will not operate
against a person prosecuted for that offence.
A was charged under the Prevention of Corruption Act, 1947, for an offence which was committed in 1947. The
punishment prescribed by that Act was “imprisonment or fine or both.” During the pendency of the trial, in 1949,
the West Bengal Criminal Law Amendment Act was passed which provided for the imposition of an additional
fine “equivalent to the amount of money or value of other property found to have been procured by the offender
by means of the offence”. A was convicted (after the commencement of the Constitution), and in addition to
imprisonment and the ordinary fine under the Prevention of Corruption Act, he was sentenced to an additional
fine of Rs 47,000 under the Criminal Law Amendment Act, on account of the money procured by him by means
of the offence. Held,the imposition of the additional fine contravented Article 20(1) and the sentence of fine to
the extent of Rs 47,000 was accordingly set aside. It was further pointed out that the fact that the prosecution
was pending from before the Constitution did not prevent the application of Article 20(l) of the Constitution since
the penalty was being imposed after the Constitution had come into force.22.
Under the Prisons Act 1894, State of Punjab made an amendment by incorporating section 52A making
possession of mobile phones by prisoners and supplying of phone by any persons to a prisoner an offence with
effect from 8 March 2011. Where the amendment was added after FIR was lodged, the newly added provision
obviously will not apply to a prior case as the alleged offence was committed long before, and retrospective
effect cannot be given in such cases, and if given, it will be violative of Article 20(1).23.
4.. But the Article does not prohibit the substitution of a penalty which is not higher or greater than the previous
one.24.What was double punishment under old law being combined under a single punishment under a new
law but being less severe than the maximum prescribed under old law is valid. Such punishment can be
imposed. If charges are proved, punishment that could be imposed can be compulsory retirement, dismissal
from service. But if rules are amended subsequently providing lesser punishment, it does not violate any
constitutional provision.25.
Thus, it does not prohibit the modification of the rigour of the law, e.g.,by providing for probation of a juvenile
offender, retrospectively.26.
Juvenile Justice 1986 was repealed by Juvenile Justice (Care and Protection of Children) Act, 2000. Section 20
of the later enactment provided for special provision in respect of pending cases. As per earlier Act, an accused
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is a juvenile offender if he is a male and must be below 16 and if a female 18. Later Act did not make any
difference on the basis of age and both male and female were considered juvenile if they have not completed
the age of 18 on the date of commission of offence. Accused who has completed 16, but below 18 comes
under the purview of special provision. It provided that those juvenile offenders who have completed 16 but not
completed 18 when the new Act came into force, pending cases shall continue in that court itself as if the new
Act has not come into force, and if the court finds that the juvenile has committed the offence, record a finding
to this effect and thereafter without passing any sentence, forward the case to the juvenile Board, for passing
order. The said provision was held not violative of Article 20(1) since the accused is not subjected to any
greater penalty than that which might have been inflicted on him under the earlier Act of 1986.27.In that case,
court observed: “But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the
prohibition of Article 20(1). If a particular law makes a provision to that effect, though retrospective in operation,
it will be valid.
Where the penalty is not greater, any change in the mode of execution or of the penalty itself is not bad for its
being ex post facto.28.
5. Whether the substituted penalty is greater or lesser than that imposed under the pre-existing law may not
always be easy to answer. In the U.S.A., it has been held that—
(a) Imprisonment for life is a lesser penalty than a sentence of death;28
(b) Imprisonment is lesser penalty than whipping;28
(c) Electrocution is not a higher penalty than hanging.29.
In India,similarly, it has been held that where under the law in force at the time of commission of the offence the
fine could be unlimited, the penalty is not greater if the subsequent law prescribes a minimum fine to be
imposed in any case.30.
6. The prohibition is against the legislation which enhances the penalty and then seeks to give retrospective
effect and it is immaterial what punishment is actually imposed by the court under it, in a particular case.31. The
prohibition is against legislation and not against judicial decisions, i.e., judge-made law.32.
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7. But before striking down a criminal law as violative of Article 20(1) it should be properly construed,33. and if it
is reasonably capable of that construction, it should be construed only as prospective in its operation.34.
Interpreting section 494 IPC, Supreme Court ruled in Sarla Mudgal v UOI,35.that second marriage of a Hindu
husband after conversion to Islam without having his first marriage dissolved according to law, would be invalid
and the husband would be guilty of the offence under section 494 IPC. In a subsequent case, it was argued that
the law declared by the Supreme Court in Sarla Mudgal’s case could not be given retrospective effect because
of Article 20(1). It ought to be given only prospective effect, so that the law declared by court could not be
applied to a person who had already solemnised the second marriage prior to the decision in Sarla Mudgal’s
case. Rejecting the contention, court said that the court has not laid down any new law in Sarla Mudgal. What
the court did in that case was only to interpret the law which had always been in existence. It is settled principle
that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective
from the date of judgment because the court does not legislate, but only interprets an existing law.36.
[Art.20.4.6] Penalty
The word “penalty” in Article 20(1) is used in the narrow sense as meaning a payment which has to be made or
deprivation of liberty which has to be suffered as a consequence of finding that the person accused of a crime
is guilty of the charge.37.
In Biswanath Bhattacharya v UOI,38. it was held that forfeiture of illegally acquired property under section 7 of
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is not a penalty under Article
20(1). It was held that conviction or preventive detention contemplated under the Act is not the basis or cause
of confiscation, but the factual basis for a rebuttable presumption to enable the State to initiate proceedings to
examine whether the properties held by such person are illegally acquired properties. The court accepted the
argument of State that forfeiture contemplated under the Act is not a “penalty” within the meaning of that
expression occurring in Article 20, but only deprivation of property of a legislatively identified class of persons –
in the event of their inability to explain that they had legitimate sources of funds for the acquisition of such
property. Court said that if a subject acquires property by means which are not legally approved, the sovereign
would be perfectly justified in depriving such person of the enjoyment of such ill-gotten wealth and such
deprivation is not penalty.
(a). “Penalty” means punishment39. for the offence and would not include any other remedial measure provided
for removing the mischief, e.g., summary eviction of a landlord who has contravened the provisions of a Rent
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Control Law,40. or the civil liability to pay an enhanced water rate in case of an unauthorised use of water,41.
forfeiture of property to recover embezzled money.42.
(b). The following are “penalty” for the purposes of this article:
(i) Forfeiture of property under s.53, IPC, ordered by a court trying an offence.42In that case, it was also held that
s.13(3) of Criminal Law Amendment Ordinance 1944 which provided for forfeiture in case of an offence
involving embezzlement, etc. of Government money or property merely provided a speedier remedy than that
of a suit and it did not impose any punishment or penalty within the meaning of Art. 20(1).
(ii) Compensatory fine unders.9(l) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949.43.
(iii) Liability for compensation under s.25FFF(1) of the Industrial Dispute Act, 1947.44.In that case, the court held
that s.25 FFF(1) imposed neither a prohibition nor a command. For failure to discharge the liability to pay
compensation, a person may be imprisoned under the statute providing for recovery of the amount e.g., the
Bombay Land Revenue Code. But failure to discharge a civil liability was not, unless the statute expressly so
provided, an offence. The protection of Art. 20(1) was available only against punishment for an act which was
treated as an offence which, when done was not an offence.
In Public Prosecutor v. Ayyappan Pillai,45. it was held that the new provision in s. 15(b) of Madras Sales
Tax Act which did not make an innocent act an offence nor did it impose a greater penalty than before.
The recovery of a tax as if it were a fine did not impose a greater penalty than the two modes of recovery
of arrears of land revenue or by a suit on a debt.
In M.P. Indra & Co. v. UOI,46. it was made clear that overall burden of penalty was not increased
retrospectively in respect of defaults committed prior to the commencement of the new Act so as to
infringe Art. 20(1). The maximum limit of penalty was not enhanced by the new Act and under it the ITO
had a discretion not to inflict any penalty under the circumstances of a particular case.
In Ganendra Kumar v. Narayanan Chandran,47. it was held that once a person has been prosecuted
under Calcutta Municipal Act 1923, a greater penalty under the new Calcutta Municipal Act was not
justified having regard to Art. 20(1).
(iv) Special rates under s.31 of the NorthernIndiaCanal and Drainage Act, 1873.41
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(c) On the other hand, the following are not “penalty” under Article 20(1):
Penalty imposed under a Sales Tax Law which only imposes a civil liability for violation of statutory provisions,
as distinguished from those provisions which create offences for which prosecution would lie in a criminal
court.48.
It was held that Article 20 contemplate proceedings in the nature of criminal proceedings and it does not apply
to proceedings under Sales-tax which have a civil sanction and of a revenue nature. The word “penalty” in
Article 20(1) does not include a “penalty” under a tax law levied by departmental authorities for violation of
statutory provisions. A penalty imposed by such an authority is “only a civil liability, though penal in
character”.49. A party to a civil litigation is not entitled to the protection of Article 20.50.Proceedings against a
person for unauthorised use of canal water was not an offence and imposition of enhanced water charge was
not a penalty for an offence.51. In Mukandi Ram v Executive Engineer,52. the levy of an enhanced rate for
unauthorised use of water was held as not a penalty within the meaning of Article 20(3) since it created only a
civil liability and a criminal prosecution for such unauthorised use is not barred under Article 20(1).
In regard to labour laws, it was held that where the employer dismisses an employee, it must be according to
the law then prevailing. If by amendment, if that employee is brought within the definition of “workman”, with
retrospective effect that would amount to the employer being punishable for an offence which he could not have
envisaged and the date of dismissal. It would violate Article 20(1) of the Constitution.53.
In regard to fiscal statutes, retrospectivity has to be enacted specifically as it is more so in the case of penal
provisions otherwise it would be contradictory or derogatory of Article 20(1) of the Constitution.54.
[Art.20.4.7] “Law in force”
1. This expression refers to the law factually inoperation at the time when the offence was committed and does
not relate to a law “deemed to be in force” by the retrospective operation of a law subsequently made.55. The
law for the violation of which a person is sought to be convicted must “have been”, in fact, in force at the time
when the act with which he is charged was committed.56. Article 20(1), in fact, controls the power of the
Legislature to enact such retrospective legislation so far as the punishment for crimes is concerned. Hence,
where the Legislature amends a penal law by enhancing the penalty with retrospective effect, i.e., from a date
earlier than its enactment, such retrospective effect of the amending law would not affect an accused who had
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committed an offence at a time when the unamended law was in force; he cannot, therefore, be awarded the
higher penalty provided for by the amending Act.57.A law not factually in existence at the time, enacted
subsequently, but by a legislative declaration “deemed” to have been operative from an earlier date, cannot be
considered to be a law “factually” in force earlier than the date of its enactment and the infirmity applying to an
ex post facto law is applicable to it. The reason is that if such a law is accepted and a law passed later were to
be treated as a law in existence earlier, then the whole purpose of the protection against ex post facto law
would be frustrated, for, a legislation could then give a retrospective effect to any law.58.
2. But rules and regulations made under a statute which is repealed but continued in force under section 24 of
the General Clauses Act are “law in force” within the meaning of Article 20(1), even though they are kept alive
by a legal fiction.59.
ART 20.5 CLAUSE (2) OTHER CONSTITUTIONS (A) U.S.A.—
(A) U.S.A.
The Fifth Amendment to the Constitution of the USA60. says:
Nor shall any person be.... subject for the same offence to be twice put in jeopardy of life or limb.
U.S.A.
The protection has been held to be not only from punishment but also from a second trial,which commences
when a man is charged before a competent tribunal.61. Conviction or acquittal at the previous trial will equally
bar a second prosecution. A verdict of acquittal, even when not followed by a judgment, is a bar to subsequent
prosecution for the same offence.62. Trial by a Court-Martial bars prosecution in a Federal Court.63.
But—
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(a) A person is not put in jeopardy (i) by prosecution in a court which has no jurisdiction to try the case,61 (ii)by a
fresh trial after discharge of jury before it gives its verdict.64.
The Double Jeopardy Clause prevents the State from “punishing” twice or attempting a second time to “punish”
criminally for the same offence. The ex post facto clause has been interpreted to pertain exclusively to penal
statutes. If the Act does not impose punishment its application does not raise ex post facto concerns. The State
may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate non-punitive
governmental objective and has been historically so regarded. Detention for the purpose of protecting the
community from harm has never been considered as punishment.65.
On the same principle, it has been held that a soldier is not put in double jeopardy by being tried by a second
Court-Martial, after a first Court-Martial had to be dissolved, owing to technical reasons before it could reach a
decision.66. In this case,66 the court observed:
The double-jeopardy provision … does not mean that every time a defendant is put to trial before a competent tribunal
he is entitled to go free if the trial fails to end in a final judgement. Such a rule would create an insuperable obstacle to
the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which
the double-jeopardy prohibition is aimed.67.
In short, the doctrine of “double jeopardy” is an application of the doctrine of “collateral estoppel”,68. which
means
that when an issue of ultimate fact has once been determined by a valid andfinal judgement,that issue cannot again be
litigated between the same parties in any future lawsuit.68
(b) A re-trial does not come within the rule.69. When a person appeals70. from conviction in a lower court, he
waives his protection, and he may be tried again at the direction of the Appellate Court,71. but not for an
offence of a higher degree of which was acquitted at the former trial.72.
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(c)In the U.S.A., Government cannot appeal from the order of acquittal,because of the present rule,73. even
though Government may have secured new evidence, not previously available. But Government may appeal
from a sentence of conviction of a higher sentence,and a re-trial may be ordered in such appeal; this is not
double jeopardy.74.
It was held in Palko’s case (supra) that when State files an appeal, it is not attempting to wear the accused out
by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on
until there shall be a trial free from to corrosion of substantial legal error … This is not cruelty at all, nor even
vexation in any immoderate degree. If the trial had been infected with error adverse to the accused, and as
often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the
presiding judge.... has now been granted to the State. There is here no seismic innovation. The edifice of
justice stands, its symmetry to many, greater than before.”
American Convention on Human Rights Article 8(4) says that an accused person acquitted by a non-appealable
judgment shall not be subjected to a new trial for the same cause.
(d) When the same act or transaction involves separate offences, under different provisions of the same
statute75. or under different76. statutes, separate prosecution lies for the separate offence, e.g., conspiracy to
commit a crime is a different offence from the crime that is the object of the conspiracy. But where a person
was acquitted on a charge of conspiracy, his subsequent conviction for the substantive offence was
quashed.77. The test for determining whether the offences are identical is whether the same evidence is
required to substantiate them.78.
Thus, where a statute makes it an offence to transport a woman for purposes of prostitution, the transportation
of more than one woman in asingle transaction constitutes a single offence.79.
(e) For the same reason, the protection against double jeopardy would be of no avail where a person commits
the same offence over again, by repeating his incriminating act.80.
(f) Nor does the doctrine extend to the execution of the sentence. Thus, a fresh warrant for electrocution may
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be issued after a former attempt to electrocute the convict failed owing to mechanical defect in the
apparatus.81.
(g) The provision prohibits a person from being punished criminally,more than once, for the same offence; it
does not debar the Legislature from imposing both a criminal and a civil sanction in respect of the same act or
omission.82. A provision for forfeiture of property to recover fiscal dues,83. or for the recovery of liquidated or
penal damages for breach of a statutory obligation84. is not to be treated as a criminal punishment, for the
application of this clause.
(h) There is no second “punishment” for an earlier offence when the law prescribes a higher punishment for old
offenders; it is the repetition of criminal conduct which aggravates the subsequent offence and justifies a
heavier penalty.85.
(i) An order to forfeit the property which was used to commit the offense imposed in addition to punishment for
having committed the crime did not violate the Double Jeopardy Clause because confiscation of property did
not constitute punishment.86.
(B) England.—
U.K.
The above provision of the American Constitution is indeed founded on the English Common Law rule “nemo
debet bis vexari”,which means that a man may not be put twice inperil for the same
offence.87.BLACKSTONE88. referred to “this universal maxim of the common law of England, that no man is to
be brought into jeopardy of his life more than once for the same offence.”
The fundamental principle behind the doctrine of double jeopardy can be found in the judgment of HOUSE OF
LORDS in Connelly v Director of Public Prosecution.89. Relevant portion of the judgment reads thus: “That a
man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; ……… that
the same rule applied if the crime in respect of which he is being charged is in effect the same, or is
substantially the same, as either the principal or a different crime in respect of which he has been acquitted or
could have been convicted or has been convicted; that one test as to whether the rule applies is whether the
evidence which is necessary to support the second indictment, or whether the facts which constitute the second
offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the
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offence charged or as to an offence of which, on the indictment, the accused could have been found guilty, …
that on a plea of autrefois acquit or autrefois convict a man is not restricted to a comparison between the later
indictment and some previous indictment or to the records of the court, but that he may prove by evidence all
such questions as to the identity of persons, dates and facts as are necessary to enable him to show that he is
being charged with an offence which is either the same or substantially the same, as one in respect of which he
has been acquitted or convicted or as one in respect of which he could have been convicted.”
It enables an accused to raise a plea not only of autrefois convict but also of autrefois acquit.90.
The plea of ‘autrefois convict’ or ‘autrefois acquit’ avers that the defendant has been previously convicted or acquitted
on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is
whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of
law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the
offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a
conviction of the other, not that the facts relied on by the Crown are the same in the two trials.
A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily
involves an acquittal of the latter.91.
I. The principle upon which autrefois acquit is founded is sometimes stated as different from that of double
jeopardy, viz., that of finality of judgment.
Where an offence has already been the subject of judicial investigation and adjudication, and there has been an
acquittal, the acquittal is conclusive, and it would be a very dangerous principle to adopt to regard a judgment of not
guilty as not fully establishing the innocence of the accused.92.
In some cases, the principle has been applied to cases of constructive acquittal as well. Thus, where the court
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refused to amend a charge by insertion of the word “recklessly”on the ground that the prosecution hadfailed to
discharge the burden of proving “recklessness”, a fresh prosecution on the same charge with the addition of the
word “recklessly” was held barred by the plea of autrefois acquit.93.Even an erroneous acquittal standing
unreversed, is a sufficient foundation for this plea.94. But where the appellate court simply quashes a
conviction, without expressly ordering an acquittal, there is nothing to prevent a retrial.95.
A previous acquittal will be a bar to a subsequent indictment only—(i)if the acquittal was for the exact offence
charged in the subsequent indictment; or (ii)if the subsequent indictment is based on the same acts and
omissions in respect of which the previous acquittal was made. In other words, when a man has been tried for
an offence and acquitted, he cannot again be indicted for the same offence, if the first indictment were such that
he could have been lawfully convicted therein.96. Whether the facts are the same or not, is not the true test; the
test is whether the acquittal on the first charge necessarily involves an acquittal on the second charge.97. It is
the identity of the offence,not of the evidence, which constitutes the bar.1. Where the offence is the same,
subsequent prosecution would not lie for the same offence, simply because aggravated circumstances are
added to the charge.2.
But if the crimes were so distinct that the evidence necessary to prove the one will not prove the other, the plea
will not be available.3.
(i) An acquittal upon an indictment for murder may be pleaded in bar to an indictment for manslaughter on
the same facts, and, vice versa.4.
(ii) A person acquitted for robbery cannot afterwards be indicted for an assault with intent to rob; a person
acquitted for embezzlement cannot afterwards be indicted for larceny, and vice versa.5.
(iii) If the first indictment were for burglary, with intent to commit larceny, an acquittal on it would not bar a
subsequent indictment for larceny.3
(iv) An acquittal upon a charge of murder is no bar to indictment for arson arising from the same facts.6.
(v) An acquittal on a charge of possession of stolen goods does not bar a subsequent charge for larceny
of the same goods.7.
But an acquittal upon an insufficient indictment is no bar to another indictment for the same offence. In other
words, where, by reason of some defect in the record, either in the indictment, the place of trial, the process, or
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the like, the accused was not lawfully liable to suffer judgment in the first indictment, he has not been in
jeopardy, so as to be entitled to plead the former acquittal or conviction in bar to a subsequent indictment.8.
II. A previous conviction can be effectively pleaded in bar (autrefois convict)to a subsequent indictment only in
the following cases:
(i) Where the conviction was for the exact offence changed in the subsequent indictment, and was
sufficient in law. A reversed judgment of conviction is no bar.9.
(ii) Where the subsequent indictment is based on the same acts or omissions as those in respect of which
the previous conviction was made. Thus, a conviction for obtaining credit for goods under false
pretence is a bar to a subsequent indictment for larceny on the same facts;10. again, where on an
indictment for inflicting grievous harm, unlawful wounding, assault occasioning bodily harm, and
common assault, the jury convicted of common assault, but disagreed on the other charges, held,the
conviction for common assault barred a fresh indictment or retrial on the other charges.11.
But a conviction for assault does not bar a subsequent prosecution for murder if the assaulted
person dies subsequently.12.
(iii) Where the previous trial was before a court of competent jurisdiction.13.
On the other hand, the plea is available where the person was convicted, though not sentenced14. or even
where the accused pleaded guilty but there was no sentence.14
(C) Japan.—
Article39 provides—
Japan
No person shall be held criminally liable for an act of which he has been acquitted nor shall he, in any way, be placed
in double jeopardy.”
(D) Bangladesh.—
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Article35(2) of the Constitution of Bangladesh, 1972.15.

(E) Government of India Act,1935.—
There was no provision in that Act itself relating to this matter, but the existing law of Criminal Procedure
(section 403 of the Code of Criminal Procedure, 1898; section 300 of the Code of 1973) already embodies the
principles of autrefois convict and autrefoisacquit.
Government of India Act, 1935
But the provisions of this section are somewhat different from the English rule, in respect of autrefois
acquit.Under the English law, in order to raise the plea of autrefois acquit,the accused must show that (a) he
was previously tried,and also that (b) he was acquitted at that trial. But under the Criminal Procedure Code,—
CrPC, 1973
(1) There are certain cases where statutory acquittal without trial is sufficient to sustain the bar of autrefois
acquit under section 300. These cases are: (a) Acquittal for non-attendance of the complainant in a summons-
case (section 255). (b) Composition of an offence [section 320(8)]. (c) Withdrawal of prosecution by the Public
Prosecutor in cases where no charge is required by the Code; or, where charge is required,—after the framing
of the charge [section 321(b)].
(2) On the other hand,—certain cases are excluded from the scope of the plea by the Explanation to section
300, even though these cases are rather analogous to the cases above-mentioned:
(a). Dismissal of the complaint under section 203. In this case, though there has been no trial, the complainant
has failed to substantiate his case, prima facie,on his own evidence. (b). “Discharge” of the accused; and in this
respect no distinction is made between a discharge where all the evidence for the prosecution has been heard
and a discharge where it has not been heard. Thus, “discharge” of the accused takes place under the Code, in
the following cases:
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(i) Discharge of accused in a warrant-case which is compoundable, or non-cognizable, for non-appearance of

complainant (section 249). (ii)Discharge of the accused in a warrant case when the evidence for the
prosecution has failed to make out a case [section 245(1)]. (It is to be noted that in this case, the discharge
takes place after hearing all the evidence for the prosecution). (iii) Discharge after opening, in cases triable by a
Court of Session [section 227].
The principles embodied in this article also could be seen in section 26 of the General Clauses Act, 1897. It
say: “Where an act or omission constitute an offence under two or more different enactments, then the offender
shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to
be punished twice for the same offence.”
[ART 20.6] INTERNATIONAL CHARTERS A. Convent on Civil and Political Rights.—
Convent on Civil and Political Rights
Article 14.7 of the U.N. Covenant on Civil and Political Rights, 1966, says:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or
acquitted in accordance with the law and penal procedure of each country.
[ART.20.7] INDIA [Art.20.7.1] Scope of Clause (2): Bar against double prosecution and punishment
The object of this clause is to protect an individual from being subjected to prosecution and conviction more
than once for the same offence.16.
It is settled by the Supreme Court17. that there should be not only a “prosecution”but also a “punishment” in the
first instance in order to operate as a bar to a second prosecution and punishment for the same offence. In
other words, the constitutional guarantee embodies the principle only of “autrefois convict”and does not include
the principle of “autrefois acquit”.18.The present clause of our Constitution is thus narrower than the American
doctrine of “double jeopardy” as well as the English common law rule which comprise both “autrefois
convict”and “autrefois acquit”.According to the Supreme Court “and” in the clause is used in the conjunctive and
not in the disjunctive sense.18
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The well known maxim “nemo debet bis vexari pro una et eadem causa” (i.e., no persons should be vexed
twice for the same offence) embodies the well established common law rule that no one should be put on peril
twice for the same offence. The principle which is sought to be incorporated into section 300 of Criminal
Procedure Code is that no man should be vexed with more than one trial for offences arising out of identical
facts committed by him. The principle based on the maxim is provided in section 300 of the CrPC and applying
the same, the Supreme Court held that a second trial against the same accused on the same facts even for a
different offence if a different charge against him for such offence could have been made under section 221 (1)
of CrPC or he could have been convicted for such other offence under section 221 (2) of the CrPC is
debarred.19. The basic idea in the rule of res judicata has sprouted from the maxim “nemo debit bis vexari pro
una et eadem causa”.20.When an offence has already been the subject of judicial adjudication, whether it
ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a
separate trial on the same set of facts. Though Article 20(2) embodies a protection against a second trial after a
conviction of the same offence, the ambit of the clause is narrower than the protection afforded by section 300
of Criminal Procedure Code. Section 300, CrPC combines both autrefois convict and autrefois acquit.21.In a
case coming under Rajasthan Sati (Prevention) Act 1987, it was held that it is a significant basic rule of criminal
law that no man shall be put in jeopardy twice for one and the same offence based on this maxim. But where
the statutory provision with different and distinct offences, this rule will not apply.22.
The principle under this article was in existence even before Constitution came into force, but the same has
now been given the status of constitutional, rather than a mere statutory guarantee.23.
The ambit of Article 20(2) is however narrower than the English or the American rule against double jeopardy.
The Indian provision enunciates only the principle of “autrefois convict”, but not that of “autrefois acquit”. In
Britain and the U.S.A., both these rules operate and a second trial is barred even if the accused has been
acquitted at the first trial for the offence. In India, on the other hand, the rule of “autrofois acquit” is not
incorporated in Article 20(2). Article 20(2) may be invoked only where there has been a prosecution and
punishment in the first instance.24.
When a person was convicted in the United States under its drug laws and on the same set of facts tried in
India under Narcotic Drugs and Psychotropic Substances Act 1985, it was held that the application of the
principle of double jeopardy was not available since the offences in the U.S.A. and India were distinct and
separate.25.
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The conditions for the application of this clause are—
(1) There must have been a previous proceeding before a court of law or a judicial tribunal,26. of
competent jurisdiction.27.
(2) The person must have been “prosecuted”27For the purpose of this Article, “prosecution” means judicial
proceedings before a court or a legal tribunal. It cannot have reference to departmental or disciplinary
proceedings taken for inflicting departmental penalty or punishment as an officer belonging to the
department for any misconduct.28. Prosecution must be in reference to the law which creates the
offence and the punishment must also be in accordance with what that law prescribes.29.“Prosecution”
means a proceeding either by way of indictment or information in the criminal courts, in order to put an
offender upon his trial. In all criminal prosecutions, the King is normally the prosecutor. WHARTON’S
LAW LEXICON provides:
“The doctrine applies to criminal prosecution only and generally to misdemeanours as well as
felonies. A former conviction or acquittal does not ordinarily preclude subsequent in rem
proceedings civil actions to recover statutory penalties or exemplary damages or proceedings to
abate nuisances (Corpus Juris Secundum).” According to SHORTER OXFORD DICTIONARY,
“prosecution” means a proceeding by way either of indictment or of information in the criminal
court, in order to put an offender on the trial; the exhibition of a criminal charge against a person
before a court of justice.30.
Article 20(2) embodies protection against a second trial and conviction for the same offence. The
fundamental right guaranteed under Article 20(2) has its roots in the common law maxim “nemo
debet bis vexari” – a man shall not be brought into danger for one and the same offence more than
once. If a person is charged again for the same offence, he can plead, as a complete defence, his
former conviction or as it is technically expressed, take a plea of “autrefois convict”. In order for the
protection of Article 20(2) to be invoked, there must be a prosecution as well as punishment in
respect of the same offence before a court of law of competent jurisdiction or a tribunal. The
proceedings contemplated are in the nature of criminal proceedings and prosecution in this context
would mean initiation of criminal proceedings in accordance with the procedure prescribed by the
statute. Further more, the fundamental right guaranteed under Article 20(2) is in the nature of
injunction against the State prohibiting it to prosecute and punish any person for the same offence
more than once, but the initial burden is upon the accused to take necessary plea and establish
the same.31. In that case, court further held that a person can be prosecuted and punished more
than once even on substantially same facts provided ingredients of both offences are totally
different and they did not form the same offence. Test is to ascertain whether the two offences are
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the same and not identity of allegations that matters, but identity of ingredients of the offences.
Court said that same facts may give rise to different prosecution and punishment and in such an
event protection under Article 20(2) is not available.32. If one and the same act of a person
constitutes two distinct offences, then the punishment for one offence does not bar prosecution
and punishment for the other offence.
Doctrine of double jeopardy is enshrined in section 300 CrPC and section 26 of General Clauses
Act. Both the provisions employ the expression “same offence”. There may be cases of
misappropriation, cheating, defamation, etc. which may give rise to prosecution on criminal side
and also for action in civil court or other forums for recovery of money by way of damages.
Therefore, it is not always necessary that in every such cases the provisions of Article 20(2) may
be attracted. In order to attract the provisions of Article 20(2) of the Constitution i.e., the doctrine of
autrefois acquit or section 300 of CrPC or section 71 of IPC or section 26 of General Clauses Act,
the ingredients of the offences in the earlier case as well as in the later case must be the same and
not different. The plea of autrefois acquit is not proved unless it is shown that the judgment of
acquittal in the previous charge necessarily involves an acquittal of the later charges.33.
In UOI v Sunil Kumar Sarkar,34. Supreme Court considered the argument that if the punishment
had already been imposed for Court Martial proceedings, the proceedings under Central Rules
dealing with disciplinary aspect and misconduct cannot be held as it would amount to double
jeopardy violating the constitutional provisions of Article 20(2). Court explained that the Court
Martial proceedings deal with the penal aspect of the misconduct while the proceedings under
Central Rules deal with disciplinary aspect of the misconduct. The two proceedings do not overlap
at all and therefore there is no question of application of double jeopardy doctrine.35.
A second complaint on new or fresh facts or even on same facts if special case is made out is not
barred to apply the doctrine of issue “estoppel”.36.
LAW OF DOUBLE JEOPARDY is summarised thus: “A person who has once been tried by a court
of competent jurisdiction for an offence and convicted or acquitted of such offence, shall not be
tried again for the same offence, nor on the same facts for any other offence for which a different
charge might have been made or for which he might have been convicted, except that he may be
tried again, (a) with the consent of the State government, for a distinct offence for which a separate
charge might have been made, (b) for a different offence constituted by consequences which had
not occurred at the time when he was convicted, e.g., a person convicted of grievous hurt may
afterwards be tried for culpable homicide if the victim dies, (c) for any other offence constituted by
the same acts, if the court by which he was first tried was not competent to try that other offence,
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(d) with the consent of the court by which he was discharged, if the magistrate stopped, without
pronouncing the judgment, the proceedings in a summons case at any stage before evidence of
principal witnesses had been recorded, (e) if the complaint had been dismissed or the accused
had been discharged (because that would not amount to acquittal), and (f) where an act or
omission constitutes an offence under two enactments, but he shall not be liable to be punished
twice for the same offence.” These provisions give effect to Article 20(2) of the Constitution.37.
(3) He must have been “punished” in the previous proceeding.38.If there is no punishment for the offence
as a result of prosecution, Article 20(2) has no application.39.
(4) The conviction (or acquittal)40. in the previous proceeding must be in force at the time of the second
trial.40
(5) It follows that the prosecution must be valid and not null and void41. or abortive.42.
(6) The “offence” which is the subject-matter of the second proceeding must be the same43. as that of the
first proceeding, for which he was “prosecuted and punished”.
(7) The “offence” must be an offence as defined in section 3(38) of the General Clauses Act, that is to say,
“an act or omission made punishable by any law for the time being in force”. It follows that the
prosecution must be in reference to the law which creates the offence and the punishment must also
be in accordance with what that law prescribes.38The word “offence” is defined in section 3(38) of
General Clauses Act to mean any act or omission made punishable by any law for the time being in
force. Under section 4 of the Code of Criminal Procedure, it means any act or omission made
punishable by any law for the time being in force. An offence is, therefore, an act committed against
law or omitted where the law requires it.44.
(8) The second proceeding must be a fresh proceeding where he is, for the second time, sought to be
“prosecuted and punished” for the same offence. Hence, the clause has no application where the
subsequent proceeding is a mere continuation of the previous proceeding, e.g.,in the case of an
appeal against acquittal.45.Enhancement of punishment by the revising authority does not amount to a
second punishment.46.In other words, a second punishment for the same offence does not attract the
operation of the clause unless the second punishment is awarded in a fresh proceeding. Thus, to
provide that a person who would be convicted of an offence shall not only be punished under the law
but also be removed from the country, does not offend against the guarantee offered by the present
clause.
Preventive detention is not “prosecution and punishment” and, therefore, does not bar the prosecution of the
person concerned.47.
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The bar provided by this clause does not apply unless all the above conditions are satisfied.48.
The issue estoppel rule is but a facet of doctrine of autrefois acquit. Where an issue of fact has been tried by a
competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a
finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and
conviction of the accused for a different or distinct offence, but in precluding the acceptance or reception of
evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is
distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence, but only precludes
the evidence being led and a specific finding has been recorded in an earlier criminal trial. Thus, the rule relates
only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court
in a previous trial on a factual issue.49.
For instance, even if proceedings have been taken for an “offence”, Article 20(2) will not be attracted if the
proceedings do not constitute a “prosecution”,50.e.g., a proceeding for confiscation of contraband property,
such as smuggled goods.
An offence under section 161 IPC is different from the offence of criminal misconduct punishable under section
5(2) of Prevention of Corruption Act though some of the ingredients of the two offences may be common.
Therefore, punishment for one does not bar punishment for the other though both the offences may arise from
the same facts.51.
[Art.20.7.2] Guarantee in Article 20(2) is narrower than the corresponding American doctrine and the plea of
autrefois acquit
As pointed by our Supreme Court in Venkataraman v UOI,52. the provision in Article 20(2) is narrower than the
American doctrine of “double jeopardy”, according to which there may be jeopardy even though the person was
not actually punished in the previous proceeding. Pakistan Supreme Court also has accepted the same
principle in Mohammed Ashraf v State.53. It was held that if as a result of prosecution for an offence the trial
ends in acquittal, Article 13(a) [corresponding to Article 20(2)] is not attracted. Constitutional guarantee is
available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far
as this Article is concerned, the second prosecution is not prohibited. It is, however, open to the Legislature to
enlarge the scope of constitutional guarantee and further extend the protection envisaged by Article 13(a). Such
extension of rule of double jeopardy is to be found in section 403(1) of the Code of Criminal Procedure (1898)
(corresponding to Section 300 of 1973). It is to be noticed that the constitutional guarantee is confined only to
duplicate punishment and is silent in so far as acquittal is concerned. Section 403(1) however prohibits the
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second trial for an offence during the course of existence of conviction or acquittal of a person, as the case may
be, in consequence of final adjudication of such an offence by a court of competent jurisdiction. Thus the rule of
autrefois acquit finds place in section 403(1) and the counterpart of the rule autrefois convict has received
recognition in the constitutional guarantee embodied in Article 13(a). Our Supreme Court has also taken the
same view in State v Nalini.54.
Learned Judge JUSTICE FAZAL KARIM,55.has commented this approach. Relying on an earlier judgment in
Alamdar Hussain Shah v Abdul Basheer Qureshi,56. the learned Judge says that it is only if the prosecution
has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence
would be barred. Article 13(a) uses both the expressions “prosecuted and punished” and both must be given
meaning. The effect of the decision in Muhammed Ashrafi v State (supra) is to render the word “prosecuted”
surplusage and it is no part of the court’s interpretative function to render words particularly those guaranteeing
rights redundant.57.
The American principle is explained by WILLIS58.—
Jeopardy, it might be thought, should occur when a man has once been found guilty, and this also is the position of
BLACKSTONE.59. But this is not the United States rule.
Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a
court of competent jurisdiction, there must be an arraignment and a plea, and a lawful jury must be impanelled and
sworn. It is not necessary to have a verdict. The protection is not against a second punishment but against the peril in
which he is placed by the jeopardy mentioned.
In other words—
The fundamental principle of law that no one shall be put twice in jeopardy for the same offence applies not only
against the peril of second punishment for the same offence, but forbids a second trial for the same offence, whether
the accused has suffered punishment or not, or whether in the former trial he has been acquitted or convicted.60.
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Secondly,as stated already (p. 4525, ante) our Supreme Court has excluded the plea of “autrefois acquit”from
the protection of the present clause.
But section 300 of Code of Criminal Procedure combines both autrofois acquit and autrofois convict. The said
section has widened the protective wings by debarring a second trial against the same accused on the same
facts even for a different offence if a different charge against him for such offence could have been made under
section 221(2) of the Code or he could have been convicted for such other offence under section 221(2) of the
Code. The prohibitions are so widely enlarged and a second trial cannot be held on the mere premise that
some more allegations were not made in the first trial.61.
In a case where the person was neither convicted nor acquitted of the charges against him in the first trial, a
retrial in such case is not invalid under this Article.62.
[Art.20.7.3] “Prosecuted and punished”
I. These words indicate that both the proceedings referred to by the clause must be proceedings before a
courtof law or a judicial tribunal.63.
In this context, the tests of a court or judicial tribunal are the same as laid down in the Bharat Bank
case,64.viz.,—
(i) The presentation (not necessarily orally) of their case by the parties to the dispute.
(ii) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence
adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the
parties on the evidence.
(iii) If the dispute between them is a question of law, the submission of legal argument by the parties.
(iv) A decision upon the facts in dispute and application of the law of the land to the facts of the case so
found, including where required a ruling upon any disputed question of law.64
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Hence, a tribunal which entertains a departmental or administrative inquiry, even though set up by a statute,
cannot be regarded as a judicial tribunal unless it is required to proceed on legal evidence given on
oath.65.When a civil servant is dismissed from Government service on the ground of misbehaviour after a
departmental enquiry, his later prosecution on the same charges which had been earlier enquired into and for
which he was punished by dismissal would not be barred by Article 20(2). The earlier enquiry could not be
regarded as “prosecution” for a criminal offence and so Article 20(2) would not apply. Thus, a departmental
enquiry does not bar a later prosecution and punishment in a court.66. The court has explained the legal
position thus:- To invoke the protection of Article 20(2), there must have been both prosecution and punishment
in respect of the same offence. The words “prosecuted and punished” are to be taken not distributively, so as to
mean “prosecuted or punished”. Both factors must co-exist in order that the operation of Article 20(2) may be
attracted. When a departmental enquiry is held against a public servant under Public Servants (Enquiries) Act
1850, he is not prosecuted and punished for an offence as contemplated by Article 20(2). Court said: “A
Commissioner appointed under this Act has no duty to investigate any offence which is punishable under IPC
or Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject matter of
investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant
and it is only an instance of misbehaviour that several articles of charge are investigated upon which
disciplinary action might be taken by the Government if it so chooses”. The opinion expressed by
Commissioner after the enquiry is not binding. It is a mere expression of opinion and it lacks both finality and
authoritativeness which are essential of a judicial pronouncement”. In that case, a Government servant was
dismissed after an enquiry under Public Servants Enquiry Act. Thereafter he was tried under sections 161 and
165 of IPC and section 5(2) of Prevention of Corruption Act. His subsequent trial was held valid and not
violative of Article 20(2). Court said that earlier enquiry does not amount to prosecution because in an enquiry
under the Act, there was neither any question of investigation for any offence in the sense of an act or omission
punishable by any law which made that act or omission an offence.67.
Levy of penalty for default in payment of sales tax is not “prosecution”, so as to bar a subsequent prosecution in
a criminal court for the offence.68.
For breach of permit rules under the Influx from Pakistan Control Act, punishment through a court and his
removal from India through a direction of Government of India do not constitute “double jeopardy” as the latter
action does not involve second prosecution.69.
Merely because there may be some overlapping in the offences (under Customs Act and IPC), it does not
mean that the person cannot be tried under the offences covered under IPC.70.
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In UOI v Sunil Kumar Sarkar,71. it was held that where a Government employee has been punished for the
same misconduct both under the Army Act as also under the Central Civil Services (Classification, Control and
Appeal) Rules 1965, the question whether this would amount to “double jeopardy” and is in violation of Article
20(2) of the Constitution. It was held that the two proceedings operate in two different fields though the crime or
the misconduct might arise out of the same act. The Court martial proceedings deal with penal aspect of the
misconduct while the proceedings under the Central Rules deal with disciplinary aspect of the misconduct.
Even if penalty is imposed after an adjudicatory proceedings person on whom such penalty is imposed cannot
be called an accused. It has been held that proceedings under section 23(1-A) of Foreign Exchange Regulation
Act 1947 are adjudicatory in character and not criminal proceedings.72.
In Thomas Dana v State of Punjab,73. the appellant sought to take out some foreign exchange from India
which was confiscated by custom authorities after following all procedures under Sea Custom Act. Later he was
prosecuted before a criminal court under the provisions of Foreign Exchange Regulation Act and Sea Custom
Act and later convicted. Before the Supreme Court, challenging the conviction, it was contended that his
conviction violates Article 20(2). Rejecting the contention, court said that imposing penalty and confiscation
under the Sea Custom Act and FERA, the concerned authority acts judicially, but not as a court. The
proceeding before the Officer under the above legislation does not amount to “prosecution” within the meaning
of Article 20(2). Later prosecution before the Criminal Court is valid.
In Debabratha Bandopadhyay v State of West Bengal,74. it was held that contempt proceedings initiated by
court is “sui generis” has peculiar feature which are not formal in criminal proceedings. In contempt
proceedings, the court is both the accuser as well as the Judge of the accusation, whereas in a criminal trial
where a person is accused of an offence, there is a public prosecutor who prosecutes the case on behalf of the
prosecution. In Delhi Judicial Service Association v State of Gujarat,75. it was held that contempt proceedings
do not attract Article 20(3) as the contemners against whom notices were issued were not accused of any
offence. It was observed that contempt proceedings are not in the nature of criminal proceedings for an offence,
the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may
impose punishment. The contemner is not in the position of an accused. The court can cross-examine the
contemner and even if it is found that the contemner is guilty, the court often accepting the apology may
discharge him from contempt in a criminal offence, lending apology is no defence to the trial of a criminal
offence.76.
A departmental enquiry and prosecution for a criminal case cannot be equated and Article 20(2) cannot be
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invoked. Due to negligent driving, for damages awarded by Motor Vehicles Tribunal, salary of the driver was
reduced. Subsequently in a criminal court, the driver was punished for negligent and reckless driving which
caused the death of a passenger. Consequent to the punishment, the driver was dismissed from service. It was
held that the two orders passed, i.e., one reducing the pay and second removal from service are based on two
different grounds and different causes of action. The principle of double jeopardy has no application.77.
In a case where departmental proceedings are initiated against the employee on the ground of dereliction of
duty and penalty has been imposed, a second-show cause notice proposing to remove the name of the
employee from the promotion list based on the same cause of action is violation of this article.78. But in cases
where charge memo is give, but no enquiry was conducted by any competent authority and no order is passed
exonerating the employee from the charges, a second charge memo will not be violative of the this article.79.
It has been held that restrictions placed by Madras Restriction on Habitual Offenders Act 1949 do not amount to
prosecution and punishment under Article 20(2).80. The article has no application where alternative punishment
is provided by statute. In Loomchand v Official Liquidator,81. court held that section 282-A of Companies Act
did not provide for double punishment, but only an alternative punishment when default was committed and
hence constitutional provision is not violated.
Article 20(2) does not apply to continuing offence.82. It has been held in that case that where a default in
payment of an instalment of a licence fee constitutes an offence, the failure to pay such instalments in
subsequent months does not constitute different offences, for, the failure to pay an instalment is complete the
moment the accused fails to pay on the due date. Consequently, successive prosecutions for failure to pay that
instalment are barred by Article 20(2). However, an offence under bye-law No. 2 of the Municipal Board of
Saharanpur read with section 299 of UP Municipalities Act is a continuing offence and if a person is prosecuted
for having committed an offence during a particular period there is no bar to prosecuting him for committing a
similar offence on some other date and Article 20(2) and section 403(1) of CrPC are not attracted.
Demanding and receiving illegal gratification constitutes offences both under section 7 and section 13(1)(d) of
Prevention of Corruption Act. Offence being under a single transaction, but falling under different section, the
offender cannot be liable for double jeopardy.83.
The Canadian Supreme Court held that departmental proceedings and criminal proceedings are two different
matters, one is an internal disciplinary matter and the other is a criminal offence for which the accused must
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account to the society at large. It is to the offence against society at large that the protection of Double
Jeopardy applies.84.
II. “Prosecution” in this context, thus, means an initiation or starting of proceedings of a criminal nature before a
court of law85. or a judicial tribunal in accordance with the procedure prescribed in the statute which creates
the offence and regulates the punishment.85 In other words, it means a proceeding either by way of indictment
or information in the criminal courts in order to put an offender upon his trial.86.The “prosecution” contemplated
under Article 20(2), means judicial proceeding before a court or a legal tribunal. It cannot have reference to
departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment as an officer
belonging to the department for misconduct.87.
Institution of the following proceedings would not, accordingly, constitute a “prosecution” within the meaning of
this clause:
(i) Proceedings before the Customs Authorities under section 167(8) of the Sea Customs Act, 1878, for
awarding penalty or confiscation.88.
(ii) Levy of penalty under section 16(3) of the Andhra Pradesh Sales Tax Act. 1957.89.
(iii) Proceeding for violation of an injunction under Order 39, Rule XXXIX of the CPC.90.
(iv) Proceedings before an administrative or departmental tribunal,91. even though it may ultimately lead to
a “prosecution” before a Court.
(v) The initiation of proceedings under section 48 of the Bihar and Orissa Co-operative Societies Act,
1935, after initiation of surcharge proceedings under section 40 of that Act does not amount to double
jeopardy, because neither is a criminal proceeding.1.
(vi) To attract the bar under Article 20(2), it is necessary that the first trial should have been before a court
competent to hear and determine the case and to record a verdict of conviction or acquittal. If the court
is not so competent, the whole trial is null and void and it cannot be said that there has been
prosecution and punishment for the same offence.2.
An adjudicatory authority under a statute (for e.g., Foreign Exchange Regulation Act) does not function as a
criminal court. The proceedings before them are “adjudicatory” in nature and character and are not criminal
proceedings. These authorities adjudicate following the rule of natural justice, but they are not judges of
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criminal courts trying an “accused” for commission of an offence. Therefore, any penalty imposed by them does
not bar a prosecution before a criminal court and bar under Article 20(2) is not attracted.3.
Such proceedings do not, accordingly, bar a criminal prosecution for the same offence.4. Extradition hearing is
neither prosecution nor a trial for an offence.5.
Article 20(2) is limited to indictment before a criminal court. Therefore, Article 20(2) does not bar proceedings
before a civil court for disobedience of an injunction along with criminal proceedings as the former are not in the
nature of criminal proceedings.6. The immunity against a second prosecution has been confined to a situation
when the first proceeding has been before a court of law. The same will be the position when after prosecution
and punishment for an offence further action is taken by a quasi-judicial body.7. A departmental disciplinary
proceedings is not barred for the same charges for which the delinquent officer was earlier prosecuted, but
acquitted.8.
III. Where the previous prosecution was null and void, e.g.,for absence of proper sanction,9. or for want of
jurisdiction of court,9 a fresh trial upon the same facts would not be barred, even though the accused might
have served out a part of his sentence before he could obtain his acquittal, on appeal, on the ground of want of
sanction or jurisdiction.10.Where a first complaint was dismissed due to complainant’s absence, a second
complaint is not barred under Article 20(2).11. Where the petitioner was imprisoned for his failure to give
security, a subsequent trial for the same acts for which security proceedings were started is not barred under
this article.12. Article20(2) prohibits the prosecution and punishment of a person more than once for the same
offence. It does not prohibit a second prosecution and punishment for an offence for which he was previously
prosecuted and acquitted.13. When the earlier proceeding fails on technical grounds, a fresh proceeding on the
same facts after removal of the defect would not be barred as “prosecution and punishment” is sine qua non for
the application of Article 20(2). In Bali Tripati v State,14. Supreme Court held that where an earlier prosecution
was quashed on the ground of want of sanction from the appropriate authority as required under law, a re-trial
of the accused for the same offence after obtaining sanction as required under law would not be barred.15.
Article 20(2) has no application in case of criminal proceedings vis-à-vis civil proceedings. Even though a
person has been convicted of an offence causing death due to negligent driving and was awarded punishment
of rigorous imprisonment and was also directed to pay fine; a civil suit for damages for causing death is
maintainable.16.
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A person was prosecuted and punished under section 161, IPC (before deletion of the Section under the Act 49
of 1988). On appeal, High Court quashed the trial proceedings holding it void ab initio as no sanction was
obtained. It was held that this article would not be a bar for a second trial as the accused has not been
prosecuted and punished for that offence.17. When grant of sanction is a sine qua non for taking cognizanceof
the offence, merely because the court took cognizance erroneously and the same comes to the notice of court
after all evidence is let in, a finding to that effect is permissible. Hence a contention that the court is bound to
record either a judgment of conviction or acquittal even after holding that there is no valid sanction is not correct
and even if a finding is recorded one way or other, the same would not make any distinction for the purpose of
invoking the jurisdiction under section 300, CrPC and any such finding will be illegal and without jurisdiction.18.
When a trial has for some reason become abortive, either because of some inherent defect or illegality affecting
the validity of the trial itself, a second trial is not barred under Article 20(2).19.
Similarly, where there was no punishment in the previous proceeding, e.g., owing to dismissal for default of the
complainant,20. a fresh prosecution would not be barred. Where a conviction is set aside and a retrial ordered,
the retrial is a continuation of the same proceedings and not a second prosecution.21.
Preventive Detention is not “prosecution and punishment” and prosecution can be levied.22.
IV. “Punishment” means a judicial penalty and would not include other penalties, such as—
(i) disciplinary action in the case of public servant23. including penalty imposed under section 22 of the
Public Servants (Inquiries) Act, 1850;24. or
(ii) action against a lawyer under the Legal Practitioners Act;25. or
(iii) penalties for jail offences under disciplinary rules of jails or under the Prisons Act;26. or
(iv) penalties under section 111 of the Customs Act, 1962;27.
(v) penalties prescribed by Rules of a Legislature for breach of privilege;28. or
(vi) binding down for good behaviour under section 11029. or taking security under section 107 of the
Criminal Procedure Code.30.
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(a) In an inquiry under the Public Servants (Inquiries) Act, 1850, there is neither any question of
investigating an “offence” in the sense of an act or omission “punishable” by any law for the time
being in force, nor is there any question of imposing, “punishment” prescribed by the law which
makes that act or omission an offence. The Commissioner under the Act is not judicial tribunal
though he may have some of the “trappings” of a judicial tribunal, and the proceedings before the
Commissioner are nothing more than a mere fact-finding inquiry which enables the Government to
determine provisionally the departmental punishment which should be imposed upon him before
giving him a reasonable opportunity of showing cause under Article 311(2) of the Constitution. The
report made by the Commissioner to Government is also a mere expression of opinion. Hence,
there is no contravention of Article 20(2) when a public servant is prosecuted for an offence under
the Indian Penal Code or the Prevention of Corruption Act after he has been dismissed in
pursuance of an inquiry under the Public Servants (Inquiries) Act, 1850.31.
(b) Section 366 of the CrPC, 1973, provides for committing a convict sentenced to death to be kept in
jail custody pending confirmation of his death sentence. Such custody, however, does not
constitute the imprisonment which an accused sentenced to simple or rigorous imprisonment has
to undergo; and, cannot,therefore, be held to be a punishment in addition to the sentence of death
which the court had, on trial, awarded against him. There is no room for invoking Article 20(2) in
such a case.32.
V. It is the nature of the Authority which imposes the penalty and not the nature or gravity of the penalty
imposed that determines whether there has been a “prosecution” or “punishment” within the meaning of this
clause.33.
VI. There is no contravention of Article 20(2) merely because two cases have been brought against the same
person for the same offence, if they are tried together, so that there is no double punishment for the same
offence.34. The Supreme Court said that the proper procedure would be to try the two cases together, but not
consolidated i.e., evidence to be taken separately in two cases simultaneously and dispose of the same by
separately, simultaneously by writing two separate judgments35. so that Article 20(2) is not violated.
[Art.20.7.4] “Same offence”
The previous conviction for an offence (e.g., hurt) does not bar a subsequent trial and conviction for a separate
offence (say, affray) even though the two offences arise out of the same acts.36.
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It was held that the emphasis in section 26 of the General Clauses Act 1897 is on the words “same offence”. It
is now well settled that where there are two distinct offences made of different ingredients, the bar under
section 26 of the General Clauses Act or for that matter the embargo under Article 20 has no application,
though the offences may have some overlapping features. The crucial requirement of either Article 20 of the
Constitution or section 26 of General Clauses Act is that the offences are the same or identical in all respects.
The same set of facts may constitute different offences.37.Recently it was held that a person can be
prosecuted and punished more than once even on substantially same facts provided ingredients of both
offences are totally different and they do not form the same offence. Test to ascertain whether the two offences
are the same and it is not identity of allegations that matters, but identity of ingredients of the offences. The
same facts may give rise to different prosecution. The test of identity of offences is whether the same evidence
is required to sustain them; if not, then the fact that both charges relate to and grow out one transaction does
not make a single offence where two are defined by the statute.38.
When a person was granted pardon in respect of misappropriation of funds and fraudulent withdrawal from the
State Exchequer on condition that he make a full and complete disclosure, prosecution under sections 277 and
278 of Indian Income Tax Act. On the basis of the statement given by him is not prohibited under the Article
since the offence of filing of false returns and making false declaration under the provision of Income Tax Act
and the grant of pardon do not operate his respect of same offence.39.
The expression “same offence” mean offence should be the same and they should be identical. It is necessary
to analyse and compare not the allegation in the two complaints, but the ingredients by the two offences and
see whether they are proved identical.40.
In United States v Vito Linga,41. it was held that an act with respect to intoxicating liquor which is denounced as
a crime by both National and State Sovereigns may be punished under the law of each sovereignty without
infringing the provision of 5th amendment to the Federal Constitution against double jeopardy for the same
offence. It was held: “An act denounced as a crime by both national and State sovereignties is an offence
against peace and dignity of both and may be punished by each. We have two sovereignties deriving power
from different sources, capable of dealing the same subject matter within the same territory. Each may without
reference to the other enact laws to secure prohibition with the limitation that no legislation can give validity to
acts prohibited by Amendments. Each government in determining what shall be an offence against its peace
and dignity, is exercising its own sovereignty, not that of the other”. The above American decision was relied on
by our Supreme Court in Monica Bedi v State of AP.42. Following the American decision, our Supreme Court
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said that the same set of facts can constitute offences under two different laws. An act or an omission can
amount to and constitute an offence under Indian Penal Code and at the same time constitute an offence under
any other law. It needs no restatement that the bar to the punishment to the offence twice over for same
offence would apply only if the ingredients of both the offences are the same.43.
In HALSBURY’S LAWS OF ENGLAND44., it is said: “The test is whether the former offence and the offence
now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a
conviction for the other, not that the facts relied on by the Crown are the same in the two trials.”
In order that the prohibition under Article 20(2) is attracted, the same act must constitute an offence under more
than one act. If there are two distinct and separate offences with different ingredients, a double punishment is
not barred. The same set of facts can constitute offences under two different laws. An act or omission can
amount to and constitute an offence under the Indian Penal Code and at the same time constitute an offence
under any other law.45.
What is necessary to determine whether two offences are distinct is to see whether their ingredients are
identical.46. The following have been held to be distinct sets of offences:
(a) Possession of firearms without licence and dacoity.47.
(b) Offence under section 353, IPC, and under section 26(1)(b), Bihar Sales Tax Act.48.
(c) Offence under section 167(8) of the Sea Customs Act and the offence of conspiracy under
section120B of the Penal Code.49.
(d) Every fresh act of refusal to take food by a prisoner on hunger strike constitutes a fresh offence under
section 52 of the Prisons Act, 1894.50.
(e) Offences under section 5(2) of the Prevention of Corruption Act, 1947 and under section 16151. or
section 409, IPC52.
(f) An offence and the conspiracy to commit that offence.49
(g) Offences under section 409, IPC, and under section 105 of Indian Insurance Act.53.
(h) Offence under section 7, Essential Supplies (Temporary Powers) Act and sections 332 and 392,
IPC54.
(i) An offence under section 9(l), read with section 56(l) of the Wild Life (Protection) Act, 1972 and section
429, IPC55.
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Conviction and punishment of imprisonment by General Court Martial under the Army Act and punishment of
dismissal by disciplinary authority under the said rules for the same misconduct will not amount to double
jeopardy.
Court Martial proceedings and disciplinary proceedings deal with different aspects and they do not overlap.56.
It was held that Court Martial proceedings deal with penal aspect of the misconduct while proceedings under
Central Service Rules deals with disciplinary aspect of the misconduct.57.
Distinct statutory provisions will be treated as involving separate offences for double jeopardy only “if each
provision requires proof of additional facts which the other does not”. But where the same evidence is sufficient
to prove both the crimes, they are the same for double jeopardy purposes and the clause forbid successive
trials and cumulative punishments for the two crimes.
When a person is convicted under section 138 of Negotiable Instruments Act, he can be further tried under
sections 406 and 420 read with section 114 IPC. A plea of double jeopardy for quashing the later criminal
proceeding on the ground that the person is already convicted for the offence under section 138 is not tenable.
Ingredients of offence under section 138 of NI Act are entirely different from offence under section 420 IPC. For
offence under IPC there is no legal presumption of antecedent liability against drawer of cheque and no fine is
imposed to meet a legally enforceable liability. For an offence under IPC, issue of mens rea might be relevant.
For getting protection under Article 20(2) or section 300 CrPC or section 71 of IPC or section 26 of General
Clauses Act ingredients of offences in the earlier case as well as in the later case must be the same and not
different. For attracting Article 20(2) there must be identity of ingredients as distinguished from identity of
allegations. If an issue of fact is decided in favour of an accused, it would not bar trial or conviction of the
accused for a different and distinct offence, but it would preclude acceptance of evidence to disturb the said
finding of fact. The offence punishable under section 420 IPC is a serious one as a sentence of seven years
can be imposed. In the case of NI Act, there is a legal presumption that the cheque has been issued for
discharging an antecedent liability and the presumption can be rebutted only by the person who draws the
cheque. Such a requirement is not there in the offence under IPC. The case under NI can only be initiated by
filing a complaint. However, in the case under IPC such a condition is not necessary. There may be some
overlapping of fact in both cases, but the ingredients of the offence are entirely different. The subsequent case
is not barred by any of statutory provision.58.
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In State of AP v Kokkiliagada Meerayya,59. the court while considering section 403 of CrPC (1898) (presently
section 300 CrPC) said thus:- “The following important rule emerges from the terms of section 403 of Code of
CrPC, 1898 (a) An order of conviction or acquittal in respect of any offence constituted by any act against or in
favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have
committed, if the court trying the first offence was incompetent to try the other offence; (b) If in the course of a
transaction, several offences are committed for which separate charges could have been made, but if a person
is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any
distinct offence for which at the formal trial a separate charge may have been but was not made; (c) If a person
is convicted of any offence constituted by any act and that act together with the consequences which resulted
therefrom constituted a different offence, he may again be tried for the different offence arising out of the
consequences, if the consequences had not happened or were not known to the court to have happened at the
time when he was convicted; (d) A person who has once been tried by a court of competent jurisdiction for an
offence and has either been convicted or acquitted shall not be tried for the same offence or for any other
offence arising out of the same facts for which a different charge from one made against him might have been
made or for which he might have been convicted under Code of Criminal Procedure. The offence must be
joined in one indictment and tried together unless the accused seeks for separate trial.60.
An acquittal of an accused for offence punishable under section 111 read with section 135 of Customs Act is
not a bar for proceeding under section 85 of the Gold Control Act, 1968, as the facts constituting the same
under the Customs Act are different and are not sufficient to justify a conviction under the Gold Control Act.61.
Proceedings under section 23(1)(a) of the Foreign Exchange Regulation Act, 1947, are adjudicatory and not
criminal in nature. Officers of the Enforcement Directorate Act as adjudicators and not as Judges of Criminal
Courts. Penalty imposed by them is for breach of civil obligation, and is not a sentence. Even after the penalty
is imposed, the person can be still tried and punished for the commission of an offence under the penal law and
the bar under Article 20(2) would not be attracted. Failure to pay penalty by itself attracts “prosecution” and on
conviction by the court, imprisonment may follow.62.
An order of physical removal from India in addition to the punishment imposed under Pakistan (Control) Act,
1949, does not amount to “double jeopardy” since there is no second prosecution for the same offence.63.
When a prisoner commits an offence punishable under the Indian Penal Code while undergoing punishment,
the jail authorities have two options : (1) either to record the statement of the case after registration of First
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Information Report to the competent Magistrate to enquire into the matter in accordance with the provisions of
Code of Civil Procedure, or (2) he may impose the punishment on the prisoner under the Prisons Act and the
Manual. When once the authorities of the jail have exercised the option of sending the matter to a competent
court, which has awarded the punishment, the jail authorities cannot for the same offence, proceed under the
Prisons Act and Manual. The same will be violative of Article 20(2).64.
To attract the provisions of Article 20(2), there must be a “second prosecution” for the “same offence” for which
the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and
punishment are not barred if the ingredients of the two offences are distinct. If the offences are distinct, there is
no question of the rule of double jeopardy being extended and applied, though the allegations in the two
complaints made against the accused may be substantially the same. An offence under section 5, section 6(1)
read with section 6(3) and section 6(2) read with section 6(3) under Rajasthan Sati (Prevention) Act, 1987, are
not the same offences. Section 5 deals with commission of an act of an offence. Section 6 is preventive in
nature. Hence both are distinct offences and they are not overlapping.65.
In Om Prakash Gupta v State of UP,66. court held that prosecution and conviction or acquittal under section
409 IPC do not debar trial of accused on a charge under section 5(2) of Prevention of Corruption Act 1947
because the two offences are not identical in sense, import and content.67.
In Leo Roy Frey v Supt., District Jail,68. proceedings were taken against certain persons in the first instance
before the Custom Authorities under section 167(8) of Sea Customs Act and heavy penalties were imposed.
Thereafter they were charged for an offence under section 120-B of IPC. Court held that an offence under
section 120-B IPC is not the same offence as under Sea Custom Act. It was held: “The offence of conspiracy to
commit a crime is a different offence from the crime that is the object of the conspiracy because conspiracy
precedes the commission of crime and is complete before the crime is attempted or completed, equally the
crime attempted or completed does not require the element of conspiracy as one of the ingredients. They are,
therefore, quite separate offences”.69.
Extradition proceedings is neither a prosecution nor a trial and hence this Article does not apply.70.
The Constitution bars double punishment for the same offence. But where the same act constitutes offences
under different laws or different sections of the same Act or where the consequence following from one act
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constitutes a separate offence, there is nothing under the Constitution to bar separate trial and punishment. But
there are some limitations under the existing law:
I. Section 26 of the General Clauses Act (X of 1897) lays down:
Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the
same offence.
This provision, again, is to be read with the principle of “implied repeal”, namely, that when a later statute
describes an offence created by a previous one and imposes a different punishment or varies the procedure,
the earlier statute is deemed to have been repealed by implication.71. Of course, it will have no application
where the essential ingredients of the two offences are different.72.
II. Clauses (2)-(4) of section 300 of the Criminal Procedure Code, 1973 provide—
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a
separate charge might have been made against him on the former trial under s.220, sub-s. (1).
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act,
constituted a different offence from that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened, or were not known to the court to have
happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or
conviction, be subsequently charged with and tried for, any other offence constituted by the same acts which
he may have committed if the court by which he was first tried was not competent to try the offence with
which he is subsequently charged.
The result of the above provisions is—

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(i) When the same act or omission constitutes an offence under different enactments, he cannot be
punished under both the enactments for the same offence.73.
(ii) Previous acquittal or conviction of an offence does not bar trial for any distinct offence for which a
separate charge might have been made against the accused in the former trial, under section 220(1) of
the Code. Thus,—
(a) Conviction under section 121 of the Motor Vehicles Act (driving a defective vehicle) does not bar a
subsequent trial for offences under sections 279, 338 or 304-A, Indian Penal Code (rash driving,
causing grievous hurt or death by such driving).74.
(b) Conviction in respect of possession of stolen revolver (sections 411 and 414, IPC) is no bar to
conviction for unlawful possession of arms [section 19(1)(f),Arms Act].75.
(c) Conviction under section 75 of the Madras City Police Act is no bar to sub-sequent trial for an
offence under sections 323 and 352, IPC76.
(d) Acquittal under section 353 of the Indian Penal Code is no bar to a subsequent prosecution for
offences under section 26(1)(a) or (h) of the Bihar Sales Tax Act, 1947.77.
(e) Acquittal under section 111, read with section 135 of the Customs Act, 1962, does not bar a
subsequent trial for the offence under section 85 of the Gold (Control) Act, 1968, because they
constitute distinct offences; and the accused could not have been tried on the same facts at the
former trial, as an alternative charge, under section 236 of the CrPC.78.
(f) Acquittal under section 211, IPC, bars a subsequent trial on the same facts under section 182,
IPC79.
(g) After conviction of an employee under section 14(1) of Employees Provident Fund and
Miscellaneous Provisions Act 1952, a second prosecution under section 406 of IPC would not be
violative of Article 20(2) as there is no double jeopardy. In the former case, there is a violation of
section 14(1)(A) of the Act if default is made in payment of the contribution after due date. In the
prosecution case, the offence consists in misappropriation of money entrusted to the employer in
violation of a direction of law.80.
(h) Demand and acceptance of bribe constitute different offences. The prosecution of the accused for
the said offence under sections 7 and 13 of Prevention of Corruption Act and punishing him for
both the offences independently would not be questioned as double jeopardy.81.
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(iii) If, however, the other offence is one for which a separate charge could have been made under section
221(1) or for which he might have been convicted under section 221(2) of the Criminal Procedure
Code, the accused cannot be tried again for the other offence which was not dealt with under section
221 in the former trial.
(a) Section 221 provides that if a single act or series of acts is of such nature that it is doubtful which
of several offences the facts will constitute, the accused may be charged with all of such offences
or he may be charged in the alternative with having committed some one of such offences.
Hence,—
Previous conviction or acquittal on a charge under section 352, IPC, (criminal force) bars
subsequent trial on a charge under section 323, IPC, (hurt).82.
(b) Section 221(2) of the Criminal Procedure Code provides that if in a case mentioned in section
221(1), the accused is charged with one offence and it appears in evidence that he committed a
different offence for which he might have been charged under section 221(1), he may be convicted
of the offence which he is shown to have committed, although he was not charged with it.
It is to be noted that though sub-section (3) of section 300, CrPC, deals with autrefois
convict,it refers to a distinct offence. Hence, it is not in conflict with Article 20(2) which
refers to the same offence. Similarly, sub-section (4) is not in conflict with Article 20(2),
inasmuch as though the question of “jurisdiction” is not expressly mentioned in Article
20(2), the very word “prosecuted” has been held to mean “prosecuted by a competent
Court” (see p. 4519, ante).
[Art.20.7.5] “More than once”
1. As has been pointed out already, there is no double punishment to attract the operation of the present clause
unless there is a fresh judicial proceeding for the same offence. Hence, the clause is not attracted—
(i) Where the sentence provides for imprisonment in default of payment of the fine awarded.83.
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(ii) Where the sentence is for fine and also for recovery of arrears of sales tax as if it were a fine.84.
2. Appeal is continuation of the original proceeding.85.Enhancement of punishment in a revision petition does

not amount to a second punishment.86.
[Art.20.7.6] The principle of res judicata in criminal proceedings
The constitutional rule against double jeopardy must be distinguished from the analogous principle of res
judicata which also applies to criminal proceedings.87.
The crux of the principle of issue estoppel or res judicata may be stated in the words of DIXON J. in King v
Wilkies88. thus: “Whilst there is not a great deal of authority upon the subject, it appears to me that there is
nothing wrong in the view that there is an issue-stoppel, if it appears on record of itself or as explained by
proper evidence that the same point was determined in favour of the prisoner in a previous criminal trial which
is to be brought in issue on a second criminal trial of the same prisoner … There must be a prior proceeding
determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by
the Crown against the same prisoner.”
The principle of issue estoppel which is also known as “cause of action estoppel” is different from the principle
of double jeopardy or autrofeis acquit as embodied in section 300 CrPC. This principle applies where an issue
of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of
the accused. Such a finding would then constitute an estoppel or res judicata against the prosecution, but
would not operate as a bar to the trial and conviction of the accused for a different or distinct offence. It would
only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused
is tried subsequently, even for a different offence which might be permitted by section 300(2) CrPC. Thus the
rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between
the parties. If in respect of an offence arising out of a transaction, a trial has taken place and the accused has
been acquitted, another trial with respect to the offence alleged to have arisen out of the transaction which
requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is
prohibited by the rule of issue estoppel.89. It was held therein that a judgment given by a competent court on
merit must bind all parties involved until the same is set aside in appeal and an attempted change in the form of
the petition or in its grounds cannot be allowed to defeat the plea of res judicata.
The rule is not the same on the plea of double jeopardy or autrefois acquit which later prevents the trial of any
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offence. The rule of issue estoppel relates only to the admissibility of evidence which is designed to upset a
finding of fact recorded by competent court at a previous trial.90. The rule as to issue estoppel applies where
same issue was distinctly raised and inevitably decided in earlier proceedings between the same parties.91.
While the rule under Article 20(2) of the Constitution is that when a person is acquitted he cannot be tried again
for the same offence, the rule of res judicata means that the verdict of acquittal shall be conclusive as between
the prosecution and the accused in all subsequent proceedings,92. so far as the acquittal may be relevant to
the defence of the accused in such subsequent proceedings.93. If the order of acquittal was passed by a
competent court, though wrongly, it would be “binding unless set aside in appeal”.94.
S was arrested and charged with two offences—(a) being in possession of ammunition and (b) being in
possession of firearms. He was tried on charge (a) and acquitted. Subsequently he was tried on charge (b). In
that trial, his acquittal on charge (a) was tendered in defence. Held, the evidence was relevant and the
correctness of the acquittal on charge (a) could not be questioned by the prosecution.
“Here the appellant having been acquitted at the first trial on the charge of having ammuntition in his
possession, the prosecution was bound to accept the correctness of the verdict and was precluded from taking
any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so
far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearms charge is
plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts
proved in support of one charge were clearly relevant to the other having regard to the circumstances in which
the ammunition and revolver were found and the fact that they fitted each other.”95.
Our Supreme Court has held that the application of the above rule of res judicata in India is not excluded by the
fact that the rule against double jeopardy has been codified in section 300 of the CrPC, and also guaranteed by
Article 20(2) of the Constitution,96. because the scope of the two principles is not identical. While the rule
against double jeopardy is not applicable unless the offence involved in the subsequent proceeding is not the
same as that in the former proceeding, the rule of res judicata applies even though the offence for which the
subsequent proceeding has been brought is a different one.96 For, the rule of res judicata rests on the principle
that where an issue of fact has been tried by a competent court on a former occasion and the finding of that
court has been in favour of the accused, such finding would constitute an estoppel against the prosecution,—
not as a bar to the trial but as precluding the reception of evidence to disturb the finding of fact when the
accused is tried subsequently even for a different offence, which might be permitted by section 403(2) of the
CrPC.96
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In order to invoke the rule of issue-estoppel, not only the parties in the two trials must be the same, but also the
fact in issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the
subsequent trial.97.
The doctrine of issue estoppel applies only when the earlier and present proceedings are under criminal
prosecution.98. Where an issue has been decided by a competent court on a former occasion, such a finding
constitutes an estoppel or res judicata against the parties to that proceedings. It will operate as a bar to
reception of evidence to disturb that finding in a subsequent proceeding. The principle is known as issue
estoppel.1.
In the result—
The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not
completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be
added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the
adjudication.2.
But the general rule relating to res judicata that a judgment is not conclusive in regard to a question which, from
the nature of the case, could not be adjudicated upon in the case in which the judgment was given, also applies
to criminal cases. On this principle, an acquittal on a charge of conspiracy to commit a particular crime does not
operate as a bar to trial for the substantive offence or vice versa.2
Since the doctrine of res judicata rests on the identity of the issues at the two trials, it is also known as the
doctrine of “issue estoppel”.3.
While dealing with the case of Lalta v State of UP,4. the Supreme Court has drawn a distinction between “Issue
estoppel” and “Autrefois Acquit”. After referring to various case-laws, court said: “Where an issue of fact has
been tried by a competent court on a former occasion and a finding of fact has been reached in favour of the
accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the
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trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb
that finding of fact when the accused is tried subsequently even for a different offence which might be permitted
by the terms of section 403(2) CrPC. Section 403 CrPC does not preclude the applicability of the rule of “issue
estoppel”. But the Supreme Court has also held in Asst. Customs Officer v Melwani,5.relying on an earlier
English decision in Sambasivam v Public Prosecutor,6. that the doctrine of issue estoppel was but a facet of
doctrine of “autrefois acquit”.
In the book “INDIAN LEGAL SYSTEM”7. pertaining to “double jeopardy” rule (autrefois acquit and autefois
convict) it is stated thus8. : “A person who has been once tried by a court of law of competent jurisdiction for an
offence and convicted or acquitted of such offence, shall not be tried again for the same offence nor on same
facts for any other offence for which a different charge might have been made or for which he might have been
convicted except that he may be tried again, (a) with the consent of State Government, for a distinct offence for
which a separate charge might have been made; (b) for a different offence constituted by consequences which
had not occurred at the time when he was convicted (e.g., a person convicted of causing grievous hurt may
afterwards be tried for culpable homicide if the victim dies); (c) for any other offence constituted by the same
acts, if the court by which he was first tried was not competent to try that other offence, (d) with the consent of
the court by which he was discharged, if the magistrate stopped without pronouncing a judgment, the
proceedings in a summons case at any stage before evidence of principle witnesses had been recorded; (e) if
the complaint has been dismissed or the accused had been discharged (because these do not amount to an
acquittal), (f) where an act or omission constitutes an offence under two enactments, but he shall not be liable
to be punished twice for the same offence.
[Art.20.7.7] Applicability of Article 20(2) to service matters
When a departmental enquiry is held against a civil servant under the Public Servants (Inquiries) Act 1850, he
is not “prosecuted” and “punished” for an offence as contemplated under Article 20(2). In S.A. Venkataraman
vUOI,9. it was held: “A commissioner appointed under the Act has no duty to investigate any offence which is
punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no
jurisdiction to do so. The subject matter of the investigation by him is the truth or otherwise of the imputation of
misbehaviour made against a public servant and it is only as instances of misbehaviour that the several Articles
of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses”.
To ascertain the character of the proceedings, the following criteria are applicable: (1) duty to investigate an
offence and impose a punishment, (2) prosecution must be in reference to the law which creates the offence
and punishment must also be in accordance with what the law prescribes, (3) there must be the trappings of a
judicial tribunal, and (4) the decision must have both finality and authoritativeness, which are the essential tests
of a judicial pronouncement.
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Conviction and punishment of imprisonment by General Court Martial under the Army Act and a punishment of
dismissal consequent to disciplinary proceedings under CCS (CCA). Rules are not barred under Article
20(2).10.
An employee was acquitted in criminal proceedings on the charge of bigamy under section 494 IPC The
acquittal or discharge of the employee does not prevent the department from proceeding against the employee
for the same as a misconduct in employment.11.
Denial of salary on the ground of “no work no pay” is not a penalty. Where leave is granted without pay, it is not
a penalty. But if the delinquent employee is dismissed from service due to unauthorised absence, that cannot
be treated as a double punishment since salary withheld is not a penalty. Here Article 20(2) has no
application.12. It was held that if only one punishment is awarded, under the Rules, Article 20(2) has no
application.13.
Due to rash and negligent driving, an accident happened for which compensation was awarded to the victim by
Motor Accidents Tribunal. The amount so awarded was a loss to the employer and after enquiry, the pay of the
driver was reduced. Subsequently in a criminal case which was registered due to the accident, the driver was
found guilty and convicted. Consequent to conviction, the services of the driver was terminated. It was
contended that the dismissal amounted to double jeopardy. Rejecting the contention, it was held that Article
20(2) has no application, since there was no second prosecution for the same offence and the disciplinary
proceedings are only consequent to the conviction and as provided by Service Rules.14. When an employee is
found guilty and is penalised and consequently not promoted, he cannot be said to have been subjected to a
further penalty on that account. Denial of promotion in such circumstances is not a penalty, but a necessary
consequence of his conduct.15.
For the negligence of the employer, disciplinary proceedings was initiated and appellate authority directed re-
instatement on the conditions that the employer should deposit certain bags of wheat which was found to be in
shortage in stock (which was the reasons for departmental proceedings). The same were paid and the
employer was reinstated. Thereafter the management filed a civil suit for recovery of huge amount from the
employee alleging misappropriation of wheat which was decreed by trial court. In appeal, the suit was
dismissed. Confirming the decision of the High Court, Supreme Court held the suit which is based on the same
cause of action is barred under Article 20(1). The remedy of the management was only to challenge the order
of the appellate authority and not to file a separate suit on the same cause of action.16.
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An ordinance was challenged as an unconstitutional, which was accepted by the learned single judge. When
the appeal was pending, the ordinance got lapsed and consequently the appeal was dismissed as infructous
without going into merits of the case. Subsequently a regular Act was enacted on similar lines of the ordinance.
It was held that the Supreme Court is not prohibited from considering the validity of law, even if the fresh
enactment contain similar provision as that of the ordinances.17.
Article 20 bars only the prosecution and punishment for the same offence. It does not bar the recovery of
damages for the offence committed.18.
Even after an adjudication by the authorities and levy of penalty under relevant section of Foreign Exchange
Regulation Act, the defaulter can still be tried and punished for the commission of an offence under the penal
law and the bar under Article20(2) would not be attracted.19.
ART 20.8 CLAUSE (3) OTHER CONSTITUTIONS (A) England.—
U.K.
It is a fundamental principle of the English system of criminal justice (which differs from the inquisitorial
procedure obtaining in France and some other Continental countries), that it is for the prosecution to prove the
guilt and the accused need not make any statement against his will.
There was a time when in England an accused could be questioned and this rule of common law was abused
by the Star Chamber, and by the ecclesiastical courts in the 16th century, by resorting to inquisitorial methods.
As a protest against such inquisitorial methods, the maxim came to be asserted:
“No man is bound to accuse himself” (nemo tenetur prodere or nemo tenetur seipsum accusare).
“It is the business of the Crown to prove him guilty, and he need not do anything but stand by and see what case has
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been made out against him. …He is entitled to rely on the defence that the evidence, as it stands, is inconclusive, and
that the Crown is bound to make it conclusive without any help from him.”20.
The principle of immunity from self-criminating evidence is thus founded on the “presumption of innocence”
which characterises the English system of criminal trial. The principle is now embodied in statute,—the Criminal
Evidence Act, 1998, which says that though the accused is competent to be a witness on his own behalf, he
cannot be compelled to give evidence against himself. If he gives evidence on his own behalf, the prosecution
may comment upon such evidence, but his failure to give evidence cannot be commented upon.
The protection is extended also to a witness other than the accused on the principle that a witness in any
proceeding, civil or criminal, has the privilege of not answering a question on the ground that the answer might
make him liable to a criminal charge.21. Again, if a witness who claims the privilege is improperly compelled to
answer, such answer cannot be used against him in a subsequent trial on a criminal charge based on the
incriminating statement.22.
The immunity, however, extends to answers which may expose a person to civil liability23. other than forfeiture
as regards which a statutory exception has been engrafted.24.
(B) U.S.A.—
U.S.A.
The Fifth Amendment to the Constitution of the U.S.A. adopts the above principle by laying down:
No person…shall be compelled in any criminal case to be a witness against himself.
So, an accused is permitted to give evidence on his own behalf if he so elects. But if he elects not to give
evidence, that fact cannot be used to his prejudice.25. Nor can a man be convicted on testimony by compulsory
discovery: “Any compulsory discovery by extorting the party’s oath is contrary to the principles of free
Government”,26. it is “shocking to the universal sense of justice and offensive to the common and fundamental
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ideas of fairness and right.”27.In Murphy v Waterfront Commission,28. court said: “Because the privilege
against self-incrimination reflects many of our fundamental values and most noble aspirations and because it is
the essential mainstay of our adversary system, the Constitution requires that the Government seeking to
punish an individual produce the evidence against him by its own independent labours, rather than by the cruel,
simple expedient of compelling it from his own mouth”.29. In Kastigar v US,30. court said that when
Government proceeds to prosecute a previously immunised witness, it has the heavy burden of proving that all
the evidence it proposes to use was derived from legitimate independent source. The trial court must normally
hold a hearing for the purpose of allowing the Government to demonstrate that it obtained all of the evidence it
proposes to use from sources independent of the compelled testimony. The failure of the Government to meet
its burden can have most drastic consequences”. Court further said that the use of immunised testimony by
witnesses to refresh their memories or otherwise to focus their thoughts, organise their testimony or alter their
prior or contemporaneous statements constitute indirect evidentiary not non-evidentiary use. This observation
also applies to witnesses who studied, reviewed or were exposed to the immunised testimony in order to
prepare themselves or others as witnesses. Court said that when the Government puts on witnesses who
refresh, supplement or modify that evidence with compelled testimony, the Government uses that testimony to
indict and convict. The fact that the Government violates the Fifth Amendment in a circuitous or haphazard
fashion is cold comfort to the citizen who has been forced to incriminate himself by threat of imprisonment for
contempt. It cannot be dismissed as merely non-evidentiary. In that case, the court was considering the validity
of the federal use of immunity statute31. which provides as follows: “When a witness refuses on the basis of his
privileges against self-incrimination, to testify or provide other information in a proceeding before or ancillary to
(1) a court or grand jury of United States; (2) an agency of United States, or (3) either House of Congress, a
joint Committee of either House and the person presiding over the proceeding communicates to the witness an
order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege
against self-incrimination, but to testify or other information, but no testimony or other information compelled
under the order (or any information directly or indirectly derived from such testimony or information) may be
used against the witness in any criminal case except or prosecution for perjury, giving false statement or
otherwise failing to comply with the order.32. Supreme Court of America later denied certiorari.33.
The expansive language in Boyd case (supra) have been repudiated by the Supreme Court, though the
decision in Boyd case is never over-ruled.34. In California v Byers,35. it was held that prohibition on
Compulsion extends only to testimonial evidence. In that case, the constitutionality of California “stop and
report” requirements, where motor vehicle operator were involved in accidents that cause injury to person or
damage to property was held valid. It was held that the compliance with the statute require two things (1) a
driver involved in an accident is required to stop at the scene; and (2) he is required to give his name and
address. The act of stopping is no more testimonial—indeed less so in some respects—than requiring a person
in custody to stand or walk in a police line-up, to speak prescribed words or to give samples of hand-writing,
finger-prints or blood. Disclosure of name and address is essentially a neutral act. It was held that whatever the
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collateral consequences of disclosing name and address, the statutory purpose is to implement the State police
power to regulate the use of motor vehicles. It was held that disclosures of name and address, though identifies
the person, does not by itself implicate again in criminal conduct.36. Where withdrawal of a small sample of
blood from an individual suspected of drunk and introduction at trial of the results of a chemical analysis to
determine the presence of alcohol did not violate this rule against self-incrimination. It was held that such
evidence was physical and not testimonial.37.
In Miranda v Arizona,38. the court concurred with the interrogation atmosphere and the evils it can bring. In that
case, after arrest, the accused was taken to an interrogation room, when a confession statement was taken.
The Police Officer did not afford appropriate safeguards at the outset of the interrogation to ensure that the
statement was truly the product of free choice. It was held that if a person is in custody, is subjected to
interrogation he must be first informed in clear and unequivocal terms that he has “the right to remain silent”.
For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold
requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute pre-
requisite in overcoming the inherent pressures of the interrogation atmosphere. Further, the warning will show
the individual that his interrogators are prepared to recognise his privilege, should be choose to exercise it.39.
This guarantee against testimonial compulsion ‘was added to the original Constitution in the convict on that too high a
price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment other social
objectives of a free society should not be sacrificed.40.
For, the makers of the Constitution had the bitter experience of the use of inquisitorial methods by an arbitrary
Government:
Having had much experience with a tendency in human nature to abuse of power, the Founders sought to close the
doors against like future abuses by law-enforcing agencies.41.
It was held in that case: “It reflects many of our fundamental values and most noble aspirations. Our
unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt,
our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-
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incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which
dictates “a fair State—individual balance by requiring the Government to leave the individual alone until good
cause is shown for disturbing him and by requiring the Government in its contest with the individual to share the
entire load.” In William Malloy v Patrick J. Hogan, Sheriff of Hartford County,42. it was held by the Supreme
Court: “The shift reflects recognition that the American system of criminal prosecution is accusatorial, not
inquisitorial and that the Fifth Amendment privilege is its essential mainstay”. In Rogers v Richmond,43. it was
held that “Government, State and Federal are thus constitutionally compelled to establish guilt by evidence
independently and freely secured and may not by coercion prove a charge against an accused out of his own
mouth”. It was held therein that legitimacy of a confession was based not on its reliability or trustworthiness, but
on its voluntariness. Prohibition of the use of physical force by law enforcement authorities was underscored by
the court.44.In William Murphy and John Moody v Waterfront Commission of New York Harbour,45. it was
declared that “the privilege against self-incrimination registers an important advance in the development of our
liberty one of the great landmarks in man’s struggle to make himself civilized”.
The essence of compelled self-incrimination was a coerced confession. Today coercion is much more likely to
be psychological than physical and subtle rather than overt; how could we know whether the admission of guilt
or incriminating statements were made voluntarily?
I. In the United States, judicial interpretation has enlarged the scope of the privilege. Thus,—
(i) The privilege has been held to include not only oral evidence but also documentary evidence which is
self-incriminating.46.
(ii) The privilege has been extended to any disclosure, including the production of chattels, sought by legal
process against a witness.46
(iii) The privilege has been used to protect a witness as fully as it does apply to protect a party defendant
to a cause of the person accused.47.
(iv) It would be available to all persons including a lawyer,48. or a police officer.49.
(v) The privilege extends not only to answers which by themselves support a criminal conviction but also
to answers which might furnish a link in the chain of evidence needed to convict the witness for an
offence.50.
(vi) Above all, though the Fifth Amendment refers to a “criminal case”, it has been held to extend to any51.
proceeding, civil or criminal, “wherever the answer might tend to subject to criminal responsibility him
who gives it”.52.
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Thus, the principle has been extended to evidence even before legislative Committees53. and
other tribunals, which are not regular Courts,54. but have power to compel a person to testify, and
where the answer given may put the witness to criminal liability.54
(vii) The immunity extends to pre-trial investigation and interrogation.55.
A confession obtained during unreasonably long delay in getting the accused before a magistrate was
presumed to be coerced and thus inadmissible.56. Another circumstance to doubt the validity of confession is
“after lengthy interrogation”. In Ashcraft v Tennessee,57. court held that 36 hours of relay questioning was
inherently coercive. In another case, five days of non-continuous interrogation was likewise unconstitutional.58.
In Spano vNew York,59. court said that a confession had to be the result of “free and rational choice”. The
prohibition of the use of pressure did not mean that interrogators could not resort to trickery in dealing with the
accused, but it did mean that when the police engaged in deceit, they were on unsteady grounds. More trickery
would not taint a confession; but trickery that caused coercion would and in the absence of counsel, substantial
use of tricks by the police was constitutionally risky.
Inducements to confess were likewise unconstitutional because they violated “free and rational choice”. In
Haynes v Washington,60. court vacated the conviction of the defendant of robbery because he was held
incommunicado and told that he could call his wife until after he had made confession.61.
In Miranda’s case, it was observed by CHIEF JUSTICE WARREN thus:
…When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant
way and is subjected to questioning, the privilege against self-incrimination is jeopardised. Procedural safeguards must
be employed to protect the privilege unless other fully effective means are adopted to notify the person of his rights of
silence and to assure that the exercise of the right will be scrupulously honoured, the following measures are required.
He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights
must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity
afforded to him, the individual may knowingly and intelligently waive these rights and agree to answer questions or
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make a statement. But unless and until such warnings or waiver are demonstrated by the prosecution at the trial, no
evidence obtained as a result of interrogation can be used against him.
In announcing these principles, we are not unmindful of the burden which law enforcement officials must bear, often
under trying circumstances. We also fully recognise the obligation of all citizens to aid in enforcing the criminal laws.
This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the
legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an
undue interference with a proper system of the law enforcement. As we have noted, our decision does not in any way
preclude police from carrying out their traditional investigatory functions. Although confession may play an important
role in some convictions, the cases before us present graphic examples of the over-statement of the need for
confessions. In such case, authorities conducted interrogation ranging upto five days in a duration despite the
presence, through safeguard investigating practices of considerable evidence against each defendant.
II. But the provision against self-incrimination has been held to be subject to the following limitations:
(i) It is open to the accused to waive the privilege.62. The waiver need not be in writing and need not to
take the form of an explicit statement.63. Whether these has been a knowing, intelligent and voluntary
waiver of this rights depends an a variety of circumstances, such as the suspects age, whether other
persons besides the police officers were present at the time of questioning, the time of day and the
suspects mental state.64. But waiver is not to be presumed form mere silence.65. If he waives the
privilege and gives testimony on any point, he must give the whole of it.66. When an accused waives
this privilege by entering into his defence, he may be cross-examined upon his evidence in chief with
the same latitude as would be exercised in the case of an ordinary witness. The privilege must be
invoked when the question is first asked.67.
If the accused repudiates his confession at trial and alleges that he was coerced, the burden is on
the State to show otherwise.
It was held in earlier cases that admission of a coerced confession at a trial was sufficient in itself
to reverse the conviction. But it is now held that an erroneously admitted coerced confession need
not constitute grounds for reversing the conviction, if the impact of the confession in the light of all
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other evidence, was “harmless” that is unlikely to have prejudiced his right by contributing to the
verdict.68.
In Miranda v Arizona,69. court said that when an individual is taken to custody or otherwise
deprived of his freedom by the authorities in any significant way and is subjected to questioning,
the privilege against self-incrimination is jeopardised. Procedural safeguards must be employed to
protect the privilege and unless other fully effective means are adopted to notify the person of his
right and to assure that the exercise of the right will be scrupulously honoured, the following
measures are required. He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him and that he has the right to remain silent and
that he has the right to the presence of an attorney. Opportunity to exercise these rights must be
afforded to the person in custody. But in a subsequent decision, court said that the authority should
give the warning in such cases or in a situation posing a threat to public safety, which outweighs
the need for prophylactic rule protecting the Fifth Amendment privilege against self-
incrimination.70.
The principle is that the constitutional prohibition against self-incrimination, being solely for the
personal benefit of a witness, it is deemed to be waived unless it is specifically invoked at the time
of his examination.71. An accused may waive this privilege by voluntarily “taking his stand”72. in
which case he renders himself to the position of an ordinary witness, in all respects.73. He may
also be deemed to have waived the privilege if he testifies freely in a way to incriminate himself
before trying to invoke the privilege.74.
Even after claiming the privilege against self-incrimination a witness may withdraw his claim as to
all or any part of his testimony,75. but such waiver should not be lightly inferred from vague and
uncertain evidence.75 It the person repudiates the statement, or confession at trial and alleges that
it was coerced, the burden of proving this voluntary nature of statement is on the State and the law
was coerced confession at trial was sufficient to reverse the conviction. But in Arizona v
Tulminate,76. it was observed that an erroneous admitted coerced confession need not constitute
grounds for reversing the conviction, provided that if the impact of the confession, in the light of
other evidence was “harmless”, i.e., unlikely to have prejudiced the right of the accused by
constituting to the verdict.
Voluntary waiver should, however, be distinguished from a legislative abrogation of the privilege.
Thus, a provision requiring dismissal of municipal employees who invoked the privilege against
self-incrimination, has been declared unconstitutional;77. so also a statute which provided for
cancellation of a Government contract if the contractor refuses to waive his immunity against self-
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incrimination, that is to say, if he refuses to answer questions regarding his public contracts on the
ground that they might incriminate him in future criminal proceedings.78.
(ii) Where an accused has been pardoned or otherwise given immunity from prosecution, he may be
compelled to give evidence. But before the accused may so be compelled, he must be given complete
immunity, not only from the criminal charge directly in question but also from the liability for other
criminal offences that may be revealed by his evidence.79. To be valid, a statutory enactment which
compels a person to testify after claim of privilege against self-incrimination must afford
complete80.and absolute immunity from criminal prosecution for any offence disclosed by the
evidence.81.
But such statute need not grant immunity from use of evidence derived from legitimate
independent sources,for prosecuting him for the same act or transaction regarding which he was
compelled to give evidence on the consideration on statutory immunity.82.
Apart from a statute giving immunity directly,83. where the possibility of a prosecution is removed
indirectly, e.g., by a statute of limitation,79 barring prosecution, the constitutional privilege is not
available.
(iii) The immunity is merely from giving evidence against the consent of the accused. The prosecution is
not debarred from exhibiting the person of the accused to the Jury, comparing his finger-prints,
photographs, etc.84.
(iv) The protection is only against State action. Hence, where a private person steals incriminating paper
from the accused, Government having had no part in the theft, is not debarred from using such stolen
paper in support of the prosecution.85.
(v) The immunity is against disclosure of incriminating facts only, that is, against answers which would
expose the witness to criminal liability.86. He cannot refuse to answer on the ground that it would
expose him to civil liability of any kind87. or lower his reputation.88.
(vi) Nor would it protect a witness against disclosure of incriminating facts when an earlier testimony by the
witness has already established his violation of the law constituting the same offence.89.
(vii) The privilege against self-incrimination is intended only for the protection of a natural person either by
his own testimony or by the production of his personal records.90. It does not, accordingly, extend to
the production of public records91. or the collective records of an association, whether unincorporated
such as a labour union 90 or corporated,91 in the custody of the accused, for, artificial persons are not
entitled to this immunity.90
Where a corporation is not immune from producing books, the custodian of such books cannot
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withhold them on the ground that he personally might be incriminated by their production.91 But
even where such custodian unlawfully refuses to produce the corporate records, he cannot be
compelled to answer questions as to the whereabouts of the records not produced, if such
answers may tend to incriminate him; in the absence of the grant of adequate immunity from
prosecution, he cannot be compelled to condemn himself by his oral testimony.92.
(viii) It does not include any immunity from criminal liability for perjury committed while giving evidence.93.
(ix) The privilege conferred by the constitutional provision is of the witness himself and a witness cannot
claim the privilege not to answer on the ground that the answer would incriminate some other person 89
even though the witnesses were the latter’s agent94. or relative.95.
As has been already stated, books kept in a “representative” capacity cannot be withheld by him
even though production of such papers might incriminate him “personally”.90
(x) For the purpose of the effective administration of a law,1. the Legislature may require a person to keep
a record2. or to submit a report3. as to whether he has complied with it.
The court seems to have liberalised this exception in the case of taxing statutes. It has been laid
down that a law requiring a person to submit an income-tax return and penalising a person for his
refusal to submit the return does not violate the immunity from self-incrimination4. and even though
such person may legitimately object to disclose facts as to past5. acts as might incriminate him, he
could not refuse to make any return at all,4 even where the activity which is sought to be taxed is
itself illegal.6.
But where the activity which is taxed is illegal, such as wagering, though the assessee may be
required to furnish information to enable the taxing authority to tax, such information cannot be
used to prosecute him for the offence of carrying on the illegal activity.7.
Where a statute requires certain papers to be maintained as a condition of carrying on some

business, the constitutional immunity cannot be availed of for withholding such documents, even
when such records are sought to be used in criminal proceedings for the violation of the statute.8.
(xi) The constitutional guarantee does not protect witnesses from disclosing offences against the law of
other countries.6
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American Convention on Human Rights Article 8(2)(g) provide the right to not to be compelled to be a witness
against himself or to plead guilty.
(C) Japan.—
Article XXXVIII of the Japanese Constitution, 1946, provides:
Japan
No person shall be compelled to testify against himself…
ART 20.9 INTERNATIONAL CHARTERS

A. Covenant on Civil and Political Rights.—
Article14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum
guarantees, in full equality:
(g) Not to be compelled to testify against himself or to confess guilt.
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
provides: “In the determination of his civil rights and obligation, or of any criminal charges against him every
one is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law”. The right to remain silent of an accused was considered by the European court, while
considering the scope of the above Article. It was held: “Although not specifically mentioned in Article 6 of the
Convention, there can be doubt that the right to remain silent under the police questioning and the privilege
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against self-incrimination are generally recognised under international standards which lie at the heart of the
notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion
by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aim of
Article 6.”
The court does not consider that it is called upon to give an abstract analysis of the scope of these immunities
and, in particular, of what constitutes in this context “improper compulsion”. What is at stake in the present case
is whether these immunities are absolute in the sense that the exercise by an accused of the right to silence
cannot under any circumstances be used against him at trial or alternatively whether informing him in advance
that under certain conditions, his silence may be used, is always to be regarded as “improper compulsion”.
On the other hand, it is self-evident that it is incompatible with the immunities under consideration to base a
conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence
himself. On the other hand, the court deem it equally obvious that these immunities cannot and should not
prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into
account in assessing the persuasiveness of the evidence adduced by the prosecution. Wherever the line
between these two extremes is to be drawn, it follows from this understanding of the “right to silence” that the
question whether a right is absolute must be answered in the negative. It cannot be said, therefore, that an
accused’s decision to remain silent throughout criminal proceedings should necessarily have no implication
when the trial court seeks to evaluate the evidence against him. In particular, as the Government has pointed
out, established international standards in this area, while providing right to silence and the privilege against
self-incrimination, are silent on this point. Whether the drawing of adverse inference from the accused’s silence
infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular
regard to the situations where inferences may be drawn the weight attached to them by the national courts in
their assessment of the evidence and the degree of compulsion inherent in the situation.9. The above decision
was followed in Saunders v U.K.,10. and by the Privy Council in Braw v Scott.11. In the Privy Council’s case, it
was observed: “The Court has also recognised the need for a fair balance between the general interest of the
community and the personal right of the individual, the search for which balance has been described as
inherent in the whole of the Convention.” In Saunders v UK,12. the Department of Trade and Industry was
investigating the misconduct of a company which they alleged were falsely inflating the price of their shares as
part of a successful takeover of another company. During a number of interviews with the applicant (who was
the Chief Executive of the Company) he made certain involuntary statements which he was legally compelled to
do; refusal would have constituted contempt of court under the Companies Act 1985. In the subsequent trial for
various fraud offences these statements were used by the prosecution as evidence of the applicant’s guilt. The
applicant complained to the Commission that being compelled to make statements which may incriminate
himself if used at trial, amounted to unfair hearing under Article 6(1) of European Convention on Human Rights.
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Once it was conceded that statements were made under legal compulsion, the issue for the court was whether
such statements could be used by the prosecution at the trial, and if so, it amounted to unfair hearing. Court
said that the statements themselves did not have to be incriminating, it was enough if they were used in such a
way as to question the innocence of the applicant. Since the involuntary statements made by the applicant at
the interviews were a major part of the prosecution case, and were put before jury as evidence of his guilt that
infringed applicant’s right not to incriminate himself, and hence it violated Article 6(1). Lest it be thought that this
decision means that all legally compelled evidence, e.g., finger print, blood, breath, urine samples, etc. taken
from a suspect is now inadmissible in a court of law. Court quashed this notion by emphasising that it was the
interference with the accused’s “will” not to incriminate himself in criminal proceedings which must be respected
and this did extend to the ‘physical’ legal taking of incriminating evidence or any other legally obtained relevant
material”.13.
ART 20.10 INDIA [Art.20.10.1] Clause (3): Rationality of the immunity against self-incrimination
In Brown v Walker,14. the American Supreme Court observed:
The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which has long obtained in the continental system and until the expulsion of
the Stuarts from the British throne in 1688, and the erection of the additional barriers for the protection of the people
against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of
the prisoners, when voluntarily made, have always ranked high in the scale of incriminating evidence, if an accused
person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions
put to him may assume an inquisitorial character, the temptation to press the witness unduly to brow-beat him if he be
timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in
many of the earlier State trials … made the system so odious is to give a rise to demand for its total abolition. The
change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial
opinion, but upon a general and silent acquiescence of the courts in a popular demand.
But, however adopted, it has become firmly imbedded in English law as in American jurisprudence. So deeply did the
inequites of the ancient system impress themselves upon the minds of the American colonists that the States, with one
accord, made a denial of the right to question an accused person a part of their fundamental law,so that a maxim,
which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional
enactment.15.
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But the immunity is obviously, an impediment against a proper investigation of crime, and, therefore, ever since
its genesis, doubts have been expressed by responsible critics as to whether the security given by it to the
individual is more valuable than the social interests which are jeopardised by it.16.For historical origin of right
against self-incrimination see Selvi v State of Karnataka.17.
In New York v Quarles,18. court said that threat to public safety outweighs the need for not following the
procedure as directed in Miranda v Arizona,19.before recording a confession.
Under section 315 of the Code of Criminal Procedure (1973) although a person accused of an offence before a
criminal court can be a competent witness for the defence and gave evidence on oath in disproof of the charges
made against him, he cannot be called as a witness except on his request in writing and his failure to give
evidence cannot be made the subject of any comment by any of the parties or the court or give rise to any
prescription against himself or any person charged together with him at the same trial.
It is settled that it is for the prosecution to prove the guilt of the accused. But it is also settled that providing
exceptions or to place partial burden on the accused is not violative of law or constitutional rights. In Salabaiku
v France,20. while dealing with Article 11 of the Universal Declaration of Human Rights, the scope of burden of
proof on the prosecution and also its placement on the accused, held that presumption of fact or law operate in
every legal system. In Ong Ah Chuan v Public Prosecutor,21. was a case where a person was in possession of
drugs, i.e., heroine more than permitted. Under section 3 of Misuse of Drugs Act 1973, there is a statutory
presumption of trafficking and death sentence is mandatory. In such cases, the onus lies on the accused to
satisfy the court, upon balance of prohibition, that he did not intend to part with possession of the drugs to
anyone else, but to retain them solely for his non-consumption. It was held that presumptions of this kind are a
common feature of modern legislation concerning possession and use of things that present danger to society
like addictive drugs, explosives, arms and ammunition. Such a provision is not against Constitution.
In Mok Wei Tak v R,22. a case arising from Hong Kong Prevention of Bribery Ordinance (Law of Hong Kong)
1980. In that case, the husband and wife were maintaining a standard of living above that commensurate with
the official emoluments. The wife was convicted for abetment of crime. It was held that the offence concerns the
maintaining of an excessive standard of living following an earlier event, namely, corrupt acquisition of assets
which has enabled those later events to take place. Therefore, the proof of abetting or aiding the abatement
“was to be inferred unless proper explanation was given” and the wife having failed to give the explanation, the
conviction was upheld.
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In Morrison v California,23. the question arose whether placing of the burden of proof on a co-accused of a
charge of conspiracy so as to violate the Alien Land Law of California was violative of due process of
Fourteenth Amendment. The court held that within the limits of reason and fairness, the burden of proof may be
lifted from the State in criminal prosecution and cast on a defendant. The limits are in substance these—the
State shall have proved enough to make it just for the defendant to be required to repel what has been proved
with excuse or explanation or atleast that upon a balancing of convenience or of the opportunities for
knowledge the shifting of the burden will be found to be an aid to the accused without subjecting the accused to
hardship or oppression. Special reasons are at hand to make the charge permissible. The Legislature may go a
good way in raising a presumption or in changing the burden of proof, but there are limits. What is proved must
be so related to what is inferred in the case of a true presumption as to atleast a warning signal according to the
teaching of experience. It is not within the province of a Legislature to declare an individual guilty or
presumptively guilty of a crime. Presumptions that are not evidence in a proper sense, but simply regulation of
the burden of proof. It was held that the placing of burden on the accused to prove lack of guilty knowledge was
held to be not violative of the due process of the Fourteenth Amendment.24.
For the purposes of constitutionality, in terms of due process, statutory presumption regarding a criminal matter,
a presumption need not be accurate in every imaginable case. For the purpose of due process, the validity of
inferences and presumptions varies from case to case, depending on the strength of the connection between
the particular basic and elemental facts involved and on the degree to which the device curtails the fact—fuidesi
freedom to assess the evidence independently. In criminal cases, the ultimate test of any device’s constitutional
validity in a given case is that the device must not undermine the defendant’s responsibility at trial, based on
evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. An inference or
presumption involved in a case is permissible or mandatory for the purpose of analysing its validity in terms of
due process was held not violative of due process.25.
Though it is the cardinal principle of criminal jurisprudence that the burden of proof of an offence would always
lie on the prosecution, exceptions have been provided in sections 105 and 106 of the Evidence Act. Section
105 says that if a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the general exemptions in the Indian Penal Code or within any special exception
or proviso contained in any other Code or in any law defining the offence, is upon him and the court shall
presume the absence of such circumstances. Section 106 makes another exception, providing that any fact if it
is to be established within the knowledge of any persons, the burden of proof is upon him. Section 113-A of the
Evidence Act raises a presumption as to abatement of suicide by a married woman by her husband or his
relatives. Section 114-A raises a presumption of absence of consent in a rape case. In Veerasami vUOI,26. it
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was held that the provision of Prevention of Corruption Act placing the burden of proof on the accused is
reasonable, and is not unjust, unfair nor it can be regarded as violative of Article 21 of the Constitution. In
Sanjay Dutt v State,27. it was held that the presumption that possession of fire arms in any notified area was
meant for terrorist or disruptive act was held valid and it was for the accused to prove non-existence of a fact
essential to constitute an ingredient of an offence under section 5 of TADA. In cases where offences are held
within the confines of a society of marital home of a woman, it becomes intractable for the prosecution for the
prosecution to place the entire material in that regard. It was held that section 113-A of the Evidence Act though
an element of compulsion is implicit, it is optional. It was observed that the section is evidential part placed on
the accused to adduce evidence in proof of crime occurred within the confines to meet peculiar circumstances
in intractable areas. The validity of the provision was upheld.28.
While justifying such laws, Supreme Court held: “The Legislature enacted deterrent social provisions to contract
degradation of human conduct. These special provisions are to some extent harsh and are a departure from
normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new
situations”.29.
Eminent Jurist FALI S. NARIMAN in his book INDIAN LEGAL SYSTEM–CAN IT BE SAVED?30. has
considered the scope of Right to Silence by an accused. It is stated thus: “The right to silence—should it be so
sacrosanct?”
One of the most controversial aspects of the Malimath Committee Report (which has not been accepted by the
Government of India) is the inviolable rule as to the “right to silence” of the accused—at all times, and in all
cases. The accused is a good source of information; perhaps the best source about the commission of the
offence, but this source is not tapped for fear of infringing the right to silence guaranteed by Article 20(3), which
states that “No person accused of any offence shall be compelled to be a witness against himself”. But the
testimonial compulsion that is prohibited under Article 20(3) of the Constitution, as explained by several
decisions of the Supreme Court itself, is against duress. The Article does not prohibit admissions on
confessions made without inducement, threat or promise; it does not bar the accused from voluntarily offering
himself to be examined as a witness. The conclusions of the Malimath Committee (on the right to silence) are
as follows:
In the considered view of the Committee, drawing of adverse inference against the accused on his silence or
refusing to answer will not offend the fundamental right granted by Article 20(3) of the Constitution, as it does
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not involve any testimonial compulsion. Therefore, the Committee is in favour of amending the Code to provide
for drawing appropriate inferences from the silence of the accused.
But these conclusions are at variance with the law as it is presently enacted in the Code of Criminal Procedure,
1973, which prohibits adverse inferences being drawn from the deliberate silence of the accused.
Although principles basic to the rule of law—the presumption of innocence, the importance of a fair trial, and
guaranteeing the rights of individual accused remain constant, in grave situations, as for instance in heinous or
terrorist related situations, I believe that the rule of law should take into account the importance of what is at
stake, whilst maintaining the basic rights of the defence. Let me address this question. Is the concept of the rule
of law strong enough, or elastic enough, to devise means which would help maintain a balance of “justice”?
Justice for victims, as well as fairness to those charged? Under Scottish criminal law, for instance, the concept
of a fair trial is not solely a question for the accused. Lord Wheatly said that “while the law of Scotland has
always very properly regarded fairness to an accused person as being an integral part in the administration of
justice, fairness is not a unilateral consideration, fairness to the public is also a legitimate consideration”. The
judge went on to say, “It is the function of the Court to seek a proper balance to secure that the rights of
individuals are properly preserved”. There is much tension in the rule of law as applied to terrorist-related
offences. And there is increasing concern that the dice are loaded against the prosecuting agency, and in
favour of the accused terrorist. This perception of reasonable people—people who also believe in the
presumption of innocence, the need for a fair trial, etc.—cannot just be wished away or ignored.
In the New York Times of 25 March 2006, it was reported that England’s Home Secretary, CHARLES CLARKE,
said that under the adversarial system of justice, convictions were notoriously difficult to secure in terrorist trials.
He would support a shift to an inquisitorial system in terrorist cases, because it offered protection to the public.
In France, magistrates interrogate suspects before their lawyers are brought in. But the Home Secretary then
added—almost as an afterthought—“that nobody wants to give up the judicial system that has served the
English-speaking peoples so well for more than a hundred years: but we have never faced such a menace
before, and we may have to make an exception for terrorism”. (Emphasis provided). What that exception is has
to be worked out separately in every nation-state.
I believe that victims of acts of terrorism are not to be treated as mere victims of some tortuous action and given
ex post facto benefits evolved by legal regimes in the form of “socialisation of risks”. Social guarantees for the
benefit of victims of terrorism are simply not enough. Serious consideration needs to be given to the proposal
that in terrorist-related offences, the right of the accused to remain silent (a right given to him under most
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criminal justice systems) should give way to the larger interests of society and of victims that are affected by the
criminal acts.
In 1968, LORD HARTLEY SHAWCROSS, who for many years was Britain’s attorney General, gave evidence
to a commission of inquiry set up in Quebec, Canada, to study the Administration of Criminal Law. In his
autobiography, he records what he said:
During evidence that extended over two days I told the commission that I favoured the French procedure of judge d’
instruction who conducts a preliminary examination of witnesses, including the accused, whose answers then form part
of the evidence in the case. In England, judges are more or less umpires enforcing the rules of the game, after which
they throw it to the jury and ask “howzat?” The French judge d’ instruction on the other hand is more like a scientist
probing for the real truth.31.
It is time we recognise that in heinous and terrorist-related offences, which can be suitably and precisely
defined by law, what is known as the “right to silence” is not really a right but a privilege, and although every
accused has a right to be presumed innocent till he is proven guilty, in heinous and terrorist-related crimes that
accused has an obligation to assist the judge—not the prosecution, but the judge—in the discovery of the truth.
In such cases, the accused should not have any right to remain absolutely silent and refuse to answer
questions on oath.
The accused, like any other witness knowing the facts, must tell the court what he knows. A presumption to be
drawn from his failure to give evidence may not be enough, it might well conflict with the presumption of
innocence, hence there should be a positive obligation imposed by law on such a person to assist in the
investigation, and if so required by the court (again, let me emphasise, not required by the prosecution, but by
the court alone) to give evidence. This would not transgress, but further the purposes of law. It would not be a
disproportionate response to the serious problem of terrorism.
Under Article 6(2) European Convention on Human Rights, the presumption of innocence lies with the accused.
It is for the prosecution to prove the case. In Murray (John) vUK,32. the applicant was arrested under section
14 of the Prevention of Terrorism Act 1989 in Northern Ireland for terrorist offences relating to the unlawful
imprisonment in a house of an alleged IRA informer. He was given the appropriate arrest caution which
includes the possible consequences of adverse inference being drawn against him by the court should he
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refuse to answer any question under Article 3 of Criminal Evidence (Northern Ireland) Order 1988. Throughout
his detention period, he chose not to say anything and in particular refused to make any statement why he was
at the particular house when the police arrived. He was also denied access to a solicitor for forty-eight hours. At
his trial, he refused to give evidence and was eventually found guilty of aiding and abetting the unlawful
imprisonment of a person and sentenced to imprisonment for eight years. He complained to the Commission
that, inter alia, (i) under Article 6(1) and (2) he was denied his right to silence as well as the right not to
incriminate himself, and (ii) under Article 6(3)(c) he was refused access to legal advice entitled to him while in
custody under section 15 Northern Ireland (Emergency Provision) Act 1987. The applicant argued that he had
an inherent right not to answer question during police interviews, nor to give evidence at all, and accordingly the
judge was not entitled to draw an adverse inference from his silence. To do otherwise, amounted to subverting
the presumption of innocence and the onus of proof resulting from that presumption; it is for the prosecution to
prove accused’s guilt without any assistance from the latter being required. Rejecting the argument, court said
that right to silence is not absolute. There may be certain circumstances where an explanation is called for by
the accused and if none is forthcoming, the court may take into account that silence in assessing the
persuasiveness of the evidence adduced by the prosecution. Court said that whether the drawing of adverse
inference from the accused’s silence infringed Article 6 depended on the circumstances of the case having
particular regard to the situation where inferences may be drawn, the weight attached to them by national
courts in their assessment of the evidence and the degree of compulsion inherent in the situation. Court further
said that there was no compulsion in the case on the accused to speak i.e., the accused was not coerced or
oppressed by investigating authorities in some way, so that he involuntarily gave up the right of silence and
incriminated himself. Court finally concluded that Article 6(1) and (2) were not violated.
In India, section 161(2) CrPC prescribes that when a person is examined by a police officer, he is not bound to
answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a
penalty or forfeiture. Not only does an accused person have the right to refuse to answer any question that may
lead to incrimination, but there is also a rule against adverse inferences being drawn from the fact of his/her
silence. At the trial stage, section 313(3) of CrPC places a crucial limitation on the power of the court to put
question to the accused, so that the latter may explain any circumstances appearing in the evidence against
him. It lays down that the accused shall not render himself or herself liable to punishment by refusing to answer
such question, or by giving false answers to them. Further, proviso (b) to section 315 (1) CrPC mandates that
even though an accused person can be a competent witness for the defence, his or her failure to give evidence
shall not be made the subject of any comment by any of the parties or the court to give rise to the presumption
against himself or any person charged together with him at the same trial. It is evident that section 161 (2)
enables a person to choose silence in response to questioning by a police during the stage of investigation and
as per Scheme of section 313(3) and proviso (b) to section 315(1) of CrPC., adverse inference cannot be
drawn on account of accused person’s silence during trial stage.33.
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There are many other causes for the current lack of public confidence in criminal law administration.
But whatever be the merits of the principle or its practical disadvantages, once the principle has been embodied
in our Constitution, we are bound to apply it so far as the language of Clause (3) of Article 20 warrants, though
we may not allow any zealous extension of the principle beyond the accepted meaning of the words used in
that Clause. As Justice Douglas observed in his dissenting judgment in Rochin vCalifornia:34.
As an original matter it, might be debatable whether the provision in the Fifth Amendment that no person “shall be
compelled to be a witness against himself” serves the ends of justice. Not all civilized legal procedures recognize it. But
the choice was made by the Framers,a choice which sets a standard for legal trials in these country… They are
inadmissible because of the command of the Fifth Amendment.34
In short, the constitutional protection cannot be abridged on the ground of the possibility of its being abused or
because of any practical inconvenience:
If this result adds to the burden of diligence and efficiency resting on enforcement authorities,any other conclusion
would seriously compromise an important constitutional liberty.35.
The immediate and potential evils of compulsory self-disclosure transcend and difficulties that the exercise of the
privilege may impose on society in the detection and prosecution of crime.36.
Just as a wider construction is not legitimate, it is equally not permissible to make a narrow construction of a
constitutional command on grounds of policy,37. or on the ground that the historical reason which led to the
adoption of the constitutional prohibition against self-incrimination, namely, the “inquisitorial practices”, cannot
possibly exist today.38.The Criminal Justice and Public Order Act 1994 of England has affected the use of right
to silence of an accused in the face of police questioning, though it does not remove that right. Section 34(2) of
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the Act allows a court or jury to draw “such inferences from the failure as appear proper” from an accused’s
failure to mention, when questioned under caution or on being charged with an offence, any fact on which he
subsequently relies on in his defence, provided that it is one which in the circumstances he could reasonably
have been expected to have been mentioned. But, use of section 34 of the Act must be in the light of the
decision in Condron v UK.39. In that case, European Court of Human Rights did not say that section 34 was in
breach of ECHR, but said that it was essential to a fair trial that the judge should direct the jury not to draw an
adverse inference if they were satisfied that the defendant had remained silent on his solicitor’s advice and
there was a sound reason for this advice. In Saunders v UK,40. court said that provision under Cos Act 1985
which compels a person to make compulsory statement and permitting those statements to be used against the
person is violative of section 6(2) of European Convention of Human Rights.
[Art.20.10.2] Scope of Clause (3)
The present Clause follows the language of the Fifth Amendment to the American Constitution, but the rule laid
down in our Constitution is narrower than the American rule as expanded by interpretation. Thus,
(i) While, notwithstanding the words “criminal case” in the Fifth Amendment to the American Constitution,
it has been held to extend to incriminating statements in civil proceedings, proceedings before
legislative Committees or tribunals,the words “accused of an offence” in the present Clause make it
clear that the privilege under our Constitution is confined to an accused in a criminal proceeding, and
does not apply to civil proceedings,41. even though a criminal prosecution may arise out of such
proceedings.41
(ii) While both in the U.S.A.,42. as well as in England,43. not only the accused but also any witness to a
proceeding is protected from answering incriminating questions, a mere witness has no constitutional
protection under the present Clause of our Constitution. This Article protects a person who is accused
of an offence and not those questioned as witnesses. A person who voluntarily answers questions from
the witness box, waives the privilege which is against being compelled to be a witness against himself
because he is then not a witness against himself, but against others. section 132 of Evidence Act
sufficiently protects him since his testimony does not go against himself.44.
It is to be noted that under section 132 of our Evidence Act, no witness is excused from answering
any question on the ground that it would expose him to criminal liability or penalty or forfeiture; but
at the same time, the law gives him indemnity from any criminal liability for such evidence except
for perjury. It should be noted that the privilege conferred by Article 20(3) of the Constitution does
not touch the existing law relating to a witness.45.
(iii) The present Clause gives protection—

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(a) to a person accused of an offence; Only a person against whom a formal accusation of
commission of an offence has been made can be a person “accused of an offence” within the
meaning of Article20(3). Such formal accusation may be specifically made against him in an FIR or
a formal complaint or any formal document or notice served on that person, which ordinarily results
in his prosecution in court. The applicability of Article 20(3) depends on formal accusation. An
inquiry under the Railway Property (Unlawful Possession) Act 1966, where statements are
recorded would not attract Article 20(3). Such an inquiry is substantially different from an
investigation contemplated under CrPC.46.
(b) against compulsion “to be a witness”;
(c) against himself.47.
Article 20(3) cannot be invoked unless all the above three ingredients exist.48.
The Article embodies the principle of protection against compulsion of self-incrimination. This principle is also
enunciated by the Fifth Amendment to the U.S. Constitution. The above principle is recognised to a substantial
extent in the criminal administration of justice in our country by incorporation various statutory provisions. One
of the components of the guarantee contained in Article 20(3) is that it is a protection against compulsion
resulting in the accused of any offence giving evidence against himself. Thus, an accused or a person accused
of any offence is protected by the constitutional provision as well as the statutory provisions to the extent that
no self-incriminating statement made by an accused to the police officer while he is in custody, could be used
against such maker. The above guarantee and safeguards are in consonance with the expression “according to
procedure established by law” enshrined in Article 21 of the Constitution within which fold the principle of just
and fair trial is read into.49.
The right against self-incrimination is viewed as an essential safeguard in criminal procedure. Its underlying
rationale broadly corresponds with two objectives – firstly that of ensuring reliability of statements made by the
accused and secondly ensuring that such statements are made voluntarily. It is quite possible that a person
suspected or accused of a crime may have been compelled to testify through methods involving coercion,
threats or inducements during investigation stage. When a person is compelled to testify on his/her own behalf,
there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the
integrity of trial and subsequent verdict. Therefore, the purpose of the “rule against involuntary confession” is to
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ensure that the testimony considered during trial is reliable. The promise is not involuntary statements are more
likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during
investigation stage, false statements are likely to cause delays and obstruct the investigation efforts.
If involuntary statements were readily given weightage during trial, the investigation would have a strong
incentive to compel such statement – often through methods involving coercion, threats, inducement or
deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of
interrogation tactics that violate dignity and bodily integrity of the person being examined. In that sense, “the
right against self-incrimination” is a vital safeguard against torture and “other third-degree methods” that could
be used to elicit information. It serves as a check on police behaviour during the course of investigation. The
exclusion of compelled testimony is important; otherwise, the investigators will be more inclined to extract
information through such compulsion as a matter of course. The frequent reliance on such “short-cuts” will
compromise the diligence required for conducting meaningful investigation. During trial stage, the onus is on
the prosecution to prove the charges levelled against the defendant and the right against self-incrimination is a
vital protection to ensure that prosecution discharges the said onus.50. It was held in that case that Article 20(3)
has to be interpreted as a facet of the wider right of personal liberty under Article 21 and the right to answer
question that may incriminate a person is a procedural safeguard which bears a close relation with the right to
fair trial under Article 21.
It was held that an accused has a right to give or not to give specimen of his hair for the purpose of
identificaiton and the accused cannot be compelled to be a witness against himself against his will.51.
According to JUSTICE SAHAI, making a provision which has the effect of forcing a person to admit his guilt
amounts to denial of the liberty. A law which entitles a police officer to record confession and makes it
admissible is violative of both Articles20(3) and 21. The learned Judge further held that procedure established
by law extends both to substantive and procedural law.
RAMASWAMY J. observed that Article 3 of Declaration of Human Rights assures that everyone has right to life,
liberty and security of person. The constitutional and human rights commitment, therefore, is that no one shall
be constrained to commit himself out of his own mouth. In other words, the procedural checks are the valued
means to prevent excess and civilises the actions of the executive. Articles 20(3) and 21 accord, therefore, to
every person privilege against self-incrimination as part of right to life which reflects many of the fundamental
values, the notable being unwillingness to subject those suspected of crime to the cruel or inhuman treatment
of self-accusation and abuse of person. It is a protection to the innocent or may be a shelter or shield to the
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guilty, but so far as the constitutional protection is available, its deprivation is permissible only in accordance
with law consistent with the mandate of Articles 20 to 22 of the Constitution. It was held that Article 20 is not
confined to individual or common law offences. It extends to statutory offences as well. As soon as a formal
accusation constituting an offence under the Act has been made before SHO or in a private complaint the
person is entitled to protection under Articles20(3) and 21. Their violation, except in accordance with valid
procedure established by law are in violation of human rights to life assured by Article 21 … Procedure
envisaged in Article 20(3) is the manner, means and the form in which the right is enforced or the person is
subjected to. Though the Constitution does not guarantee any particular procedure and the Legislature is free
to lay down the procedure, Articles 14 and 21 prescribe inbuilt limitation in prescribing the procedure, i.e., there
must be fundamental fairness in the procedure prescribed by law and should not be unconscionable or
oppressive.
If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of
laborious investigation and prolonged examination of other men, materials and document? It has been well said
that an abolition of this privilege would be an incentive for those in charge of enforcement of law “to sit
comfortably” in the shade rubbing red pepper into poor devil’s eyes rather than to go about the sun hunting up
evidence. No less serious is the danger that some accused person atleast may be induced to furnish evidence
against themselves which is totally false – out of sheer despair and an anxiety to avoid unpleasant present. Of
all these dangers, the Constitution makers were clearly well aware and it was to avoid them that Article 20(3)
was put in the Constitution.52.
Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal
to convert an adversary system into inquisitorial scheme in the antagonistic anti-chamber of a police chamber.
And in the long run that investigation is best which uses stratagems least, that policemen deserve respect who
his fists rest and his wits restlessness. The police are part of us and must rise in people’s esteem through firm
and friendly not foul and sneaky strategy.53.
The words other than “accused of an offence” being identical with those of the Fifth Amendment of the
American Constitution, the American interpretation has been generally followed in the interpretation of these
other words in this Clause. But the words “accused of an offence” have been interpreted in such manner as to
narrow down the scope of the protection in India than that in the U.S.A.,not only as respects the proceedings in
which the protection is available, but also as to the stage from which it is available (see post),in a criminal
proceeding.
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Thus, the American immunity against self-incrimination:
not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution
but also privileges him not to answer official questions put to him in any other proceeding,civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings.54.
In Murphy v Waterfront Commission of New York Habour,55. court said: “It (i.e., Fifth Amendment) reflects
many of our fundamental values and most noble aspirations; our unwillingness to subject those suspects of
crime to the cruel dilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather
than inquisitorial system of criminal justice; our fear that self-incriminating statement will be elicited by
inhumane treatment and abuses; our sense of fair play which dictates a State-individual balance by requiring
the Government to leave the individual alone until good cause is shown for disturbing him and by disturbing him
and by requiring the Government in its contest with the individual to shoulder the entire load; our respect for the
inviolability of the human personality and of the right of each individual “to a private enclave where he may lead
a private life; our distrust of self-deprecatory statement and our realisation that the privilege while sometimes “a
shelter to the guilty” is often “a protection to the innocent”.56.
The Indian guarantee protects the individual only if he stands as an accused in that very proceeding where he
is compelled to testify.57.
He cannot refuse to testify on the ground that his answers might subject him to a criminal prosecution at a
future date.57
But this extreme view or restricted view was not accepted by Supreme Court in Nandini Satpathy v P.L.
Dani,58. wherein the benefit of this Article was given to “suspect” also. The same principle was followed in
Kartar Singh v State of Punjab,59. wherein it was held: “The acts of a person, of course, are neither negative
attitude of silence or submission on his part, nor is there any reason to think that the protection in respect of the
evidence procured is confined to what transpires at the trial of a court-room”. The phrase used in Article 20(3) is
to be a witness and “not appear to be a witness”. It follows that the protection accorded to an accused in so far
as it related to the phrase “to be a witness” is not merely in respect of the testimonial compulsion in the court-
room, but may well extend to compelled testimony previously obtained from him.60.
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Protection under section 161(2) of CrPC is wider than that under Article 20(3). Whereas under section 161(2)
read with section 161(1) CrPC suspects and witnesses are also protected, witnesses are subject to obligation
under section 132 CrPC to answer question in suit or proceeding. But protection afforded to a witness is
narrower compared to protection afforded to accused during trial under section 313(3) and 315(1) proviso (b) of
CrPC.61.
[Art.20.10.3] To which persons the immunity extends
1. It is now settled that the immunity against self-incrimination under Article 20(3) is available only to a person
who is “accused” of an offence in the proceeding where he is called upon to testify and not to a mere witness in
that proceeding.62.In Nandini Satpathy v P.L. Dani,63. the court also touched upon the question who is an
“accused” for the purpose of invoking Article 20(3). Court said that even at the stage of police interrogation by
way of an investigation into an offence a person can be an accused and such a person can claim protection
under Article 20(3). In State of Bombay v Kathi Kolu Oghad,64. the court said: “To bring the statement in
question within the prohibition of Article 20(3), the person accused must have stood in the character of an
accused person at the time when he made the statement, It is not enough that he should become an accused,
at any time after the statement has been made”. A person who merely accosted by police is not entitled to claim
immunity under this clause. Merely because he is being questioned on suspicion, but who is not arrested
cannot claim the benefit.65.But a confession made so by a person while in police custody cannot be admitted in
evidence except in cases coming under section 27 of the Evidence Act.66.
While there is a formal requirement of formal accusation for a person to invoke Article 20(3), the protection
contemplated by section 161(2) of CrPC is wider. Section 161(2) read with section 161(1) protects any person
supposed to be acquainted with the facts and circumstances of the case in the course of examination by the
police. Therefore, for the purpose of section 161(2), right against self-incrimination protects persons who have
been formally accused, as well as those who are examined as suspects in criminal cases. It also extends to
witnesses who apprehend that their answers could expose them to criminal charges in the ongoing
investigation or even in cases other than the one being investigated. In Nandini Satpati’s case (supra), it was
observed: “The learned Advocate General, influenced by American decisions, rightly agreed that in the
expression section 161(2) of CrPC might cover not merely accusation already registered in police station, but
those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider
construction, if applicable to Article 20(3) approximates the constitutional clause to the explicit statement of
prohibition in section 16(2). This latter provision meaningfully uses the expression “expose himself to a criminal
charge”. Obviously those words mean not only cases where the person is already exposed to a criminal charge,
but also instances which will imminently expose him to criminal charges”. It was further observed in that case:
“To be witness against oneself is not confined to particular offence regarding which the questioning is made,
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but extends to other offences about which the accused has reasonable apprehension of implication from his
answer. This conclusion also flows from tendency to be exposed to a criminal charge”. A criminal charge covers
any criminal charge then under investigation or trial or which imminently threatens the accused.
Even though section 161(2) of CrPC casts a wide protective net to protect the formally accused person as well
as suspects and witnesses, during the investigative stage, section 132 of the Evidence Act limits the
applicability of this protection to witnesses during trial stage. The latter provision provides that witnesses cannot
refuse to answer question during a trial on the ground that the answers could incriminate him. However, proviso
to section 132 stipulates that the content of such answers cannot expose the witness to arrest or prosecution,
except for a prosecution for giving false evidence. Therefore, the protection afforded to witnesses at the stage
of trial is not as wide as the one accorded to the accused, suspects, witnesses during investigation (under
section 161(2) CrPC). Furthermore, it is narrower than the protection given to the accused during the trial stage
(under section 313(3) and proviso (b) to section 315(1) of CrPC).
2. Since the word used in Article 20(3) is “person”, it should be available also against an artificial person, such
as a corporation. (See below)
[Art.20.10.4] Applicability to corporations
1. In the U.S.A.,it has been held that a corporation, being an artificial person, is not entitled to the privilege
against self-incrimination.
2. But in our Supreme Court case of Sharma v Satish,67. no question to this effect was raised and the court
assumed that the constitutional provision extended also to corporations when they were accused of an offence.
The Bombay High Court68. has held that a corporation being a “person” under the General Clauses Act, Article
20(3) should be applicable to corporation and that the English decision in Triplex Glass Co vLancegaye Glass
Ltd.,69. rather than the American decisions, should be followed in India.
On the other hand, a Division Bench of the Calcutta High Court70. has held that the immunity under Article
20(3) does not extend to a corporate body, because Article 20(3) applies only to “personal testimony” or
information based on “personal knowledge”, as observed by the Supreme Court in Kathi Kalu’s case.71. Since
Kathi Kalu’s case 71 did not relate to a corporation, the present controversy should be settled by the Supreme
Court.
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[Art.20.10.5] Whether available to a witness
On this point, the constitutional protection differs under the American and Indian Constitutions.
(A) U.S.A.—
U.S.A.
As has been pointed out earlier,the corresponding language in the 5th Amendment to the American
Constitution being different from that under Article 20(3) of our Constitution, it has been held in the U.S.A.,that
the immunity offered by the 5th Amendment also extends to a witness against the disclosure of any self-
incriminating evidence, even though he himself is not accused of any offence at that time.72.
(B) India.—
India
Since Article 20(3) of our Constitution uses the words “accused of an offence”, it is obvious that the protection
would not extend to a person summoned or examined as a witness in any legal proceedings,73. civil or
criminal, even though prosecution may be pending against him for some offence in another proceeding74. or
such witness may be an accomplice in the commission of the offence which is being tried in that very
proceeding (under section306, CrPC, 1973). Immunity from prosecution for incriminating evidence tendered as
a witness is, however, offered by section 132, Evidence Act,—subject, of course, to section 308(1)-(2), where
the accomplice violates the conditions of the pardon granted to him.When an accomplice does not comply with
the order granting pardon, and consequently the pardon is withdrawn, he is reverted to the position of an
accused and is liable to be tried separately and the evidence given by him if any, has to be ignored in toto and
does not remain legal evidence, though such evidence may be used against him in separate trial when he gets
an opportunity to show that he complied with the condition of pardon.75.
Section 94 of the Representation of the People Act, 1951, provides that a voter in an election when summoned
as a witness in an election petition, cannot be compelled to disclose to whom he has voted. The words “shall be
required” place a bar on any such compulsion. The court, as of right, or by authority, cannot compel the voter
summoned as a witness to disclose his preference. It is intended to preserve the secrecy of the ballot. But the
same does not bar the court to issue notice to appear as a witness and only on appearance “as a witness” he
can claim the privilege as provided in the section and he can also waive the right.76.
[Art.20.10.6] In what proceedings the immunity under Article 20(3) may be claimed
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The answer to the question is offered by the expression “accused of an offence”. It has already been stated that
though in the U.S.A., notwithstanding the words “criminal case” in the Fifth Amendment, by a wide
interpretation, proceedings other than criminal have been brought within the protection of the Fifth Amendment,
our Supreme Court has held that this is not possible under Article 20(3) of our Constitution, by reason of the
words “accused of an offence”.77.
These words indicate that the protection of this clause is confined to criminal proceedings or proceedings of
that nature before a court of law78. or other judicial tribunal before whom a person may be accused of an
“offence”.77
In short, the proceeding in which the constitutional immunity may be invoked must be a proceeding before a
court of law or judicial tribunal where a person is “accused” or charged with having committed an act which is
punishable under the Penal Code or any special or local law.
It would not, therefore, extend to proceedings other than criminal,78e.g., a proceeding for public examination of
a director, etc., under section 45G of the Banking Companies Act 1949,79. or section 240 of the Companies
Act, 1956;78 or section 33(3) of the Insurance Act;80. or 45G(6) of the Banking Companies Act, 1949;81. or
section 108 Customs Act, 1962;82. or the Foreign Exchange (Regulation) Act, 1947.83.
In such proceedings, a person cannot refuse to give an answer on the plea that it might tend to subject him to a
criminal prosecution at a future date.84. In short, Article 20(3) is not attracted unless a proceeding “starts with
an accusation” for an offence and cannot extend to a generalinquiry or investigation from which an accusation
may or may not result.84
Since the extension of the “right against self-incrimination” to suspects and witnesses has its basis in section
161(2), it is not readily available to persons who are examined during proceedings that are not governed by
CrPC. There is a distinction between proceeding of a purely criminal nature and those proceedings which can
culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent
position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot
be characterised as criminal proceeding. In administrative and quasi-criminal proceedings, the protection under
Article 20(3) becomes available only after a person has been formally accused of committing an offence.85. It
was a case of enquiry under Companies Act, 1913. Court said: “At the commencement of the enquiry and
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indeed throughout its proceedings there is no accused person, no accuser and no accusation against any one
that he has committed an offence. In our opinion, a general enquiry and investigation into the affairs of the
company thus contemplated cannot be regarded as an investigation which starts with an accusation
contemplated under Article 20(3) of the Constitution”.86.
In Balkishan A. Devidayal v State of Maharashtra,87. the issue was whether the statements recorded by
Railway Police Force (RPF) during an enquiry under the Railway Property (Unlawful Possession) Act 1966
would attract the protection of Article 20(3). The court said that such an enquiry was substantially different from
an investigation contemplated under CrPC and therefore formal accusation was a necessary condition for a
person to claim protection of Article 20(3). It was observed: “ … Only a person against whom a formal
accusation of the commission of an offence has been made can be a person “accused of an offence” within the
meaning of Article 20(3). Such a formal accusation may be specifically made against him in an FIR or a formal
complaint or any other formal document or notice served on that person, which ordinarily results in his
prosecution in court. In this case, no such formal accusation has been made against the appellant when his
statements in question were recorded by RPF Officer”. In Selvi v State of Karnataka,88. it was held that right
under Article 20(3) becomes available when a person “has been formally accused”.
For invoking the constitutional right under Article 20(3), a formal accusation against the person claiming
protection must exist. Simply because a witness in a case figures as an accused person in another case arising
out of the same facts, a blanket protection cannot be granted.89.
[Art.20.10.7] Accused of an offence
1. These words indicate that the protection of this clause is confined to criminal proceedings or proceedings of
that nature before a court of law,90. or other Tribunal before whom a person may be accused of an “offence” as
defined in section 3(38) of the General Clauses Act, i.e., an act punishable under the Penal Code or any special
or local law.1.
2. It would not, therefore, extend to parties and witnesses in civil proceedings2.or to proceedings which involves
imposition of penalties or forfeitures.3. Where an accused is granted pardon under section 306 of Criminal
Procedure Code, he ceases to be an accused and becomes a witness for prosecution. So long as the
prosecution does not certify that he has failed to do so, he continues to be a witness and the prosecution is
bound to examine him as a witness.
Section 132 of Evidence Act clearly protects a witness from being prosecuted on the basis of answers given by
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him in a criminal proceeding which tend to incriminate him directly or indirectly. Hence any evidence given by
an “approver” cannot be used as against him in other criminal cases and he is absolutely protected by the
provisions of Criminal Procedure Code.4.
A party to a civil litigation is not entitled to the protection of Article 20.5.
Under section 94 of Representation of Peoples Act, 1951, the principle of this Article is applied. It provides that
a voter in an election, when summoned as a witness in an election petition cannot be compelled to disclose to
whom he has voted. The words “shall be required” place a bar on any such compulsion. It was held that the
above provision confers a privilege to the voter who is a witness and he can waive his right. Even though the
provision is intended to maintain secrecy of the ballot, for a free and fair election, but the said principle cannot
be pressed into service to suppress a wrong coming to light and to protect a fraud on an election process. It
was observed that the court can issue summons to a witness in spite of section 94, but the witness may claim a
privilege after he appears in court as a witness and the court must also be satisfied about the claim6.or
proceedings other than criminal, e.g., a proceeding for public examination of a director etc., under section 45G
of the Banking Companies Act, 1949,7. a person examined under section 171A, Sea Customs Act;8. or inquiry
proceedings under the Customs Act, 1962 or the Foreign Exchange (Regulation) Act, 1947.9.Article 20(3) is not
attracted to proceedings under section 27(2)(c) of Payment of Bonus Act 1965 as the examination
contemplated by that section was not for the purpose of ascertaining whether any of the provisions of the Act
had been complied with.10.
But in cases where the authorities under Foreign Exchange Regulation Act have come to a definite conclusion
that a person is guilty of offence and thereafter issues a summons to appear and give evidence relating to
transactions, that will be offending Article 20(3).11.
A person against whom no formal accusation is made at the time of recording confessional or incriminating
statement by Railway Protection Force in course of enquiry under section 8(1) of the Railway Property
(Unlawful Possession) Act, 1966, cannot claim the benefit of Article 20(3) and his statement can be made use
of against him. So long as there is no formal accusation either by filing an FIR or a formal complaint or any
other formal document or notice served on that person, which ordinarily results in prosecution of such person,
Article 20(3) cannot be invoked.12. When an authority which is statutorily authorised and bound to call for an
explanation before a complaint is filed, serves a formal notice calling for explanation, a formal accusation may
be deemed to be made.13.
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Where a person is merely accosted by police, who was suspected by police of possessing contraband opium
cannot be deemed to be under arrest. Hence any confession made by him cannot be said as violative of Article
20(3). It was held that merely because police questioned the person on suspicion, cannot be treated as an
arrest and what information he gave to the police was under compulsion.14.
In such proceedings, a person cannot refuse to give an answer on the plea that it might tend to subject him to a
criminal prosecution at a future date.15.
Proceedings for contempt being suijuris,an alleged contemner is not “accused of an offence” within the
meaning of Article 20(3). He can, therefore, be cross-examined on his affidavit.16.
The privilege under Article 20(3) is available not only to an individual but even to incorporated body “accused of
an offence”.17. In that case, the question whether the issue of search warrant infringes the guarantee given by
Article 20(3) was decided. The protection is available against volitional compulsion. When the accused is made
to produce document or to give evidence which is likely to incriminate him, he can claim protection under Article
20(3). But if documents are seized in a search, then there is no testimonial compulsion and, therefore, Article
20(3) is not attracted. It is not necessary that the statements to be made by the accused must be a confession
by him to invoke Article 20(3). It is enough if it tends to incriminate him. Mere compulsion exercised on the
accused to give a specimen signature or writing or impression of foot or palm or fingers is not a testimonial
compulsion; it is not prohibited by Article20(3). But in State of Bombay v Kathi Kalu Oghad,18. the Supreme
Court narrowed the ratio in M.P. Sharma’s case (supra) and pointed out that protection under Article 20(3) does
not extend to the compulsion to produce any kind of evidence, but only to self-incriminating statements made
by the accused, whether oral or written, relating to the charge brought against him. Therefore, Article 20(3)
does not protect the accused from being compelled to produce a material which cannot be said to be oral or
written testimony by the accused.19. On the same principle, the compulsion to stand for identification parade is
also not contrary to Article 20(3) because the accused does not give any testimony, but merely exposes himself
to be seen by identifiers.
In Mohammed Dastagir v State of Madras,20. the facts were that the appellant went to the bungalow of the
Deputy Supt. of Police to offer him a bribe in a closed envelope with a request that he might drop an action
registered against him. The police officer threw the envelope at the appellant who took it up. Later, while the
appellant was still in the bungalow, he was asked to produce the envelope which he had taken up. He took out
of his pocket some currency notes, but without the envelope and placed them on the table. Supreme Court held
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that at the time the notes were produced, there was no case against him relating to an offence, and even if it
was assumed that there was, the circumstances did not establish that he was compelled to produce the money.
No doubt he was asked to do so, but it was in his power to refuse. Consequently Article 20(3) will not apply.
In State v Devsi Dosa,21. it was said that notice to produce document under section 13A of Bombay
Moneylenders Act does not entitle a person to claim protection under Article20(3). For, that would enlarge the
scope of the article so as to make it applicable to civil or administrative proceedings. The protection of Article
20(3) could not be claimed merely because the evidence might disclose some crime.
Mere issue of notice or pendency of contempt proceedings do not attract Article20(3) as the contemners
against whom notices are issued are not accused of any offence. A criminal contempt is punishable by the
superior court by fine or imprisonment, but it has many characteristics which distinguish it from ordinary
offence. Contempts are not in the nature of criminal proceedings for an offence. It is open to the court to cross-
examine the contemner and even if the contemner is found guilty of contempt, the court may accept his apology
and discharge notice of contempt. In criminal proceedings, there is a public prosecutor who prosecutes the
case on behalf of the prosecution, but in contempt proceedings, court is both the accused as well as the judge.
Contempt proceedings are sui generis and contemners do not stand in the position of “accused of an
offence”.22.
Secondly,since contempt proceedings are not in the nature of criminal proceedings for an “offence”, merely
because it may end in imposing punishment on the contemner, the contemner is not in the position of an
accused. Hence, Article20(3) does not bar the punishment of the contemner in the contempt proceeding on the
basis of the evidence recorded by the Commissioner who is empowered to take evidence at an inquiry in the
contempt proceeding (para 3). Court also held that contempt proceedings has several peculiar features which
are not to be found in criminal proceedings. As for instance, a criminal offence is tried according to procedure
laid down in CrPC, but a contempt charge is tried in a summary process without any fixed procedure and the
court is free to evolve its own procedure consistent with fair play and natural justice. The power to take
proceedings for contempt of court is an inherent power of a court of record and the Criminal Procedure Code
does not apply to suit a proceeding. Proceedings for contempt of court are not taken in the exercise of original
criminal jurisdiction. In certain aspects, these proceedings are quasi-criminal but any view taken is not
exercised as part of the original criminal jurisdiction of the court.23. A contemner is not in the position of an
accused and he does not stand in the position of “a person accused of an offence”, merely because on account
of issue of notice of contempt by the Supreme Court and therefore Article 20(3) would not apply in such a
situation.
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Article 20(3) has no application to parties and witnesses to a civil proceeding or proceedings other than
criminal.24.
[Art.20.10.8] What is an “offence” under Article 20(3)
Section 3(38) of the General Clauses Act, 1897 defines an “offence” as
any act or omission made punishable by any law for the time being in force.
The word “punishable” in this definition is used in the ordinary sense of being visited with a penalty, including a
fine or forfeiture, by any authority competent to impose that punishment. The definition would, therefore, include
statutory offences which are punishable with fine or forfeiture by an administrative authority25. and not merely
“criminal” offences for which a prosecution lies in court.
The question is whether the protection under Article 20(3) is available in a proceeding before an administrative
authority who is competent to impose a monetary penalty or forfeiture. Under Article 367(1) of the Constitution,
the definition in the General Clauses Act is applicable to the interpretation of the word “offence” in Article 20(3),
“unless the context otherwise requires”. The question is, whether there is anything in the context of Article 20(3)
to exclude statutory offences punishable by an administrative officer.
In Maqbool Hussain’s case,26.the Supreme Court was concerned with the interpretation of Clause (2) of Article
20, but the court made certain general observations as to the scope of Article 20 as a whole, as follows:
The very wording of Art. 20 and the words used therein—‘convicted’, ‘commission of the act charged as all offence’, ‘be
subjected to a penalty’, ‘commission of the offence’, ‘prosecuted and punished’, accused of any offence,would indicate
that proceedings therein contemplated are in the nature of criminal proceedings before a Court of Law or a judicial
Tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature
before a Court of Law or judicial Tribunal in accordance with the procedure prescribed in the statute which creates the
offence and regulates the procedure.26
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It is evident that the word “prosecuted”, which appears in Clause (2), is absent from Clause (3); but the word
“accused” has been used in Clause (3). If accusation means the levelling of a formal charge, “accused of an
offence” would certainly refer only to offences for which prosecution lies in a court and would exclude
proceedings before an administrative authority who is entitled to impose a fine or a monetary penalty, say,
under section 167(8) of the Sea Customs Act.27.
This view appears to have been reiterated by the Supreme Court in Narayanlal v Maneck:28.
Similarly, for invoking the constitutional right against testimonial compulsion guaranteed under Art. 20(3) it must appear
that a formal accusation has been made against the party pleading the guarantee and that it relates to the commission
of an offence which in the normal course may result in prosecution.
It follows, therefore, that the application of the definition of “offence” in section 3(38) of the General Clauses
Act, 1897, to Article 20(3) is excluded by its context and that the immunity is not available in a proceeding
before an administrative authority who is entitled only to impose a statutory penalty.
While considering the validity of section 45-G of Banking Companies Act, which was challenged on the ground
that the Directors will be compelled to answer question put by High Court on the basis of report of Official
Liquidator before High Court, it was held that this Article has no application since there is no formal accusation
against the Directors at that stage.29. In Popular Bank v Madhavan Nair,30. it was held that this Article is not
violated even when the liquidator accuses the Directors of fraud and the court on that basis holds an enquiry in
which the Directors will be compelled to reply. It was held that in such proceedings, the person concerned
cannot refuse to answer on the plea that it might tend to subject him to a criminal prosecution at a later stage.
Similarly, when the affairs of the company is being investigated and the inspector issues notices under sections
239 and 240 of the Companies Act, rejecting the plea of violation of Article 20(3), it was held that the enquiry
was “in substance is an enquiry into the affairs of the company concerned” and the inspector is only a fact
finding authority and there is no accusation against any one at that time. The investigation is intended broadly
with a view to examine the management of the company to find out whether there is any irregularity or not.31.
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Statements made before a Customs Officer under the Customs Act are admissible evidence and the same is
not barred under Article 20(3) or section 25 of Evidence Act.32.
But Article 20(3) would be attracted if the statutory authority complains to a Criminal Court of the commission of
an offence triable by the latter, e.g., under section 135 of the Customs Act.33.In the case of an offence by
infringement of Sea Customs Act which is punishable at the trial before a Magistrate, there is an accusation
when a complaint is lodged by the officer competent in that behalf before the Magistrate and not before. Where
a Customs Officer arrests a person and informs that person of the grounds of his arrest for the purpose of
holding an inquiry into infringement of the provisions of Sea Customs Act which he has reason to believe has
taken place, there is no formal accusation of an offence.34.
[Art.20.10.9] Stage from which the protection is available
Two questions which arise in the first instance under the Clause are—(a) in what proceedings the protection is
available; (b) from what stage the protection is available.
It has been already explained that the words “accused of an offence” answers the first question and confines
the application of the Clause to criminal proceedings.
It has further been held that the same words “accused of an offence” also answer the second question, namely,
whether the immunity attaches to self-incriminatory statements made from the point when the accusation is
made in the criminal proceeding or extends to earlier statements, say, in the proceedings for investigation of
that offence for which the person is “accused” subsequently.
I. The proposition formulated by our Supreme Court in the early case of Sharma v Satish,35.which is adhered
to in subsequent decisions,36. is that the protection is available—
(1) to a person against whom a formal accusation has been made;
(2) if such accusation relates to the commission of an offence which in the normal course may result in
prosecution.
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These two ingredients may now be analysed:

1. Formal accusation
(a) The clause does not require “formal” accusation by the issue of a process by the court.35The immunity
would commence from the moment a person is named in the First Information Report,35 or a complaint which
would in the normal course result in prosecution 35 or a show cause notice is issued under the Foreign
Exchange Regulations,37. or an F.I.R. is registered under the Foreign Exchange Regulation Act, 1947.38.
If a person has been named, by officials who are competent to launch a prosecution against him, as having
committed an offence, he is accused of an offence within the meaning of this clause 35
On the other hand—
(b) The protection would not be available if no accusation has been made against the person at the time when
the compulsion is used against him,39.e.g.,
(i) When money is recovered from the person who bribes or is bribed, instantaneously.40.
(ii) When a sample is taken by a Sanitary Inspector from a milk vendor.40
Both the above cases relate to recovery of material objects from the person against whom they are intended to
be used, as distinguished from his testimony. Hence, these cases will be excluded under the proposition laid
down in the later case of Kathi Kalu.41.
(c) Article 20(3) can be attracted only if the person sought to be examined stood in the character of an accused
at the time when he was sought to be examined or required to make a statements.41For invoking the
constitutional right under Article20(3), a formal accusation against the person claiming protection must exist.
Simply because a witness in a case figures as an accused person in another case arising out of same facts, a
blanket protection under Article 20(3) cannot be granted.42.
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(i) Where the incriminating statement was made before an officer under the Railway Property (Unlawful
Possession) Act, 1966, at a time when no formal complaint in regard to the commission of an offence
had been filed in Court, nor had any F.I.R. had been lodged with the Police, specifically accusing the
author of the statement, Article 20(3) would not bar the admission of that statement as evidence
against him when he is subsequently tried of the offence under section 3 of that Act.43.
(ii) If he is a mere witness against some other person in the proceeding where he is sought to be
examined, he cannot claim the immunity,44. even though he might have been an accused in another
proceeding.44
Under second para of section 73 of the Evidence Act, court can direct any person present in the court to give
specimen writing “for the purpose of enabling the court to compare “such writings with writings alleged to have
been written by such person. In such cases, court cannot direct a person to give specimen writings during the
time ofinvestigation. If the case is still under investigation, there is no proceedings before court and no direction
could be given. If any such direction is given, it will be violative of this Article.45.
2. Accusation normally resulting in prosecution
Though it has been held that the lodging of a First Information Report or complaint is not an indispensable
condition to “accuse” a person so as to attract Article 20(3), and that there may be cases where an accusation
may be held to have been made in substance,46.at the same time it has been laid down 46 that the provision
cannot be invoked in a proceeding which is in the nature of a general investigation, as distinguished from an
accusation against a specified individual, even though as a result of the general investigation, there may
subsequently be a specific accusation against the individual who has been compelled to be a witness at the
stage of the general investigation, e.g., proceedings under sections 235–40 of the Companies Act, 1956,46 or a
statement made to the Investigator under section 33(3) of the Insurance Act;47. or to the High Court under
section 45G(6) of the Banking Companies Act, 1949;48. or to a Customs Officer under sections 107–08 of the
Customs Act, 1962;49. or to an Inspector under section 27(2) of the Payment of Bonus Act, 1956;50. or to an
officer of the R.P.F. making inquiry under section 8(l) of the R.P. (Unlawful Possession) Act, 1966, who is not a
“Police Officer” within the meaning of section 25 of the Evidence Act or section 162, CrPC (paras 23 and
58).51.
In short, Article 20(3) will be attracted only if the proceedings ‘start with an accusations’52. and the person who
seeks its protection was already an accused person when he was compelled to make the statement.53.In
Romesh Chandra Mehta v State of WB, the appellant was searched at the Calcutta Airport. As a consequence,
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currency, pearls and jewellery were found on his person and in his baggage. He was charged under Sea
Customs Act. During his trial, reliance was placed on his confessional statement made by him before Customs
authorities. It was urged that it was inadmissible in evidence because of Article 20(3). Rejecting the objection,
court ruled that guarantee against testimonial compulsion contained in Article 20(3) can be claimed only if he
was found to be an accused of an offence at the time when he made the statement. Under Sea Customs Act,
the Customs Officer does not accuse a person of any offence when he calls upon a person smuggling goods to
make a statement. The officer holds the inquiry with a view to adjudge confiscation of goods dutiable or
prohibited and imposing penalties. His primary duty is to prevent smuggling; he is not accusing any person of
any offence triable before a Magistrate. Court reiterated that during an inquiry under Customs Act or under the
NDPS Act, the person concerned is not an accused although he may be said to be in custody. Any statement
made by such person at such a time when he was not under arrest would not attract the bar under sections 24
to 27 of the Evidence Act nor the provision of Article 20(3).54. The guarantee against self-incrimination can be
claimed only by a person who is accused of an offence at the time when he is compelled to make the
incriminating statement. It does not refer to the hypothetical person who may in future be discovered to have
been guilty of some offence.55.
II. It is clear from the above that a person against whom a “formal accusation” has been made is entitled to
claim the protection under Article 20 (3). But the question remains—is his immunity confined to statements
made at the trial within the court room or it extends to pre-trial statements as well; if so, from the time of the
First Information Report or earlier?
(i) The first part of this question has been answered early in Sharma’s case56. in favour of the accused, in
these words:
Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what
transpires, at the trial in the Court-room. The phrase used in Article 20(3) is “to be a witness” and not to “appear as a
witness.” It follows that the protection afforded to an accused in so far as it is related to the phrase “to be a witness” is
not merely in respect of testimonial compulsion in the court-room but may well extend to compelled testimony
previouslyobtained from him.56
(ii)As to the second part:

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CrPC, 1973
Under the Criminal Procedure Code, there is, of course, a definite accusation against a person when a First
Information Report is lodged with the Police57. or a complaint58. is made. But, apart from such Information
Report, a Police Officer may, under section 41 arrest a person on a mere suspicion that he has been concerned
in the commission of a cognizable offence, and, under section 156, the Police Officer specified therein may
investigate into a cognizable case, without the order of a Magistrate. Suppose the arrested person makes an
incriminating statement before the Police Officer. Ordinarily, such statement is inadmissible at the trial of such
person, but it would be admissible, under section 27 of the Evidence Act, if such statement (or so much of it as)
relates to a relevant fact and leads to its discovery, in course of the investigation. What happens if the
statement which leads to the discovery is proved to have been obtained under compulsion?
(a)It is interesting to note that prior to the Constitution,when there was no question of any constitutional
immunity, the question was answered against the accused, under the ordinary law. It was held that while
section 24 excludes confession caused, by any “inducement, threat or promise”, there were no such words in
section 27, which operated as an exception to section 24, so that an information or confession, which satisfied
the other conditions of section 27, was admissible under that section, even though induced by threat, etc.59.
But, the Allahabad60. and Andhra61. High Courts62. have held that the position has changed after the
Constitution, that information given to the Police is a pre-trial evidence within the dictum of the Supreme Court
in Sharma v Satish63.and, if such information is obtained by compulsion, it must be excluded from the evidence
in court in the subsequent prosecution of such person, by reason of Article 20(3).
There was no First Information Report against the accused when he had made the statement and he had been
arrested on suspicion.Nevertheless, the Allahabad High Court held that the mention of the name of a person to
the First Information Report was not an essential condition of being “accused” within the meaning of Article
20(3): “Where evidence, whether oral or circumstantial, points to the guilt of a person and he is taken in custody
and interrogated on that basis, he becomes a person accused of an offence”,64. so that any self-incriminatory
statement made by such person, after that stage, would be inadmissible against him at the subsequent trial, if
obtained under compulsion.64
It has already been stated that the ordinary law would not help such person even though compulsion had been
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used, for section 27 of the Evidence Act has been taken as an exception to section 24. If, therefore, the
Constitution also keeps him out of its protection, he would be without any relief even though he is convicted
upon such coerced testimony, whether there is other evidence or not. At the same time, it is clear that up to this
stage, there has been no “formal accusation” against the person within the meaning of the dictum in Sharma’s
case65.nor can it be said that there is already a proceeding which has “started” with an accusation66. against
the person who made the statement. Formal accusation, in fact, started only after the incriminating statement
had been made and the Police Officer, after completing his investigation, sent his report to the Magistrate,
under section 173, CrPC.
Let us now take up the facts of the Supreme Court case, Dastagir vState of Madras.67.
D went to the bungalow of the Deputy Superintendent of Police to offer him a bribe which was in a closed
envelope, with a request that the Officer might drop the action registered against him. The Officer threw the
envelope at D, who took it up. While D was still in the bungalow, the Officer called his Orderly, and in his
presence asked D to produce the envelope. D took out from his pocket some currency notes without the
envelope and placed them on the Officer’s table. The notes were then seized by the Police Officer after having
them stamped by his Orderly with his office seal. D was later convicted of the offence under section 165A of the
IPC for attempting to bribe the Officer. D contended that the conviction violated Article 20(3) since it was based
upon the evidence of compelled production of the notes from him. Rejecting this contention, the Supreme Court
held that, apart from the fact that D had not been “compelled” to produce the notes, though the offence of
attempting to bribe the Officer had already been committed by D at the time when he had been asked to
produce the notes, he had not been “accused” of it at thestage when the currency notes were produced by
him.67
It is to be noted that in the case before the Supreme Court, it was held that no compulsion had been used.The
other observation that the person was not an “accused” at the stage of the recovery was, accordingly,
unnecessary. Supposing, however, compulsion had been proved, the obiter suggests that, nevertheless, the
recovered notes would have been admissible inasmuch as the person had not been “accused” of an offence at
that time. It is, however, clear that when D was required to produce the notes, the offence of attempting to bribe
the Officer had already been committed, and, therefore, the Officer, who was himself a Police Officer, asked D
to produce the notes on the clear assumption that D had committed the offence and that he would be
prosecuted for that offence, upon the basis of the recovered notes. There was no formal accusation in this case
until prosecution was actually launched against D. On the other hand, the stage when the notes were recovered
from D cannot be said to be a stage of “general investigation” to ascertain whether D or anybody else had
committed an offence.68. The officer who required D to produce the notes was definitely of the view that D was
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guilty of the offence (not even a mere suspicion). Nevertheless, the evidence would have been admissible
according to the Supreme Court, even if the notes had been forcibly recovered from D.
In the Allahabad case,69.Article 20(3) would have been attracted, according to the decision in Sharma’s
case,70. if the investigation had started in pursuance of a First Information Report. Does it make any material
difference, because, instead of acting upon a First Information Report, the Police started the investigation and
arrested the person upon a reasonable suspicion that he was concerned with the offence? To take the strict
view, there is no accusation unless either a First Information Report or a complaint or a Police Report is made
“charging” a person of an offence before an officer or a court entitled to take cognizance of the offence and
proceed upon the information.71. The uncertainty continued till the Supreme Court in Narayanlal’s case 68,
where the court refused to disturb the Calcutta decision in Collector of Customs71on the ground that “it
proceeded on the finding that accusations of criminal offences could be held in substance to have been made
against the person concerned” when they were asked to produce the incriminating documents.
But the horizon now stands cleared by two subsequent decisions of the Supreme Court,72. where it has been
held that a statement recorded by a Customs Officer while making an inquiry under section 171A of the Sea
Customs Act or section 108 of the Customs Act, 1962 would not be hit by Article 20(3), because there was
neither an F.I.R. nor a complaint to a Criminal Court at that stage. The theory of “substantial accusation”, thus,
appears to have been rejected.
It is to be remembered, in this context, that “compulsion” has been interpreted to mean physical73. as
distinguished from mere mental duress, so that a statement made by a person cannot be excluded under
Article 20(3) merely because it was made when the person was under Police custody.72
It was held in Selvi v State of Karnataka,74.that under Indian law, there is no automatic presumption that
custodial statements have been extracted through compulsion and the decision of American Supreme Court in
Miranda v Arizona,75.was distinguished. Court said that there is no requirement of additional diligence akin to
the administration of Miranda’s warning. However, in circumstances where it is shown that a person was indeed
compelled to make statement, while in custody, relying on such testimony as well as its derivative use will
offend Article 20(3). In State of Bombay v Kathi Kalu Oghad,76. court said that the mere fact that the accused
person when he made the statement in question was in police custody would not by itself be the foundation for
an inference in law that the accused was compelled to make the statement.
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To prove paternity in a maintenance case under section 125 of the Criminal Procedure Code, father cannot
compel his minor children who are infants to be subjected to blood test.77. An order of the Magistrate by
issuing summons under section 91 of the Criminal Procedure Code to produce documents which are likely to
be incriminating against the accused is bad.78.
II. The position is, of course, clearer where the investigation takes place not under the Criminal Procedure Code
but under some general statute and prosecution takes place as a result of such investigation.
Companies Act, 1956
Section 23579. of the Companies Act, 1956 empowers the Central Government to “appoint.... inspectors to
investigate the affairs of any company and to report thereon … ” Under section 24080., the officers of a
company of which the affairs are thus investigated are under an obligation to produce all books and papers of
the company which are in their custody, to the investigating Inspector and, in case of refusal to produce such
books, etc., they are liable, on the report of the Inspector, to be punished by the court “as if they had been guilty
of contempt of court” [section 240(3)]. The Inspector reports to the Central Government on the results of his
investigation, under section 24181.; and section 24282. provides—
If, from any report made under s.241, it appears to the Central Government that any person has, in relation to the
Company... whose affairs have been investigated... been guilty of any offence for which he is criminally liable,the
Central Government may... prosecute such person for the offence.
It is obvious that a person who is asked to produce the papers under section 240 is, under pain of penalty,
bound to produce them. The testimony is thus compelled, and such testimony may lead to a prosecution. The
question is whether the use of such compelled testimony at the trial is barred by Article 20(3). The Supreme
Court has answered the question in the negative,83. on the ground that—
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(a) In the proceedings under sections 235–40 in which the officers of a company are required to produce
their papers, “there is no accused person, no accuser and no accusation against anyone that he has
committed an offence. The proceedings do not start with, an accusation as is contemplated by Article
20(3)”.
(b) Of course, the investigation may lead to a prosecution under section 242. “But the fact that a
prosecution may ultimately be launched against the alleged offender will not retrospectively change the
complexion or character of the proceedings held by the inspector when he makes the investigation”.
The investigation carried on by the inspectors is no more than the work of a “fact finding commission”,
the object being to examine the management of the affairs of the company to find out whether any
irregularities have been committed or not. “In such a case, there is no allegation against any specific
individual; there may be a general allegation that the affairs are irregularly ……. managed, but who
would be responsible for the affairs which are reported to be irregularly managed is a matter which
would be determined at the end of the enquiry.”
In short, Article 20(3) cannot be invoked in a proceeding which is in the nature of a general investigation, as
distinguished from an accusation against a specified individual, even though as a result of the general
investigation, there may be a specific accusation against the individual, who has been compelled to be a
witness at the stage of the general investigation.83 In other words, Article 20(3) will not be attracted unless the
person who seeks its protection was already an “accused person” at the time when he was compelled to make
the statement,84. by reason of a complaint of F.I.R. having been lodged against him.85.Protection under Article
20(3) of the Constitution does not extend to any kind of evidence, but only to incriminating evidence relating to
the charges brought against the accused. In order to bring the testimony of an accused person within the
constitutional protection, it must be of such a character that by itself it tends to incriminate the accused. For
invoking the constitutional right under Article 20(3), a formal accusation against the person claiming the
protection must exist. Simply because witness in a case figures as an accused person in another case arising
out of same set of facts, a blanket protection under Article20(3) cannot be given.86.
When the statement of a person was recorded by the Customs Officer under section 108 of Customs Act, that
person is “not accused of any offence” under Customs Act. An accusation which would stamp him with the
character of such a person was levelled only when the complaint was filed against him by the Asst. Collector of
Customs complaining of commission of offence under section 135(a) and (b) of Customs Act.87.
On this principle, it has been held that—

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(i) There is no immunity under Article 20(3) available where a person is required by a directive of the Reserve
Bank, under section 19(2) of the Foreign Exchange Regulation Act, 1947, to produce his books, under pain of
penalty, nor would such evidence be inadmissible at the subsequent prosecution, for, when the directive of the
Reserve Bank is issued, there is no specific accusation against the individual concerned, even though the Bank
may have proceeded upon the information that he had committed an offence under the statute.88.
(ii) Similar view had been taken about the public examination of the promoters of a banking company under
section 45G of the Banking Companies Act, 1949 (now Banking Regulation Act, 1949), even though the High
Court itself may, under section 45H take cognizance of and try an offence disclosed by such examination.89.
Section 45G is as follows:
(1) Where an order has been made for the winding up of a banking company, the official liquidator shall submit a
report whether in his opinion any loss has been caused to the banking company....
(2) If, on a consideration of the report submitted under sub-section (1), the High Court is of opinion that any
person who has taken part in the promotion or formation of the banking company…should be publicly
examined, it shall hold a public sitting on a date to be appointed for that purpose and direct that, such person
… shall attend thereat and be publicly examined as to the promotion or formation or the conduct of the
business of the banking company …
The Kerala High Court90. has, however, held that where the public examination under section 45G takes place
after the official liquidator has made specific allegations against specific persons and also prayed for their
summary punishment by the High Court under section 45J, there has already been an “accusation”, and that,
consequently, the public examination itself is hit by Article 20(3). In this case, the official liquidator, in his
petition to a Single Judge of the High Court, accused the office-bearers of the bank of offences punishable
under the Act, such as falsification of accounts, prayed for their publication under section 45G and also for their
trial and punishment under section 45H, and the Single Judge, upon the petition, ordered a public examination
‘under section 45G [treating the petition as a report undersection 45G(1)]. The order of public examination was
quashed on appeal, on the ground that the petition, which was pending on the record, made specific
accusations of offences punishable under the Act against these persons so that, thereafter they could not be
compelled to make self-incrimina-ting statements.90
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The distinction between the two cases under section 45G of the Banking Companies Act (now Banking
Regulation Act, 1949) is, indeed, slender. When an official liquidator makes a report to the High Court under
section 45G, he may not make specific allegations against the promoters of the company or ask for their
punishment, but, in the normal course, while pointing out the loss caused to the company he is bound to make
an allegation or suggestion that the promoters of the company are responsible for the loss and it is upon a
perusal of such report that the High Court directs the public examination. The first case91. holds that the public
examination, in such a case, is a general investigation so that Article 20(3) is not attracted. In the second
case,90 no doubt, the official liquidator made specific allegations and sought the punishment of the named
promoters, and also prayed for their public examination, but the court did not immediately proceed to take
cognizance of the offence under section 45J, but treated the petition of the official liquidator as areport under
section 45G, thus, keeping its mind open until the general investigation under section 45G was over.
Nevertheless, it was held that Article 20(3) is attracted.
(iii)It is now settled92. that—
Customs Act, 1962
(a) The powers conferred by section 108 of the Customs Act, 1962 [section 171A of the Sea Customs Act,
1878] to examine a person or to require him to produce a document is not to accuse any person of an
offence, at that stage, but to enable him to make an inquiry whether any provision of the Act has been
infringed for adjudging confiscation or for recovery of duties of customs.
(b) An accusation against such person takes place only when a complaint is filed by an Assistant Customs
Officer, under section 135(a)-(b) of the Act.
(c) Hence, any statement made by a person who is examined under section 108, not being “accused of
any offence”, is not hit by Article 20(3),93. and may, accordingly, be used against such person at the
trial under section 135.
[Art.20.10.10] Constitutionality of section 176, Criminal Procedure Code, 1973; section 54A, Calcutta Police
Act, 1866
I. Section 176(1) of the CrPC empowers a Magistrate to hold an inquiry into the cause of death when a person
dies in police custody and vests him with all powers which he would have in holding an inquiry into an offence.
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A Magistrate holding an inquiry under this section is further vested with the power of compelling the attendance
of witnesses, under section 2 of the Madras Revenue Enquiries Act, 1893. The Magistrate used these powers
in obtaining the evidence of the Police Officers in whose custody the deceased had died, and as a result of his
inquiry, a complaint was made against these Police Officers under sections 330–31 of the Penal Code.94.
The question was whether the provisions of section 176(1) violated Article 20(3). RAMASWAMI J. held95. that
Article 20(3) was not attracted to a proceeding under section 176(1), because at that stage it could not be said
that any person whose evidence was taken was “accused of an offence”. There was an “accused” only after a
complaint was made to a Criminal Court.
This view finds support from in the observation in Sharma v Satish96. that the immunity under Article 20(3)
starts from the moment a person is named as an accused in a First Information Report or in a petition of
complaint. The immunity would not, therefore, extend to any proceedings prior to the making of the complaint.
The inquiry under section 176(1), CrPC is also in the nature of a “general investigation” within the meaning of
the dictum in Narayanlal’s case97.to find out whether anybody is responsible for the death of the prisoner.
The Magistrate acting under section 176 of CrPC does not function as a court.1. In State v Fundan
Lakhanmal,2. it was held that section 124 of Bombay Police Act 1951 did not violate Article 20(3) because far
from the accused person incriminating himself, he was called upon to explain his possession of property which
there was reason to believe was stolen property.
II. More debatable is the position under sub-section (2) of section 54A of the Calcutta Police Act, 1866 and
section 33A of the Calcutta Suburban Police Act, 1866. The provisions in the two sections being identical, it
would suffice to reproduce one of them. Section 54A of the Calcutta Police Act, 1866 says:
(1) Whoever has in his possession, or conveys in any manner, or offers for sale or pawn anything which there is
reason to believe to have been stolen or fraudulently obtained, shall, if he fails to account for such
possession or act to the satisfaction of the Magistrate, be liable to fine...
(2) If any person charged under sub-s. (i) in respect of anything declares that he received such thing from some
other person, or that he was employed as a carrier, agent or servant to convey such thing for some other
person, the Magistrate, after such further inquiry (if any) as he may deem necessary, may summon such
other person, and any former or pretended purchaser or other person through whose possession such thing
is alleged to have passed, to appear before him, and may examine such person and any witnesses who are
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produced to testify to such receipt, employment or possession; and if it appears to the Magistrate that any
such person had possession of such thing and had reasonable cause to believe that it was stolen or
fraudulently obtained, the Magistrate may punish him with fine….
Sub-section (1) deals with the person in whose possession stolen property may be found. If such person, in his
statement, implicates some other person,such other person may be summoned, under compulsory process, to
testify before the Magistrate, and if, from his evidence it appears that he was the principal offender in obtaining
stolen goods, the Magistrate may convict such other person,under sub-section (2). Sub-section (2) thus,
provides for the conviction of a person on his own testimony, obtained under compulsory process. The question
is whether such other person is a witness or an accused person. If he is a mere “witness”, it is clear that the
Proviso to section 132 of the Evidence Act shall be attracted, so that the incriminating statements made by
such person cannot be used for convicting him of the offence, in which case the object of sub-section (2) might
be defeated. It is to be noted that there is nothing corresponding to sub-section (2) in section 54A of the
Calcutta Police Act in the analogous provisions in section 124 of the Bombay Police Act, 1951 and section 65 of
the Madras City Police Act, 1888. The question is whether such other person may be said to be an “accused”
within the meaning of Article 20(3). It is obvious that there has been no “formal accusation” (p. 4575,
ante)against such person as yet, if it means the levelling of a formal charge. But the fact remains that summons
is issued against him by the Magistrate only after the Magistrate is informed of the complicity of such other
person from the statement of the person charged under sub-section (1); further, the Magistrate summons any
other person only “after such further inquiry (if any) as he may deem necessary”. In other words, the summons
is issued only after the Magistrate is prima facie satisfied that a case under sub-section (2) lies against such
person, and the Magistrate is empowered to convict such person in that very proceeding. If so, he has been
summoned as an “accused” and Article 20(3) would be attracted. This aspect deserves consideration.
[Art.20.10.11] “Compelled”: When is a person “compelled” to be a witness
1. Compulsion is an essential ingredient of the clause. The clause does not, accordingly, prohibit the admission
of confession which is made without any inducement, threat or promise, even though it may be subsequently
retracted.3.
2. “Compulsion”, in the present context,means ‘duress which must be proved.4.In Indian law, there is no
automatic presumption that custodial statements have been extracted through compulsion. However, in
circumstances where it is shown that a person was indeed compelled to make statements while in custody,
relying on suchtestimony as well as its derivative use will offend Article 20(3).5. It is open to an accused person
to show that while in police custody at the relevant time, he was subjected to treatment which, in the
circumstances of the case, would lead to the interference that compulsion was in fact exercised. In other words,
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it will be a question of fact in each case to be determined by the court on weighing the facts and circumstances
disclosed in the evidence before it.6.
The dictionary meaning of “duress” is explained as follows:—“Duress is where a man is compelled to do an act
by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by threat of being killed,
suffering some grievous bodily harm or being unlawfully imprisoned (sometimes called meance or duress for
mines). Duress also includes threatening, beating or imprisonment of the wife, parent, or child of a person.7. By
“Duress” is meant the compulsion under which a person acts, through fear of personal suffering, as from injury
to the body or from confinement, actual or threatened.8.
“Compulsion” means duress which must be proved.9.Compulsion may, however, be of many forms; it may be
physical or mental10. but mental compulsion takes place only “when the mind has been so conditioned by
some extraneous process as to render the making of the statement involuntary and, therefore, extorted”.11.
.In Nandini Satpathy v P.L. Dani,11 it was observed by KRISHNA IYER, J.: “It is evidence procured not merely
by physical threats or violence, but also psychic torture, atmospheric pressure, environmental coercion, tiring
interrogative prolixity, overbearing and intimidatory methods and the like are compelling testimony. It was held
that any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial
applied by the police to obtain information from an accused strongly suggestive of guilt becomes compulsion.
However, legal perils following upon refusal to answer, or answer truthfully, do not amount to compulsion under
Article 20(3). But frequent threats of prosecution if there is failure to answer may take on the complexion of
undue pressure.”
In Kartar Singh v State of Punjab,12. Supreme Court took judicial notice of atrocious and brutal approach of
police officers for collecting evidence. It was observed: “ … With years of experience both at the Bar and on the
Bench—have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers
resorting to inhuman, barbaric, archaic and drastic method of treating suspects in their anxiety to collect
evidence by hook or crook and wrenching a decision in their favour. We remorsefully like to state that on few
occasions even custodial deaths caused during interrogation are brought to our notice. We are very much
distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable
practice adopted by some police officers even though no general and sweeping condemnation can be made.
Court also took note of the remarks of National Judicial Commission (Fourth Report) on this aspect which reads
thus: “Nothing is so dehumanising as the conduct of police in practising torture of any kind on a person in their
custody. Police image in the estimate of the public has badly suffered by the prevalence of this practice in
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varying degrees over several years. We note with concern the inclination of even some of the supervisory ranks
to countenance the practice in a bid to achieve quick results by shortcut methods. Even well meaning officers
are sometimes drawn towards third degree methods because of the expectation of some complainants in
individual cases that the suspects named by them should be questioned by the police with some kind of
pressure...” Though Supreme Court took note of police atrocities, it justified the legislation which made
confessions before police officers admissible in evidence, taking into consideration the terrorist activities in the
State.
Before the decision in Nandini Satpathy’s case (supra), Andhra Pradesh High Court has held that “pain or
torture for the purpose of examination is allowed by law. Even reasonable force can be used though it may
discomfort him”.13.
3. There is obvious compulsion where the statement is obtained by physical coercion or mental coercion when
“the mind has been so conditioned by some extraneous process as to render the making of the statement
involuntary and extorted,”14.e.g.,
(i) Where the person making the statement has been starved or beaten;14
(ii) Where, by deceitful means, he has been induced to believe that his son is being tortured in an
adjoining room.14
In narcoanalysis test, intravenous of sodium penthol is given to test the subject due to which the test subject
enters hypnotic trance and answers questions put to him having conscious control over the replies which may
be incriminating him. He may reveal information which he may otherwise conceal in a state of full
consciousness. In polygraph test, the instruments like cardiographs, pnemographs, cardio-cuffs, sensitive
electrodes, etc. are attached to test the subject’s body. Physiological responses like respiration, blood pressure,
blood flow, pulse rate, galvanic skin resistance, etc. in his body are measured after certain questions are put to
him. Theory behind polygraph is that if a person is giving false reply to an incriminating question put to him, he
would produce physiological responses which are different from responses general in normal course. In BEAP
test (which is also known as “P300 waves test”), electrical waves emitted from test subject’s brain are recorded
by attaching electrodes to his scalp. The test subject is exposed to auditory or visual stimuli (words, sounds,
pictures, videos) that are relevant to the facts being investigated (known as material probes) alongside other
irrelevant words and pictures (known as neutral probes). The underlying theory is that in the case of guilty
suspects, exposure to material probes will lead to emission of P300 waves component. By examining records
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of these wave components, the examiner can make inferences about test subject’s familiarity with information
related to crime. In Selvi v State of Karnataka,15. court considered the scope of these test results and held that
narco analysis technique involves testimonial act. A subject is encouraged to speak in a drug-induced state and
there is no reason why such act should be treated differently from verbal answers during an ordinary
interrogation. Court concluded that compulsory administration of narco analysis technique amounts to
testimonial compulsion and thereby triggers the protection of Article 20(3). In regard to polygraph examination
and BEAP test also court said that they should be treated as personal testimony since they are a means for
impairing personal knowledge about relevant facts and the results obtained through the involuntary
administration of the above tests (i.e., narco analysis, polygraph examination and BEAP test) comes within the
scope of “testimonial compulsion” thereby attracting the protection shield of Article20(3).
In that case, court also held that the above techniques in an involuntary manner violate prescribed boundaries
of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it
most certainly comes into conflict with right against self-incrimination. Court also said that we must recognise
that forcible intrusion into a person’s mental processes is an affront to human dignity and liberty, often with
grave and long lasting consequences. Court said that while infliction of certain degree of pain and suffering is
mandated by law in the form of punishments for various offences, the same cannot be extended to all those
who are questioned during the course of investigation. Court said that allowing the same would vest unlimited
discretion and lead to the disproportionate exercise of police powers and amounts to unjustified intrusion into
mental privacy and will also amount to incompatibility with right to fair trial. Such tests also cannot be justified
on ground of compelling public interest. Court concluded thus:- “In our considered opinion, the compulsory
administration of impugned techniques violates the “right against self-incrimination”. This is because, the
underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are
admitted as evidence. This court has recognised that the protective scope of Article 20(3) extends to the
investigative stage in criminal cases and when read with section 161(2) of Code of Criminal Procedure 1973, it
protects accused persons, suspects as well as witnesses who are examined during the investigation. The test
results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3)
protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent
testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the “forcible conveyance of
personal knowledge that is relevant to the facts in issue”. The results obtained from each of the impugned tests
bear “testimonial” character and they cannot be categorised as material evidence.
We are also of the view that forcing an individual to undergo any of the impugned techniques violates the
standard of “substantive due process” which is required for restraining personal liberty. Such a violation will
occur irrespective of whether these techniques are forcibly administered during the course of an investigation or
for any other purpose since the test results could also expose a person to adverse consequences of a non-
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penal nature. The impugned techniques cannot be read into statutory provisions which enable medical
examination during investigation in criminal cases i.e., the Explanation to sections 53, 53-A and 54 of CrPC,
1973. Such an expansive interpretation is not feasible in the light of the rule of “ejusdem generis” and the
consideration which governs the interpretation of statutes in relation to scientific advancements. We have also
elaborated how the compulsory administration of any of these techniques is an unjustified cruel, inhuman or
degrading treatment with regard to the language of evolving international human rights norms. Furthermore,
placing reliance on the results gathered from these techniques comes into conflict with the right to fair trial.
Invocation of a compelling public interest cannot justify the dilution of constitutional rights such as the “right
against self-incrimination”.
Court also took note of National Human Rights Commission guidelines for the Administration of Polygraph Test
(Lie Detector Test) on an accused in 2000. Court said that the guidelines should be strictly adhered to and
similar safeguards should be adopted for conducting the said “narco analysis techniques” and the “Brain
Electrical Activation Profile Test” (BEAP Test). The text of these guidelines was reproduced in the judgment
which reads as follows:—“(1) No lie detector test should be administered except on the basis of consent of the
accused. An option should be given to the accused whether he wishes to avail such test; (2) If the accused
volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal
implication of such a test should be explained to him by the police and the lawyer; (3) The consent should be
recorded before a Judicial Magistrate; (4) During the hearing before the Magistrate the person alleged to have
agreed should be duly represented by a lawyer; (5) At the hearing, the person in question should also be told in
clear terms that the statement made shall not be a confessional statement, but will have the status of a
statement made to the police; (6) The Magistrate should consider all factors relating to the detention including
the length of detention and the nature of interrogation; (7) The actual recording of the lie detector test shall be
done by an independent agency (such as a hospital) and conducted in the presence of the lawyer; (8) The full
medical and factual narration of the manner of the information must be taken on record”.
4. There is no compulsion within the meaning of this Clause—
(a) Merely because the person in question was in police custody at the time he made the statement,16. or
because the statement voluntarily made, was in answer to the question of a Police officer, though such
statement ultimately turns out to be incriminatory.16When under the provisions of any law, a person is
under any legal sanction, bound to give oral or documentary evidence, it is obvious that he is
compelled to be a witness.17.
(b) Where the conversation of the person in question, made freely and voluntarily, was recorded, without
his knowledge, by a tape-recorder.18.
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(c) Where he is not bound,under the law, to answer the question or to produce the document19. asked for.
(d) Where the law enables the accused to be a witness to substantiate his defence but does not compel
him to do so, e.g., section 342A of the Criminal Procedure Code, 1898; sections 111–12 of the Sea
Customs Act, 1878.20.
Likewise a statement made under section 342 (at present section 313) of the Criminal Procedure
Code which is not given on oath is not a statement under compulsion.21.At the trial stage, section
313(3) CrPC places a crucial limitation on the power of the court to put question to the accused, so
that the latter may explain any circumstances appearing in the evidence against him. It lays down
that the accused shall not render himself or herself liable to punishment by refusing to answer such
question or by giving false answers to them. Further, proviso (b) to section 315(1) CrPC mandates
that even though an accused person can be a competent witness for the defence, his/her failure to
give evidence shall not be made the subject of any comment by any of the parties or the court or
give rise to any presumption against himself or any person charged together with him at the same
trial. It is evident that section 161(2) CrPC enables a persons to choose silence in response to
questioning by a police officer during the stage of investigation and as per scheme of section
313(3) and proviso (b) to section 315(1) of CrPC adverse inference cannot be drawn on account of
the accused person’s silence during trial stage.
Similarly, under section 124 of Bombay Police Act states that whoever has in his possession
anything there is reason to believe is stolen property, shall, if he fails to account for such
possession, on conviction be imprisoned for certain period. The provision does not contravene
Article 20(3) because the accused is to account for his possession only after prosecution has
proved that there is reason to believe that the property in possession is stolen property.22.
Prosecution under criminal law was imminent, when a person was asked to appear before
Collector of Customs on the same facts. The contention that the notice from Custom authorities
would compel him to answer questions which would be incriminating, was rejected by the Supreme
Court on the ground that the necessity for enclosing a defence is not a compulsion under Article
20(3). It was held that “compulsion” for the purpose of Article 20(3) must proceed from another
person or authority and if a person voluntarily gives evidence in defence is not compulsion.23.
When the law prescribes the mode of recording confession, the same has to be recorded only in
that manner. If there is infirmity in that procedure, the confession so made is not admissible in
evidence. Under TADA of 1987, a confession can be recorded by a police officer above a
particular rank subject to safeguards taken and the safeguards so taken should also be recorded,
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so as to make it admissible as done without colmpulsion. Any infirmity therein will be presumed as
one under compulsion.24.
(e) Where a general warrant to search is issued under section 93(c) of the CrPC, 1973, and in course of
that search, some incriminating document belonging to the accused is seized. The reason is that a
general warrant under section 93(c) is not issued against any particular person and cannot be likened
to a summons to produce issued against the accused. At a general search, the accused is not required
to participate in any manner and is not thus “compelled” to produce any document.25.
Article 22(1) enables a person to consult his lawyer when he is arrested. Articles 20(3) and 22(1)
may be telescoped by making it prudent for the police to permit the advocate of the accused to be
present at the time when he is examined. If the accused expresses his wish to have his lawyer by
his side at the time of examination, this facility shall not be denied, because by denying the facility,
the police will be exposed to the serious reproof that they are trying to secure in secrecy and by
coercing the will an involuntary self-incrimination.26.
Section 114 of Evidence authorises the court to draw adverse inference in certain circumstances.
To hold that drawing of adverse inference is violative of Article 20(3) is not correct.27. When the
foetus has already been discharged from the body, the woman cannot claim that it should not be
put to any test as the question of compelling her to do any particular act against herself does not
arise since after discharge, it is not part of her body.28.
5. In the absence of any physical or mental coercion, there is no compulsion under Article 20(3), merely
because a notice of contempt is issued against a person by the Supreme Court and a Commissioner appointed
by the court issues a notice to him to make his statement.29. At any rate, he was not “accused of an offence”
so as to attract Article 20(3).29
In Nandini Satpathy v P.L. Dani,30.JUSTICE V.R. KRISHNA IYER advocated an expansive interpretation of the
phrase “compelled testimony”. According to him, it is evidence procured “not merely by physical threat or
violence, but also torture, atmosphere pressure, environmental coercion, tiring interrogation prolixity,
overbearing and intimidatory methods and the like”. Any mode of pressure “subtle or crude or physical, direct or
indirect, but sufficiently substantial” applied by the police to obtain information from an accused strongly
suggestive of guilt becomes compulsion. However, legal perils following upon refusal to answer or answer
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truthfully do not amount to compulsion within Article 20(3). But frequent threat of prosecution if there is failure to
answer may take the complexion of undue pressure violating Article 20(3).
These guidelines have been statutorily incorporated into sections 32 and 52 of Prevention of Terrorism Act
(POTA). The peremptory prescriptions embodied in section 32 of POTA are “(1) The police officer shall warn
the accused that he is not bound to make the confession and, if he does so, it may be used against him. (2)
The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same
language in which the person makes it”.
6. But a person cannot be said to have been compelled,where he is not bound to answer the question or to
produce the document31. asked for.
This was the rationable of the decision in the Dastagir case 31 which has been already referred to. The person
who was asked to produce the notes produced them voluntarily, without any force or threat being applied.
7. In Sharma v Satish,32.the Supreme Court made a distinction between a person being compelled to do a
volitional act and something being obtained from him without involving any volitional act on his part and held
that the immunity offered by Article 20(3) is confined to the former case and is not available in the latter. In the
words of JAGANNADHADAS J.:
Indeed every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes
coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of
silence or submission on his part.32
It is on this principle that the court held that the immunity is available to an accused person when a compulsory
process or notice toproduce a document is issued, directing him under pain of Penalty, to produce a document,
but not when a document is recovered from him by search and seizure by a police officer without involving and
volitional act on the part of the accused from whose possession the document is recovered:
A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a
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testimonial act by him within the meaning of Art. 20(3) as above explained. But a search warrant is addressed to an
officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the
searched premises. They are acts of another to which he is obliged to submit and are, not his testimonial acts in any
sense.33.
“All that Article 20(3) guaranteed is that a person accused of an offence shall not be compelled to be a witness
against himself, nothing less, certainly, nothing more. Immunity against testimonial compulsion did not extend
to refusal to examine and cross-examine witnesses and it is not open to a party to the proceedings to refuse to
examine himself or anyone else as a witness on his side and to cross-examine the witnesses for the opposite
party on the ground of testimonial compulsion and then to contend that no relief should be given to the opposite
party on the basis of evidence adduced by the other party”. In Dushyant Somal’s case, wife filed a writ of
habeas corpus against her husband for production of the body of their child. Criminal case was also initiated for
kidnapping the husband. In the writ petition, evidence was taken and the husband did not cross-examine the
witness nor did he adduce any evidence. The writ was allowed, when the child was not produced, contempt
proceedings were initiated, for disobedience of order of court. It was contended before the Court that asking to
adduce evidence or to cross-examine the witness will amount to “compelling” the husband to disclose the
defence in the criminal case which will be violative of Article20(3). The Supreme Court rejected the contention
as stated above.34.
The Supreme Court held that the privilege against self-incrimination “is to be claimed by this witness”. The right
becomes available only after the witness has taken the stand and a question that offends the privilege is put to
him. A prospective witness or some after person cannot raise such an issue in anticipation of an apprehended
breach of privilege against self-incrimination.35.
A statement given before a Commission under section 6 of the Commission of Enquiry Act 1952 cannot be
used to subject the witness in any civil or criminal proceedings nor it can be used against him in any civil or
criminal proceedings. Prior statement of a person can be used only for two purposes,i.e., one for cross-
examination and contradiction and the other for corroboration. The first purpose is to discredit the witness and
as regards corroboration, it is none of the purposes of the defence to corroborate the evidence on the basis of
previous statements. Hence the purposes cannot be said to be purposes which were not against the witness.
Article 20(3) has no application.36.
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When a trap is laid and the accused talks, then there is no element of duress, coercion or compulsion and he
cannot claim protection under Article 20(3).37.
Telephonic conversation between two parties was tape-recorded by the police with permission of one of the
parties. It was held that the conversation could be used in evidence as it was voluntary and there was no
duress or compulsion to extract the same. The fact that tape-recording instrument was attached without
appellant’s knowledge does not make the conversation inadmissible against him. Further, there was no case
against him at the time of the conversation and so there was no scope for holding that he was made to
incriminate himself.38.
8. On the other hand, it should be noted that the above constitutional bar would not affect the existing law as to
approvers contained in sections 306, 308 of the CrPC, 1973. For, the bar is against being “compelled”. There is
no bar to the accused’s voluntarily giving evidence, in lieu of a pardon or immunity, of the offence with which he
has been charged.39. As the effect of the pardon is a complete immunity from conviction for the offence, the
testimony of the pardoned man cannot be said to be also “against himself”. Hence, Article 20(3) is not attracted.
The pardon is, however, granted on condition that such person makes a full disclosure. So, once an accused
has accepted a tender of pardon, he is bound to make a full disclosure, or he may be tried for the original
offence,—having forfeited the benefit of the pardon.
9. It has further been held that a summons against an accused person in a statutory proceeding need not be
set aside; he must appear and answer such questions as do not incriminate him.40.
[Art.20.10.12] “To be a witness”: The immunity extends to production of documentary evidence
1. It is now settled41. that the words “to be a witness” include oral as well as written testimony.
2. In Sharma’s case,42.the proposition had been put in a wider form so as to include not only written
statements of the person accused but anydocumentary evidence which lie may be compelled to produce. It was
accordingly, held that a compulsory process for the production of evidentiary documents against a person who
has been accused of an offence contravences Article 20(3) of the Constitution, if the documents are reasonably
likely to support the prosecution against such person.43.
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3. But the proposition laid down in Sharma’s case 42that the protection of Article20(3) extends to all
documentary evidence has been narrowed down by the majority in the later case of State of Bombay v Kathi
Kalu44. to written statements “conveying his (the accused’s) personal knowledge relating to the charge against
him”. The accused cannot be compelled to produce such a document. But the protection would not extend to
the production of any other document, e.g., a document containing the statements of other persons in his
custody45. or even a document written by the accused himself which simply shows his handwriting or states
facts which do not convey his personal knowledge relating to the charge against him; or a document which may
incriminate some other person. So interpreted, the guarantee in Article 20(3) will be narrower than the
corresponding American guarantee which extends to compelled production save public documents. While
departing from the view taken in M.P. Sharma’s case that to be a witness is nothing more than to furnish
evidence, and such evidence can be furnished through lips or producing a thing or of a document or in other
modes, in State of Bombay v Kathi Kalu Oghad,46. the court which was alive to the fact that investigating
agencies cannot be denied their legitimate power to investigate a case properly and on a proper analysis of
relevant legal provision it gave a restricted meaning to the term “to be witness”. The relevant portion reads
thus:—“To be a witness” may be equivalent to “furnishing evidence” in the sense of making oral or written
statements, but not in the larger sense of the expression so as to include giving of thumb impression, or
impression of palm or foot or fingers or specimen writing or exposing a part of the body. “Furnishing evidence”
in the latter sense could not have been within the contemplation of the Constitution makers for the simple
reason that – though they might have intended to protect an accused person from the hazards of self-
incrimination, in the light of the English law on the subject – they could not have intended to put obstacles in the
way of effective and efficient investigation into crime and of bringing criminals to justice. The taking of
impression or parts of body of an accused person very often becomes necessary to help investigation of a
crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as
to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Court concluded
“(1) To be a witness is not equivalent to furnishing evidence in its widest significance; that is to say as including
not merely making of oral or written statements, but also production of documents or giving materials which
may be relevant at a trial to determine the guilt or innocence of the accused; (2) Giving thumb impression or
impression of foot or palm or fingers or specimen writings or showing parts of the body by way of identification
are not included in the expression “to be a witness”; (3) “To be a witness” means imparting knowledge in
respect of relevant facts by an oral statement or a statement in writing made or given in court or otherwise; (4)
“To be a witness” in its ordinary grammatical sense means giving oral testimony in court. Case law has gone
beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing
testimony in court or out of court by a person accused of an offence orally or in writing”.47.
4. But the expression “to be a witness” does not include giving thumb impressions, impressions of foot or palm
or fingers or specimen writing48. or showing parts of the body49. by way of identification.46Recording the
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features of a person who has undergone medical examination to verify whether he has consumed liquor or not
is also not hit by this Article.50. Similarly asking the accused to stand up and show his face at the time of
identification does not amount to testimonial compulsion.51.
If an accused person is directed to give his voice sample during the course of investigation of an offence, there
is no violation of Article 20(3). Voice sample is like finger print impression, signature or specimen handwriting of
an accused. Like giving of a finger print impression or specimen handwriting by the accused for the purpose of
investigation, giving of a voice sample for the purpose of investigation cannot be included in the expression “to
be a witness”. By giving voice sample, the accused does not convey information based upon his personal
knowledge which can incriminate him. A voice sample by itself is fully innocuous. By comparing it with tape-
recorded conversation, the investigator may draw his conclusion but voice sample by itself is not a testimony at
all. When an accused is asked to give voice sample, he is not giving any testimony of the nature of a personal
testimony. When compared with the recorded conversation with the help of mechanical process, it may throw
light on the point in controversy. It cannot be said by any stretch of imagination that by giving voice sample the
accused conveyed any information based upon his personal knowledge and became a witness against himself.
He merely gives “identification data” to the investigating agency and is not subjected to any testimonial
compulsion.52.
No person can be compelled to give sample of blood for analysis against his will and no adverse inference can
be drawn against him for refusal.53.
[Art.20.10.13] Whether the accused can be a witness on his own behalf
The law on this point should be considered under two heads—
(I) The accused voluntarily offering himself to be a witness on his own behalf;
(II) The accused being examined by the court under the law of procedure.
I. The accused as a witness (A) England.—U.K.
In England,the accused is a competent witness on his own behalf since the Criminal Evidence Act, 1898, and
may examine himself on application.
Once the accused examines himself, he may be cross-examined and his evidence may be commented upon by
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the prosecution, but his failure to give evidence cannot be commented upon by the prosecution [section 1(b)],
though it is permissible for the Judge, in his discretion, to refer to it.54.
(B) U.S.A.—
U.S.A.
Under a federal statute of 1878, it is competent for the accused to give evidence of his own behalf, but his
failure to do so shall not be the subject of any unfavourable inference against him.
(C) India.—
India
In India, until the amendment of the Criminal Procedure Code in 1955, the accused could not examine himself
as a witness on oath. It is gratifying to note that this anomaly, disabling an accused to testify on his own behalf,
which was discussed in Vol. 2 (8th Edn. 2007) of the Commentary with a suggestion for amendment, has since
been removed by the insertion of section 342A by the Amendment Act 26 of 1955, which is section 315(1) in
the Code of 1973 (Act II of 1974), as follows:
315(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and
may give evidence on oath in disproof of the charges made against him or any person charged together with him at the
same trial:
Provided that—
(a) he shall not be called as a witness except on his own request in writing; or
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or
give rise to any presumption against himself or any person charged together with him at the same trial...
It is to be noted that an accused can be examined as a witness under the above section only if he so requests
in writing. Hence, there, is nocompulsion to obtain the testimony. It is basic principle of criminal jurisprudence
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that an accused cannot be compelled to be examined as a witness and no adverse inference can be drawn
against defence merely because an accused person has chosen to abstain from the witness box.55.Once,
however, he offers himself as a witness, his evidence will be liable to be used like the evidence of any other
witness. Section 5 of the Indian Oaths Act, 1873, has been simultaneously amended to make it permissible to
administer oath to an accused person when he examines himself as a witness for the defence, under section
315 of the CrPC.
Indian Law incorporates the rule against adverse inference from silence which is operative at trial stage. This
position is embodied in a conjunctive reading of Article20(3) of the Constitution and sections 161(2), 313(3) and
proviso (b) to section 315(1) of CrPC. Even though an accused is a competent witness in his or her own trial,
he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge
cannot draw adverse inference from refusal to do so. This position is cemented by prohibiting any of the parties
from commenting on the failure of the accused to give evidence.56. Supreme Court has also explained and
followed an earlier English decision in Woolmington v DPP,57.wherein it was said: “The ‘right to silence’ is a
principle of common law and it means that normally courts or tribunals of fact should not be invited or
encouraged to conclude, by parties or prosecution, that a suspect or an accused is guilty merely because he
refused to respond to questions put to him by the police or the court”.58.
II. Examination of the accused (A) England.—U.K.
The court is not competent to ask the accused any question unless it is incidental to the trial, e.g., whether he
wishes to cross-examine a witness and no use can be made of the answers of the accused or his refusal to
answer. There is no provision in England, corresponding to section 313 of the CrPC.59.
(B) India.—
India
Section 313(l) of the CrPC, 1973 (corresponding to section 342 of the Code of 1898) enables the court to put
any questions to the accused for the purpose of enabling the accused to explain any circumstances appearing
in the evidence against him. No oath can be administered to the accused for the purpose of his examination
under this section.
The object of sub-section (1) of this section is thus laudable. It seeks to give the accused an opportunity of
explaining any circumstances which may tend to incriminate him if he does not speak or of stating in his own
way anything which he may be desirous of stating.60. The object thus is not inquisitorial61. and sub-section (3)
says that the accused shall not render himself liable to punishment either for refusing to answer the questions
put by the court under sub-section (1) or by giving false answers. But the question is, what use should be made
of his answers if he avails himself of the opportunity offered to him. Sub-section (4) says that “the answers may
be taken into consideration at such inquiry or trial.
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Being an unsworn testimony, it is not evidence.62.
Nevertheless,
(i) So far as it goes in favour of the accused, there is no difficulty in accepting it, for, because of the
presumption of innocence, the onus lies upon the prosecution to prove the guilt. Hence, the version of
the accused under section 313 should be accepted if it is reasonable and accords with probabilities,
unless the prosecution can prove beyond reasonable doubt that it is false.63.
(ii) As to its permissible use for conviction,—where there is prosecution evidence on a point, and the
accused’s statement supports that evidence, under the case law as it stands, there is no objection to
the court’s accepting such evidence as a corroboration of the prosecution evidence,64. by way of an
admission.65.
But where there is no evidence on a point on behalf of the prosecution, a conviction cannot be based solely on
the unsworn testimony of the accused under this section.64
There is no conflict with Article 20(3) in so far as Article 313(1) gives an opportunity to the accused to explain
circumstances which may go against him.66. Article 20(3) is not attracted unless the statement of the accused
is used “against” him.67.
But sub-section (4) of section 313 says that “the answers given by the accused may be taken into consideration
in such inquiry or trial”. If any use of the answers is made to convict the accused, it is patent that the statement
of the accused given in answer to the court question is being used “against” the accused. Much of the criticism
against the provision has, of course, been taken away by the Supreme Court 64ruling that the unsworn
testimony of the accused under section 313 is not “evidence” (vide also definition in section 3, Evidence Act)
and, therefore, an accused cannot be convicted on the sole basis of his answers to the questions put under
section 313. Nevertheless, the court has held that such answers may be used against the accused by way of
corroborating the prosecution evidence:
As the appellant admitted that he was in charge of the godown further evidence was not led on the point. The
Magistrate was in this situation fully justified in referring to the statement of the accused under s.342 (s. 313 of the
Code of 1973) as supporting the prosecution case concerning the possession of the godown.68.
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Even though the prosecution has to prove its case beyond reasonable doubt in certain circumstances, accused
has to furnish some explanation for incriminating circumstances which have come in evidence and which were
put to him. In such cases, if the accused makes a false explanation, that may be counted as providing a
missing link for completing the chain of circumstances.69.
Presumably the court was treating the answers as “confession” within the meaning of section 24 of the
Evidence Act. The mere existence of these provisions on the statute book does not answer the question of
constitutionality, for, these provisions had been enacted at a time when there was no constitutional limitation. It
is true that the accused is not bound to answer the court questions and “shall not render himself liable to
punishment by refusing to answer such questions” [sub-section (3)] and to this extent the accused is not
“compelled” to testify, within the meaning of Article 20(3).70. If, however, the permissibility of adverse inference
from a refusal to answer constitutes indirect compulsion to answer (see under next caption), it would follow that
the use of the answer, given under such compulsion, to convict the accused, even by way of corroborating the
prosecution evidence would come within the mischief of Article20(3). The contravention cannot be explained
away by the maxim de minimis noncurat lex;for in a case like that of Vijendrajit71. there might not have been a
conviction without the aid of the answers of the accused under section 313.
Section 313 affords the accused an opportunity of offering an explanation of incriminating circumstances
against him. Though it is not necessary for the accused to speak and explain, yet when the case rests on
circumstantial evidence, the failure of the accused to offer any satisfactory explanation of facts which are within
his exclusive knowledge, an explanation has to be offered and in its absence an adverse inference can be
drawn.72.Recently it was held that an adverse inference can be drawn against the accused “only” and “only” if
the incriminating materials stand fully established based on circumstantial evidence or otherwise and accused
is not able to furnish any explanation for the same.73. Failure of accused to specifically deny incriminating
circumstances even after entering witness box an adverse inference can be drawn.74.
[Art.20.10.14] Whether the silence of the accused can be the subject of comment (A) U.S.A.—
U.S.A.
In the United States, the Supreme Court has, in a rather dubious decision,75. held that a State statute which
authorised the court to comment upon the failure of an accused to explain or deny the evidence adduced
against him did not violate “due process”. The reasons advanced by the court were that the provision in
question did not alter the presumption of innocence of the accused, and the onus of the prosecution, nor
constituted the failure of the accused to testify as an admission of his guilt, but merely enabled the court to
make inferences from the proved facts and weigh the strength of the prosecution evidence by commenting
upon the failure of the accused to explain such facts as were necessarily within his knowledge.
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In the foregoing case,76. however, the majority of the court considered the implications of the Fourteenth
Amendment,—and not of the Fifth Amendment (immunity from self-incrimination), which was held to be not
applicable to the States. Nevertheless, while the majority assumed,76 the strong minority of four Judges
(BLACK, DOUGLAS, MURPHY and RUTLEDGE, JJ.) expressly held, that a comment upon the failure of the
accused to testify would violate the Fifth Amendment, in any case to which it extends. The reasoning offered by
Justice MURPHY is illuminating:
1. If he does not take the stand, his silence is used as the basis for drawing unfavourable inferences against him
as to matters which he might reasonably be expected to explain. Thus he is compelled, through his silence,
to testify against himself. And silence can be as effective in this situation as oral statements.
2. If he does take the stand, thereby opening himself to cross-examination, so as to overcome the effects of the
provision in question, he is necessarily compelled to testify against himself. In this case, his testimony on
cross-examination is the result of the coercive pressure of the provision rather than his own volition.
Much can be said pro and con as to the desirability of allowing comment on the failure of the accused to testify. But
policy arguments are of no avail in the face ofa clear constitutional command … We are obliged to give effect to the
principle of freedom from self-incrimina-tion. That principle is as applicable where the compelled testimony is in the
form of silence as where it is composed of oral statements.76
It may be noted in this connection, that as regards the Federal Courts, there is, apart from the constitutional
prohibition, a federal statute of 1878 providing that the jury must be instructed that the accused’s failure to
testify creates no presumption against him and it has been held that it is improper for the prosecution to
comment upon such failure of the accused.77.In Griffin v California,78. court held that adverse comment on
defendant’s failure to take the stand and testify infringed the Fifth Amendment. In Carter v Kentucky,79. court
went further and ruled that if the defendant so requests, the trial judge must instruct the jury that it may not
consider the defendant’s failure to testify as evidence of guilt. In a subsequent decision, the court prohibited
taking into account a defendant’s silence in the sentencing phase of a capital case80. and drawing any
unfavourable inference from a defendant’s guilty plea or any statement made by her prior to entering a plea.81.
(B) England.—
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U.K.
Though the accused may offer himself as a witness, the failure of the accused to testify cannot be commented
upon by the prosecution [section1(b), Criminal Evidence Act, 1898]. But the Judge is competent to comment
upon the failure of the accused to testify and it has been rightly pointed out82. that this lacuna in the law often
compels the accused to testify, in order to prevent unfavourable comment from the court itself.In Woolmington v
DPP,83. it was held: “The ‘right to silence’ is a principle of common law and it means that normally courts or
tribunals of fact should not be invited or encouraged to conclude by parties or prosecutors that a suspect or an
accused is guilty merely because he has refused to respond to question put to him by the police or by the
court”.
(C) India.—
India
Whatever be the merits of the Adamson84. decision, there is no scope for the introduction of such a provision in
India.
It has already been noted that section 342A of the Criminal Procedure Code, inserted in 1955 [section 315(1) of
the Code of 1973], which makes it possible for the accused to testify on his own behalf, specifically provides
[Proviso (b)] that “his failure to give evidence shall not be made the subject of comment by any of the parties or
the court … ” It is, obvious, therefore, that under the general law of evidence, the problem in Adamson’s case 84
cannot arise at all. In view of section 315 of Criminal Procedure Code, an accused person can waive his right
under Article 20(3) and tender himself as a witness if he chooses.85. The right to remain silent is an extension
of the rule of civil liberty by our Constitution.86.The Indian law incorporates the rule against adverse inferences
from silence which is operative at the trial stage. This position is embodied in a conjunctive reading of Article
20(3) of the Constitution and sections 161(2), 313 (3) and proviso (b) of section 315(1) of Code of Criminal
Procedure. The gist of this position is that even though an accused is a competent witness in his/her own trial,
he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge
cannot draw adverse inference from refusal to do so. This position is cemented by prohibiting any of the parties
from commenting on the failure of the accused to give evidence.87.
The above decision took note of the 180th Report of the Law Commission of India (May 2002) which dealt with
the very same issue. The Commission considered arguments for diluting the “rule against adverse inferences
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from silence”. The Commission, apart from surveying several foreign statutes and decisions, took note of the
fact that section 342(2) of erstwhile CrPC, 1898 permitted trial judge to draw adverse inference from the silence
of the accused. However, this position was changed with the enactment of the new CrPC in 1973, thereby
prohibiting the making of comments as well as the drawing of inferences from the fact of an accused’s silence.
In the light of this, it was concluded: “We have reviewed the law in other countries as well as in India for the
purpose of examining whether any amendments are necessary in Code of Criminal Procedure 1973. On a
review we find that no changes in law relating to silence of the accused are necessary, and if made, they will be
ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly”.
But section 73 of the Evidence Act authorises a court, in the interest of justice, to direct the accused person
appearing before it to give his sample writing to enable the court for a comparison with any disputed writing by
the accused—either by itself or getting an expert opinion. The court does not compel the accused to be a
witness against himself.88. The power under section 73 can be exercised only when the proceeding is in court.
The court cannot give any such direction when the investigation is pending, i.e., the court cannot exercise the
power to enable the investigating agency to compare the handwriting.89.
While the Legislature was careful to include Proviso (b) while inserting section 342A in the Criminal Procedure
Code in 1955 (p. 4602, ante), the Legislature left sub-section (2) of section 342 untouched. Section 342(2)
was—
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false
answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks
just.
The foregoing lacuna90. was commented upon by the Author at previous pages of present volume of this
Commentary in these words—
“To the Author it seems that it is due to oversight, that the Legislature did not omit the italicised words, while
inserting section 342A in 1955; for, after the insertion of section 342A, the italicised words have, at least,
become anomalous. They are inconsistent with Proviso (b) of section 342A; for, the object of both sections 342
and 342A, as already explained, is to offer an opportunity to explain anything incriminating in the evidence
recorded against him. If, therefore, no inference may be made from the failure of the accused to take hold of the
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opportunity offered under section 342A by volunteering, to testify on his own behalf, why should such inference
be permissible when the Court questions him for the same purpose?
Apart from the above statutory considerations, there is a constitutional implication if we take into account the
observations of the dissenting Judges in Adamson vCalifornia.91.(see p. 4568, ante).If you cannot compel an
accused to make a statement against himself, you cannot draw any inference against him because he remains
silent, since that would obviously oblige him to speak, rather than remain silent.
To draw an adverse inference from the refusal to testify is indeed to punish a person who seeks to exercise his
right under Article 20(3). Just as no inference of guilt can be made from the fact that the accused is invoking the
protection of Article 20(3), so no inference of guilt can be made from the mere fact that he refuses to answer or
to make a statement.
It is gratifying to note that in view of the above comments, the Legislature has, in reproducing section 342(2) of
the Code of 1898 in section 313(3) of Code of 1973, omitted the words in italics. Section 313(3) reads thus:
The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false
answers to them.
No presumption arises “ipso facto” from the silence of an accused person. The fact of silence may, with all
other circumstances of the case, be taken into account in a proper case, but even then, it must be clearly borne
in mind that an accused person always has a right to remain silent if he wishes; and the silence of the accused
must never be allowed, to any degree, to become a substitute for proof by the prosecution of its case. It is for
the prosecution to prove its case and it cannot rely on the silence of the accused.92.
The right to remain silent is an extension of the rule of civil liberty enjoined by our Constitution.93.
The object and power to examine the accused can be summarised thus: “To enable the accused to explain any
circumstance appearing in evidence against him, the court may, at any stage of an enquiry or trial, without
previously warning the accused, put such question to him as the court considers necessary, and shall, for that
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purpose, question him generally on the case after the witnesses for the prosecution have been examined and
before he is called on for his defence. If a point in the prosecution evidence is considered damaging to the
accused and it is intended to base a conviction upon it, the accused must be questioned about the matter so
that he gets an opportunity to explain it “if he so desires”. This is an important and salutary provision which
should not be slurred over. On the other hand, the court should not hold an inquisitorial proceeding and ask
incriminating question, or questions in the nature of cross-examination, or with a view to filling up a gap in the
prosecution evidence. The court has to do some real tight rope walking; asking a few omnibus questions is as
much inconsistent with the relevant legal provision as asking unduly detailed and large number of questions.
Written statement of the accused does not take the place of examination of the accused required by the
provision.
The accused shall not render himself liable to punishment by refusing to answer such question or by giving
false answers; but the court may draw such inference from such refusal or false answers as it thinks fit. The
answers may also be put in evidence for or against him in any other enquiry into or trial for any other offence
which such answers may tend to show he has committed. No oath shall be administered to the accused when
he is examined by the court.
The accused shall be a competent witness for the defence and may give evidence on oath in disproof of
charges made against him or any person charged together with him at the same trial; but he shall not be called
as witness except at his own request in writing and no influence by means of any promise or threat or otherwise
shall be used to induce him to disclose or withhold any matter within his knowledge. Further, his failure to give
evidence shall not be adversely commented upon by the parties or the court or give rise to any presumption
against himself or any person charged together with him at the same trial. Following the principle of privilege
against self-incrimination, formerly the accused was not allowed at all to give evidence on oath, but in some
cases, the facts would be within the knowledge of the accused alone, and he alone would be able to rebut the
evidence of the prosecution. Hence this enabling provision has been introduced in 1955 only for the benefit of
the accused.”94.
But it is also held that when a conviction is based on circumstantial evidence, failure of the accused to offer
satisfactory explanation for possession of stolen property, though not an incriminating circumstance by itself,
would yet enable an inference being raised against him because of the fact being in the exclusive knowledge of
the accused, it is for him to offer an explanation. An inference or presumption against the accused can be
drawn as supplying the missing link under section 114 of the Evidence Act.95.The purpose of statement under
section 313 of CrPC is to put to the accused the material evidence appearing in the case against him as well as
to provide him an opportunity to explain his conduct or his version of the case. It is also possible and
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permissible that an accused may remain silent, but in that circumstance and with reference to facts and
circumstances of a given case, the court may be justified in drawing adverse inference against the accused.1.
Though statement of the accused cannot be the basis for a conviction, it is a relevant consideration which the
court may take into account while examining the prosecution case. Complete denial by accused under section
313 buttresses the conclusion that prosecution has been able to establish its case beyond reasonable doubt.2.
When an accused remains silent without offering any explanation while examined under section 313 CrPC, it is
an additional link in the claim of circumstances to sustain the charges against him.3. It is obligatory on the part
of the accused while being examined under section 313 CrPC to furnish some explanation with respect to
incriminating circumstances associated with him. When the accused fails to offer an appropriate explanation or
gives a false answer, with respect to the same, the said act may be counted as providing a missing link for
completing the chain of circumstances.4.Drawing such inference or raising the presumption is not violative of
Article 20(3) since the purpose of section 313 CrPC is only to the benefit of the accused and he is asked only to
explain the case put forward by the prosecution and his statement is not made on oath and hence not
evidence.5.
The necessity to enter witness-box for substantiating the defence is not such a compulsion as would attract the
protection of Article 20(3).6.
[Art.20.10.15] To what kinds of evidence the immunity extends
The words “to be a witness” in the present clause has been interpreted by our Supreme Court7. in the
American way, so as to include not only oral but also documentary evidence. The result is that a compulsory
process for the production of evidentiary documents against a person who has been accused of an offence
contravenes Article 20(3) of the Constitution, if the documents are reasonably likely to support the prosecution
against such person.8.
It has been pointed out by the Supreme Court that the expression used in the clause is “to be” and not “to
appear” as a witness. It follows, therefore, that the immunity given by the clause extends to immunity against
being compelled to furnish any kind of evidence which is reasonably likely to support a prosecution against him.
‘To be a witness’ is nothing more than ‘to furnish evidence’, and such evidence can be furnished through the lips or by
the production of a thing or of a document or in other modes…9.
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Every positive act which furnishes evidence is testimony and testimonial compulsion connotes ‘coercion’, which
procures positive oral evidence. The acts of the person, of course, are neither negative attitude of silence or
submission on his part, nor is there any reason to think that the protection in respect of the evidence procured
is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is “to be a witness”
and not “appear as a witness”. It follows that the protection accorded to an accused in so far as it related to the
phrase “to be a witness” is not merely in respect of the testimonial compulsion in the court room, but may well
extend to compelled testimony previously obtained from him. The guarantee, therefore, includes not only oral
testimony given in a court, or out of court, but also statements in writing which incriminated the maker when
figuring as an accused person.10. In State of Gujarat v Shyamlal Mohanlal Choksi,11. it was observed that the
court cannot compel an accused person to produce documents in his possession which will be incriminating.
But if pursuant to a general search warrant, incriminating documents are seized due to passive submission, it
cannot be said that there is compulsion, though the immunity against self-incrimination extends to “any”
incriminating evidence which the accused may be compelled to give.12.
In State of Bombay v Kathi Kalu Oghad,13. court said that though the expression “to be a witness” may be
equivalent to “furnishing evidence” in the sense of making oral or written statement, but not in the larger sense
of the expression so as to include giving thumb impression or impression of palm or foot or fingers or specimen
writing or exposing part of a body by an accused person for the purpose of identification. The giving of finger
impression or of specimen signature or of handwriting is not “to be a witness”. To be a witness means imparting
knowledge in respect of relevant facts, by means of oral statement of the facts to be communicated to a court
or to a person holding an enquiry or investigation. By giving of finger impression or of specimen writing or
signature by an accused person, though it may amount to furnishing evidence, in the larger sense, is not
included within the expression “to be a witness”. Court said that the above are only materials for comparison in
order to lend assurance to the court that its inference based on other pieces of evidence is reliable. They are
neither oral nor documentary evidence, but belong to the category of material evidence which is outside the
limit of “testimony”.
[Art.20.10.16] Protection against self-incriminatory statements out of court
It has already been pointed out that Article 20(3), as interpreted by our Supreme Court14. affords immunity
against being compelled to make incriminatory statement not only in court but also out of court, provided the
person in question was “accused of an offence” by the time he was asked to make the statement.
Section 161 of Criminal Procedure Code enables the police to examine the accused during investigation, but
the prohibitive sweep of Article 20(3) goes to the stage of police investigation not commencing from court only.
In fact, the provisions of Article20(3) and section 161(2) substantially cover the same area so far as the police
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investigation is concerned. The ban on self-accusation and the right to silence while an investigation or a trial is
underway goes beyond that case and protects the accused in regard to other offences pending or imminent,
which may deter him from voluntary disclosure of incriminating matter. It was observed that Article 20(3) ought
to extend to police investigation also since inquiries under criminal statutes with regard to quasi-criminal
investigations are of an accusatory nature and are sure to end in prosecution, if the offence is grave and the
evidence gathered is good. It was held that the benefit of Article 20(3) extend to any compulsory process for
production of evidentiary documents which are reasonably likely to support a prosecution against him. Not only
compelled testimony previously obtained is excluded, but the preventive blow falls also as pre-court testimonial
compulsion.15.It was also held in that case that “any giving of evidence, any furnishing of information, if likely to
have an incriminating impact, answers the description of being witness against oneself. Not being limited to the
forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage
where furnishing of information and collection of materials takes place. That is to say, even the investigation at
the police level is embraced by Article 20(3). That is precisely what section 161(2) means. That sub-section
relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the
Code are co-terminus in the protective area. While the Code may be changed, the Constitution is more
enduring.
In State of Bombay v Kathi Kalu Oghad,16. court said: “If the protection was intended to be confined to being a
witness in court, then really it would have been an idle protection. It would be completely defeated by
compelling a person to give all the evidence outside court and then, having what he was compelled to do
proved in court through other witnesses. An interpretation which so completely defeats constitutional guarantee
cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited at the stage
of trial must therefore be rejected”.17.
But—
(a) The proposition laid down in Sharma’s case18.that the protection of Article 20(3) extends to all
documentary evidence has been narrowed down by the majority in the later case of State of Bombay v
KathiKalu19.to written statements “conveying his (the accused’s) personal knowledge relating to the
charge against him.” The accused cannot be compelled to produce such a document. But the
protection would not extend to the production of any other document, e.g.,a document containing the
statements of other persons in his custody 19 or even a document written by the accused himself which
simply shows his handwriting or states facts which does not convey his personal knowledge relating to
the charge against him; or a document which may incriminate some other person. So interpreted, the
guarantee in Article 20(3) will be narrower than the corresponding American guarantee which extends
to the compelled production of all documents save public documents.
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(b) The expression “to be a witness” does not include giving thumb impressions, impressions of foot or
palm or fingers or specimen writing or showing parts of the body by way of identification.19 [See also
below].
In this context, it would be useful to refer to certain statutory provisions in India which relate to such protection
out of court:
Section 175(1) of the CrPC, 1973, which authorises a Police officer, holding an investigation into a case of
suicide, to sommon and examine any person who appears to be acquainted with the facts of the case,
provides—
…every person so summoned shall be bound to attend and to answer truly all questions other than questions the
answers to which would have a tendency to exposehim to a criminal charge or to a penalty or forfeiture.20.
[Art.20.10.17] Search and Seizure (A) England.—
Article 12 of Universal Declaration of Human Rights (1948) states:

U.K.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks
upon his honour and reputation. Everyone has the right to the protection of law against such interference or attacks.
Article 17 of the International Covenant of Civil and Political Rights provides that:
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence nor
to unlawful attacks on his honour and reputation.” (India is a party to the covenant).
Article 8 of European Convention of Human Rights which came into effect on 3 September 1953 states:
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(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall
be no interference by a public authority with the exercise of this right except such as in accordance with law and is
necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights
and freedoms of others.
The Canadian Charter of Rights and Freedoms declares:
Everyone has the right to be secure against ‘unreasonable’ search and seizure.
The New Zealand Bill of Rights declares in section 21 that:
Everyone has the right to be secure against unreasonable search or seizure, whether of person, property or
correspondence or otherwise.
In England, the power to issue search warrants is given by various statutes, such as the Incitement to
Disaffection Act, 1934, Official Secrets Act, 1911, Obscene Publications Act, 1959, Public Order Act, 1936,
Firearms Act, 1937.
But from very early times, courts have condemned “general warrants” except in the case of search for stolen
goods. In the case of search for stolen goods, it is provided by Common Law as well as by the Larceny Act,
1916, that upon information by a complainant that he has reason to suspect that property of his, not specified,
has been stolen and is in the possession of another person, a Magistrate may issue a general warrant for the
search of the premises of that other person for search and seizure of any property believed to be stolen.
As early as in 1603, it was laid down in Semayne’s case that “Everyman’s house is his castle”.21. In British
Parliament, in 1763, the then Prime Minister William Pitt declared: “The poorest man may in his cottage bid
defiance to all the force of the Crown. It may be frail—its roof may shake—the wind may blow through it—the
storm may enter—the rain may enter—but the King of England cannot enter—all his force dare not cross the
threshold of the ruined tenement.”
In Entick v Carrington,22.LORD CAMDEN held that except in the case of stolen goods, there was no common
law power to issue a general warrant (i.e., without specifying the papers or objects to be searched and seized)
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for the search of premises on the ground of State necessity or otherwise. Court declared the warrant and the
behaviour as subversive “of all comforts of society” and the issuance of a warrant for the seizure of all of a
person’s “papers” and not those only alleged to be criminal in nature was “contrary to the genius of the law of
England”. In that case, court said: “By the law in England, every invasion of private property, be it ever so
minute, is a trespass. No man can set foot upon my ground without my licence, but he is liable to an action,
though the damage be nothing”.23. The effect of the decision in Entick’s case was that except for the power to
search for stolen goods, for which warrant could be obtained at common law from a magistrate, statutory
powers were needed if the police were lawfully to search private premises. The powers to search and seize
were described by LORD SCARMAN as a ‘breathing inroad on the individual’s right of privacy and right of
property’.”24.This decision and two others25. which preceded it, put a stop to the use of the machinery of
search for political purposes, by laying down that unspecified papers of a named or an unnamed person could
not be searched and seized. The decision rested on the ground that every invasion of a man’s premises,
without proper legal authority, constituted a trespass. The right to privacy was treated as a right associated with
“right to property” and the right to privacy protected trespass against property. It was held: “The great end for
which men entered into society was to secure their property. That right is preserved sacred and
incommunicable in all instances where it had not been taken away or abridged by some public law for the good
of the whole. … But under the laws of England, every invasion of private property, be it even so minute, is a
trespass. No man can set foot upon any ground without any licence but he is liable to an action though the
damage be nothing.”26.
An exception to the above principle has been acknowledged in the later case of Elias v Pasmore,27.in the case
where a person has been arrested under a lawful pro-cess upon a criminal charge. In such a case, it has been
held that the police can search the premises where the prisoner is arrested and seize any material which is
relevant to the prosecution for any crime committed by any person, even other than the prisoner himself. In that
case police raided the premises of the National Unemployed Workers Movement to execute a warrant for the
arrest of Wal Hannington for sedition. The police arrested the person and also took away a large quantity of
documents, though they did not have a search warrant. The documents were later used as evidence in
proceedings against the arrested person. It was held that “interest of the State” justified the police in seizing
material that it was relevant to the prosecution for any crime of any person, not only of the person being
arrested. According to the learned Judge, although it may at the time improper to seize the material, its later
use as evidence justified the seizure. This view was later disapproved by Court of Appeal in Ghani v Jones.28.
In that case, court laid down certain principles which it considered to apply when the police need to take private
property in the course of an investigation. The police must have reasonable grounds for believing (a) that a
serious crime has been committed; (b) that the article is the instrument by which the crime was committed or is
material evidence to prove the commission of the crime; (c) that the person in possession of the article is
implicated in the crime or at any rate his refusal (of consent to the police) must be quite unreasonable;
moreover (d) the police must not keep the article longer than is reasonably necessary; and (e) the lawfulness of
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the conduct of the police must be judged at the time and not by what happens afterwards (as was held in Elias
v Pasmore (supra)).
Additional powers of seizure and retention are in Police and Criminal Evidence Act 1984 (sections 19–22) and
now Criminal Justice and Police Act 2001 (sections 50–70). These powers supplement, but do not replace the
common law powers (section 19(5)). So, to the extent that the statute is less extensive, the police may continue
to rely on their common law powers as recognised in Ghani v Jones29.and cases that followed the above
decision.30.
The illegality of a search does not render inadmissible the evidence obtained by it.31.
(B) U.S.A.—
U.S.A.
The Fourth Amendment to the Constitution of the United States provides—
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.
Though the Fourth Amendment was the result of a reaction32. against those possibilities which Entick v
Carrington33. sought to resist the American provision was, in fact, adopted in wider language.
In Griswold v State of Connecticut,34. in the absence of a specific provision in U.S. Constitution regarding
privacy, the court held that the right to privacy is an emanation from the freedom of expression and other rights.
It was observed that the right to freedom of speech and press included not only the right to utter or to print, but
also the right to distribute, the right to receive, and the right to read and that without these peripheral rights, the
specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have
“penumbras”, forced by emanations from those guarantees which help give them life and substance. It was held
that the version guarantees created “zones of privacy” and the protection against all government invasions “of
the sanctity of man’s house and privacies of life” was fundamental. It was held that privacy is “fundamental
personal right emanating from the totality of the constitutional scheme under which we (Americans) live”. In that
case, court referred to earlier decision in Boyal v US,35.which described the Fourth and Fifth Amendments “as
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protection against all government invasions” of the sanctity of man’s home and the privacies of life. In Mapp v
Ohio,36. it was ruled that right to privacy is no less important than any other right carefully and particularly
reserved to the people. In so far as Griswold v Connecticut,37. court said that the case concerns a relationship
lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law
which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve
its goals by means having a maximum destructive impact upon the relationship. Such a law cannot stand in the
light of the familiar principle, so often applied by this court that a government purpose to control or prevent
activities constitutionally subject to State regulation may not be achieved by means which sweep the
unnecessarily broadly and thereby invade the area of protected freedom. Would we allow the police to search
the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is
repulsive to the notion of privacy surrounding the marriage relationship. Court said: “We deal with a right of
privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a
coming together for better or worse, hopefully enduring and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes, a harmony in living, not political faith; a bilateral loyalty, not
commercial or social projects. Yet it is an association for a noble purpose as any involved in our prior decision.
In the concurring judgment by JUSTICE GOLDBERG, it was observed: “The entire fabric of the Constitution
and the purposes that clearly underline its specific guarantee demonstrate that right to marital privacy and to
marry or raise a family are of similar order and magnitude as the fundamental right specifically protected.
Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe
that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution
explicitly forbids the State from disrupting the traditional relation of the family – a relation as old and as
fundamental as our entire civilization – surely does not show that the Government was meant to have the power
to do so. Rather, as the Nineth Schedule expressly recognises, there are fundamental rights such as this one,
which are protected from abridgement by the Government though not specifically mentioned in the
Constitution”. The same principle was reiterated in Warden v Heydon.38.
The warrant is not allowed to obtain evidence of an intended crime, but only after lawful evidence of an offence
is actually committed. Nor even then is it allowable to invade one’s privacy for the purpose of obtaining
evidence against him except in a few special cases where that which is the subject of the crime is supposed to
be concealed, and the public or the complainant has an interest in it or in its destruction. (The Fourth
Amendment to the Constitution of United States found also in many States’ Constitutions, is very specific in its
protection. “The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or
things to be seized”. It is believed that under this amendment, the seizure of one’s papers, in order to obtain
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evidence against him, is clearly forbidden and the spirit of the Fifth Amendment that no person shall be
compelled in a criminal case, to be witness against himself would also forbid such seizure.39.
It gives to the court power to determine, in every case, whether a search and seizure has been “unreasonable”,
besides providing that no “general” warrant should be issued. What constitutes an unreasonable search is to be
determined on the facts and circumstances of each case.40.The Fourth Amendment forbids unreasonable
searches and seizures– not all searches and seizures, only those that are “unreasonable”. In general, the
Supreme Court has followed the rule that searches and seizures are reasonable if they are based on a warrant
obtained from a magistrate who may issue the warrant only if law enforcement officials have demonstrated,
through induction of evidence that there is probable cause to believe that the search will uncover evidence of
criminal activity.
Officers are not permitted, however, to search anybody and then use the evidence thereby obtained to justify
original arrest. Generally speaking, officers cannot use the fruits of search as justification for the arrest, grounds
for arrest must exist for the search incident to the arrest to be valid.41. In that case, Supreme Court held that
the search was unreasonable, when the search was made without a search warrant, but there was only a
warrant to personal arrest of defendant.
Firstly,it has been held under this clause that the search of one’s person or premises and the seizure of his
papers or effects, without his consent,42. or without a warrant issued by a proper judicial authority is
“unreasonable” even though no force is actually used.43. This Amendment, thus, guarantees “the security of
one’s privacy against arbitrary intention by the police.44. It has thus formed the basis for the assertion of a
basicconstitutional right to privacy.45.
The object behind this principle is to interpose a Magistrate between the citizen and the Police “so that an
objective mind might weigh the need to invade the privacy in order to enforce the law”.46.
It has been held that the same immunity follows from the guarantee of “Due Process” in the Fourteenth
Amendment:
The security of one’s privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment—is
basic to a free society. It is, therefore, implicit in ‘the concept of ordered liberty’ and as such enforceable against the
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State through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search,
withoutauthority of law but solely on the authority of the police,did not need the commentary of recent history to be
condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional
documents of English speaking peoples.44
There is no power to search a premises without a search warrant issued in conformity with the constitutional
requirement, save in exceptional circumstances, e.g.,where the person was seeking to escape;47. or where the
officer has probable cause to believe that an offence has been committed,48. or where the offence was being
committed in his very presence.49.
Secondly,a search warrant may be issued only on “probable cause,” and not on mere suspicion without any
statement of adequate facts to support the suspicion.50. But it may be issued on information if there was a
basis for accepting the informant’s story51.and evidence required to establish guilt is not necessary.48“Probable
cause” for belief that certain articles subject to seizure are in a home does not of itself justify a search without
warrant.52.
But inspection by a health official has not been treated as a “search” within the meaning of this Amendment.53.
Thirdly,it has further been held that, read with the Fifth Amendment, the present clause also ensures that a
man’s private papers cannot be seized for the purpose of using it in evidence to incriminate him,54. and that
documents obtained by unreasonable search and seizure are inadmissible in evidence.55.Although the Fourth
Amendment forbids unreasonable searches and seizures, it does not prescribe any remedy for those whose
rights have been violated. Addressing this issue for the first time in Weeks v US,56. Supreme Court declared
that the appropriate remedy was exclusion of the illegally obtained evidence. The court did not hold that the
Fourth Amendment of its own force barred from criminal prosecution the use of illegally seized or “tainted”
items, i.e., they did not consider the Fourth Amendment to constitute a rule of evidence. But without such an
exclusionary rule, it was observed that the Fourth Amendment would present no effective deterrent to improper
searches and seizures. The above rule which applied only to federal prosecution was made applicable to State
prosecution also in view of the decision in Mapp v Ohio.57. This exclusionary rule was held not applicable,
where the court recognised the search and seizure done in “good faith”.58. Another exception to the warrant
requirement is the “plain view” doctrine. It was held that it has long been settled that objects falling in the plain
view of an officer who has a right to be in the position to have that view are subject to seizure and may be
introduced in evidence.59. This doctrine also covers aerial surveillance.60.
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An exception is, of course, admitted when a person has been arrested61. under a lawful warrant on a charge or
crime. In such a case, the person and premises of the arrested person may be contemporaneously searched in
order to find and seize weapons or other objects connected with the crime,62. even without a separate warrant
for the search.63. A seizure is lawful even where it is made during a lawful entry to arrest for another61crime.
But the exception does not extend to any premises other than where the crime was committed or the arrest
made and would not permit “exploratory” searches being made for the sole purpose of obtaining evidence
against the arrested person.64. Probable cause for arrest exists if the facts and circumstances known to the
officer would warrant a prudent man in believing that an offence has been committed.65. Where there is no
such probable cause for the arrest, any search and seizure made in course of the arrest (without a separate
warrant for the search) is illegal and the seized goods cannot be used as evidence against the arrested
person.65
Evidence secured by unreasonable search and seizure is inadmissible in the Federal Courts.66.
(C) Japan.—
Japan
Article35 of the Japanese Constitution exactly reproduces the language of the Fourth Amendment to the
American Constitution which has been quoted above. Hence, the same interpretation of the clause is likely to
be adopted in Japan as in the U.S.A.
(D) India.—
India
In our Constitution, there is no separate guarantee to any fundamental right analogose to the Fourth
Amendment to the American Constitution, and our Supreme Court has refused to import any prohibition against
search and seizure of a person’s premises and effects, without his consent by any liberal interpretation of
Article 20(3) of our Constitution.67. The court observed:67
A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of
social security and that power is necessarily regulated by law.
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It was held therein that because a search warrant is issued by a Criminal Court, it can in no case be challenged
as violative of the immunity against self-incrimination, guaranteed by Article 20(3). It was observed: “When such
judicial function is interposed between the individual and the officer’s authority to search, no circumvention
thereby of the fundamental right is to be assumed. We are not unaware that in the present set-up of the
Magistracy in this country, it is not infrequently that the exercise of the judicial function is liable to serious error,
as is alleged in the present era. But the existence of scope for such occasional error is no ground to assume
circumvention of the constitutional guarantee.”
Court further observed in that case thus:
When Constitution makers have thought fit not to subject to such regulation to constitutional limitation by recognition of
a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into
a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that
constitutional protection under Art. 20(3) would be defeated by the statutory provision for searches”. Court also said: “A
search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the
articles seized. Statutory regulation in this behalf is necessary and reasonable restriction and cannot per se be
considered to be unconstitutional. The damage, if any, caused by such interference, if found to be in excess of legal
authority is a matter for redress in other proceedings. We are unable to see how any question of violation of Art.
19(1)(f) is involved in this case in respect of warrants in question which purport to be under the first alternative
tos.96(1) of CrPC.
A search order issued without conducting a preliminary enquiry under section 94 CrPC by a Magistrate is
illegal.68.
In the minority judgment observed: in M.P. Sharma’s case (Supra), “The worst offenders would be the courts if
they went against this prescription”. (PerHIDAYATHULLAH J.) It was observed that the court could not compel
the accused to produce an incriminating document. Whether this is done by issuing a summons to produce or
indirectly through a search warrant, the result would be the same and it would be illogical to say that the judicial
order would not be violative of the fundamental rights guaranteed by Article 20(3), simply because it is a judicial
order.
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In the above case, the question whether search warrants for seizure of documents from an accused were
unconstitutional was not gone into. The main reason for holding that it is not unconstitutional was that the
warrant was issued to an officer and not to the accused and hence it did not violate Article 20(3) and the effect
was only a temporary one. But subsequent to the decision in Satish Chandra’s case (supra) law as to privacy
has developed in later cases by spelling it out from the right to freedom of speech and expression and right to
“life” under Article 21.
There are no express words in the Constitution of India about the right to privacy and it is not to be found in any
other statute, though interests similar to that were protected both under the civil law i.e., under the Indian Penal
Code or Indian Evidence Act and under the Indian Constitution. Different names were given to it at different
times viz., privileged communication, withholding of documents, domestic affairs, matrimonial rights, etc.69. Our
Supreme Court in some decisions has developed various rights interests in all cases similar to privacy viz., right
of free enjoyment, right to sleep, right to human dignity, right to have access to justice, etc. under the concept of
personal liberty in Article 21 of the Constitution.70. But it does not cover at one place all the interests in privacy
which need protection.71.
While physical privacy may be curtailed to some extent in reasonable exercise of police powers under Code of
Criminal Procedure, there is no corresponding provision for intruding upon a person’s mental privacy. Extracting
testimonial responses by means of narco analysis, polygraph and BEAP test, will intrude upon a mental privacy
and hence impermissible in law since it violates Article 20(3) of the Constitution. Protection of mental privacy is
available to an accused as well as victim of an offence.
A female who alleges to be a victim of sexual offence cannot be subjected to polygraph test to ascertain
whether she is making truthful allegation.72. The knock at the door, whether by day or by night as a prelude to
a search without authority of law amounts to police incursion into privacy.73. A citizen has no right to know the
details of bank accounts of a fellow citizen. Revelation of details of bank accounts of individuals without
establishment of prima facie grounds to accuse them of wrong doing would be a violation of right to privacy. It is
only after State has been able to arrive at a prima facie conclusion of wrong doing based on material evidence
would rights of others in the nation to be informed enter the picture. Right to know cannot be extended to being
inquisitors of fellow citizens.74.
Intrusion into privacy may be by, (1) legislative provision, (2) administrative or executive orders, and (3) judicial
orders. The legislative intrusion must be tested on the touchstone of reasonableness as guaranteed by the
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Constitution and for that purpose the court can go into the proportionality of the intrusion vis-à-vis the purpose
sought to be achieved. So far as administrative or executive action is concerned, it is again to be reasonable
having regard to the facts and circumstances of the case. As to judicial warrants, the court must have sufficient
reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or
seizure necessary for the protection of the particular State interest. Warrantless searches, whenever permitted,
must be in good faith intended to preserve evidence or intended to prevent sudden danger to person or
property.
In Kharak Singh v State of U.P.,75.it was held that though our Constitution does not refer to right to privacy
“expressly”, still it can be traced from the right to life under Article 21. In Govind v State of M.P.,76. it was
declared that right to privacy was implied in the right to free speech and expression and could be gathered from
the entirety of the fundamental rights in the constitutional scheme, for without it, those rights could not be
enjoyed meaningfully. At the same time, it was held that right to privacy was not absolute and the same could
be denied if there are important countervailing interest is shown to be superior and it could be restricted on the
basis of compelling public interest. R. Rajagopal v State of T.N.,77. held right to privacy to be implicit in the right
to life and liberty under Article 21. “It is the right to be let alone.” The right to privacy has been widely accepted
as implied in our Constitution was reiterated in Peoples’ Union for Civil Liberties vUOI.78.
In District Registrar and Collector v Canara Bank,79.Supreme Court held right to privacy is part of and implicit
in the fundamental right to speech and expression and part of right to life and any search or seizure without any
reason would amount to unreasonable restriction on the fundamental right. In that case, the court was
considering the scope of section 73 (as amended by Andhra Pradesh) Stamp Act which authorised the
Collector or any other person authorised by him to make a search and seize documents, which according to
him was executive defeating the Stamp Law. It was held that the power given was unregulated and without any
guidelines. Even the confidentiality between the Bank and customer would be affected and would violate the
right to privacy and right to life. It was further held that the drastic step was disproportionate to the object sought
to be achieved and hence unconstitutional.
But the principle in M.P. Sharma’s case that “the power of search and seizure is in any system of jurisprudence”
an overriding power of the State “for the production of social security and that power is necessarily regulated by
law” is not doubted by any subsequent decision.80.
Search without the accused being compelled to be a party to it would not be violative of Article 20(3). But at the
same time, an accused cannot be forced to produce incriminating documents by issuing search warrant.81.
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I. Any place may be searched by a Police officer when he has reason to believe that a person against whom he
has got a warrant of arrest has entered into such place (section 47, CrPC, 1973).
II. Section 91(1) of the CrPC empowers a court or any Police Officer in charge of a Police-Station to issue a
summon against any person for the production of any document in his possession or power which the court or
the Police officer considers to be necessary or desirable for the purposes of any “investigation, inquiry, trial or
other proceeding”.
Section 91, on its true construction, does not apply to an accused person on trial. No specific words indicate its
application to accused person on trial. A limitation should be put on the wide words used; otherwise, calling
upon an accused person to produce documents which are incriminating as against him will negate the
safeguard of Article 20(3) of the Constitution. It may be that the construction of section 91 would render section
93 useless. But to a search by the police officer Article 20(3) has no application.82. An accused person cannot
be compelled to disclose documents which are incriminatory and based on his knowledge.83. The term
“person” in section 91 does not include an accused person on trial.84. A person arrayed as an accused in a
complaint filed before a magistrate though at an enquiry stage under section 202 CrPC is a “person accused of
an offence” as contemplated under Article 20(3) and no process can be issued against him to produce a
document in view of Article 20(3).85.
A notice to produce is addressed to the party concerned and production in compliance therewith constitutes
testimonial act by him within the Article 20(3).86. Under section 67 of the Factories Act, it is not competent to
issue a summons to the accused under section 91 to produce certain documents as it is violative of Article
20(3). The accused cannot be compelled to disclose incriminatory documents before court under section 91,
though the complainant may be allowed to pursue the petition under section 93 of CrPC.87.
Section 93(1) then provides—
Where any court has reason to believe that a person to whom a summons or order under s.91 or a requisition under
sub-s. (1) of s.92, has been, or might be, addressed, will not or would not produce the document or thing as required
by such summons or requisition.
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or where such document or thing is not known to the court to be in the possession of any person.
or where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served
by a general search or inspection.
it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance
therewith and the provisions hereinafter contained.
Under section 93(1)(a), a search warrant could only be issued where a summons could have been issued
under section 91(1), but the same could not be issued on an apprehension that the person to whom the
summons is directed would not comply with the same and, therefore, in order to obtain the document or thing to
produce which the summons was to be issued, a search warrant may be issued under section 93(4). A
summons to produce a thing or document contemplated under section 91(1) cannot be issued to a person
accused of an offence calling upon to produce documents or thing considered necessary or desirable for the
purpose of investigation, inquiry, trial or other proceeding under the Code. Ipso facto, a search warrant under
section 93(1)(a) cannot be issued to an accused person. That would violate Article 20(3).88. The decision of the
Kerala High Court in Ramakrishnan v V.S. Kuttan Pillai,89. which held that provisions relating to search
contained in section 93 are not hit by Article 20(3) was confirmed. Supreme Court held that when a Magistrate
issues a search warrant under section 93, should state reasons since issuance of a search warrant is a serious
matter. A clear application of mind must be discernable in the granting of the search warrant. The court should
record its reasons which should indicate that it has applied its mind before passing the order and for that it must
see that there is sufficient materials before it which justify the drastic action. It was further held that a passive
submission to search cannot be styled as a compulsion on the accused, to submit to search and if any
recovered during the search which may provide incriminating evidence against the accused, it cannot be styled
as compelled testimony and is not violative of Article 20(3). When no reasons have been given in the order, the
clear application of mind of the Magistrate is not discernible from the order. The order should not be laconic in
nature, but should conform to Forms 10 and 11 of Second Schedule of the Code.90. Issuing a search warrant is
an extraordinary remedy which is availed by a party when his adversary is not present and as such the
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authority issuing the search warrant must give his reasons for taking this extraordinary course of action
especially when he is issuing the same straightaway without directing any show cause to be given to the other
side. A duty is cast on the issuing authority to make an enquiry as he thinks it necessary before issuing the
process of this nature.91. When criminal proceedings are initiated based on illicit material collected on search
and arrest which are per se illegal, it vitiates not only the conviction and sentence based on such material, but
also the trial itself; the proceedings cannot be allowed to go on as it cannot be but amount to abuse of process
of court. The entire proceedings will be quashed in such cases.92.
III. Sections 165–66 of the CrPC also empower a police officer to search any place within the limits of the
Police-station to which he is attached, when he has reasonable grounds for believing that “anything necessary
for the purposes of an investigation into an offence which he is authorised to investigate may be found” in such
place.
IV. Provision similar to that contained in the English Larceny Act is to be found in section 94 of the CrPC which
empowers a Magistrate to issue a general warrant for the search of stolen goods and obscene objects. There is
also provision in section 97 of the Code for search of persons wrongfully confined.
V. Besides, the power to search is conferred by various other statutes, for the purposes of those statutes, e.g.,
sections 22–24 of the Dangerous Drugs Act (II of 1930); section 7 of the Explosives Act (IV of 1884); section 11
of the Official Secrets Act (XIX of 1923).
As stated above, in Sharma v Satish,93. our Supreme Court has held that no immunity from search and seizure
can be predicated from Article 20(3), because the immunity under Article 20(3) is confined to testimonial
compulsion, that is to say, where an accused person is compelled to give oral or documentary evidence against
himself, while in search, the documents or other articles are recovered from his premises by another person,
namely, the police officer. Thus observed the court:
It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or
document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the
two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is
addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him
within the meaning of Art. 20(3) as above explained. But a search warrant is addressed to an officer of the
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Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched
promises. They are acts of another to which he is obliged to submit and are not his testimonial acts in any sense.1.
Following this decisions,1 it has been held that it would not be unconstitutional to issue a search warrant under
section 96 of the CrPC 1898,2. or a notice to show cause why a search warrant should not be issued 2 or to use
in evidence against the accused articles obtained by search [See post].
[Art.20.10.18] Constitutionality of section 91, CrPC, 1973 (section 94 of the Code of 1898)
1. This section empowers a Court or an officer-in-charge of a police station to issue a summons or written
order, requiring any “person” to produce a document or thing in his possession. Literally interpreted, the word
“person” could include an accused person, and might possibly include incriminating documents. Had it been so
interpreted, the provision would have offended Article 20(3), because the result would have been to compel the
accused to produce incriminating testimony.3.
2. The Supreme Court has, therefore, narrowly interpreted the word “person” to exclude the accused, in order
to be consistent with the guarantee in Article 20(3).4.The guarantee under Article 20(3) would extend to any
compulsory process for production of evidence of documents which are likely to support the prosecution against
the accused, though in such cases the accused cannot be compelled to produce the records.5. An application
filed along with a private complaint seeking production of incriminating property by the accused is not
sustainable.6.
3. Hence, an accused person cannot be asked to disclose documents or things7. which are incriminatory and
contain his statements. It is not, therefore, permissible for a Police officer to issue an order or the court to issue
a summons to an accused person in his custody or present in court, to attend and produce any document 3 for
such compulsory process amounts to “compulsion” within the meaning of Article 20(3).3 There is, however, no
bar to an order requiring production of a document which does not contain any statement of the accused
himself conveying his personal knowledge relating to the charge against him.8.
4. The principle has been extended to proceedings under section 67 of the Factories Act, 1948.9.
5. It is interesting to note that in Sharma v Satish,1though the court held that any compulsory process directing
the production of evidentiary documents, if issued against a person accused of an offence,would offend Article
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20(3), the court took the view that there is nothing unconstitutional in section 96 (now section 94) of the CrPC
which provides for “search and seizure” of documents on failure to produce documents in compliance with a
summons for production under section 94 (now section 91) of the Code inasmuch as that there is no prohibition
in our Constitution against “unreasonable search and seizure”.
Their Lordship, however, did not express any definite opinion as to whether section 94 itself offends against
Article 20(3) on the ground that it is not available to compel an accused person to produce a document:
There has been some debate before us whether s.94 applies to an accused person and whether there is any element
of compulsion in it. For the purpose of this case it is unnecessary to decide these points. We may assume without
deciding that the section is applicable to the accused as held by a Full Bench of the Calcutta High Court in a recent
case in Satya Kinkar Roy v. Nikhil.10.We may also assume that there is an element of compulsion implicit in the
process contemplated by s.94 because, in any case non-compliance results in the unpleasant consequence of
invasion on one’s premises and rummaging of one’s private papers by the minions of law under a search warrant.11.
There is, however, a more positive sanction compelling production of a document which is called for under
section 91 of the Code, viz., that it is punishable as contempt of court.
Section 349 of the Code provides—
If any…person called to produce a document…before a Criminal Court refuses…to produce…and does not…offer any
reasonable excuse for such refusal, such Court may…sentence him to simple imprisonment…for any term not
exceeding seven days unless in the meantime such person consents to produce the Document…
6. In view of the above, there is little doubt that section 94 provides for a compulsory production of a document
from any person including an accused, and it is difficult to sustain the validity of this section in view of the
Supreme Court decision that Article20(3) extends to documentary evidence as well. This view of the Author,12.
that section 94, in so far as it is applicable to the accused,contravenes Article 20(3), seemed to have been
affirmed by the majority in Kathi Kalu’s13. case, but the majority in the later case of State of Gujarat v
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Mohanlal,14.has saved section 94 from unconstitutionality, by giving it a narrow construction,—holding that the
words “any person” in the section does not include the accused.
The result of Mohanlal’s case,14 therefore, is that nothing in section 94 (now section 91) will enable a court to
compel an accused person to produce documents which might incriminate him.
7. But “accused” means a person against whom a formal accusation has been made.15. Hence, Article 20(3) of
the Constitution would not come in as a bar against issue of a summons under the present section against a
person against whom no formal accusation has yet been made,16. though he may be a suspect; or who has
been summoned only as a witness.17.
A person who appears in court in pursuance of a summons under section 91 does not become a witness and
cannot be examined.18.
[Art.20.10.19] Constitutionality of section 93 of the CrPC 1973 (Section 96 of the Code of 1898)
While section 91 empowers a court to issue a summons against a person to produce a document or thing,
section 93 empowers the court to issue a warrant for the search or inspect a place where a document or thing
may be found. The question whether this provision offends against Article 20(3), has been answered under the
three clauses of this section as follows:
Clause (a): Following Shyamlal,19. it has been held that this clause would exclude the “accused”, so that this
clause is constitutionally valid.20.
Clause (b):The warrant under this clause does not specify any person whose place may be searched, but
empowers the police officer to search any place where the document or thing is not known to be in the
possession of any person.
Though Clause (b) is not styled as a “general warrant”, it has a feature common with Clause (c), namely, that it
is not directed to any particular person.20 Hence, on the principle laid down by the Division Bench,20 at such
search incriminating documents can be recovered from the premises of an accused person, provided it was not
known to the court, when issuing the warrant, that the document or thing to be recovered was in the possession
of the accused or any other person.20
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General search warrant cannot be issued when the person in whose possession a thing lay is known and the
place where the thing is also known.21. Where the complainant has obtained a search warrant by suppressing
facts, general search warrant in the name of unknown person was held illegal and the same was quashed.22.
Where there is no prima facie material available for the Magistrate to issue warrant for general search, warrant
for general search cannot be issued.23.
Privilege against self-incrimination has not been applied in India to searches and seizures or seizure of
document under a search warrant. A search of the premises in possession of a person accused of an offence,
under a search warrant and seizure of documents under sections 94 and 95 of Code of Criminal Procedure
(old) or section 94 (new) is not compelled production within Article 20(3) and hence would not offend
constitutional provision. The reason is that a search warrant of the premises in question; they are the acts of
another to which occupier is obliged to submit and are therefore not his testimonial acts in any sense.24.
Clause (d):This clause empowers the court to issue a “general” search warrant without specifying the document
or thing to be recovered, i.e., for the purpose of discovering objects which might involve criminal liability. It is not
directed against any particular person. This clause is not controlled by anything in Cls. (a)-(b).25.
When such a general warrant is issued, in execution thereof even the premises in possession of an accused
may be searched and documents found therein may be seized, even though they might contain statements of
the accused which might incriminate him.25 Such search or seizure of the documents executed by the accused
or containing his self-incriminating statements has been held by a Division Bench 25 not to contravene Article
20(3), for the reason that by the issue of a general search warrant the accused or any person is not compelled
to produce incriminating evidence. The accused is not required to participate in such search; he may remain
absent or may be a passive spectator.25 A passive submission to such search cannot be styled as a
“compulsion” on the accused to submit to the search or to produce incriminating evidence against himself.25
Hence, section 93(1)(c) does not offend against Article 20(3), even though the search may lead to the discovery
of documents incriminating the accused.25 But it may violate Article 20(3), if the accused is compelled to be a
witness to the search.26.
[Art.20.10.20] Constitutionality of wire-tapping and interception of messages (A) U.S.A.—
U.S.A.
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In the U.S.A., the question has been dealt with under the constitutional protection against “unreasonable search
and seizure” (Fourth Amendment). In an earlier case,27. the Supreme Court held that wire-tapping did not
constitute a violation of the above constitutional guarantee and that the common law did not prevent the
admission of evidence secured by wire-tapping, in the absence of a physical trespass upon the property of the
person aggrieved.
The “Olmstead” v. U.S.28.doctrine was not repudiated until Katz v U.S.29.in which court declared that the
Fourth Amendment “protects peoples and not places” and held that electronic surveillance conducted outside
judicial process, whether or not involves trespass, is per se unreasonable. In an attempt to limit the
consequences of the decision in Katz (supra) and to clarify exactly what was expected of law enforcement
personnel, Congress included in the Omnibus Crime Control and Safe Streets Act 1968 a title on the inception
and disclosure of wire or oral communication, which provided a system of judicially approved interception at the
request of attorney general.
Congress has enacted the Federal Communications Act, 1934 which makes it unlawful to “intercept and divulge
telephone communications without authorisation by the sender”. Evidence obtained by wire-tapping (whether
obtained by Federal or State agents30.) has thus been made inadmissible in the federal courts.31.
But the utility of this statutory provision has been minimised by the holding that it does not extend to prohibit
State courts from receiving evidence secured by State agents,32. by wire-tapping or eavesdropping,33. except
where it offends against some other constitutional provision. Thus, a conviction has been set aside on the
ground that conversation between the accused and her lawyer had been intercepted in contravention of the
right of the accused to provide consultation with his counsel.34. Again, a conviction on the basis of evidence
obtained by means of eavesdropping would be invalid if the device for eavesdropping was planted by means of
an unlawful physical invasion of the Petitioner’s premises, which would violate the Fourth Amendment to the
Constitution.35.
In Berger v New York,36. court said that even a selective wire tap or electronic bugging is of course not
rummaging around, collecting everything in the particular time and place space zone. But even though it is
limited in time, it is the greatest of all invasions of privacy. It places a government agent in the bedroom, in the
business conference, in the social hour, in the lawyer’s office – everywhere and anywhere a “bug” can be
placed. If a statute to authorise placing a policeman in every home or office where it was shown that there was
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probable cause to believe that evidence of crime would be obtained, there is little doubt that it would be struck
down as a bald invasion of privacy, far worse than the general warrant prohibited by Fourth Amendment and
there is no difference between electronic surveillance which is similar to an invisible policeman in the home.
Court said that an electronic surveillance is more offensive because the home owner is completely unaware of
the invasion of privacy.
Subsequently, however, it has been held that there might be an unreasonable search and seizure within the
meaning of the Fourth Amendment, even where there has been no trespass upon the Petitioner’s property but
the conversation of the Petitioner has been obtained by means of an electronic device, e.g., a tape-recorder or
similar device planted outside the Petitioner’s premises or even a public telephone booth where the Petitioner
was talking to a third party.37. This view has been founded on the residuary right of “privacy”,37 the
development of which under American Constitutional law has been referred to elsewhere. It was held in that
case that the Fourth Amendment protects people and not places. What a person knowingly exposes to the
public, even in his home or office, is not subject of Fourth Amendment protection. But what he seeks to
preserve as private, even in an area accessible to public may be constitutionally protected. The contention that
the telephone booth from which the petitioner made his calls was constructed partly of glass so that he was
visible after he entered it, as he would have been if he had remained unhide, and hence there is no violation of
any right was not accepted by court. It was held: “what he sought to exclude when he entered the booth was
not the intruding eye—it was an uninvited ear”. It was observed that no less than an individual in a business
offices, in a friends apartment or in a taxi cab, a person in a telephone booth may rely upon the protection
Fourth Amendment. In the concurring judgment by JUSTICE MARSHALL, it was held that the enclosed
telephone booth is an area like a home and unlike a field.38. It was held that a person has a constitutionally
protected reasonable expectation of privacy; that doctrine as well as physical intrusion into a place that is in this
sense private may constitute a violation of Fourth Amendment; that the invasion of a constitutionally protected
area by federal authorities is presumptively unreasonable in the absence of a search warrant.
Wire-tapping or eavesdropping by means of an electronic device would not, thus, be permissible in the U.S.A.,
without a warrant from a Magistrate, which interposes a judicial process,37—a safeguard against
‘unreasonableness, though eavesdropping by the use of the naked ear is not banned by any law, and personal
testimony founded on such eavesdropping, without any technical device is admissible in evidence, the reason
being that an electronic device is a powerful means which goes beyond the reach of the human ear.39.
But the installation and use of a pen register did not amount to “search” and not violative of Fourth Amendment.
It was held that telephone users have no subjective expectation of privacy, because pen register and similar
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devices are routinely employed by the phone company for billing, invistigation and repair purposes. When a
number of outgoing calls are recorded by a pen register, the subscriber weiver any privacy interest.40.
In regard to individuals using radio waves to communicate had to take their chances that other people using
scanners would not listen in a conversation and disclose them or worse, yet record them and make them
available, possibly for use in criminal prosecution. Using a cordless phone was a risky business. In 1994,
Congress amended the law to explicitly include cordless phones within the meaning of “wire communication”.
Similar protection was gives to cellular phone transmission in 1988.
Congress also passed Electronic Communication Privacy Act, 1986, to protect electronic communication
(including data transmission) and to message held in electronic communication storage which previously was
unprotected.
In response to yet another kind of attack (like the attack on 11 September 2001) – electronic attack by computer
hackers – Congress enacted as part of the Homeland Security Act 2002. The statute immunizes from suit
internet service providers who disclose to the Government the contents of e-mails, financial transactions and
other information which they “reasonably believe” is related to an immediate danger of causing death or serious
injury. Whereas the Government previously had to get a warrant to obtain such information, the legislation
permits federal agents to conduct emergency surveillance of a computer without first securing judicial approval.
The law defines an emergency with remarkable – and to libertarian critics, with alarming – breadth as “an
immediate threat to national security interest” or an attack on a computer used in inter-state commerce.
In United States v United States District Court for Eastern District of Michigan,41. the issue was a delicate one
i.e., the question of President’s power acting through attorney-general to authorise electronic surveillance in
internal security matters without prior judicial approval. Court took note of the fact that successive Presidents
for more than quarter of century have authorised such surveillance in varying degrees without guidance from
the Congress or definitive decision of the Supreme Court. Court said that Fourth Amendment freedom cannot
be properly guaranteed if domestic security surveillance may be conducted solely within the discretion of the
executive. The Fourth Amendment does not contemplate the executive officers of the Government as neutral
and disinterested magistrates. Their duty and responsibility is to enforce the laws, to investigate and to
prosecute. Court, recognising the constitutional basis of President’s domestic security role, said that it must be
exercised in a manner compatible with the Fourth Amendment and it requires a prior warrant procedure. Court
rejected the argument that internal security matters are too subtle and complex for judicial evaluation and said
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that prior judicial approval will not fracture the secrecy essential to official intelligence gathering. Court said that
judges may be counted upon to especially conscious of security requirement in national security cases.
In the wake of 11 September 2001, terrorist attack on World Trade Centre and Pentagon, Congress adopted
the U.S.A. Patriot Act of 2001 which substantially broadened the federal Government’s power of electronic
surveillance to prevent terrorism.
The Foreign Intelligence Surveillance Act was passed to control electronic surveillance conducted in the United
States for the purpose of national security. The statute re-affirms the principle that no bugging or wire-tapping
without prior judicial approval is to be initiated by federal intelligence or law enforcement agents against
American citizen, a lawful resident alien or any of various incorporated or unincorporated domestic
organizations.
The power of the State to intercept any communication which is prejudicial to public safety has been
acknowledged in England from early times as a Prerogative of the Crown42. and even statutes have
recognised the existence of such a power in the Executive [e.g.,Section 58(1) of the Post Office Act, 1953].
As to the admissibility of evidence secured by such means, the principle of English Common Law is that if an
evidence is relevant, the court is not concerned with the means by which it has been obtained;43. but the court
has the discretion, in a criminal proceeding, to disallow evidence that would operate unfairly against the
accused, e.g.,a document obtained from the accused by a trick.43
But though there has been no question in the courts so far as to the admissibility of evidence obtained by wire-
tapping, in 1957 a Committee of Privy Councillors was appointed to suggest safeguards against the abuse of
this power by the Executive. The Committee has recommended that this power must rest with the Executive for
the purposes of detection of crime and prevention of injury to national security and that the Secretary of State
should remain the sole authority to issue warrants for such interception, uninterrupted by the courts, but that the
warrants should be issued for a defined period and should also specify the name, address, etc., of the person
who would be the subject of the warrant.
In the result, evidence obtained by wire-tapping or eavesdropping is admissible,44. in England,“subject to the

discretion of the court to reject it,”43according to the circumstances under which it was obtained.
U.S. Supreme Court in Mapp v Ohio,45. held that: “All evidence obtained by searches and seizures in violation
of the Constitution is inadmissible in a State court. But where a search warrant is issued under a mistake, and
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evidence collected as on the basis of such a warrant could be introduced at trial.46. It was held therein that the
exclusionary rule operates as a “judicially created remedy designed to safeguard Fourth Amendment Rights
generally through its deferent effects, rather than a personal constitutional right of the person aggrieved. The
court said in that case: “This is particularly true, we believe, when an officer acting in objective good faith
obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is
no police illegality and nothing to deter. It is magistrate’s responsibility to determine whether the officer’s
allegations establish probable cause and if so, to issue a warrant comporting in form with the requirements of
Fourth Amendment. In the ordinary case, the officer cannot be expected to question the magistrate’s probable
cause the determination or his judgment that the form of the warrant is technically sufficient. Once the warrant
issues, there is literally nothing more the policeman can do in seeking to comply with the law. Penalising the
officer for the magistrate’s error, rather than his own cannot logically contribute to the deterrence of Fourth
Amendment violation. In a similar case,47. the police officer acted in reliance of a police computer record
indicating the existence of an outstanding arrest warrant – a record that was subsequently determined as
erroneous was held that the action was done in good faith. Relying on the decision in Stone v Powell,48. it was
observed that indiscriminate application of the exclusionary rule, vary well generate disrespect for the law and
the administration of justice. In California v Greenwood,49. further erored the Fourth Amendment protection of
individual privacy.
According to learned author, Mapp and all cases that followed it forced the court to confront the classic dilemma
of democracy: the choice between freedom and order. If the justice tipped the scale toward freedom, guilty
parties would go free, perhaps to break the law again. If they choose order, they would be giving government
approval to police conduct in violation of the Constitution.50.
(C) India.—
India
Section 5 of the Indian Telegraph Act, 1885, and section 26 of the Post Office Act, 1898, empower the
Government or any officer specially empowered by it, to intercept and disclose to the Government a telegraphic
or other communication, not only on the occurrence of any “public emergency”, but also in the interest of the
“public safety”, as to the existence of which, the certificate of the appropriate Government shall be “conclusive
proof.” Since it is not obtained from the party by “compulsion,”Article 20(3) is not attracted.
The validity of restriction has to be determined with reference to Article 19(2), which has been already
discussed.
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Regarding the admissibility of evidence secured by illegal search and seizure, it was held that if “relevancy” as
the only test of admissibility of evidence under the Evidence Act, or any other law in force and it does not
exclude relevant evidence on the ground that it was obtained under illegal search and seizure, it will be wrong
to invoke the supposed spirit of our Constitution for excluding such evidence. It was further held that neither
invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can spell
out the exclusion of evidence obtained on an illegal search. What would otherwise be relevant does not
become irrelevant because it was discovered in course of a search in which the provisions were disregarded. It
was held that the test to be applied both in civil and criminal cases, in considering whether the evidence is
admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned
with how it was obtained. It was concluded that where the test of admissibility of evidence lies in relevancy,
unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained
as a result of illegal search or seizure is not liable to be shut out.51. In Herman King vR,52.the Privy Council
from the court of Appeal of Jamaica applied Karuma’s case, though the Jamaican Constitution guaranteed
constitutional right against search and seizure. Even if a document is procured by improper or illegal means,
there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it
does not matter how it was obtained. However, as a matter of caution, the court in exercise of its discretion may
disallow certain evidence in criminal case if the strict rules of admissibility would operate unfairly against the
accused. Moreso, the court must conclude that it is genuine and free from tampering or mutilation.53. In that
case, court also relied on earlier decisions which repelled the contention that obtaining evidence illegally by
using tape-recordings or photograph offends Article20(3) of the Constitution.54.
[Art.20.10.21] Whether accused can be compelled to exhibit his body (A) U.S.A.—
U.S.A.
Ithas been held in the United States that the guarantee against self-incriminating evidence does not require the
exclusion of the body of an accused as evidence of his identity.55. An accused can, therefore, be compelled to
be present at the trial, to stand, to sit, to turn this way or that, and to try a cap or a coat.56.In that case, police
officers having information that Rochin (appellant) was selling narcotic, went to his residence and entered the
premises illegally. They found him partially clothed, sitting on the side of his bed when asked “Whose stuff is
this?” referring to two capsules lying on the night stand, the appellant reached for the pills and swallowed them.
After efforts by the officers to force the appellant to regurgitate the capsules failed, they took him to a hospital
where they asked his stomach to be pumped. A report confirming that the capsules contained morphine was
used to convict the appellant in California court which was affirmed by two higher State courts, whereupon the
appellant moved the Supreme Court. Court held that authorities have to maintain bodily integrity and concluded
thus: “We are compelled to conclude that the proceedings by which the conviction was obtained do more than
offend some fastidious squeamishness or private sentimentalism about embattling crime too energetically. This
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is a conduct that shocks our conscience. Illegally breaking into privacy of the petitioner, the struggle to open his
mouth and remove what was there, and forcible extracting of his stomach’s contents – this course of
proceedings by agents of government to obtain evidence is bound to offend even hardened sensibilities. They
are methods too close to the rock and the screw to permit of constitutional differentiation”. Similarly, the
question whether a blouse belonged to the accused can be determined by making him put it on.57.Justice
Holmes observed:57
The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition to the use of
physical or moral compulsion to extort communication from him, not an exclusion of his body as evidence when it may
be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a
photograph in proof. Moreover, we need not consider how far a court would go in compelling a mail to exhibit himself.
For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is
competent.57
Forcible discovery of blood-stains58. or marks and bruises59. on the body of the accused would not,
accordingly, violate the Fifth Amendment.
Compulsory examination of the physical and mental condition of the accused is permissible.60.
Article 6(1) and Article 6(2) of European Convention on Human Rights entitle an applicant not to be legally
compelled into making statements or handing over documents which may be self-incriminating. In Funke v
France,61.the applicant was asked to pass over his bank statement from account held abroad and other foreign
business documents to customs officials and was informed that if he did not produce them, he would be fined or
imprisoned. He refused and was fined. The court said that the “special features of custom law cannot justify
such an infringement of the right of any one charged with criminal offence” within the autonomous meaning of
the expression in Article 6 to remain silent and not to contribute to incriminating himself. Court held that there
was violation of Article 6(1) and (2).
The above case was concerned at the pre-trial stage. The same position will apply at his trial.62. The Police
and Criminal Evidence Act 1984 allows the taking of intimate bodily samples (blood, semen or any other tissue
fluid, urine, saliva or pubic hair, a dental impression or a swab from the body orifice other than the mouth and
non-intimate samples. The above Act was amended under Criminal Justice and Public Order Act (CJPO) to
provide a power for the police to obtain intimate and non-intimate body from those not in the police station. In
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Saunder’s case, it was held that the statements themselves did not have to be incriminatory and it was enough
if they were used in such a way as to question the innocence of the applicant.
(C) India.—
India
In Sharma’s case,63. the Supreme Court pointed out that the expression used in the clause is “to be” and not
“to appear” as a witness. It follows, therefore, that the immunity given by the clause extends to immunity against
being compelled to furnish any kind of evidence which is reasonably likely to support a prosecution against
him.63But taking a specimensignature of accused during investigation does not amount to giving a “statement”
under section 162 of CrPC nor under Article 20(3) of the Constitution.64.
But in the later of State of Bombay v Kathi Kalu,65.the Supreme Court has narrowed down the above
proposition in Sharma’s case,66. by laying down that the protection does not extend to any kind of evidence but
only to self-incriminating statements made by the accused (including oral or written testimony) relating to the
charge brought against him. It follows, therefore, that Article 20(3) does not protect the accused from being
compelled to produce any material object.67.
It does not prohibit the use of compulsion requiring the accused to exhibit his body68. for the purposes of
establishing identity or for the holding of identification proceedings of suspects, taking their photographs or
trying clothes upon their persons and the like.69.
The provisions of section 5 of the Identification of Prisoners Act, 1920, are not, accordingly, violative of Article
20(3).70.Section 54-A is inserted by virtue of CrPC (Amendment) Act, 2005 (Act 25 of 2005). It reads: “Where a
person is arrested on a charge of committing of an offence and his identification by any other person or persons
is considered necessary for the purpose of investigation of such offence, the court having jurisdiction, may on
the request of the officer-in-charge of a police station, direct the person so arrested to subject himself to
identification by any person or persons in such manner as the court may deem fit.”
Even the recovery of blood-stained clothes71. or other articles72. from the person of the accused has been
held not to amount to compelling him to be a witness. In the erstwhile Code of Criminal Procedure 1898, there
was no provision for authorising such a medical examination. In the absence of a statutory provision for medical
examination, court held that a medical examination cannot be held without prior consent of the person who was
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to be subjected to medical examination.73. But the Code of Criminal Procedure sections 53 and 54
contemplate medical examination of a person who has been arrested either at the instance of investigation
officer or even at the instance of arrested person. The same can also be taken at the direction of the
jurisdictional court.
The position in U.S.A. in regard to medical examination of a person accused of an offence has been
summarised.74. It reads as follows: “Less certain is the protection accorded to the defendant with regard to
non-testimonial physical evidence other than personal papers. Can the accused be forced to supply a sample
of his blood or urine if the resultant rests are likely to furnish the prosecution case? Can he be forced to give his
fingerprint, to wear a disguise or certain clothing, to supply a pair of shoes which might match footprint at the
scene of the crime, to stand in a line up, to submit a hair cut or to have his hair dyed or to have his stomach
pumped or fluoroscopic examination of the contents of his intestine? The literature on this aspect of self-
incrimination is voluminous.
The short and reasonably accurate answer to the question posed is that all such physical acts can be required.
Influenced by the historical development of the doctrine, its purpose and the need to balance the conflicting
interests of the individual and society, the courts have generally restricted the protection of the Fifth
Amendment to situation where the defendant would be required to convey ideas or where the physical ideas
would offend the decencies of civilised conduct.”
Medical examination,75. of the person of the accused or the taking of blood from his person for the purpose,76.
without his consent, would also be justifiable for the same reason. But in Goutham Kundu v State of West
Bengal,77. it was held that no one can be compelled to give sample of blood for analysis and no adverse
inference can be drawn against such refusal.78.
In Selvi v State of Karnataka,79. Supreme Court said that narco analysis, polygraph (lie detector test) and brain
electrical activation profile (BEAP) test are violative of Article 20(3) of the Constitution.
[Art.20.10.22] Whether an accused can be compelled to give thumb-impression or specimen writing for
comparison (A) U.S.A.—
U.S.A.
As has already been stated in the U.S.A.,the “Self-incrimination” Clause in the Fifth Amendment has been
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interpreted to be confined to a prohibition against extortion of a “communication”80.from the accused which

would tend to incriminate him.
In Holt vU.S.,80HOLMES, J. observed:
“The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition to the use of
physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may
be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a
photograph in proof.”80
It would not, therefore, confer any immunity from being compelled to exhibit one’s body or to give finger-
impressions or specimen writings, which are to be used for the purpose of identification,81. just as a hat or a
blouse would be.80 The reason, according to Prof. Gellhorn,81 is that these are not “communication” but “non-
assertive conduct”.
The reason is more fully explained by WIGMORE:82.
The limit of the privilege is a plain one. From the general principle…it results that an inspection of the bodily features by
the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i.e.,
upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action—
aswhen he is required to take off his shoes or roll up his sleeves—is immaterial, unless all bodily action were
synonymous with testimonial utterance; for, as already observed…not compulsion alone is the component idea of the
privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his
body, but his body, itself…
Unless some attempt is made to secure communication,written or oral, upon which reliance is to be placed as involving
his consciousness of the facts and the operations of his mind in expressing it.83.

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It was formerly the law that fingerprints could be taken only with the consent of the arrested person. Otherwise,
a Magistrate Court’s order was required and even this could be granted only in the case of a person who was
not less than fourteen years old and who has been charged with a criminal offence. So there was no power to
take the fingerprint of any one without his/her consent before charge. The position was different in Scotland and
it changed in England and Wales as a result of Police and Criminal Evidence Act 1984 (PACE). Section 61 of
the said Act allows fingerprint to be taken without consent but with the authority of a police inspector in an
expanded range of circumstances. These include the situation where there are reasonable grounds to suspect
the individual’s involvement in a recordable offence and to believe that the prints will tend to prove or disprove
guilt as well as where the individual has been charged with a recordable offence. By section 62, intimate
samples may be required in more limited circumstances being defined to include various bodily fluids, including
blood and swabs from intimate parts of the anatomy, but not now swabs taken from the mouth (in view of
insertion of section 63(3A) in PACE). Apart from urine, saliva such samples must be taken by a doctor or a
nurse and dental impression by a dentist. Unlike fingerprints, however, intimate samples may be taken only with
the consent of the detainee. However, a refusal without good cause to consent may lead a court to draw such
inference from the refusal as appear and proper. (s. 62(10)), An intimate sample (e.g., hair, a sample from
under nail, or a swab taken from the mouth) may in contrast be taken without consent, if authorised by an
officer of the rank of inspector or above if the offence for which the arrested person is being detained is a
recordable offence. A non-intimate sample may also be taken without consent from a person who has been
charged with or convicted of a recordable offence.84.
(C) India.—
India
Sections 4–6 of the Identification of Prisoners Act, 1920 provide for the taking of finger-impressions and foot-
print impressions, by the use of force, if necessary:
4. Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term
of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed
manner.
5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal
Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may
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make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at
the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may
be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:
Provided further that no order shall be made under this section unless the person has at some time been arrested in
connection with such investigation or proceeding.
6. (1) If any person who under this Act is required to allow his measurements or photograph to be taken resists or
refuses to allow the taking of the same it shall be lawful to use all means necessary to secure the taking thereof.
(2) Resistance to or refusal to allow the taking of measurements or photographs under this Act shall be deemed to be
an offence under s.186 of the Indian Penal Code.
The 37th and 41st Reports of Law Commission of India recommended the insertion of provision in the Code of
Criminal Procedure to enable medical examination without the consent of an accused. These recommendations
proved to be the precursor for the inclusion of sections 53 and 54 in the Code of Criminal Procedure. It was
observed in 37th Report (December 1967): “It will suffice to refer to the decision of the Supreme Court of India
in State of Bombay v Kathi Kalu Oghad,85.which has the effect of confining the privilege under Article 20(3) to
testimony – written or not”. Supreme Court judgment in Kathi Kalu should be taken as overruling the view taken
in some earlier decision invalidating the provisions similar to section 5 of Identification of Prisoners Act 1920.
Taking note of Kathi Kalu Oghad’s case,86.and the distinction drawn between testimonial and physical acts in
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the American cases, the Law Commission observed that a provision for examination of the body would reveal
valuable evidence. This view was taken forward in the 41st Report of Law Commission during the course of
investigation, irrespective of subject’s consent. (September 1969).87. In that case, the Supreme Court also took
note of amendment to sections 53, 53-A and 54 of Code of Criminal Procedure 1973 as amended in 2005. The
explanation as amended by 53(2) said: “In this section (i.e., 53) and sections 53A and 54 – (a) examination
shall include the examination of the blood, blood-stains, semen, swabs in the case of sexual offences, sputum
and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA
profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.
((b) registered medical practitioner is also separately defined)”.
Section 2(a) defines “measurements” as including finger impressions and foot-print impressions.
Section 73 of the Evidence Act says—
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written
or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made
by that person may be compared with the one which is to be proved, although that signature, writing or seal has not
been produced or proved for any other purpose.
The court may direct any person present in court to write any words or figures for the purpose of enabling the court to
compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger impressions.
Upon the question whether these sections, in their application to an accused person, violate Article 20(3), there
was a sharp difference of opinion amongst the High Courts, which, according to the Author, should be taken to
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have been settled by the Supreme Court decision in Kathi Kalu’s case,88. by a special Bench of 11 Judges.
Though there were two separate judgments, all the Judges agreed on the following points:
(a) Giving of thumb impressions or impressions of foot, palm or fingers or specimen writings for the purpose of
identification are not included in the expression ‘to be a witness’ in Art. 20(3) [paras. 16(4) and 32].89.
It was held in that case, “When an accused person is called upon by the Court or any other authority
holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is
not giving any testimony of the nature of a “personal testimony”. The giving of a personal testimony must
depend upon his volition. He can make any kind of statement or may refuse to make any statement. But
his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic character. Then, the giving of finger impressions or of
specimen writing or of signature by an accused person, though it may amount to furnishing evidence in
the larger sense is not included within the expression “to be a witness”. A specimen handwriting or
signature of finger impressions by themselves are no testimony at all, being wholly innocuous because
they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have
been tampered with. They are only materials for comparison in order to lend assurance to the court that
its interference based on other pieces of evidence is reliable. They are neither oral or documentary
evidence, but belong to the third category of material evidence which is outside the limit of
“testimony”.90.
Unders.73 of Evidence Act, the court has no power to give a direction to the accused to give specimen
writing of “anticipated necessity” for comparison in a proceeding which may later be instituted in the
court. Pendency of a proceeding before court is the sine qua non for the exercise of power
unders.73.91.
(b) This proposition would not differ merely because the impression or writing was taken while the person was in
‘police custody’ [paras. 16(1) and 36].92.
Of course, the majority left open the question as to whether there would be a material difference if physical
force was applied in obtaining the impression or writing, as distinguished “from a direction or order of the
courts”93. or the Police (without the use of force). But if the ratiodecidendi of the majority of 8 is examined, it
would appear that it would not make any difference, so far as the application of Article 20(3) itself was
concerned. Whether it would be improper or would be condemned by some other law, was a different question.
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The ratio of the majority in Kathi Kalu’s case 92was:
To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing,
made or given in court or otherwise.94.
In short, unless there is a statement or testimony,1.Article 20(3) itself would not be attracted. If, so, whether it is
volitional or involves a muscular action or is obtained by force, is immaterial to attract Article 20(3) in respect of
a finger impression or specimen writing, which stands in the same footing as the comparison of the feature of
the accused with his Photograph.2. In either case, there is no “testimonial compulsion” which only is prohibited
by Article 20(3). The expression “to be a witness”, in short, is not equivalent to the wider expression “furnishing
evidence”, which would include the giving of any materials which may be relevant to prove at the trial the guilt
or innocence of the accused.
For the same reason, it is immaterial whether the impression or the specimen writing is examined by the court
itself or is sent, in the first instance, to an Expert.3.
Under section 27 of Prevention of Terrorism Act, 2002, a police officer investigating a case can seek a direction
through court for obtaining samples of handwriting, fingerprints, footprints, photographs, blood, saliva, semen,
hair, voice of any accused person reasonably suspected of any offence under the Act. The section further
provides that the court can draw an adverse inference if refuses to do so. The provision was challenged as
violative of Article 20(3). It was held that the court is given only a discretionary power which has to be exercised
by recording reasons. It was held that the section is only a step in aid for further investigation and the samples
so obtained can never be considered as conclusive proof for entering conviction. It was held that the provision
is valid. Court also took into consideration section 91 of CrPC which empowers criminal court when similar
requests are made by police officers.4.
In Selvi v State of Karnataka,5. Court also said while interpreting sections 53, 53A and 54 of CrPC that the
expression “such other tests” occurring in explanation (a) by section 53, does not include narco analysis,
polygraph and BEAP test (also known as P300 waves test) and cannot be read into the statutory provision
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which enables medical examination during investigation in criminal cases. Court further said that such tests will
amount to cruel, inhuman and degrading treatment and is opposed to fair trial.
[Art.20.10.23] Admissibility of material evidence obtained from the person of the accused (A) U.S.A.—
U.S.A.
Though the immunity against self-incrimination does not protect a person from his body being used for
establishing his identity, it has been held that a person cannot be convicted on physical evidence taken from his
body without his consent, e.g., by the use of a Stomach pump.6.
But in a later case,7. it has been held by a majority of the Supreme Court that there is nothing wrong in
convicting a person upon blood sample obtained from him by a qualified physician, by inserting a syringe into
his person, while he was unconscious.
Both cases proceeded on the basis of the “Due Process” Clause which condemns any procedure which is
shocking to the conscience. In the Rochin case,6FRANKFURTER J., speaking for the majority, observed:
This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his
mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by
agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to
the rack and the screw to permit of constitutional differentiation.8.
In the Breithaupt case,9. on the other hand, the majority held that the taking of a blood sample by a physician
cannot be held as a “brutal” act and that in the adjustment of individual liberty with the interests of society, the
individual must suffer this much of hardship. Though in the facts of the case, the sample was taken while the
person was unconscious there are observations which show that the majority might have come to same
conclusion even if the sample were taken while the accused was conscious and against his opposition.10. In
Pennsylvania v Haniz,11.the defendant after being arrested for driving under the influence was taken to a
booking center and told his action and voice would be video-taped. The court held that the defendant’s slurred
response to routine booking questions about his name, address, height, weight, eye colour, birth date and age
did not constitute testamonial evidence and hence outside the protection.
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As against the right of the individual that his person be held inviolable, even against so slight an intrusion as is involved
in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must
be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal
hazards of the road.12.
A strong majority of Chief Justice WARREN, BLACK and DOUGLASJJ. could not, however, agree. In the words
of the Chief Justice:
…law enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of
bruising the body, breaking skill, puncturing or extracting body fluids, whether they contemplate doing it by force or by
stealth.12
Both in the Rochin8and Breithaupt12 cases, the majority had no opportunity to consider whether the forcible
extraction of material evidence from the person of the accused would constitute a violation of the Fifth
Amendment (Self-incrimination Clause), because they proceeded upon the view, already established, that the
Fifth Amendment did not extend to the States. That, of course, is of no help in the matter of interpretation of the
Fifth Amendment itself nor a solution of the problem if it had arisen in a federal proceeding. On that point, we
get light from the dissenting Judges, Douglas and Black, who were in the minority, in both cases. Assuming that
the Fifth Amendment is applicable to the States, through the medium of the Fourteenth Amendment (a question
with which we, in India, are not concerned), the view taken by these dissenting Judges as to the sweep of the
Fifth Amendment is worthy of note. It would appear from these observations, that, according to these Judges,
the immunity offered by the Fifth Amendment is not confined to “communications” or “verbal evidence”.
In the Rochin case,8BLACK J. observed:
I think a person is compelled to be a witness against himself not only when heis compelled to testify, but also when as
here incriminating evidence is forcibly taken from him by a contrivance of modern science.8
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DOUGLAS J. was more explicit:
Of course, the accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on
a cap or a coat [see Holt v. U.S., (1909) 218 US 245 (252-53)]. But I think that words taken from his lips, capsules
takenfrom his stomach, blood from his veins,are all inadmissible because of the commandof the Fifth Amendment.13.
Without expressly referring to the Fifth Amendment, DOUGLAS and BLACK JJ., in a common judgment, in the
Breithaupt case,14.observed:
Nor would I draw a line between involuntary extraction of words from his lips, the involuntary extraction of the contents
of his stomach and the involuntary extraction of fluids of his body when the evidence obtained is used to convict him.
Under our system of government, police cannot compel people to furnish the evidence necessary to send them to
prison. Yet there is compulsion here, following the violation by the police of the sanctity of the body of an unconscious
man.14
(B) Canada.—
Canada
In the English common law world, there is nothing to preclude the admissibility of relevant evidence obtained
from the person of the accused, even though force had been used in obtaining it, say, by emetic.15.
In Canada, thus, the rule against self-incriminating evidence has been confined to statements,so that it does
not prevent the taking of material evidence from the accused, such as blood samples.16.
(C) India.—
India
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There having been no statutory provision barring such evidence, the English common law applied in India, prior
to the Constitution. But though a forcible medical examination of a person without his consent might make the
surgeon liable in an action for assault in the absence of a lawful authority,17. there was nothing to preclude the
admissibility in evidence of the results of such examination.
In Yusuf Ali v State of Maharashtra,18. conversation between the accused and another who had complained
that a bribe had been offered to him by the accused was tape-recorded in the adjoining room. The police was
not present in the room where the conversation took place, but they were in the next room. It was held that
although the conversation was tape-recorded by deception, the conversation was not compelled. The accused
was free to speak or not to speak. The fact that the tape-recording was done without the knowledge of the
accused is not of itself an objection as to its admissibility in evidence. In Magraj Patodia v R.K. Birla,19. it was
observed that the document was procured by improper or illegal means would not be a bar to its admissibility of
its relevancy and genuineness are proved.
In R.M. Malkani v State of Maharashtra,20. a telephone conversation between the appellant and another was
tape-recorded by a police officer by attaching the tape-recording instrument to the telephone instrument. It was
held that the tape-recorded conversation is admissible when the appellant was not compelled to speak and
there was no case against the appellant. If the conversation was voluntary and there was no compulsion, the
attaching of tape-recording instrument though unknown to the person whose conversation is recorded does not
render the evidence of conversation inadmissible. In regard to the contention that privacy of the person was
invaded, it was held that telephonic conversation of an innocent person will be protected by courts against
wrongful or highhanded interference by tapping the conversation. The protection is not to the guilty citizen
against the efforts of the police to vindicate the law and prevent corruption of public servants.21.
According to eminent jurist H.M. SEERVAI, in the above decisions, did the conditions invoking Article 20(3) or
Article 21 exist. The learned author says that if evidences illegally collected are admitted, that would be violative
of Article 21. The learned author says: “Article 20(3) by its terms protects a person charged with committing
crime and protects him from being compelled to give evidence, or produce documents which may incriminate
him and secure his conviction. The protection is strengthened by Article 21 which provides that no person shall
be deprived of his life or personal liberty except according to procedure established by law. Is the protection
given by Article 20(3) to the accused by excluding evidence of statements extracted by torture to be nullified by
admitting the incriminating real evidence obtained as a result of evidence hit by Article 20(3)? It is submitted
that the answer must be in the negative. First, to admit real evidence incriminating the accused which evidence
was obtained by the criminal conduct of the police would not only nullify the protection of Article 20(3), but
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would concede to crime and unlawful conduct what the Constitution denies to law and law courts, namely, to
compel the accused to give incriminating testimony. Secondly, in such a situation, if evidence of materials
collected is brought before court, it would be “contrary to the procedure established by law”. For, the evidence
involved in a criminal trial does not consist merely of the Evidence Act, which relates to the relevance and
admissibility of evidence. The Criminal Procedure Code contains elaborate provisions for compelling the
production of things, including the power to seize things which can then be produced and exhibited at the trial.
None of these provisions authorise the use of criminal methods to obtain the production of things; in fact such
methods must be treated as forbidden, for, they are made punishable by law. Thirdly, to allow the enforcement
agencies to become law-breakers would breed disrespect for the law. Learned author places reliance on Mapp
v Ohio,22. wherein it is observed: “The requirements of the 4th Amendment were enforced not to shield law-
breakers, but because if the government becomes a law-breaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy.”23.
In Selvi v State of Karnataka,24. while considering the scope of narco analysis, court said that polygraph (lie
detector test) and Brain Electrical Activation Profile (BEAP) test would not come within the expression of
medical examination as provided in Explanation (a) to section 53 and further said that any such test would be
unjustified as amounting to intrusion into mental privacy of an individual and would also amount to cruel,
inhuman and degrading treatment. Court also said that “placing reliance on the results gathered from these
techniques will come into conflict with the right to fair trial”. Such tests also cannot be justified on the plea of
“compelling public interest”. It would be violative of Article 20(3) and 21.
Statutory authority for the medical examination of a person arrested on a charge of committing an offence, with
the use of such force as reasonablynecessary for the purpose, is now afforded by section 53(1) of the CrPC,
1973,25. as follows:
“When a person arrested on a charge of committing an offence of such a nature and alleged to have been committed
under such circumstances that there are reasonable grounds for believing that an examination of his person will afford
evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the
request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and
under his direction, to make such an examination of the person arrested as is reasonably necessary in order to
ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that
purpose.”
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The substituted explanation by virtue of Criminal Procedure Code (Amendment) Act (25 of 2005) defines the
expression “examination” for the purpose of sections 53, 53-A and 54. “Examination” shall include the
examination of blood, blood-stains, semen, swabs in the case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and
such other tests which the medical practitioner thinks necessary in a particular case.
Taking a sample of hair of accused for comparison is permissible under section 53 of the Criminal Procedure
Code, and thereby the accused does not become witness within the meaning of Article 20(3).26. Taking of the
blood of the accused for the purpose of DNA test will not amount to compelling an accused to become a
witness against himself violative of Article 20(3) of the Constitution.27.
Section 53-A is also added to the Criminal Procedure Code providing of person accused for rape by registered
medical practitioner by Amendment Act 25 of 2005.
The question is, whether Article 20(3) bars such evidence when taken by compulsion, and whether a law which
provides for such examination offends Article 20(3).
Since it has been settled by the decision in Kathi Kalu28. that the immunity offered by Article 20(3) is only
against “testimonial” compulsion discussed earlier in the present Article,there is little doubt that evidence
obtained by forcible medical examination would not be hit by Article 20(3).29. Medical examination of an
arrested person can be directed during the course of an investigation either at the instance of investigating
officer or the arrested person. It has also been clarified (in Explanation to section 53 CrPC) that it is within the
powers of a court to direct such a medical examination on its own. Such an examination can also be directed in
respect of a person who has been released on bail as well as a person who has been granted anticipatory bail.
Further, section 53 contemplates use of force as is reasonably necessary for conducting a medical
examination. This means that once the court has directed the medical examination of a particular person, it is
within the powers of the investigating officer and examiners to resort to a degree of physical force for
conducting the same.30.
It has further been held31. that if an accused refuses to comply with the court’s direction to submit to the blood
test, his refusal may be treated by the court as corroborative evidence against him.
[Art.20.10.24] Coerced or Involuntary Confession
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The question of immunity from conviction upon extorted confession is analogous to the rule against self-
incriminating “evidence”.
(A) U.S.A.—
U.S.A.
In the U.S.A., conviction upon coerced or involuntary confession has been held to be repugnant to the
guarantee of “due process”.32. Coercion may be physical33. as well as psychological34. and the court, as a
rule, excludes confession obtained from the accused while in police custody, by the use or what are known as
“third degree methods”,—by prolonged interrogation by relay teams of officers and without offering opportunity
oflegal advice.35. He must, at least, be given a warning.36. The same principle has been applied to reject a
confession extracted by a State-employed psychiatrist from a lone defendant, unprotected by counsel.37.
Various factors are taken into consideration by the court in determining whether a confession was coerced,
e.g., the length of time consumed in the interrogation;38. the secret character of the inquisition;39. the kind or
treatment given to the prisoner during detention;40. the age,41. race, education42. and mental condition43. of
the accused,—though any one of them alone44. may not be sufficient to indicate that the confession was
involuntary. Thus, a confession is not inadmissible merely because it was made while in police custody or
under detention,45. except where the custody or detection itself is illegal,46. or there has been an unnecessary
delay between the time of arrest and the production of the suspect before the nearest magistrate.43
In Brown v Mississippi,47.the court overturned the conviction of three defendants whom the police had
physically tortured in order to extort confessions. The court makes it abundantly clear that use of such
confession (i.e., coerced confession) violated “due process” clause of the Fourteenth Amendment. Court said:
“The freedom of the State in establishing its policy is the freedom of constitutional government and is limited by
the requirements of the process of law. Because the State may dispense with a jury trial, it does not follow that
it may substitute a trial by “ordeal”. The rack and torture may not be substituted for the witness stand” The
principle declared in Brown’s case was extended in Chambers v Florida,48. In that case, the defendant who
was arrested on suspicion without warrant was denied contact with friends or attorneys and was questioned for
long period of time by different squads of police officers.
The decision in Brown v Mississippi,49. and Chambers v Florida,50.were followed by a long line of cases in
which the court addressed questions concerning the admissibility of confession on an ad hoc basis employing
“totality of circumstances”. Under this guideline, court sought to determine whether the specific circumstances
surrounding in obtaining a particular confession (the nature of the charge, the age, maturity and educational
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achievements of the defendant, the degree of pressures put upon him or her, the length of interrogation, etc.)
constituted coercion and thereby rendered the confession inadmissible. This guideline suffered from one major
drawback, namely, it provided the police and the prosecution with little guidance as to which practice did or did
not pass the constitutional muster. As a consequence, the court found itself confronted with a barrage of
“coerced confession” cases dealing with such police practice as attempts to gain sympathy of the defendant
through a childhood friend on the police force51. threats to bring defendant’s wife into custody for
questioning52. threat to place defendant’s children into custody of welfare official53. and interrogation of
wounded defendant under the influence of so-called truth serum54..
A guilty plea to a reduced charge, entered subsequent to bargaining between the prosecution and the defence
was held as not induced.55. Although courts would not interfere to upset such pleas, provided they are
“intelligible” and “voluntary” and made after the defendant had consulted his lawyer, the court would intervene
on the defendant’s side if the State did not keep its part of this argain.56.
In Escobedo v State of Illinois,57. the law enforcement officers took a person into custody and interrogated him
in the Police Station for the purpose of obtaining confession. The police did not effectively advise him of his
right to remain silent or his right to consult with his attorney. He was questioned for more than four hours,
standing and handcuffed and later he confessed. During interrogation, the police even did not allow him to
speak to his lawyer. At the trial, when objection was raised as to the admissibility of confession, it was ruled that
the statements made were constitutionally inadmissible. It was in this case the court for the first time recognised
that suspects had a right to counsel during police interrogation. But because the opinion of the court did not
clearly define that right, lower courts developed widely divergent interpretation of the ruling. Only after the court
clarified its position in Miranda v Arizona,58. did the lower courts consistently enforce the right to counsel.
In Miranda v Arizona,59. it was held that the court was concerned primarily with the interrogation atmosphere
and the evils it can bring. “Miranda” consolidated four cases, all of which raised the issue of admissibility of
evidence of statement obtained from defendants during pre-trial custodial police interrogation. In each of these
cases, the defendants were convicted on the basis of confession made after periods of police questioning
during which they were not informed of their right to counsel or the right to remain silent. The crimes for which
they were convicted included murder, kidnapping, rape and robbery.
In Miranda’s case, court said that if a person in custody is subjected to interrogation, he must first be informed
in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the
warning is needed simply to make them aware of it – the threshold requirement for an intelligent decision as to
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its exercise. More important, such a warning is an absolute pre-requisite in overcoming the inherent pressure of
the interrogation atmosphere. Court also said that in order to fully apprise a person interrogated of the extent of
his right under this system, then, it is necessary to warn him not only that he has the right to consult with an
attorney, but also that if he is an indigent, a lawyer will be appointed to represent him. Without this additional
warning, the admonition of the right to consult with counsel would often be understood as meaning only that he
can consult a lawyer, if he has one or has funds to obtain one. The warning of a right to counsel would be
hollow if not couched in terms that would convey to the indigent – a person most often subjected to
interrogation – the knowledge that he too has a right to have counsel’s presence. If the interrogation continues
without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to
demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. Court
further said that whatever be the testimony of the authorities as to waiver of right by an accused, the fact of
lengthy interrogation or incommunicado incarceration before a statement is made, is strong evidence that the
accused did not validly waive his right. After arrest, the police took the person into a special interrogation room
where they could secure a confession. The police officer did not undertake to afford appropriate safeguards to
ensure that the statement was truly the product of free choice. It was held that the person must be informed in
clear and unequivocal terms that he has the right to remain silent. For those who are unaware of the privilege,
the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as
to its exercise. More important, such a warning is a pre-requisite in overcoming the pressures of the
interrogation atmosphere. Further, the warning will show the individual that the interrogators are prepared to
recognise his privilege, should be choose to exercise it. It was held that a conviction founded on coerced
confession or confession obtained without due warning would be quashed as unconstitutional.
In a subsequent decision it was held that the admissibility of statements made by suspects undergoing
custodial interrogative was to be judged solely in the basis of whether they were made voluntarily in the light of
all circumstances.60.
On the other hand, none of the following circumstances, without more, would render a confession involuntary—
(i) That the examination by the police took place in private while the person was in State custody.
(ii) That the police gave an admonition to the accused to tell the truth.61.
(iii) That the confession took place before appointment of a counsel by the State as distinguished from a
confession obtained after denying an opportunity to aid of, counsel, where that caused a prejudice at
the trial.62.
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(iv) Voluntariness of a confession becomes suspect when there is an unreasonable delay in arrangement,
that is, an excessive elapse of this between the paid at which an accused is taken to custody and point
of which he was brought before the magistrate, formally apprised of the charges against him and asked
to state in plea.63.
(v) A lengthy interrogation is also a circumstances of tainted confession. 36 hours of relay questioning was
held to be coercive.64. Five days of non-continuous interrogation was held as unconstitutional.65.
(vi) Confession had to be the result of “free and rational choice”. Mere tricky in dealing with the accused
would not taint a confession, but tricky that caused coercion would and in the absence of counsel
substantial use of tricks by the police constitutionally risky.66.
(vii) Inducement to confess unconstitutional because they violated “free and rational choices.”67.
In each case, the court has to weigh “the circumstances of pressure against the power of resistance of the
person confession”.68. In all such cases, the court is forced to resolve “a conflict between two fundamental
interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights
of its individual members from being abridged by unconstitutional methods of law enforcement.”69.Decision in
Miranda’s case has been modified in a number of cases. In Harris v New York,70. it was held that although
statements made to the police by defendants who have not been advised of their rights cannot be introduced in
evidence for the prosecution’s case-in-chief, they can be employed to impeach the credibility of defendants who
testify in their own behalf, and in so doing, contradict earlier statements. In so ruling, the court refused to
construe the privilege against self-incrimination to include the right to commit perjury.
In Oregon v Hass,71. the person in custody having received and accepted the full warning prescribed by
Miranda’s decision later stated that he would like to telephone a lawyer, after being told that he could not do so
before reaching the station, he then provided inculpatory statement. Such information was held admissible in
evidence as the suspect’s trial solely for impeachment purposes after he has taken the stand and testifies to the
contrary, knowing that such information had been ruled inadmissible for the prosecution case-in-chief.
In Nix v Williams,72. it was held that evidence obtained in violation of Miranda decision need not be suppressed
if it would have been inevitably discovered by lawful means.
In New York v Quarles,73. court recognised “public safety” exception to the requirement of Miranda warnings
be given before a suspect’s answers may be admitted into evidence.
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In Duckworth v Eagan,74. court held that warnings prescribed by Miranda’s decision, need not be given in the
exact form described in the decision, but simply must reasonably convey to suspects their rights. In that case,
court held that informing a suspect that an attorney would be appointed for him “as and when you go to court”
does not render the warnings inadequate.
As to the effect of admission of coerced confession in evidence, it has been held that even though there may
have been sufficient evidence apart from the coerced confession to support a conviction, the mere fact of the
admission of the coerced confession, over the objection of the accused, vitiates the judgment.75.
Prior to 1964, there was a controversy whether the “self-incrimination” clause of the 5th Amendment was
applicable to the States. But in 1964, the Supreme Court held76. that the 5th Amendment immunity against
self-incrimination, including coerced confession, was incorporated in the wider protection of “due process” in the
14th Amendment and thus applicable to the States.
Though it does not follow from any constitutional safeguard, it has been established in England,77. since
Felton’s case 77that confession cannot be used against an accused person unlessit is free and voluntary. The
onus of showing that it is voluntary is upon the prosecution.78.
(C) India.—
India
Immunity from conviction upon coerced confession is already secured by the ordinary criminal law, viz.,section
164(2) of the CrPC, which requires that a confession cannot be recorded unless it is voluntary. Reasonable
time should be allowed to the accused to decide whether or not he should make a confession, before recording
his confession.79.Where an indigent person has been produced before the Magistrate after prolonged
detention in police custody and recording a confessional statement within a few minutes without affording him
time to reflect and without providing legal aid is not a voluntary confession.80. But it is also held that a
confessional statement cannot be rejected because only three hours time was given for reflection.81. Where a
confessional statement neither points out the warning against making of the confession, nor does the person
know that the confession is made voluntarily nor sufficient time is given to the person making the confession to
have a cool reflection, the confessional statement is liable to be rejected.82. Where the Magistrate fails to
record his satisfaction that accused was making confession voluntarily, confession of accused so recorded has
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to be kept out of consideration.83. A statement which is recorded without the compliance of section 164 is not
admissible in evidence.84.
Nor can a man be convicted upon coerced confession.79
As the Supreme Court has observed:
No person accused of a crime is bound to make a confession and if there is any compulsion or threat it has to be ruled
out as irrelevant or inadmissible.85.
The conditions of voluntariness are to be found in section 24 of the Evidence Act, which incorporates the
English principle:
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession
appears to the court to have been caused by any inducement, threat or promise, having reference to the charge
against the accused person, proceeding from a person in authority, and sufficient, in the opinion of the court, to give
the accused person grounds, which would appear to him reasonable, for supposing that, by making it, he would gain
any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
A confession to be admitted in evidence must be without compulsion for the purpose of Article 20(3). What is
compulsion? It must mean what in law is called “Duress”; Duress is where a man is compelled to do an act by
injury, beating, unlawful imprisonment (some times called duress in strict sense) or by the threat by being killed,
suffering some grevious bodily harm, or being unlawfully imprisoned (some times called menace, duress per
mines) duress also includes threatening, beating or imprisonment of wife, parent or child of a person. The
compulsion in the sense is a physical objective act and not the state of mind of the person making the
statement; except whoever the mind has been so conditioned by some extraneous process as to render the
making of the statement involuntary and therefore, extorted.86.
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It is a settled principle that statements made in custody are considered to be unreliable unless they have been
subjected to cross-examination or judicial scrutiny. The scheme created by CrPC and Evidence Act also
mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only
statements made by Judicial Magistrate which can be given weightage. The doctrine of “excluding the fruit of a
poisonous tree” has been incorporated in sections 24, 25 and 26 of Evidence Act.87. It was held in that case
that narco analysis, polygraph (lie detector) and Brain Electrical Activation Profile (BEAP) test which results in
testimonial compulsion is not permissible under law.
It is evident that the protection offered by this section is wider than that offered by Article 20(3), because it is
available not only when the confession is obtained by compulsion but also when it is obtained by inducement or
promise.88.
The confession is not received with an assurance, if its source be not “omni suspicious mojes”, above and free
from remotest taint of suspicion.89. “Compulsion” in the context of Article 20(3) must be what in law is called
“duress”, which has been explained to be compulsion to do an act by enquiry, unlawful imprisonment, threat of
being killed or put to grevious bodily harm. Compulsion is a physical act and not the state of mind of the person
making the statement, except where the mind has been so conditioned by some extraneous process as to
render the statement involuntary and extorted. There is no compulsion when a police officer investigating a
crime against a certain individual, asks him to do a certain thing. The fact that a person was in police custody
when he made the statement is not a foundation for an inference that he was compelled to make the statement.
The mere questioning of an accused by a police officer, resulting in a voluntary statement which may ultimately
turn out to be incriminatory, is not compulsion.1. Likewise, merely because the police questioned a person on
suspicion, it could not be presumed that he was under arrest and any statement made by him was compelled
statement.2.In Indian law, there is no automatic presumption that the custodial statements have been extracted
through compulsion.3.
Under section 164(2) of CrPC, the Magistrate is first required to explain to the accused that he is not bound to
make the confession and that if he does so, it might be made or used against him. This is sine qua non for
recording confession. The other mandatory requirement is that the Magistrate must put questions to the
accused to satisfy himself that the confession is voluntary so as to enable him to give the requisite certificate
under sub-section (4).4. Failure to warn the accused will make the confession invalid and inadmissible.5.
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Section 164 CrPC is a protective measure as it itself contains warning to the accused by the Magistrate before
making any confessional statement. It does not violate the provisions of Article 21.6.
In A.P. Grain and Seed Merchants Associations vUOI,7. a provision of the Prevention of Food Adulteration Act
1954, whereby a certificate signed by the Director of the Central Food Laboratory stating the sample contains
adulteration, shall be final and conclusive evidence and that the vendor is not free to plead ignorance of the
nature, substance or quality in defence was attacked as being inconsistent with the guarantee of self-
incrimination. Supreme Court upheld the clause holding that the provision has been made with a view to
securing formal evidence of facts without requiring the Director to remain present. The Director is a highly
placed official, an expert in determining the nature, substance and quality of food and is wholly disinterested in
the result of any case.
As to the burden of proof, the law in India appears to be in an uncertain condition.8. But the word “appears” in
section 24 of the Evidence Act suggests that the court is bound to reject the confession if it is in any manner
satisfied that it was not voluntary.9.
It is submitted that the rule as to onus should not be different in India from the modern rule in England, viz., that
it is for the prosecution to show that it is voluntary before it can be used against the accused.10. This should be
the position particularly if it is held that the guarantee in Article 20(3) includes an immunity from being convicted
upon a coerced confession. Section 24 of the Evidence Act should be so interpreted as to be in conformity with
the constitutional immunity.
From the observation of the Supreme Court in Sharma v Satish,11. it would seem that the immunity from
coerced confession being used against the accused would follow from the constitutional guarantee against self-
incrimination in Article 20(3). There the Supreme Court said:
…The protection afforded to an accused in so far as it is related to the phrase ‘to be a witness’ is not merely in respect
of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from
him.11
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The applicability of Article 20(3) to a coerced confession was assumed in Kalawati v State of H.P.,12. where it
was observed that Article 20(3) would have no application where the confession is voluntary.12 As stated
earlier, there is no automatic presumption of compulsion, merely because the person making the statement was
in police custody. Supreme Court in Selvi’s case,13.said that in view of absence of presumption and in view of
sections 24, 25 and 26 of Evidence Act, there is no requirement of additional diligence akin to the
administration of Miranda’s warning.14. In Miranda’s case, the court directed certain procedural safeguards
before recording confessional statement. Court said: “As for the procedural safeguards to be employed, unless
other fully effective means are devised to inform the accused persons of their right to silence and to assure a
continuous opportunity to exercise it, the person must be warned that he has a right to be silent, that any
statement he does make may be used as evidence against him, that he has a right to the presence of an
attorney either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver
is made voluntarily, knowingly and intelligently. If, however, he indicates, in any manner, at any stage of the
process that he wishes to consult with an attorney, before speaking, there can be questioning. Likewise, if the
individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered some questions or volunteered some statements on
his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted
with an attorney and thereafter consents to be questioned”.15.
As regards the stage from which the bar under section 24 of the Evidence Act applies, there has been a
difference of opinion. There is not much controversy on the point that a person becomes accused when either a
First Information Report or a complaint is lodged against him. The controversy has arisen as to whether the
condition of the person being an accused related to the time when the confession referred to in section 24 or
section 27 is made or when it is sought to be used in evidence in the court.
One line of decisions hold that the person must be “accused” of an offence at the time the confession is
made.16.
In another group of cases17. it has been held if the protection under section 24 is restricted to persons who are
already “accused” at the time of making the confession, it would lead to great injustice because all confessions
made by a person before he is formally accused would be admissible, even if it is obtained under coercion.
According to this group, coerced confessions are inadmissible even though they were made at a stage prior to
the making of a formal accusation against such person.
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Now that the Supreme Court has held that there is no immunity under Article 20(3) unless the person is
“accused of an offence” at the time when the incriminating statement is made,18. it is likely that the same
interpretation should be made upon similar language under sections 24 and 27 the Evidence Act, so that there
would be no protection, either constitutional or statutory, to a person from whom a coerced confession has
been obtained, simply because a definite charge had not yet been levelled against him by a First Information
Report or complaint, at the time when the statement was obtained from him by threat or compulsion. It would,
no doubt, facilitate the investigation of crimes and the punishment of the guilty but the question would still
remain whether such view would not “rob the (constitutional) guarantee of its substantial purpose.”19.
[Art.20.10.25] Use of Retracted Confession
The Supreme Court has held20. that Article 20(3) has nothing to do with the permissible use of retracted
confession. Article 20(3) does not apply at all where a confession is made without any inducement, threat or
promise. And when a voluntary confession is retracted, the use of such retracted confession does not become
repugnant to Article 20(3) of the Constitution, though under the ordinary law,21.a retracted confession has only
little value as the basis for a conviction, without independent corroboration in “material particulars”.22. But the
court has to weigh the circumstances under which the confession was made and thereafter retracted, before
requiring such corroboration.23. Confessional statement disowned by the accused and not supported by any
witness cannot be used for judging the guilt of the accused and must be left out of consideration.24.
[Art.20.10.26] Constitutionality of section 27 of the Evidence Act
Section 27 of the Evidence Act provides:
“...when any fact is deposed to as discovered in consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved.”
Now, the information given to the Police under the above section may be either voluntary or extracted from him
by compulsion.
(A) Prior to the Constitution, no question could possibly arise as to be admissibility of such information on
the ground that it was obtained by coercion and it was supposed that the guarantee of the truth of the
information, whether voluntary or induced,23 was afforded by the actual discovery of the fact made in
consequence of the confession.
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(B) After the Constitution, the question arises whether section 27 is inconsistent with Article 20(3). Once it
is held that section 27 of the Evidence Act is an exception to section 24, it follows that the statement,
leading to the discovery, is admissible even if it had been obtained by coercion. If that were so, the
language of section 27 must be held to be wide enough to cover a case which offends Article20(3).25.
The Supreme Court26. has, however, saved the constitutionality of section27 holding that if the incriminatory
information is not obtained by coercion, it would not offend against Article 20(3), merely because the person
was in police custody, but if the information is obtained by coercion, it cannot be used against him by reason of
Article20(3). So observed SINHA C.J., speaking for the majority:
If the self-incriminatory information has been given by an accused person without any threat that will be admissible in
evidence and that will not be hit by the provisions of Cl. (3) of Art. 20 of the Constitution for the reason that there has
been no compulsion. It must, therefore, be held that the provisions ofs.27 of the Evidence Act are not within the
Prohibition aforesaid unless compulsion had beenused in obtaining the information.
The constitutional attack on section 27 of the Evidence Act was negatived by the Supreme Court in State of
U.P. v Deoman Upadhyay,27. wherein it was observed: “If section 27 renders information admissible on the
ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of the
truth of the statement by him, and the Legislature has chosen to make on the ground of an exception to the rule
prohibiting proof of such statement, that rule is not to be deemed unconstitutional..... The principle of admitting
evidence of statements made by a person giving information leading to discovery of facts which may be used in
evidence against him is manifestly reasonable.” In State of Bombay v Kathi Kalu Oghad,28. it was held that
section 27 provides that when any fact is deposed to as discovered in consequence of information received
from a person accused of an offence, in the custody of police officer, so much of the information whether it
amounts to a confession or not, as relates distinctly to the fact discovered may be proved. It cannot be disputed
that by giving such information the accused furnishes evidence and therefore is a “witness” during investigation.
Unless, however, he is compelled to give the information, he cannot be said to be compelled to be a witness
and Article 20(3) is not infringed. Compulsion is not inherent in the receipt of information from an accused
person in custody of police officer. There may be cases where an accused in custody is compelled to give the
information later on sought to be proved under section 27 of Evidence Act. There will be other cases where the
accused gives information without compulsion. When the accused is compelled to give information, it will be an
infringement of Article 20(3), but there is no such infringement where he gives the information without any
compulsion. In the earlier portion of the same judgment in the same case, court said: “The information by an
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accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory
has been made admissible in evidence by that section. If it is not incriminatory of the person giving the
information, the question does not arise. It can arise only when it is of an incriminatory character so far as giver
of the information is concerned. If the self-incriminatory statement has been given by an accused person
without any threat, that will be admissible in evidence and that will not be hit by Article 20(3) of the Constitution
for the reason that there has been no compulsion. It must therefore be held that provisions of section 27 of the
Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the
information.
It is submitted that there has been an avoidance of the constitutional issue, because, as was held by the
Judicial Committee in Pulukuri’s case,29.section 27 as its language goes, authorises the admission of
information whether given voluntarily or obtained by coercion, provided only it led to the actual discovery of the
fact. If that were the true interpretation, the section was wide enough to authorise the admission of even
coerced information given by the accused, which was against the constitutional prohibition, as observed, by the
Supreme Court itself. In such cases, there was no other alternative than to strike down the section as it stands,
leaving it to the Legislature to suitably amend it to confine it to cases of voluntary statements only.
[Art.20.10.27] Statements made to the Police
Under section 162 and the Explanation to section 154(1) of the CrPC, 1973, no signed statement or a
confession can be recorded by a police officer, in the course of Investigation.
But if a statement has been made by a person during investigation before a Police officer and reduced into
writing by the officer, the latter may be admissible under section 27 or 32(1) of the Evidence Act. Hence, in view
of the decision in Kathi Kalu’s case,30. just discussed, such statement, if admitted under section 27 or 32 of the
Evidence Act, would not be hit by Article 20(3), provided no physical force or duress was applied by the police
for obtaining that statement.31. But it would be inadmissible apart from section 27,32. except for contradicting
prosecution witnesses,33. or for the purpose of court questions.34.
[Art.20.10.28] Power of the Police to examine, under section 161, CrPC, a person who becomes accused
subsequently
The Privy Council held that the words “any person” in section 161(1) included a person who might subsequently
be accused of the crime of which investigation was being made by the Police officer,35. and that under sub-
section (2) of that section, such person was bound to answer the questions but by the investigating Police
officer.
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The question is, whether there is anything in Article 20(3) of the Constitution to debar such examination. As
stated in Kathi Kalu’scase,36.Article 20(3) would not be attracted unless there was “compulsion” inthe physical
sense, in obtaining a statement, assuming that the person was already accused of an offence; and that it
cannot be said that, in the absence of any proof that physical force had been applied, a statement of the
accused must be deemed to have been made under compulsion merely because he was in police custody
when the statement had been made.37. Hence, Article 20(3) does not affect the power of a Police officer to
interrogate the accused himself under section 161, CrPC, without the use of force.37
But a statement received under section 161 would come under section 162.38. Sections 161–64 would,
however, be attracted only if the officer concerned is a “police-officer” as defined in section 25 of the Evidence
Act.39.An officer under the Customs Act,39 or the Foreign Exchange Act,40. is not a “Police officer”.
[Art.20.10.29] Who is to Decide whether the Immunity is Available (A) England.— U.K.
A witness cannot refuse to go into the witness-box on the ground that his evidence may criminate himself. He
can only claim the privilege notto answer a question after it has been put41. and he must pledge his oath that
he honestly believes that the answer will or maytend to criminate him.42. He will be entitled not to answer only
if the court upholds his claim after being satisfied, from the circumstances of the case and the nature of the
evidence the witness is called to give, that there is a reasonable ground to apprehend danger from his being
compelled to answer.43. Where the question relates to a perfectly innocent act involving danger only as a link
in the chain of proofs, the witness must satisfy the Court by facts outside the question that the answer would or
might tend to criminate him.44. The privilege will not be sustained if the danger is of an imaginary or
unsubstantial character having reference to some extraordinary or barely possible contingency so improper that
no reasonable man would suffer to influence his conduct.45. If, however, the court is satisfied that the answer
to a question though innocuous in itself might be used as a step towards obtaining criminating evidence, the
court would uphold the objection because the privilege is against answering a question which “tends to
criminate him”.46.
(B) U.S.A.—
U.S.A.
The privilege under the 5th Amendment is to refuse to answer questions which are “incriminating”. But the final
decision as to whether the answers to be given on a question would tend to incriminate the witness and
whether the witness is justified in refusing to answer, rests with the court and not the witness.47. The witness
who claims this immunity must leave it to the court to determine the validity of his claim. If he refuses to answer
without such determination by the court, he may find himself liable for contempt of court.48.
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The test formulated by the Supreme Court is “whether the witness has reasonable cause to apprehend danger
to himself from a direct answer to the questions propounded”.49. The court is, however, to consider the
implications of the question in the setting in which it is asked.50.
“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result.”48
If an answer to a question may tend to be incriminating, a witness is not deprived of the protection of the
privilege merely because the witness, if subsequently prosecuted, could perhaps refute any inference of guilt
arising from the answer.51. The privilege extends not only to answers which constitute an admission of guilt
and would by themselves support a conviction under a criminal statute,52. but also those which may furnish
evidence of guilt or merely supply a lead to obtain such evidence,50 or “a link in the chain of evidence” needed
to prosecute the witness.52
But a witness may not refuse to answer where the danger of incrimination is:
of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency,
so improbable that no reasonable man would suffer to influence his conduct … A merely remote and naked possibility,
out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to
obstruct the administration of justice.
(C) India.—
India
The American principles, just discussed, would be inapplicable to India, because it is now established by a
number of Supreme Court decisions that the protection under Article 20(3) wouldbe available only to a person
who has already been “accused” of an offence, in fact, and not to a witness who apprehends that he is in the
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position of an accused.53. To bring the statement in question within the prohibition of Article 20(3), the person
accused must have stood in the character of an accused person at the time when he made the statement. It is
not enough that he should become an accused at any time after the statement was made.54. But the wordings
in section 161 of CrPC are different. While there is a requirement of formal accusation for a person to invoke
Article 20(3), it must be noted that the protection contemplated by section 161(2) of CrPC is wider. Section
161(2) read with section 161(1) protects any person supposed to be acquainted with the facts and
circumstances of the case, in the course of examination by the police. Therefore, the right against self-
incrimination protects persons who have been formally accused as well as those who are examined as
suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers would expose
them to criminal charges on the ongoing investigation or even in cases other than the one being
investigated.55. In Nandini Satpathy v P.L. Dani,56.JUSTICE KRISHNA IYER said: “The learned Advocate
General influenced by American decisions rightly agreed that the expression in section 161(2) of CrPC might
cover not merely accusation already registered in police station, but those which are likely to be the basis for
exposing a person to a criminal charge. Indeed, in a wider construction, if applicable to Article 20(3)
approximates the constitutional clause to the explicit statement of the prohibition in section 161(2). This latter
provision meaningfully uses the expression “expose himself to a criminal charge”. Obviously these words mean
not only cases where the person is already exposed to a criminal charge, but also instances which will
immensely expose him to criminal charge”. But the liberal view expressed by JUSTICE KRISHNA IYER in the
above case is nothing more than an “obiter”, for, the Judge himself says in this regard, “We are not directly
concerned with this facet of Article 20(3) nor are we free to go against the settled view of the court. There it is”.
[Art.20.10.30] Effect of Contravention of Article 20(3)
I.If a statute directly authorises the extraction of answers or the production of documents from an accused
(under compulsion), which will incriminate him, it is obvious that the statute will be void.57. Similarly void will be
a statute which seeks to penalise a person in any manner for resorting to this constitutional privilege.58.
But, as pointed out earlier, the Supreme Court has so far saved the impugned statute from unconstitutionality
by so narrowly construing it, as to avoid its prohibition.59.
II. But where a statute authorises the examination of, or the production of documents by, persons generally,
and such statute when applied to certain persons or to certain kinds of evidence is likely to incriminate him, the
question of annulling such statute does not arise. The question which is relevant in such a case is whether the
party or the witness is bound to answer particular questions or to produce particular documents.60.
In the U.S.A.,it has been held that the provision of the Fifth Amendment confers upon the witness a “privilege of
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remaining silent”.61. And the majority of cases which have come up to the American Supreme Court are cases
where the witness has been hauled up for contempt of court62. for refusing to answer questions which the
witness thought would incriminate him.
But in India,there is no question as to the right of any person to remain silent. He can invoke Article 20(3) only if
and when he is “compelled” to be a witness against himself. Article 20(3) shall have no application where the
law simply enables him to testify in his defence or it is even necessary for him to enter the witness box to
substantiate his defence63. or any adverse inference is made from his refusal to testify or to answer a
question64. or the statement has been obtained from him by some electronic device;65. or the law makes some
prosecution in the nature of a formal report to be conclusive evidence of the facts stated therein.66. The
mischief condemned by Article 20(3) arises only if the accused is summoned or otherwise compelled to give
evidence.67.
III. The constitutional prohibition in the Clause is against an accused being compelled to be a witness against
himself. It, therefore, offers immunity at two stages: (a) at the stage when testimony is sought to be obtained
from such person by compulsion; (b) at the stage when compelled testimony is sought to be used against him
as evidence at the trial.
(a) At the earlier stage, as we have seen, the immunity extends to the pre-trial stage and even outside the
court room,68. and the accused is entitled to refuse to furnish the testimony. If such question is asked
at the trial, the accused is entitled to raise the plea that he is not bound to answer the question as it is
incriminating, and obtain the decision of the court (see p. 4633, ante),69. up to the highest stage.70.
A person who is required to produce an incriminating document by a compulsory process, is

entitled to approach the High Court under Article 226 or the Supreme Court under Article 32,68 for
quashing the process on the ground that it violates the fundamental right of the person under
Article 20(3).
Similar would be the position if process is issued against a person to be a witness in a criminal
proceeding, after an “accusation” has already started.70
(b) If, however, some evidence has already been obtained from him by compulsion, he is entitled to urge
at the trial that it is not admissible against him; and if a conviction has taken place on the basis of such
evidence, the conviction is liable to be set aside.71.
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In England,it has, further, been held that anything that a person is wrongly compelled to say after
he has claimed the privilege against self-incrimination will be treated as having been said
involuntarily, and will be inadmissible not only in that proceeding but in all subsequent criminal
proceedings brought against him.72.
[Art.20.10.31] Whether a Fundamental Right may be waived (A) U.S.A.—
U.S.A.
Though all the provisions of the Bill of Rights contained in the First 10 Amendments operate as limitations upon
the State, a distinction has been made in the U.S.A.as between those provisions which constitute limitations
upon the legislative power of the State in the public interest and those which create rights in the nature of
privileges in favour of individuals,—the public interest in the latter case being subsidiary, because such rights
(e.g.,the right against self-incrimination) do not rest on a “fundamental principle of liberty and justice which
inheres in the very idea of free government,”73. unlikethe “Due Process” clause74. relating to a “fair trial” of
offences or the rights secured by the First Amendment.75.
The principle as to waiver of statutory rights has been extended to fundamental rights as well, to hold that while
rights which have been created in the interests of the public or in pursuance of public policy cannot be waived,
a right which has been created exclusively for the benefit of an individual,76. who is affected or likely to be
affected, may be waived by him. Thus, it has been held that the following rights secured by different
Amendments of the Bill of Rights are capable of being waived bythe individuals who are entitled to claim them:
(i) The privilege against self-incrimination (5th Amendment) may be waived by voluntarily answering the
question77. or by failure to claim the privilege at the trial.78. In Miranda v Arizona,79.court said that the
defendant may waive effectuation of right against self-incrimination provided the waiver is made
voluntarily knowingly and intelligently.
(ii) The privilege against double jeopardy (5th Amendment) may be waived expressly or impliedly, e.g.,by
preferring an appeal against the conviction.80.
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(iii) The immunity against unreasonable search and seizure (4th Amendment) has been held to have been
waived when the person has voluntarily consented to it.81.
(iv) “Provisions of a constitutional nature, intended for the protection of the property owner, may be waived
by him,” e.g.,by receiving benefits;82. taking of property without due process of law (5th and 14th
Amendments);83. taking of property without just compensation (5th Amendment).84.
In Wall v Parrot Silver Co,84 the court observed:
“They cannot claim the benefit of statutes and afterwards assail their validity. There is no sanctity in
such a claim of constitutional right as prevents its being waived as any other claim of right may
be.”84
(v) The right to counsel (6th Amendment) may be waived where the accused, aware of his rights, states in
answer to the Judge’s inquiry, that he wishes to defend himself.85.
(vi) The right to a speedy trial (6th Amendment) may be waived by requesting or willingly condoning delay
in the trial.86. The right to a public trial may also be waived.87.
(vii) The right to a trial by jury (5th and 6th Amendments) may be waived by clearly consenting to a trial
without a jury88. or by a jury not properly constituted.89. Such waiver, in order to be valid, must fulfill
the condition of waiver of ordinary statutory right viz., that waiver may be attributed to an individual only
“if he knows what he is doing and his choice is made with eyes open”.90. Such knowledge in the case
of an accused implies that waiver has been made “with an apprehension of the nature of the charges,
the statutory offences included within them, the range of allowable punishment thereon, possible
defences to the charge and the circumstances in mitigation thereof and all other facts essential to a
broad understanding to the ‘whole’ matter”.91, 92
(B) India.—
India
Earlier (See Vol. 2, Article 14 for detailed discussion) we had seen that the right to challenge the
constitutionality of statutes or to pursue some constitutional remedies may, in certain circumstances, be lost
byconduct, including waiver. We had there indicated that the question of waiver of fundamental rights would be
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treated separately. If a fundamental right cannot be waived, it would follow that the right to enforce it and to
challenge the constitutionality of a statute where the unconstitutionality is due to violation of a fundamental right
(as distinguished from the violation of some other constitutional provision) cannot be lost by waiver.
I. Waiver, as explained by the Privy Council,93. is based on a unilateral agreement, not to enforce one’s rights.
Such agreement may be inferred from his conduct. While estoppel is a rule of evidence, waiver is a rule of the
law of contract, according to which a party may intentionally and knowingly waive or abandon his rights due to a
breach of contract. The rule, however, has been extended to statutory rights as well.94.
In short, a person may lose his right (where the law so permits) by express agreement between the two
contractual parties or by implied contract, which is called waiver. Hence, if a right cannot be given up by
express contract, it could not also be waived by unilateral conduct. The peculiarity of a fundamental right is that
it is not a right available against a private party, created by consensus, but a right guaranteed by the
Constitution against the State. Hence, it would follow that if a fundamental right cannot be contracted out, it
cannot also be lost by waiver.
It is firmly established in India,that, unless the Constitution itself so provides, a person cannot enter into a
contract to give up or not to claim a fundamental right.1. On principle, therefore, there cannot be any waiver of a
Fundamental Right.
II. It should be pointed out that a statutory right is also created by law and not by private treaty. But there is a
distinction between statutory and fundamental rights.
Though statutory rights are created by law, all statutory rights are not created for the benefit of the public
generally; some are intended for the protection or benefit of particular individuals. From this distinction, the
application of the doctrine of waiver to the aforesaid two classes of statutory rights would differ:
(a) It has been held that where a right has been created by a statute solely or primarily for the protection,
advantage or benefit of particular individuals (as distinguished from the general public), it may be
waived by such individuals.2. In a case under Order XXI, Rule 66 of the Code of Civil Procedure, thus,
the Privy Council,3. held that a judgement-debtor, who, on receipt of the notice under Order XXI, Rule
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66 does not object as to non-compliance of the sale proclamation with the requirements of the rule
shall be deemed to have waived the irregularity and will not be allowed to raise the objection at any
subsequent stage. Even the requirement of section 80, held to be mandatory,may be waived by the
party entitled to the notice in a particular case.4.
(b) On the other hand, a statutory right based on public policy or an illegality cannot be waived.5.
The controversy, in India, as to the application of the doctrine of waiver to Fundamental Rights has
centred around the question whether the aforesaid classification of statutory rights can be
extended to Fundamental Rights as well, i.e., whether it can be said that some of the Fundamental
Rights are intended for the benefit of particular individuals as distinguished from the interests of the
general public or a matter of public policy.
III. A distinction has indeed been made in the U.S.A.,as between the different rights included in the Bill of Rights
appertaining to the American Constitution. As has just been pointed out earlier in this Article,some of the rights
included in the 5th and the 14th Amendments, such as the right against double jeopardy, self-incrimination,
right to counsel and the like, have been regarded as “privileges” created primaring for the benefit of particular
individuals, e.g., a person accused of an offence, who may, accordingly, waive it, if considered necessary in his
own interest.6. On the other hand, it has been held that the guarantee of “due process” or the rights secured by
the First Amendment, such as the Freedom of Speech, involve the fundamental principles of liberty, justice and
free government and cannot, accordingly, be waived by any particular individual.7.
The question whether a similar classification can be made amongst the various rights included in Part III of the
Constitution of India has been discussed by our Supreme Court in several cases, which may be taken up
chronologically, to indicate the trend of decisions:
(a) In Behram v State of Bombay,8.VENKATARAMA, J. had expressed the view that such of the rights as
were created for the benefit of individuals (as distinguished from the interests of the public) could be
waived and, according to His Lordship, even a right guaranteed by Article 19(1) came within this
category.
In a similar dissenting judgment it was held that when a right or privilege guaranteed by the
Constitution rests in the individual and is primarily intended for his benefit and does not infringe the
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right of others, it can be waived provided such waiver is not forbidden by law and does not
contravene public policy or public morals.9.
But the majority, on reference (MAHAJAN, C.J., MUKHERJEA, BOSE and HASAN, JJ.) without
finally deciding the question,expressed the view that fundamental rights, though primarily for the
benefit of individuals, have been put into our Constitution on grounds of public policy and in
pursuance of the objective declared in the Preamble. Hence, none of them could be waived.
Learned Judge said: “We think that the right described as fundamental rights are a necessary
consequence of the declaration in the Preamble that the people of India have solemnly resolved to
constitute India into a sovereign democratic republic and to secure to all its citizens justice, social,
economic and political; liberty of thought, expression, belief, faith and worship, equality of status
and of opportunity. These fundamental rights have not been put in the Constitution merely for
individual benefit, though ultimately they come into operation in considering individual rights. They
have been put there as a matter of public policy and the doctrine of waiver can have no application
to provisions of law which have been enacted as a matter of constitutional policy. Reference to
some of the articles inter alia Article 15(1), 20, 21 make the proposition quite plain. A citizen cannot
get discrimination by telling the State “you can discriminate” or get convicted by waiving the
protection given under Articles 20 and 21”.
(b) In Basheshar v Commr. of I.T.,10.BHAGWATI and SUBBA RAO, JJ. held that a fundamental right
being in the nature of a prohibition addressed to the State, none of the fundamental rights in our
Constitution could be waived by an individual. [This view is thus in agreement with the majority view in
Behram’s case.8] Learned Judges further said that Constitution makes no distinction between
fundamental rights enacted for the benefit of an individual and those enacted in public interest or on
grounds of public policy.
DAS C.J. and KAPUR, J. agreed with the above view only in respect of the right conferred by
Article 14 and refrained from making any observation as regards the other rights in pt III of our
Constitution.
S.K. DAS, J. opined that where a fundamental right was intended primarily for the benefit of an
individual, it could be waived by him, but His Lordship did not exhaustively enumerate which of the
rights included in Pt III would come under this category.
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(c) In Olga v Bombay Corp.,a Constitution Bench has unanimously held, upholding the foregoing view,11.
that there cannot be any estoppel against the Constitution, the paramount law of the land, and that a
person cannot waive any of the fundamental rights conferred upon him by the Constitution in Pt III, by
any act of his.12. In that case, Court said that the high purpose which the Constitution seeks to achieve
by conferment of fundamental rights is not only to benefit the individual, but to secure the larger
interest of the community. Therefore, even if a person says, either under a mistake of law or otherwise,
that he would not enforce any fundamental right, it cannot create estoppel against him. Such a
concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel
is valid, an all-powerful State could easily tempt an individual to forego his precious personal freedom
on promise of transitory immediate benefits. There can be no estoppel against the Constitution which is
the paramount law of the land. The Constitution has conferred fundamental rights not only to benefit
individuals, but to secure larger interests of the community. No individual can barter away the freedom
conferred on him by the Constitution.
In one case, a casual labourer after long years of service obtained “temporary” status. He was
involved in a criminal case, but was acquitted. In the meanwhile his service was terminated and he
received the terminal benefit also. He challenged his termination as violative of his constitutional
rights. Court ruled that his service could not be terminated without departmental enquiry and
without giving him an opportunity to be heard. Acceptance of retrenchment benefit does not mean
that he has surrendered all his rights. The order of termination was set aside and was directed to
be re-instated in service.13. In that case, court said: “Fundamental Rights sunder the Constitution
cannot be bartered away. They cannot be comprised nor can there be any estoppel against the
exercise of fundamental rights available under the Constitution”.
(d) In Rangachari’s case,14.it was held that Articles 15–16 are species of the right to equality of which the
genus was Article 14. It follows that if the right under Article 14 cannot be waived, the same must be
predicated as regards Articles 15–16.
(e) Shortly, thereafter it has been clearly observed that a Government servant cannot be deemed to have
waived any of his fundamental rights, as a citizen, by reason of entering into a contract of employment
under the State.15. Similar view has been taken in regard to a member’s right to challenge the
constitutionality of the municipal statute for contravention of Article 14.16.
According to Bombay High Court, the State cannot arrogate to itself a right to commit breach of the
fundamental rights of any person by resorting to principle of waiver or estoppel or other similar
principles.17.
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On the above background, we may now examine the cases of the different fundamental rights separately:
(i) Article 14.—
On this point there was unanimity in Basheshar’scase,18.and there is no American precedents 18showing the
possibility of the right arising out of the Equal Protection Clause. Hence, this right cannot be waived,12by
making payments or entering into a settlement in pursuance of a discriminatory legislation,18 or
otherwise.Gauhati High Court has explained that fundamental rights have been embodied in the Constitution
not merely for the benefit of the particular individual but also as a matter of constitutional policy and public good
and, therefore, the doctrine of waiver or acquiescence cannot be applied. A citizen cannot voluntarily get
discrimination or waive his fundamental right against discrimination as the right of not being discriminated
against is enshrined in Article 14 and is a fundamental right.
(ii) Articles 15–16.—
It is now settled19. that Articles 15 and 16 are species of the general rule of equality enunciated in Article 14. It
would, therefore, follow that the rights conferred by Articles 15–16 cannot be waived,20. any more than that
arising from Article 14. All are based on clear public policy, and are intended for the benefit of the general public
as distinguished from particular individuals.
The Supreme Court decision in Nain Sukh v State of U.P.,21. however, presents some difficulty. In this case,
there was an election to a Municipality on the ground of communal representation, which was conceded to have
offended against Article 15(1). The Petitioners prayed for a writ of quo warranto (under Article32), seeking to
question the election of some of the respondents contending that the petitioners’ (rate-payers’) fundamental
right not to be discriminated against on the ground of religion only had been violated by the election. Without
denying this substantial contention, the Supreme Court refused the writ on the ground of acquiescence:
There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to
have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners
acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination
having been practised against them until a no-confidence motion was tabled recently against the former chairman who
has lost his seat as a result of that motion having been carried.22.
According to English common law the right to a writ of quo warranto may be lost by acquiescence. The
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Supreme Court, in Nain Sukh’s case,23. simply applied that principle, without examining whether that principle
was applicable where a fundamental right had been infringed. There was a patent invasion, of the fundamental
right conferred by Article 15(1), namely, that an election had been held on a communal basis. There is no doubt
that Article 15(1) constitutes a prohibition against State action, on a ground of public policy as enshrined in the
Preamble to the Constitution, namely, that there should be a political equality. Even in Nain Sukh’s case 23the
court had observed:
The constitutional mandate to the State not to discriminate against any citizen on the ground, inter alia,of religion
clearly extends to political as well as to other rights, and any election held after the Constitution in pursuance of such a
law subject to Cl. (4) must be held void as being repugnant to the Constitution. But the question is whether the
petitioners are now entitled to the relief they seek in this application under Art. 32.23
It is clear that though a constitutional prohibition had clearly been violated by the State and the election was
void, relief under Article 32 was refused on the sole ground of loss of locus standi,by acquiescence.
The question is, whether in Nain Sukh’s case,24. the court had properly discharged its duty to act as the
guardian of the Constitution, in refusing to interfere where a “constitutional mandate,” embodied on grounds of
public policy, had been admittedly violated,—by applying a principle of English common law, based on the
historical crudities appended to the prerogative writs’. In Kochunni’s case,25.the court was prepared to grant
declaratory relief, even though that was not available under the prerogative writs specified in Article 32 and
observed that where there had been a patent invasion of a fundamental right, English technical considerations,
such as the existence of an alternative remedy or the necessity for taking evidence in a writ proceeding, should
not stand in the way of the court’s duty to give relief under Article 32. Hence, even if quo warranto might not be
available to help the petitioners, the court might in NainSukh’s case,24frame a proper order to quash the
election which cut at the root of the Constitution and direct a fresh one.
BHAGWATI, J. (who was a party to Nain Sukh’s case 24), in Basheshar’s case,26. explained cases like these
with the observation that even though a particular writ might be refused on technical grounds incidental to such
writ, such as estoppel, acquiescence or the like, there was the declaratory relief available to the person
aggrieved, which could not be refused outright without a complete investigation of such pleas. But Kochunni25 is
authority for the proposition that even declaratory relief may be given in a proceeding under Article 32, by
suitably modifying a writ. The Author has always entertained the belief that the position is not different in a
proceeding under Article 226, where a fundamental right has been infringed.
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The fact that the ground relied upon in Nain Sukh’s24case was acquiescence and not waiver does not make any
difference, because the principle involved is the same, namely, whether a fundamental right (which is
undoubtedly not a “privilege”) can be lost by conduct. With respect, Nain Sukh24deserves a reconsideration in
the light of the decisions in Kochunni27.and Basheshar.28.
(iii) Articles 17–18.—
Whatever has been stated above is applicable to Articles 17–18, which have unquestionably been embodied on
grounds of public policy. Hence, as SUBBA RAO, J. puts it—“A person cannot ask the State to treat him as an
untouchable.”28
(iv) Article 19.—
Article 19 presents more difficulty inasmuch as VENKATARAMA IYER, J., in Behram v State of
Bombay,29.expressed the opinion that the right under Article 19(1)(f), having been created for the sole benefit
of the owners of property, might be waived by them:
The rights guaranteed under Article 19(1)(f) are enacted for the benefit of owners of properties and when a law is found
to infringe that provision, it is open to any person whose rights have been infringed to waive it and when there is waiver
there is no legal impediment to the enforcement of the law.30.
There is no doubt that the American decisions cited,lay down the proposition that the Due Process Clause,
insofar as it relates to property, has been enshrined as a privilege of the property owner, which he may waive
by receiving a benefit under the impugned legislation.
The question is whether the American decisions on this point are applicable in India. Whatever attitude may
have been taken by the American Supreme Court as regards the other rights included in the Bill of Rights, so
far as the rights included in the First Amendment are concerned,—freedom of religion, freedom of speech and
freedom of assembly—they have never been considered as personal privileges, capable of being waived by the
particular individual affected in a case, for, “neither liberty nor justice would exist if they were sacrificed”.31.
Freedom of association has been regarded as equally “fundamental”.32. These have been considered to be the
very foundation of free government,33. so that no question arises that they were enshrined in the Constitution
as a matter of public policy.
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Hence, even from the American decisions it would follow that the freedoms embodied in sub-cls. (a)-(c) of
Article 19(1) of our Constitution have been engrafted on grounds of public policy. If so, the ordinary rules of
construction will prevent any other view being taken as regards the rights secured by the other sub-clauses of
the same clause of Article 19, such as freedom of movement, residence, property and profession. It has already
been held by the Supreme Court that the freedom of movement and residence [sub-cls. (d)-(e)] were adopted in
order to ensure the unity of India against internal barriers.34. If that be so, these cannot be treated as personal
privileges. The fact that the freedoms of property and profession against arbitrary and unreasonable restrictions
by the State were included in the same Article would go to show that those two freedoms were also regarded
by the framers of our Constitution in the same light of constitutional policy, as being essential for the social and
economic justice, which is spoken of in the Preamble in the same strain as liberty of thought and equality of
status.
The Supreme Court of Pakistan is also of the view that fundamental right cannot be waived and a waiver
cannot affect a fundamental right, for example, to carry on a profession. This is based on the principle that there
can be no waiver against Constitution and no right based on public policy can be waived. In Government of
Pakistan v Aklaq Hussain,35. it was held: “Citizens of Pakistan cannot contract themselves out of the various
fundamental rights which the Constitution grants them. The fundamental rights are not to be read as if they
included words “subject to the contrary”. One way of putting the matter is this: Every law which is inconsistent
with a fundamental right is void. Contract Act in so far as it permits an agreement to waive fundamental right is
void.
In Waris Meah v State,36. the appellants were tried for an offence under section 22A read with section 23B of
Foreign Exchange Regulation Act. The appellants pleaded guilty and were convicted and sentenced. Leave to
appeal was granted by the Supreme Court to consider the question raised before the Supreme Court for the
first time that section 23B of the Act was unconstitutional as much as it offended against equality clause in
Article 5 of 1956 Constitution. The appeal succeeded. Section 23B of the Act was held unconstitutional on the
ground of being discriminatory, the appellants were held to have been tried “by an incompetent tribunal” and
their conviction and sentence were held void.
(v) Article 20(1).—
This is a limitation on the legislative power to legislate retroactively and the American Constitution has made
this clear by including this provision in Article I, section 9(3) [as a limitation on the power of Congress instead of
as an individual right]. There cannot be any question of waiver of this right.
(vi) Article 20(2).—
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There is no doubt that the immunity against double jeopardy has been treated in the U.S.A.as a privilege,
capable of being waived. But the only instance where waiver has been upheld appears to be a case of appeal
by the accused. Where he appeals from his conviction in a lower court, he is said to have waived his protection,
and he may be tried again, at the direction of the Appellate Court.37.
It is submitted that no such problem necessitating the application of the doctrine of waiver is likely to arise in
India. Firstly, under the ordinary law of procedure, an appeal is treated as a continuation of the original
proceeding and there is no disposal of a case until the appellate proceeding, including a retrial, if any, as a
result of the appeal, are concluded. Secondly, the very language of Article 20(2) of our Constitution differs from
that of the Fifth Amendment to the American Constitution, as has been already pointed out.There is no violation
of Article 20(2) unless a man is not only tried but also punished twice, for the same offence. Hence, there is no
violation of Article 20(2) in the accused’s appealing from a sentence of conviction or in obtaining a retrial, for, as
he is not being punished twice, there is no question of his waiving any right in preferring the appeal or in
obtaining the retrial.
(vii) Article 20(3).—
The American decisions,no doubt, consistently hold that the immunity against self-incrimination is a privilege
and may be waived by the person who is entitled to claim it. The question of waiver, however, arises in cases
like the following:
(a) Where the accused volunteers to give evidence;
(b) Where an accomplice consents to give evidence, in lieu of pardon;
(c) Where the accused does not plead the immunity when the incriminating question is put;
(d) Where the accused expressly and unequivocally says that he would not rely on the immunity against
self-incrimination;
(e) Where the accused refuses to answer the court question as to whether he relies on the immunity or
not.38.
(a), (b): Article 20(3) of our Constitution is not attracted at all, and no question of waiver can possibly arise,
whether the ingredients of the clause are not satisfied, e.g., where the accused is not “compelled” or the
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evidence is not used “against” him. Hence, where the accused volunteers to give evidence of his own choice39.
or gives evidence in lieu of an advantage, such as offer of pardon, there is no compulsion and no violation of
the Clause at all.
(c) Real difficulty arises in the third case, namely, where the accused did not raise the plea of immunity at the
proper time, namely, when the incriminating question was put. Hence, it should be examined more fully:
(A) In the U.S.A.,a distinction, has been made between an accused in a criminal proceeding and a witness in all
other proceedings,—a distinction which is all the more important to note in India, because the guarantee under
Article 20(3) has been interpreted to be confined to an accused person only.
(i) As regards an accused person in a criminal trial, it has been held that because of the Self-incrimination
Clause, the accused cannot be required to take the witness stand and cannot be compelled to answer
any question and even his failure to testify cannot be the subject of comment.40. In the result, the
accused in a criminal proceeding (i.e., a person who has been indicted for a crime) may lose his
immunity under the Self-incrimination Clause only in one contingency, namely, whether he himself
volunteers to testify as a witness on his behalf.41. But he cannot be deemed to have waived the
privilege by simply not claiming the privilege when a question is put.42.
(ii) But in all proceedings (including proceedings against an offender up to indictment43.) other than a
criminal trial, a witness has no such blanket protection from being compelled to take the witness stand,
and questions may, therefore, be put to him.41 Consequently, it is necessary for him to claim the
immunity when an incriminating question is put. It is settled that though “no ritualistic formula is
necessary”, a witness must claim the privilege in any language that the tribunal “may reasonably be
expected to understand as an attempt to invoke the Privilege”.44. Even where the witness takes a
veiled plea which gives the tribunal notice of the witness’s intention to invoke the privilege, it becomes
the duty of the tribunal “either to accept the claim or ask whether he was in fact invoking the privilege”44
and then to inform the witness whether his claim was upheld or rejected.45. But in the total absence of
any claim of the privilege when the question was put, the witness is deemed to have waived the
privilege.46. The basis of this rule of waiver is that “the privilege against self-incrimination is solely for
the benefit of the witness47. and is purely a personal privilege of the witness;48. and also that a
witness who does not claim the privilege cannot be said to have been “compelled” within the meaning
of the Fifth Amendment.”47
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In Pakistan, it has been said that where the right is a personal privilege, it may be waived. For
example, it is well established in U.S.A. that the privilege of not giving self-incriminating evidence
does not exist for practical purposes unless claimed by the person entitled to it. If in any case,
proceeding or investigation, a witness testifies without objection on the ground of privilege, he must
be deemed to have intended to waive his privilege and his evidence must be considered in
reaching proper conclusion. This rule, as stated in American Jurisprudence, was noticed in Alpha
Insurance Co v Assistant Director,49.and it was observed that prohibition in Article 13(b)
(corresponding to Article 20(3) of our Constitution) is attached only to the incriminating material
which the accused does want to produce. It is a privilege of the accused. It can be exercised
against the whole world. Its exercise can be waived as well and therefore Article 13(b) excludes
voluntary presentation of incriminating material. The true position seems to be that if a witness,
accused of an offence or not volunteers to be a witness and testifies to facts which incriminate him,
he is not being “compelled” to be witness against himself. There is no compulsion and that takes it
out of prohibition of Article 13(b). Hence consequently no question of waiver also arises.50.
(B) InIndia,—it has been settled,that the immunity under Article 20(3) is confined to a person against whom a
“formal accusation” has been made. Hence, no question of application of the immunity to any person prior to
the stage of formal accusation or to witnesses in any proceedings arises; and no question of waiver by not
claiming the immunity may possibly arise.
In the Allahabad case of Subedar v State51.the Magistrate summoned and examined the accused persons in
the inquiry under section 202, CrPC. The court rightly held that the examination of the accusedpersons under
section 202, CrPC, was without jurisdiction and that section 342A of the CrPC, could not be called in aid
because the accused had made no written request to be examined as required by that section and, accordingly,
the statements of the accused, recorded by the Magistrate were directed to be quashed from the record. But,
incidentally, the court observed that since the accused had made the statements, without claiming the privilege
under Article 20(3), they could be deemed to have waived their privilege under Article 20(3), but that since the
act of the Magistrate was ultra vires,the evidence so recorded could not be used on the basis of “waiver”.
With respect, the Author is unable to agree with this observation regarding waiver. It has been pointed out
earlier,that in a complaint case, there is a formal accusation as soon as the complaint is filed. Hence, apart from
the case-law under section 202, Article 20(3) of the Constitution would bar the very issue of any process for the
examination of the person complained against, under section 202, CrPC. Hence, except in a case where the
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accused volunteers to give evidence, complying with the requirements of section 342A, CrPC (now section 315
CrPC, 1973), the examination of the accused itself violates Article 20(3) and no question of waiver can be
imported form the fact that the accused gave the evidence, without claiming Immunity under Article 20(3).
According to eminent Jurist H.M. SEERVAI, in his book on CONSTITUTIONAL LAW OF INDIA,52.
The right conferred by Article 20(3) is a privilege which can be waived is afforded by the fact that unless the
accused can take the stand and waive his right the whole object of his going into the box to prove his innocence
would be defeated. In T.G. Gaokar v R.N. Shukla,53. it was held that the appellant was accused of an offence
within the meaning of Article 20(3) he had not been compelled to give evidence. The necessity to enter the
witness box for substantiating his defence is not such a compulsion as would attract the protection of Article
20(3) … It may be necessary for the accused person to enter the witness box for substantiating his defence.
But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in
violation of Article 20(3). Compulsion in the context of Article 20(3) must proceed from another person or
authority. He is not compelled to be a witness if he voluntarily gives evidence in his defence.54. According to
the learned author, Article 20(3) confers a privilege on an accused which he can waive by giving evidence.
American Jurisprudence55. states thus: (Extracted by learned Judge of Pakistan Supreme Court JUSTICE
FAZAL KARIM) “A defendant who chooses to testify waives his privilege against compulsory self-incrimination
with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant
may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful
evidence adduced against him. His voluntary offer of testimony upon any fact is a waiver as to all other relevant
facts because of the necessary connection between them all.”
The waiver by the accused is not partial. Having once cast aside the cloak of immunity, he may not resume it at
will whenever cross-examination may be inconvenient or embarrassing.56.
In P.N. Krishna Lal v Govt. of Kerala,57. it was held that in view of section 315 of CrPC (Old section 342-A,
CrPC), an accused could waive his right under Article 20(3) and tender himself as a witness.
(viii) Articles 21–22.—
These Articles have been embodied in the Constitution as a safeguard against executive tyranny and there
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would be an end of liberty if these rights could be waived. No American decision would warrant waiver in these
cases.
(ix) Articles 23–24.—
As S.K. DAS, J. pointed out in Basheshar’s case,58. there can be no doubt that these rights were created for
the benefit of the general public, so that they cannot be waived. A contract by a free man to become a slave
would be against public policy and would not be enforced.59.
(x) Articles 25–28.—
As SUBBA RAO, J. observed in Basheshar’s case,60. these rights are obviously created in the public interest
and cannot be waived by any individual.
(xi) Articles 29–30.—
It would appear, prima facie,that these cultural and educational rights of minorities have been engrafted in the
Constitution in the interests of the general public in the same way as the religious rights of the minorities are
protected by Articles 25–28. Even though the members of the minority groups are benefited by the rights in
Articles 29–30, it is in the interests of the unity of the nation and the fraternity, assured by the Preamble, that
these rights have been guaranteed by Pt III, and not primarily in the interests of the members of the minority
who may be entitled to exercise them.
Nevertheless, there has been a difference between S.K. DAS, J. and SUBBA RAO, J. in Basheshar’s case,60as
to the nature of the right under Article 30(1). In the view of S.K. DAS, J., it is possible for a minority community
“to surrender part of its right of administration of a school of its own choice in order to get aid from
Government”. He cited the opinion in the Reference on the Kerala Education Bill61. in support of this
proposition and observed:
If we now hold that the minority can never surrender its right, then the result will be that it will never be able, to ask for
Government aid.61
It is admitted that a close study of the opinion in the Reference case 61 shows that no question of waiver of the
right under Article 30(1) in lieu of aid was either raised or decided in that case. On the contrary, it was observed
by DAS, C.J. that the minority cannot, in lieu of aid, “surrender” their fundamental right under Article 30(1) nor
can the State demand it. The rationale of the decision was that the right of administration under Article 30(1)
was not substantially infringed by a “reasonable regulation” of such right by the State as a condition of granting
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aid. As soon as such regulation exceeds the “limits of reasonableness”, it becomes an encroachment upon the
fundamental rights and becomes void. It was by a proper interpretation of the “right to administer” that this
conclusion was raised. There was an elaborate discussion by DAS, C.J. which cannot possibly be reproduced,
but the following will suffice for our present purpose:
The right to administer cannot obviously include the right to maladminister.The minority cannot surely ask for aid or
recognition for an educational institution run by them in unhealthy surroundings… It stands to reason, then that the
constitutional right to administer an educational institution of their choice doesnot necessarily militate against the claim
of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence
of the institutions to be aided…we…find it impossible to support Cls. 14 and 15 of the said Bill as mere regulations.
The provisions of those clauses may be totally destructive of the rights under Art. 30(1)…There is, no doubt, no such
thing as a fundamental right to recognition by the State but to deny recognition to the educational institutions except
upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of
their choice is in truth and effect to deprive them of their rights under Art. 30 (1)….62.
The opinion of DAS, C.J., thus, emphatically makes it clear that it is not possible for a minority to voluntarily
surrender its fundamental right under Article 30(1), even in lieu of an advantage to which it is not otherwise
entitled. According to S.K. DAS, J., however, the admissibility of a “reasonable restriction” upon the right to
administer signifies a partial, “waiver”of the right to administer.It is submitted that there is no surrender or
abandonment of the minority of its right to administer, even partially, when it allows the State to impose
reasonable conditions in lieu of aid or recognition, because it can, at any moment get rid of such conditions by
giving up the aid or the recognition. This is not possible in a case of true “waiver”. Take, for instance, the waiver
of a right of a witness against self-incrimination, under the American Constitution. The American Supreme
Court has held that as soon as a witness voluntarily consents to answer an incriminating question, by waiving
his immunity, he is bound to answer all other questions which directly follow from it; he cannot stop at his will, or
revoke his initial waiver.63. There is no such case of waiver of the fundamental right under Article 30(1),
indicated in the majority opinion in the Reference case.64.
Further, in the case of a right belonging to a community, it is not competent for one or more members of that
community, which is a fluctuating body, to bind the entire community in perpetuity, by any conduct of such
member or members.65.
The obligation to provide for some compensation in Article 31(2) (since repealed) is an obligation of the
Page 214 of 296
Legislature, laid down as a matter of constitutional policy, for the benefit of the public in general, and the court
is bound to strike down a law if the Legislature fails in this duty.66. The State cannot be permitted to contract
out of this obligation either by an express contract, or by the application of any rule of implied contract or
waiver. If the State enters into possession under any such subterfuge in contravention of the Constitution, the
court is bound to restore possession to the individual even though as a court of Equity, the court may impose
conditions as to compensation as to structures, or the like.
(xiii) Article 32.—
S.K. DAS, J. observed 65 that if the doctrine that a fundamental right cannot be waived were applied to the
remedial right under Article 32, the personaggrieved could with impunity bring one application after another,
after having withdrawn the previous one. But, as SUBBA RAO, J. pointed out, this case presents no problem,
for, if the Supreme Court does not give permission to bring another application, that order is the final
adjudication of the Court and no application can be brought thereafter; no question of waiver arises in this case.
The other Articles of Pt III are not relevant in this context.
The conclusion that emerges from the above analysis is that none of the fundamental rights included in Pt III of
our Constitution are capable of being lost by “waiver” in the American sense.67.
1. Harisiades v Shaughnessy,(1952) 342 US 580 (594).
2. Calder v Bull, (1798) 3 Dall 386 : 1 L Ed648.
3. Kansas v Hendricks,(1997) 521 US 346
4. C.K. Allen, Law in the Making, 7th Edn,p465.
5. Maxwell, Interpretation of Statutes, 11th Edn,p 206.
6. See DPP v Lamb,(1941) 2 KB 89 ; Buckman v Button,(1943) KB 405 ; R v Oliver,(1944) KB 68 .
7. (1870) LR 6 (QB).
8. SeeC.K. Allen, Law in the Making, 7th Edn,p 463.
9. Calder v Bull, (1798) 3 Dall 386 : 1 L Ed 648. See T. M. Cooley, A Treatise on the Constitutional Limitation, 1st Indian
Re-print 2005, pp 265–66. See alsoCummings v Missouri, 1971 US 277; Craies on Statute Law, 7th Edn,pp 388–89.
Page 215 of 296
10. T.M. Cooley,Constitutional Law, p 357.
11. Beazell v Ohio,(1925) 269 US 167.
12. Janda Berry and Goldman, The Challenge of Democracy—Government of America, Chapter XVII, “Order and Civil
Liberties”, 2nd Edn,1989, p 639.
13. Kansan v Hendricks, 521 US 346 : (1977) 138 L Ed 2d 501.
14. See H.M. Seervai, Constitutional Law of India, 4th Edn,Vol II, p 1046.
15. Nabi Ahmed v Home Secretary, PLD 1969 SC 599 . See alsoBhai Khan v State, PLD 1992 SC 14 .
16. Rooney v N. Dakota,(1906) 196 US 319.
17. Thompson v Utah,(1898) 170 US 343.
18. Thompson v Missouri,(1898) 171 US 380.
19. Duncan v Missouri,(1894) 152 US 377.
20. Beazell v Ohio,(1925) 269 US 167.
21. Commonwealth v Hall,97 Mass 570; Gut v Minnesota,(1870) 9 Wall 35.
22. Mcdonald v Massachusetts,(1901) 180 US 311.
23. Hawker v N.Y., (1898) 170 US 189.
24. Galvan v Press,(1954) 347 US 522.
25. Neely v Henkel,(1901) 180 US 109 (123).
26. Willis, Constitutional Law, 1936, p 516.
27. Garner v Los Angeles Board,(1951) 341 US 716.
28. Johannessen v U.S., (1912) 225 US 227.
29. Blackstone,Commentaries on the Laws of England, 4th Edn,1938,Vol I, p 46; see alsoPhillips v Eyre, (1870) 6 QB 1
(23, 27).
31. Blackstone, Commentaries on the Laws of England, 4th Edn,1938,Vol I, p 6.
32. See Kent’s Commentaries, 10th Edn,Vol I, p 458; Phillips v Eyre(supra); Calder v Bull,(1798) 3 Dall 386 : 1 L Ed 648.
Page 216 of 296
33. Calder v Bull,(supra).
34. Midland Railway Co v Pyre, (1861) 142 ER 419.
35. R v Griffiths, (1891) 2 QB 145.
36. R v Lambert, (2001) 3 All ER 577 (HL).
37. Philips v Eyre, 22 LT 869 : (1870) LR 6 (QB).
38. Moon v Durden, (1848) 2 Ex 22 ; Midland R Co v Pye, (1861) 10 CBNS 179 (191); R.v Griffiths, (1891) 2 QB 145
(148).
39. ShivBahadur Singh Rao v State of Vindhya Pradesh, AIR 1953 SC 394 [LNIND 1953 SC 68]: 1953 SCR 1188 [LNIND
1953 SC 68].
40. ShivBahadur Singh Rao v State of Vindhya Pradesh, (supra).
41. Butchers, Hide Co v Seacome, (1913) 2 KB 401.
42. C.K. Allen, Law in the Making, 6th Edn., p 451.
43. Director of P.P. v Lamb, (1941) 2 KB 89; Buckman v Button, (1943) KB 405.
44. Phillips v Eyre, (1870) LR 6 QB (supra).
45. Waddington v Miah, (1974) 2 All ER 377.
46. SeeR v Governor of Pentonville Prison exparte Azam, (1971) AC 18 : (1973) 3 WLR 1058 .
Page 217 of 296
47. Midland Rly. Co v Pyre, (1861) 142 ER 419 (supra); Waddington v Miah, (1974) 2 All ER 377.
48. SeeR. v Kirk, (1985) 1 All ER 453 (EEC Court).
49. Re Barretto, (1994) 1 All ER 447.
50. See Helen Fenwick, Civil Liberties,1st Edn,1994, p 52.
51. See Edwin Shorts & Claire De Than, Civil Liberties,Sweet & Maxwell, 1998 Edn, pp 492–493.
52. See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law,13th Edn,p 652.
53. Edwin Shorts & Claire De Than, Civil Liberties,Sweet & Maxwell, 1998 Edn, pp 492–493.
54. Shaw v D.P.P., (1961) 2 All ER 446.
55. R v R, (1992) 1 AC 599.
56. SW v UK, (1995) 21 EHRR 363.
57. R v R, (1991) 1 AC 599 , pp 491- 92.
58. See Helen Ferwick, Civil Liberties,1995.
59. R. v Home Secretary ex parte Bhajan Singh, (1976) QB 198; Waddington v Miah, (1974) 2 All ER 377.See
alsoWeddington v Miah, (1974) 2 All ER 377 (supra).
60. R. (Uttley) v Secretary of State for the House Deponent, (2004) 4 All ER 1.
Page 218 of 296
61. R. v Lambert, (2001) 3 All ER 577 (HC).
62. R. v Kansal (No. 2), (2002) 1 All ER 257 (HC).
63. R. v Kidman,(1915) 20 CLR 425 .
64. R. v Kidman, (1915) 20 CLR 425; Millner v Raith, (1942) 66 CLR 1.
65. (1942) 66 CLR 1.
66. Vide TARNOPOLSKY, CANADIAN BILL OF RIGHTS, 2nd Edn(1975), pp 360 et seq.
67. Cf. KOHN, CONSTITUTION OF THE IRISH FREE STATE, 1932, pp 169–171, as to the interpretation of
corresponding provision in the Constitution Act of 1922. Also Dunne v Hamilton,(1982) ILRM 290; Abbey v A.G.,
(1981)IR 158.
68. Chunilal vCorp of Calcutta,(1933) 37 Cal WN 737; Jnan Prasanna vState of West Bengal,AIR 1949 Cal 1 .
69. Gadai vEmp., AIR 1943 Pat. 361 .
70. Article 7(1) of the European Convention of Human Rights, 1950, reproduces this text.
71. State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] .
72. Professor L. Tribe, American Constitutional Law, 2nd Edn,1998, p 1033.
73. West Ramnad Electric Distribution Co Ltd v State of Madras, AIR 1962 SC 1753 [LNIND 1962 SC 492] : (1963) 2 SCR
747 [LNIND 1962 SC 492] ; State of Maharashtra v K.K.S. Ramaswamy, AIR 1977 SC 2091 [LNIND 1977 SC 247] :
(1977) 3 SCC 525 [LNIND 1977 SC 247] ; Soni Devrajbhai Babubhai v State of Gujarat, AIR 1991 SC 2173 [LNIND
1991 SC 417] : (1991) 4 SCC 298 [LNIND 1991 SC 417]
74. Supt., Narcotic Control Bureau v Parash Singh,(2008) 13 SCC 499 [LNIND 2008 SC 2020] : (2008) 4 KLT 461 : AIR
2009 SC 244 [LNIND 2008 SC 2020] .
75. Dayal Singh v State of Rajasthan,(2004) 5 SCC : AIR 2004 SC 2608 [LNIND 2004 SC 1738] .
76. Kalpanath Rai v State, AIR 1998 SC 201 [LNIND 1997 SC 1396] : (1997) 8 SCC 733 .
77. Star India Pvt Ltd v CCE, (2005) 7 SCC 203 .

Page 219 of 296
78. Ganesh Gogoi v State of Assam,(2009) 7 SCC 404 [LNIND 2009 SC 1393] : AIR 2009 SC 2955 [LNIND 2009 SC
1393] .
79. S.A. Venketaraman v UOI,AIR 1954 SC 375 [LNIND 1954 SC 55] : (1954) SCR 1150 [LNIND 1954 SC 55] ; see
alsoMaqbool Hussain v State of Bombay,AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 730 [LNIND 1953 SC
51] ; Thomas Dana v State,AIR 1959 SC 375 [LNIND 1958 SC 136] : 1959 (Supp-1) SCR 274; Sukhdev Singh v Teja
Singh,AIR 1954 SC 186 [LNIND 1953 SC 108] : (1954) SCR 454 [LNIND 1953 SC 108] .
80. State of AP v Gandhi,AIR 2013 SC 2113 [LNIND 2013 SC 136] : (2013) 5 SCC 111 [LNIND 2013 SC 136] ; Pyare Lal
Sharma v J&K Industries Ltd, AIR 1989 SC 1854 [LNIND 1986 SC 254] : (1989) 3 SCC 448 [LNIND 1986 SC 254] ;
Maya Rani Punj v CIT,AIR 1986 SC 293 [LNIND 1985 SC 358] : (1986) 1 SCC 445 [LNIND 1985 SC 358] ; K. Satwant
Singh v State of Punjab,AIR 1960 SC 266 [LNIND 1959 SC 191] : (1960) 2 SCR 89 [LNIND 1959 SC 191] : 1960 Cr LJ
410 ; Tiwari Kanhaiyalal v CIT,AIR 1975 SC 902 [LNIND 1975 SC 113] : (1975) 4 SCC 101 [LNIND 1975 SC 113] .
81. Cf.Shiv Bahadur Singh Rao v State of Vindhya Pradesh, AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188
[LNIND 1953 SC 68] .See alsoDinesh Kumar v State of M.P., (2004) 8 SCC 770 [LNIND 2004 SC 1099] .
82. Sukhdev Singh v State of Haryana, (2013) 2 SCC 212 [LNIND 2012 SC 824] : AIR 2013 SC 953 [LNIND 2012 SC 824]
.
83. Kedar Nath Bahl v State of Punjab, AIR 1972 SC 873 : (1974) 3 SCC 21 .
84. T. Barai v Henry Ah Hoe, AIR 1983 SC 150 [LNIND 1982 SC 190] : (1983) 1 SCC 177 [LNIND 1982 SC 190] .
85. See alsoRavneet Kaur v CMC., Ludhiana, AIR 1997 P&H. 1 .
86. Maru Ram vUOI, AIR 1980 SC 2147 [LNIND 1980 SC 446] : (1981) 1 SCC 107 [LNIND 1980 SC 446] . See alsoState
of Haryana v Ram Diya, AIR 1990 SC 1336 [LNIND 1990 SC 222] : (1990) 2 SCC 701 [LNIND 1990 SC 222] .
87. State v Gian Singh, AIR 1999 SC 3450 [LNIND 1999 SC 802] : (1999) 9 SCC 312 [LNIND 1999 SC 802] .
88. Sakshi v UOI, AIR 2004 SC 3566 [LNIND 2004 SC 657] : (2004) 5 SCC 518 [LNIND 2004 SC 657] .
89. T. Velayudhan v UOI, (1993) 2 SCC 582 [LNIND 1993 SC 100] : (1993) 1 SCR 832 [LNIND 1993 SC 100] . See
alsoIvory Traders Manufacturers Association v UOI, 1997 AIHC 3988 (Del).
90. State of AP v Gandhi,(2013) 5 SCC 111 [LNIND 2013 SC 136] : (2013) 2 Scale 646 [LNIND 2013 SC 136] .
91. Chief Inspector of Mines v Karam Chand Thapar,AIR 1961 SC 838 [LNIND 1961 SC 57] (845) : (1962) 1 SCR 9
[LNIND 1961 SC 57] . See alsoSurajmani Stella Kajur (Dr.) v Durga Charan Hansdah, (2001) 3 SCC 13 [LNIND 2001
SC 412] : AIR 2001 SC 938 [LNIND 2001 SC 412] .
92. Gadai vEmp., AIR 1943 Pat. 361 .
93. Rao Shiv Bahadur Singh v State of Vindhya Pradesh,AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188
[LNIND 1953 SC 68] – followed in SEBI v Ajay Agarwal,(2010) 3 SCC 765 [LNIND 2010 SC 203] : AIR 2010 SC 3466
Page 220 of 296
[LNIND 2010 SC 203] ; see alsoState of WB v S.K. Ghosh,AIR 1963 SC 255 [LNIND 1962 SC 167] : (1963) 2 SCR
111 [LNIND 1962 SC 167] .
94. Maqbool Hussain v State of Bombay, AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 738 .
95. Mukandi v Executive Engineer, AIR 1956 Pepsu 40 .
96. Hathising Mfg. Co v UOI, AIR 1960 SC 923 [LNIND 1960 SC 122] (932) : (1960) 3 SCR 528 [LNIND 1960 SC 122] .
1. Hathising Mfg. Co v UOI, AIR 1960 SC 923 [LNIND 1960 SC 122] (932) : (1960) 3 SCR 528 [LNIND 1960 SC 122] .
2. See Director of Enforcement v Me TM Corpn. Pvt Ltd, AIR 1996 SC 1100 [LNIND 1996 SC 63] : (1996) 2 SCC 471
[LNIND 1996 SC 63] – followed in SEBI v Ajay Agarwal, (2010) 3 SCC 765 [LNIND 2010 SC 203] : AIR 2010 SC 3466
[LNIND 2010 SC 203] .
3. See SEBI v Ajay Agarwal, (2010) 3 SCC 765 [LNIND 2010 SC 203] : AIR 2010 SC 3466 [LNIND 2010 SC 203]
(supra).
4. Prahlad v State of Bombay, AIR 1952 Bom 1 [LNIND 1951 BOM 81] . See alsoNand Kishore v Commissioner, 1982 Cr
LJ 1439 .
5. Rameschandra v State, AIR 1955 Bom 346 [LNIND 1955 BOM 18] .
6. State of W.B. v S.K. Ghose, AIR 1963 SC 255 [LNIND 1962 SC 167] : (1963) 2 SCR 111 [LNIND 1962 SC 167] .
7. State of Bihar v Shailabala, AIR 1952 SC 329 [LNIND 1952 SC 41] : (1952) SCR 654 [LNIND 1952 SC 41] .
8. Cf. Pulin vSatyaranjan, AIR 1953 Cal 838 (845).
9. Shiv Bahadur Singh Rao v State of Vindhya Pradesh, AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188
[LNIND 1953 SC 68] .
Page 221 of 296
10. Shiv Bahadur Singh Rao v State of Vindhya Pradesh,AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188
[LNIND 1953 SC 68] .Alsosee Sajjan Singh v State of Punjab, AIR 1964 SC 464 [LNIND 1963 SC 203] : (1964) 4 SCR
630 [LNIND 1963 SC 203] .
11. G.P. Nayar v State,AIR 1979 SC 602 [LNIND 1978 SC 390] : (1979) 2 SCC 593 [LNIND 1978 SC 390] .
12. Satwant Singh v State of Punjab,(1960) SCJ 863 (875) : AIR 1960 SC 266 [LNIND 1959 SC 191] : (1960) 2 SCR 89
[LNIND 1959 SC 191] .
13. Cf.Shiv Bahadur Singh Rao v State of Vindhya Pradesh,AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188
[LNIND 1953 SC 68] ; Kedar Nath Bahl v State of Punjab,AIR 1972 SC 873 : (1974) 3 SCC 21 ; Chief Inspector of
Mines v Karam Chand Thapar,AIR 1961 SC 838 [LNIND 1961 SC 57] (845) : (1962) 1 SCR 9 [LNIND 1961 SC 57] ;
Mukandi v Executive Engineer,AIR 1956 Pepsu 40 ; Hathising Mfg. Co vUOI,AIR 1960 SC 923 [LNIND 1960 SC 122]
(932) : (1960) 3 SCR 528 [LNIND 1960 SC 122] ; Prahlad v State of Bombay,AIR 1952 Bom 1 [LNIND 1951 BOM 81] ;
Rameschandra v State,AIR 1955 Bom 346 [LNIND 1955 BOM 18] ; State of W.B. v S.K. Ghose,AIR 1963 SC 255
[LNIND 1962 SC 167] : (1963) 2 SCR 111 [LNIND 1962 SC 167] ; Cf. Pulin vSatyaranjan,AIR 1953 Cal 838 (845);
Satwant v State of Punjab,(1960) SCJ 863 (875) : AIR 1960 SC 266 [LNIND 1959 SC 191] : (1960) 2 SCR 89 [LNIND
1959 SC 191] ; W.R.E.D. Co v State of Madras,(1963) 2 SCR 747 [LNIND 1962 SC 492] : AIR 1962 SC 1753 [LNIND
1962 SC 492] .
14. Cf.Shiv Bahadur Singh Rao v State of Vindhya Pradesh,AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188
[LNIND 1953 SC 68] .
15. Satwant Singh v State of Punjab,(1960) SCJ 863 (875) : AIR 1960 SC 266 [LNIND 1959 SC 191] : (1960) 2 SCR 89
[LNIND 1959 SC 191] .
16. Keshavan Madhava Menon v State of Bombay, AIR 1951 SC 128 [LNIND 1951 SC 3] : (1951) SCR 228 [LNIND 1951
SC 3] .
17. UOI v Sukumar Pyne,AIR 1966 SC 1206 [LNIND 1965 SC 239] : (1966) 2 SCR 34 [LNIND 1965 SC 239] (para 9);
Nayar v State (Delhi Adm.), AIR 1979 SC 602 [LNIND 1978 SC 390] : (1979) 2 SCC 593 [LNIND 1978 SC 390] (para
7) relying on Calden v Bull, 3 US (3 Dall) 386 (1798).
18. Hathising Mfg. Co v UOI,AIR 1960 SC 923 [LNIND 1960 SC 122] (932) : (1960) 3 SCR 528 [LNIND 1960 SC 122] .
19. Sukhdev Singh v State of Haryana,AIR 2013 SC 953 [LNIND 2012 SC 824] : (2013) 2 SCC 212 [LNIND 2012 SC 824]
.
20. Sajjan Singh v State of Punjab, AIR 1964 SC 464 [LNIND 1963 SC 203] : (1964) 4 SCR 630 [LNIND 1963 SC 203] .
21. T. Barai v Henry Ah Hoe, AIR 1983 SC 150 [LNIND 1982 SC 190] : (1983) 1 SCC 177 [LNIND 1982 SC 190] .
22. AIR 1964 SC 464 [LNIND 1963 SC 203] : (1964) 4 SCR 630 [LNIND 1963 SC 203] (supra).
23. AIR 1953 SC 394 [LNIND 1953 SC 68] : (1953) SCR 1188 [LNIND 1953 SC 68] (supra).
24. R v St. Mary White Chapel,116 ER 811.
25. Mohammed Shaffi v State,AIR 1952 All 921 [LNIND 1952 ALL 50] ; Shafique v State,AIR 1956 All 108 [LNIND 1955
ALL 154] .
Page 222 of 296
26. AIR 1955 Hyd 128 (FB).
27. Kapur Chand v State of Bombay, AIR 1958 SC 993 [LNIND 1958 SC 32] : (1959) SCR 250 .
29. Cf.Public Prosecutor v Ayyappan,AIR 1953 Mad. 337 [LNIND 1952 MAD 157] .
30. Hathising Mfg. Co v UOI, AIR 1960 SC 923 [LNIND 1960 SC 122] (932) : (1960) 3 SCR 528 [LNIND 1960 SC 122] ;
Thompson v Utah,(1898) 170 US 343.
31. Duncan v Missouri, (1894) 152 US 377 (382).
32. Vijay Singh v State of UP,AIR 2012 SC 2840 [LNINDORD 2012 SC 356] : (2012) 5 SCC 242 [LNIND 2012 SC 1216] .
33. Beazell v Ohio,(1925) 269 US 167.
34. Duncan v Missouri, (1894) 152 US 377 (382).
35. Mallett v N. Carolina,(1901) 181 US 589.
36. Beazell v Ohio,(1925) 269 US 167.
37. Gibson v Mississippi,(1896) 162 US 565.
38. Hopt v Utah, (1884) 110 US 574.
40. Rooney v Dakota,(1906) 196 US 319.
42. Beazell v Ohio,(1925) 269 US 167; Kring v Missouri,(1882) 107 US 221.
44. ShivBahadur Singh Rao v State of VindhyaPradesh, AIR 1953 SC 394 [LNIND 1953 SC 68]: 1953 SCR 1188 [LNIND
1953 SC 68].
45. Hathising Mfg. Co vUOI, AIR 1960 SC 923 [LNIND 1960 SC 122] (932) : (1960) 3 SCR 528 [LNIND 1960 SC 122] .
46. State of UP v Shiv Bahadur, AIR 1951 UP. 17.
47. Public Prosecutor v Ayyappan,AIR 1953 Mad. 337 [LNIND 1952 MAD 157] .
Page 223 of 296
48. Rattan Lal v State of Punjab,AIR 1965 SC 444 [LNIND 1964 SC 135] : (1964) 7 SCR 676 [LNIND 1964 SC 135] . See
alsoDayal Singh v State of Rajasthan, (2004) 5 SCC 721 [LNIND 2004 SC 1738] : JT 2004 (Supp-1 ) SC 37; Basheer v
State of Kerala, AIR 2004 SC 2757 [LNIND 2004 SC 172] : (2004) 3 SCC 609 [LNIND 2004 SC 172] .
49. Cf.Randhira v State, AIR 1954 MB 83.
50. Soni v State of Gujarat, (1991) Cr LJ 3135 (para 9) SC.
51. Ex parte Medley, (1889) 134 US 160.
52. Abu v Chief Secretary, AIR 1952 Sau 98.
53. Samuels v McCurdy,(1925) 267 US 188.
54. Waters-Pierce Oil Co v Texas,(1909) 212 US 86.
55. Chicago R. Co v Tranbarger,(1915) 238 US 67.
56. State of Bihar v Deokaran,AIR 1973 SC 908 [LNIND 1972 SC 392] : (1972) 2 SCC 890 [LNIND 1972 SC 392] : (1973)
3 SCR 1004 [LNIND 1972 SC 392] ; Udai Shankar Awasthi v State of UP,(2013) 2 SCC 435 [LNIND 2013 SC 22] :
(2013) 1 Scale 212 [LNIND 2013 SC 22] .
57. Bhagirath Kanaria v State of MP,AIR 1984 SC 1688 [LNIND 1984 SC 377] : (1984) 4 SCC 227 : (1985) 1 SCR 626
[LNIND 1984 SC 377] .
58. V. Hallay Mathew v State of Kerala,(1971) 79 ITR 72 (Ker).
59. (1991) 2 SCC 141 [LNIND 1991 SC 878] .
60. Black’s Law Dictionary, Special Deluxe 5th Edn.
61. See alsoAmrit Lal Chum v Devoprasad Dutta Roy,AIR 1988 SC 733 [LNIND 1988 SC 50] : (1988) 2 SCC 269 [LNIND
1988 SC 50] .
62. Commissioner of Wealth Tax v Suresh Seth, AIR 1981 SC 1106 [LNIND 1981 SC 210] : (1981) 2 SCC 790 [LNIND
1981 SC 210] . See alsoEmperor v Chotalal Amarchand, AIR 1937 Bom 1 (FB); State v A. H. Bhiwandiwalla, AIR 1955
Bom 161 [LNIND 1954 BOM 88] ; State v Kunja Behari Chandra, AIR 1954 Pat. 371 (FB); Balakrishna Savalram Pujari
v Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 [LNIND 1959 SC 35] : 1959 (Supp-2) SCR 476.
63. Cf.R. v St. Mary Whitechapel,(1848)116 ER 811 (814).

Page 224 of 296
64. Hawker v N.Y., (1898) 170 US 189.
65. R. v Austin, (1913) 1 KB 551 (556).
66. State of Bombay v Vishnu Ramchandra, AIR 1961 SC 307 [LNIND 1960 SC 239] : (1961) 2 SCR 26 [LNIND 1960 SC
239] ; Bashiruddin Ashraf v B.S.S. Majlis, AIR 1965 SC 1206 [LNIND 1964 SC 328] : (1965) 2 SCR 205 [LNIND 1964
SC 328] .
67. Jawala Ram v State of Pepsu,AIR 1962 SC 1246 [LNIND 1961 SC 211] (1248) : (1962) 2 SCR 503 [LNIND 1961 SC
211] .
68. Raj Narain Singh v Atmaram Govind,AIR 1954 All 319 [LNIND 1953 ALL 120] .
69. State v Padma Kant Malaviya,AIR 1954 All 523 [LNIND 1953 ALL 310] (FB).
70. See Standard Chartered Bank v Directorate of Enforcement,AIR 2006 SC 1301 [LNIND 2006 SC 145] : (2006) 4 SCC
278 [LNIND 2006 SC 145] .
71. Depot Manager, A.P.S.R.T.Corpn v Mohd. Yusuf Miya, AIR 1997 SC 2232 [LNINDORD 1996 SC 4] : (1997) 2 SCC
699 [LNINDORD 1996 SC 4] .
72. State Bank of India v T.J. Paul, AIR 1999 SC 1994 [LNIND 1999 SC 486] : (1999) 4 SCC 759 [LNIND 1999 SC 486] .
73. Pyare Lal Sharma v M.D., Jammu & Kashmir Industries Ltd, AIR 1989 SC 1854 [LNIND 1986 SC 254] : (1989) 3 SCC
448 [LNIND 1986 SC 254] .
74. Kanaiylal Chandulal Manium v Indumati T. Potdar, AIR 1958 SC 444 [LNIND 1958 SC 15] .
75. Jawala Ram v State of Pepsu,AIR 1962 SC 1246 [LNIND 1961 SC 211] (1248) : (1962) 2 SCR 503 [LNIND 1961 SC
211] .
76. Sajjan Singh v State of Punjab,AIR 1964 SC 464 [LNIND 1963 SC 203] (468) : (1964) 4 SCR 630 [LNIND 1963 SC
203] ; Suryapal v Stateof U.P., AIR 1961 SC 583 [LNIND 1960 SC 365] : (1961) 2 SCR 971 [LNIND 1960 SC 365] .
[LNIND 1953 SC 68] . See alsoGanesh Gogoi v State of Assam,AIR 2009 SC 2955 [LNIND 2009 SC 1393] : (2009) 7
SCC 404 [LNIND 2009 SC 1393] ; Delhi Airtech Services Pvt Ltd v State of UP,AIR 2012 SC 573 [LNIND 2011 SC
788] : (2011) 9 SCC 354 [LNIND 2011 SC 788] .
78. Shiv Bahadur Singh v State of Vindhya Pradesh,(supra).
79. Sarla Mudgal v UOI, (1995) 3 SCC 635 [LNIND 1995 SC 661] .
80. Lily Thomas v UOI, AIR 2000 SC 1850 : (2000) 6 SCC 224 [LNIND 2000 SC 827] .
81. West Ramnad Electric Distribution Co Ltd v State of Madras, AIR 1962 SC 1753 [LNIND 1962 SC 492] : (1963) 2 SCR
747 [LNIND 1962 SC 492] ; Dharanidhare Patre v State, 1995 AIHC 1733 (Ori).
82. Rattan Lal v State of Punjab, AIR 1965 SC 444 [LNIND 1964 SC 135] . See alsoState v Narayandas, AIR 1958 Bom
68 .
83. T. Barai v Henry Ah Hoe,AIR 1983 SC 150 [LNIND 1982 SC 190] : (1983) 1 SCC 177 [LNIND 1982 SC 190] (supra).
Page 225 of 296
84. Harjit Singh v State of Punjab,(2011) 4 SCC 441 [LNIND 2011 SC 336] : (2011) Cr LJ 2332 .
85. Cf. Randhira v State,AIR 1954 MB 83 .
[LNIND 1961 SC 57] .
87. Chief Inspector of Mines v Karam Chand Thapar, (supra).
88. M.C. Gupta v CBI,(2012) 8 SCC 669 [LNIND 2012 SC 1564] : (2012) Cr LJ 4681 ; see alsoBansidhar v State of
Rajasthan,(1989) 2 SCC 557 [LNIND 1989 SC 186] ; CIT v Shah Sadiq & Sons,(1987) 3 SCC 516 [LNIND 1987 SC
390] .
89. State of AP v Gandhi, AIR 2013 SC 2113 [LNIND 2013 SC 136] : (2013) 5 SCC 111 [LNIND 2013 SC 136] (supra).
90. Narottamdas v State of M.P., AIR 1964 SC 1667 [LNIND 1964 SC 148] (para 19) : (1964) 7 SCR 820 [LNIND 1964
SC 148] .
91. Soni v State of Gujarat,AIR 1991 SC 2173 [LNIND 1991 SC 417] (paras 9–10) : (1991) 4 SCC 298 [LNIND 1991 SC
417] .
92. Transmission Corpn. of AP v C. Prabhakar,AIR 2004 SC 3368 [LNIND 2004 SC 655] : (2004) 5 SCC 551 [LNIND
2004 SC 655] ; Good Year India Ltd v State of Haryana,AIR 1990 SC 781 [LNIND 1989 SC 725] : (1990) 2 SCC 71
[LNIND 1989 SC 725] ; Synthetics and Chemicals Ltd v State of UP,AIR 1990 SC 1927 [LNIND 1989 SC 672] : (1990)
1 SCC 109 [LNIND 1989 SC 672] ; State of WB v Anwar Ali,AIR 1952 SC 75 [LNIND 1952 SC 1] : (1952) SCR 284
[LNIND 1952 SC 1] .
93. State of Maharashtra v Kothari,(1976) Cr LJ 1931 (para 9) Bom; Chockalingam in re, AIR 1945 Mad. 521 .
94. State of Maharashtra v Kothari,(1976) Cr LJ 1931 (para 9) Bom; Chockalingam in re, AIR 1945 Mad. 521 ; State v
Narayandas,AIR 1958 Bom 68 (para 3).
95. State v Narayandas,AIR 1958 Bom 68 (para 3).
96. Tiwari v C.I.T., AIR 1975 SC 902 [LNIND 1975 SC 113] (para 7) : (1975) 4 SCC 101 [LNIND 1975 SC 113] ; Baliah v
Rangachari,AIR 1969 SC 701 [LNIND 1968 SC 381] (705) : (1969) 3 SCR 65 [LNIND 1968 SC 381] .
1. See Bansidhar v State of Rajasthan,(1989) 2 SCC 557 [LNIND 1989 SC 186] .
2. M.C. Gupta v CBI,(2012) 8 SCC 669 [LNIND 2012 SC 1564] : (2012) Cr LJ 4681 (SC) (supra).
3. Nayyar G.P. v State (Delhi Administration), AIR 1979 SC 602 [LNIND 1978 SC 390] : (1979) 2 SCC 593 [LNIND 1978
SC 390] .
4. Chief Inspector of Mines v Karam Chand Thapar, AIR 1961 SC 838 [LNIND 1961 SC 57] : (1962) 1 SCR 9 [LNIND
1961 SC 57] .See alsoState of Bombay v Pandurang,AIR 1953 SC 244 [LNIND 1953 SC 33] : (1953) SCR 773 [LNIND
1953 SC 33] .
5. Rattan Lal v State of Punjab,AIR 1965 SC 444 [LNIND 1964 SC 135] : (1964) 7 SCR 676 [LNIND 1964 SC 135] ;
Shyam Lal v State,AIR 1968 All 392 [LNIND 1968 ALL 17] (para 12). See alsoSupt., Narcotic Control Board v Parash
Singh,(2008) 13 SCC 499 [LNIND 2008 SC 2020] : (2008) 4 KLT 461 : AIR 2009 SC 244 [LNIND 2008 SC 2020]
Page 226 of 296
(supra); Basheer alias N.D. Basheer v State of Kerala,AIR 2004 SC 2757 [LNIND 2004 SC 172] : (2004) 5 SCC 659
[LNIND 2004 SC 1568] ; T. Barai v Henry Ali Hoe,AIR 1983 SC 150 [LNIND 1982 SC 190] : (1983) 1 SCC 177 [LNIND
1982 SC 190] (supra).
6. Plewa v Chief Adjudicating Officer, (1994) 3 WLR 317 .
7. Kedar Nath Bajoria v State of West Bengal,(1954) 1 SCR 30 [LNIND 1953 SC 67] : AIR 1953 SC 404 [LNIND 1953 SC
67] .
8. Mohari Lall v Corp of Calcutta,AIR 1953 Cal 561 [LNIND 1953 CAL 5] .
9. Tiwari v C.I.T., AIR 1975 SC 902 [LNIND 1975 SC 113] (para 7) : (1975) 4 SCC 101 [LNIND 1975 SC 113] ; Baliah v
Rangachari,AIR 1969 SC 701 [LNIND 1968 SC 381] (705) : (1969) 3 SCR 65 [LNIND 1968 SC 381] .
10. Joseph v State of Mysore,(1974) Cr LJ 212 (Mys).
11. Kedar Nath Bajoria v State of West Bengal,(1954) 1 SCR 30 [LNIND 1953 SC 67] : AIR 1953 SC 404 [LNIND 1953 SC
67] .
12. Sajjan Singh v State of Punjab,AIR 1964 SC 464 [LNIND 1963 SC 203] (468) : (1964) 4 SCR 630 [LNIND 1963 SC
203] .
13. Brij Busan Kalwar v S.D.O., AIR 1955 Pat. 1 .
14. Fathima v State of Madras, AIR 1953 Mad. 257 [LNIND 1952 MAD 138] .
15. Mukundi v Executive Engineer, AIR 1956 Pepsu 40 (46).
16. Hawker v N.Y., (1898) 170 US 189; Reetz v Michigan,(1903) 188 US 505.
18. Rameshchandra v State, AIR 1955 Bom 346 [LNIND 1955 BOM 18] .
19. Pralhad v State of Bombay, AIR 1952 Bom 1 [LNIND 1951 BOM 81] .
20. Mohari Lall v Corp of Calcutta, AIR 1953 Cal 561 [LNIND 1953 CAL 5] .
21. Kedar Nath Bajoria v State of West Bengal,(1954) SCR 30 [LNIND 1953 SC 67] .
Page 227 of 296
22. Kedar Nath Bajoria v State of West Bengal,(1954) SCR 30 [LNIND 1953 SC 67] . See alsoTiwari Kanhaiyalal v
Commissioner of Income-tax, Delhi, AIR 1975 SC 902 [LNIND 1975 SC 113] : (1975) 4 SCC 401 : (1975) 3 SCR 927
[LNIND 1975 SC 113] .
23. Varinder Singh v State of Punjab,(2014) 3 SCC 151 [LNIND 2014 SC 1157] : AIR 2014 SC 1817 [LNIND 2014 SC
1157] .
24. Public Prosecutor v Ayyappan,AIR 1953 Mad. 337 [LNIND 1952 MAD 157] ; Rattan Lal v Stale of Punjab,AIR 1965 SC
444 [LNIND 1964 SC 135] (446–7) : (1964) 7 SCR 676 [LNIND 1964 SC 135] .
25. State of AP v Gandhi,AIR 2013 SC 2113 [LNIND 2013 SC 136] : (2013) 5 SCC 111 [LNIND 2013 SC 136] (supra).
26. Rattan Lal v State of Punjab,AIR 1965 SC 444 [LNIND 1964 SC 135] (446–47) : (1964) 7 SCR 676 [LNIND 1964 SC
135] .
27. Pratap Singh v State of Jharkhand, (2005) 3 SCC 551 [LNIND 2005 SC 100] : AIR 2005 SC 2731 [LNIND 2005 SC
100] .
28. Holden v Minnesota,(1890) 137 US 483; Rooney v N. Dakota, (1905) 196 US 319.
29. Malloy v S.Carolino,(1915) 237 US 180.
30. Satwant v State of Punjab,(1960) SCJ 863 (875–76) : AIR 1960 SC 266 [LNIND 1959 SC 191] : (1960) 2 SCR 89
[LNIND 1959 SC 191] ; Maya vI.T.C., AIR 1986 SC 293 [LNIND 1985 SC 358] (para-11)—3 Judge Bench.
31. Lindsey v Washington,(1937) 301 US 397.
32. Ross v Oregon,(1913) 227 US 150.
33. Cf.Narottamdas v State of M.P., (1964) 7 SCR 820 [LNIND 1964 SC 148] .
34. Laksmichand v Shanker,AIR 1976 HP 69 [LNIND 1976 HP 5] (para 8).
35. AIR 1995 SC 1531 [LNIND 1995 SC 661] : (1995) 3 SCC 635 [LNIND 1995 SC 661] .
36. Lily Thomas v UOI,AIR 2000 SC 1650 [LNIND 2000 SC 827] : (2000) 6 SCC 224 [LNIND 2000 SC 827] .
37. See R.S. Joshi v Ajit Mills Ltd, AIR 1977 SC 2279 [LNIND 1977 SC 260] : (1977) 4 SCC 98 [LNIND 1977 SC 260] ;
Central India Motors v Asst. Commissioner of Sales Tax,(1980) 46 STC 379 [LNIND 1979 MP 8] ; Mangal Chand
Phoolchand v State of Haryana,(1980) 45 STC 477 .
38. (2014) 4 SCC 392 [LNIND 2014 SC 41] : AIR 2014 SC 1003 [LNIND 2014 SC 1121] .
39. Kedar Nath Bajoria v State of West Bengal,AIR 1954 SC 404 : (1954) SCR 30 [LNIND 1953 SC 67] .
40. Mohari Lall v Corp of Calcutta,AIR 1953 Cal 561 [LNIND 1953 CAL 5] .
41. Jawala v State of Pepsu,AIR 1962 SC 1246 [LNIND 1961 SC 211] (1248).
42. State of W.B. v S.K. Ghose,AIR 1963 SC 255 [LNIND 1962 SC 167] .
Page 228 of 296
43. Kedar Nath Bajoria v State of West Bengal,AIR 1953 SC 404 [LNIND 1953 SC 67] : (1954) 1 SCR 30 [LNIND 1953
SC 67] .
44. Hathising Manuf. Co vUOI,(1960) 3 SCR 528 [LNIND 1960 SC 122] : AIR 1960 SC 923 [LNIND 1960 SC 122] .
45. AIR 1953 Mad 337 [LNIND 1952 MAD 157] .
46. AIR 1955 Bom 346 [LNIND 1955 BOM 18] .
47. AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 730 [LNIND 1953 SC 51] .
48. Shiv v UOI,AIR 1984 SC 1194 [LNIND 1983 SC 151] (para 30) : (1983) 3 SCC 529 [LNIND 1983 SC 151] ; C.W.T. v
Suresh,AIR 1981 SC 1106 [LNIND 1981 SC 210] (1111).
49. Butsee Star India Pvt Ltd v CCE, (2005) 7 SCC 203 .
50. Sharda v Dharmpal, (2003) 4 SCC 493 [LNIND 2003 SC 366] : AIR 2003 SC 3450 [LNIND 2003 SC 366] .
51. Jawala Ram v State of Pepsu,AIR 1962 SC 1246 [LNIND 1961 SC 211] : (1962) 2 SCR 503 [LNIND 1961 SC 211] .
52. AIR 1956 Pepsu 40 .
53. C. Gupta v Glexo-Smithkline Pharmaceuticals Ltd, (2007) 7 SCC 171 [LNIND 2007 SC 760] .
54. Virtual Soft Systems Ltd vCIT, (2007) 9 SCC 665 [LNIND 2007 SC 126] .
[LNIND 1953 SC 68] ; Ramashankar v State,AIR 1954 All 562 [LNIND 1954 ALL 51] .
56. Pulin v Satyaranjan,AIR 1953 Cal 599 [LNIND 1953 CAL 40] .
57. D’Souza v State of Mysore,(1974) Cr LJ 212 (paras 6–7) (Mys).
58. Shiv Bahadur v State of UP,(supra); see alsoGanesh Gogoi v State of Assam,(2009) 7 SCC 404 [LNIND 2009 SC
1393] : AIR 2009 SC 2955 [LNIND 2009 SC 1393] ; Delhi Airtech Services Pvt Ltd v State of UP,AIR 2012 SC 573
[LNIND 2011 SC 788] : (2011) 9 SCC 354 [LNIND 2011 SC 788] .
[LNIND 1961 SC 57] .
60. Though this provision is not directly applicable to the States, it has been held applicable to the State through the “Due
Process” concept in the 14th Amendment [Benton v Maryland,(1969) 395 US 784].
61. Kepner v United States,(1904) 195 US 100.
62. U.S. v Ball,(1895) 163 US 662 (672).
63. Grafton v U.S., (1907) 206 US 333.
64. U.S. v Perez,(1824) 9 Wh 579.
65. Kasas v Hendricks, 521 US 346 (1997).
66. Wade v Hunter, (1948) 336 US 684.

Page 229 of 296
67. Wade v Hunter, (supra).
68. Ashe v Swenson,(1970) 397 US 436.
69. United States v Josef,(1824) 9 Wh 579; Forman v U.S., (1960) 361 US 416.
70. U.S. v Ball,(1895) 163 US 662 (672).
71. United States v Josef,(1824) 9 Wh 579; Forman v U.S., (1960) 361 US 416.
72. Green v U.S., (1957) 355 US 184 (193);Price v Georgia,(1970) 398 US 323.
73. Pulko v Connecticut,(1937) 302 US 319.
74. United States v Rabinowich,(1915) 238 US 78.
75. Blockburger v U.S., (1932) 284 US 299.
76. U.S. v Lanza,(1922) 260 US 377; Gore v U.S., (1957) 357 US 386.
77. Selfron v U.S., (1948) 332 US 575.
78. Morgan v Devine,(1915) 237 US 632; Hoag v New Jersey, 356 US 464 (467).
79. Bell v U.S., (1955) 349 US 81.
80. Yates v U.S., (1957) 355 US 66.
81. Louisiana v Resweber,(1947) 329 US 459.
82. Helvering v Mitchell,(1938) 303 US 391 (399).
83. In re, Champan,(1897) 166 US 661 (672).
84. R Trailer Co v U.S., (1955) 350 US 148 (153).
85. Graham v West Virginia,(1912) 224 US 616 (623).
86. United State v Ursery, 518 US 267 (1996).
87. R. v Barron,(1914) 2 KB 570 .
88. Commentary on the, Constitution of India, Vol 2, Article 16(1) for detailed discussion.
89. Connelly v Director of Public Prosecution, (1964) 2 All ER 401 .
90. Archbold on Indictments with Precedent and Cases, Sweet & Maxwell Ltd, 1916 Edn, pp 135–42; R.v Miles,(1890) 24
QBD 423 .
91. Halsbury, Hailsham Edn,Vol IX, para 212, pp 152–53.
92. R. v Plummer, (1902) 2 KB 339.

Page 230 of 296
93. Halstead v Clark,(1944) KB 250 .
94. 2 Hale 247.
95. Kannangra v R,(1950) 55 Cal WN 37 (40) (PC).
96. Wemyss v Hopkins,(1875) 10 QB 378 .
97. R. v Barron,(1914) 2 KB 570 .
1. R. v Kendrick,(1931) 144 LT 748 .
2. R. v Miles, (1890) 24 QBD 428 .
3. R. v Vandercomb,(1796) 2 East PC 519.
4. Holcroft’s case, (1578) 2 Hale 246.
5. R. v Gorbutt,(1856) D&B 166.
6. R. v Serne,(1888) 107 Cent Crimes 418.
7. Flatman v Light,(1946) RB 414.
8. R. v Drury,(1848) 3 C&K 193; R.v Maesham,(1912) 2 KB 362 .
9. 2 Hale 215.
10. R. v King, (1897) 1 QB 214 .
11. R. v Grimwood, (1896) 60 JP 809 .
12. Green v U.S., (1957) 355 US 184 (193): Price v Georgia,(1970) 398 US 323.
13. Wemyss v Hopkins, (1875) 10 QB 378 .
14. R. v Thomas,(1949) 2 All ER 662 (CA).

Page 231 of 296
15. 3 SCW 386.
16. See A.A. Mulla v State of Maharashtra, AIR 1997 SC 1441 : (1996) 11 SCC 606 .
17. Maqbool Hossain v State of Bombay,(1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] ;
Venkataraman vUOI,(1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] ; Kalawati v
Stateof H.P., AIR 1953 SC 131 [LNIND 1953 SC 5] : 1953 SCR 546 [LNIND 1953 SC 5] . See alsoSangeethaben
Mahendrabhai Patel v State of Gujarat,AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7 SCC 621 [LNIND 2012
SC 1473] ; Collector of Custom v Melwan,AIR 1970 SC 962 [LNIND 1968 SC 311] : (1969) 2 SCR 438 [LNIND 1968
SC 311] .
18. Venkataraman vUOI,(1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] ; Kalawati v
Stateof H.P., AIR 1953 SC 131 [LNIND 1953 SC 5] : 1953 SCR 546 [LNIND 1953 SC 5] . As to the omission to include
“autrefois acquit”within the ambit of the constitutional guarantee, the Supreme Court observed:
“It seems that our Constitution makers did not think it necessary to raise one part of the Common Law to the level of a
fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the
general law of the land.” [Venkataraman vUOI,(1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954
SC 55] ]
19. State v Nalini,AIR 1999 SC 2640 [LNIND 1999 SC 1584] : (1999) 5 SCC 253 [LNIND 1999 SC 526] .
20. Ashok Kumar Shrivastava v National Insurance Co, AIR 1998 SC 2046 [LNIND 1998 SC 490] : (1998) 4 SCC 361
[LNIND 1998 SC 490] .
21. State v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : (1999) 5 SCC 253 [LNIND 1999 SC 526] .
22. State of Rajasthan v Hat Singh,AIR 2003 SC 791 [LNIND 2003 SC 7] : (2003) 2 SCC 152 [LNIND 2003 SC 7] . See
alsoUOI v P.D. Yadav,(2002) 1 SCC 405 [LNIND 2001 SC 2356] : (2001) 7 Scale270 – under Army Act.
23. See section 26 of General Clauses Act, section 403 of old CrPC and section 300 of the present CrPC of 1973.
24. SeeM.P. Jain, Indian Constitutional Law, 7th Edn,2014, p 1094.
25. Jitendra Panchal v Narcotic Control Bureau,AIR 2009 SC 1938 [LNIND 2009 SC 229] : (2009) 3 SCC 57 [LNIND 2009
SC 229] .
26. Asstt. Collector v Melwani, AIR 1970 SC 962 [LNIND 1968 SC 311] : (1969) 2 SCR 438 [LNIND 1968 SC 311] .
27. Maqbool Hossain v State of Bombay, (1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] .
See alsoState of M.P. v Veereshwar Rao Agnihotri, AIR 1957 SC 592 [LNIND 1957 SC 35] : 1957 SCR 868 : 1957 Cr
LJ 892 : 1957 SCJ 519 [LNIND 1957 SC 35] ; Om Prakash Gupta v State of U.P., AIR 1957 SC 458 [LNIND 1957 SC
2] : 1957 SCR 423 [LNIND 1957 SC 2] .
28. Suresh Chandra v Himangshu Kumar Roy, AIR 1953 Cal 316 [LNIND 1951 CAL 124] ; Raj Narain Singh v Atmaram
Govind, AIR 1954 All 319 [LNIND 1953 ALL 120] .
Page 232 of 296
29. S.A. Venkataraman v UOI, AIR 1954 SC 375 [LNIND 1954 SC 55] .
30. See alsoNarayan Lal Bansilal v M.P. Mistry, AIR 1961 SC 29 [LNIND 1960 SC 186] : (1961) 1 SCR 191 [LNIND 1960
SC 403] ; Thomas Dana v State of Punjab, AIR 1959 SC 375 [LNIND 1958 SC 136] : 1959 (Supp-1) SCR 274;
followed in Assistant Collector of Customs v Melwani, AIR 1970 SC 962 [LNIND 1968 SC 311] : (1969) 2 SCR 438
[LNIND 1968 SC 311] .
31. Monica Bedi v State of AP, (2011) 1 SCC 284 [LNIND 2010 SC 1080] : AIR 2010 SCW 6968 .
32. See alsoBhagwn Swarup v State of Maharashtra, AIR 1965 SC 682 [LNIND 1963 SC 67] : (1964) 2 SCR 378 [LNIND
1963 SC 67] ; Harjinder Singh v State of Punjab, AIR 1985 SC 404 [LNIND 1984 SC 351] : (1985) 1 SCC 422 [LNIND
1984 SC 351] ; Shiv Parshad Pandey v CBI, AIR 2003 SC 1974 [LNIND 2003 SC 290] : (2003) 11 SCC 508 [LNIND
2003 SC 290] .
33. Sangeethaben Mahendrabhai Patel v State of Gujarat, AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7 SCC 621
[LNIND 2012 SC 1473] ; see alsoState of Bombay v S.L. Apte, AIR 1961 SC 578 [LNIND 1960 SC 328] : (1961) 1 Cr
LJ 725 : (1961) 2 SCR 107 ; Leo Roy Frey v Supt., District Jail, AIR 1958 SC 119 [LNIND 1957 SC 115] : (1958) SCR
822 [LNIND 1957 SC 115] ; Roshan Lal v State of Punjab, AIR 1965 SC 1413 [LNIND 1964 SC 339] : (1965) 2 SCR
316 [LNIND 1964 SC 339] ; Bhagwan Swarup Lal Bishan Lal v State of Maharashtra, AIR 1965 SC 682 [LNIND 1963
SC 67] : (1964) 2 SCR 378 [LNIND 1963 SC 67] : (1965) 1 Cr LJ 608 ; State of AP v Kokkiliagada Meerayya, AIR 1970
SC 71 : (1969) 1 SCC 161 [LNIND 1968 SC 365] ; V.K. Agarwal v Vasantraj Bhagwanji Bhatra, AIR 1988 SC 1106
[LNIND 1988 SC 213] : (1988) 3 SCC 467 [LNIND 1988 SC 213] ; see alsoState of Bihar v Murad Ali Khan, AIR 1989
SC 1 [LNIND 1986 SC 198] : (1988) 4 SCC 655 [LNIND 1988 SC 507] ; UOI v K.V. Janakiraman, AIR 1991 SC 2010
[LNIND 1991 SC 949] : (1991) 4 SCC 109 [LNIND 1991 SC 949] ; State of Tamil Nadu v Thiru K.S. Murugesan, (1995)
3 SCC 273 [LNIND 1995 SC 1372] ; State of Punjab v Dalbir Singh, (2001) 9 SCC 212 [LNIND 2000 SC 947] ; A.A.
Mulla v State of Maharashtra, AIR 1997 SC 1441 : (1996) 11 SCC 606
35. See alsoR.Viswam v UOI, AIR 1983 SC 658 [LNIND 1983 SC 147] : (1983) 3 SCC 401 [LNIND 1983 SC 147] ; UOI v
P.K. Yadav, (2002) 1 SCC 405 [LNIND 2001 SC 2356] ; State of Rajasthan v Hat Singh, AIR 2003 SC 791 [LNIND
2003 SC 7] : (2003) 2 SCC 362 ; State of Haryana v Balwant Singh, AIR 2003 SC 1253 [LNIND 2003 SC 272] : (2003)
3 SCC 362 [LNIND 2003 SC 272] .
Page 233 of 296
36. Bindeswari Prasad v Kali Singh, AIR 1977 SC 3432 : (1977) 1 SCC 57 [LNIND 1976 SC 253] : (1977) 1 SCR 125
[LNIND 1976 SC 253] ; see alsoPramatha Nath Taluqdar v Saroj Ranjan Sarkar, AIR 1962 SC 876 [LNIND 1961 SC
400] : 1962 (Supp-2) SCR 297 : (1962) 1 Cr LJ 770 .
37. See Josheph Minattur, Indian Legal System, Indian Law Institute, 2nd Edn (revised), from the Article “Criminal
Procedure” by S.D. Balsara and revised by Dr. K.M. Chandrasekharan Pillai, at p244. Blockburger v U.S., (1932) 284
US 299.
38. Venkataraman v UOI, (1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] ; Kalawati v
Stateof H.P., AIR 1953 SC 131 [LNIND 1953 SC 5] : 1953 SCR 546 [LNIND 1953 SC 5] .
39. Manipur Administration v Thokchom Bira Singh, AIR 1965 SC 87 [LNIND 1964 SC 73] (90) : (1964) 7 SCR 123 [LNIND
1964 SC 73] .
40. Asstt. Collector v Melwani, AIR 1970 SC 962 [LNIND 1968 SC 311] : (1969) 2 SCR 438 [LNIND 1968 SC 311] .
41. Baij Nath Prasad Tripathi v State of Bhopal, AIR 1957 SC 494 [LNIND 1957 SC 16] : 1957 SCR 650 [LNIND 1957 SC
16] .
42. Mohammed Safi v State of W.B., AIR 1966 SC 69 [LNIND 1965 SC 102] : (1965) 3 SCR 467 [LNIND 1965 SC 102] .
43. State of Bombay v Apte, AIR 1961 SC 578 [LNIND 1960 SC 328] (583) : (1961) 3 SCR 107 [LNIND 1960 SC 328] .
44. Thomas Dana v State of Punjab, AIR 1959 SC 375 [LNIND 1958 SC 136] : 1959 (Supp-1) SCR 274. PerSUBBA RAO
J.
45. Kalawati v State of H.P., (1953) SCR 546 [LNIND 1953 SC 5] (550) : AIR 1953 SC 131 [LNIND 1953 SC 5] : 1953 Cr
LJ 668 : 1953 SCJ 144 [LNIND 1953 SC 5] .
46. D.A. Kelshiker v State of Bombay, AIR 1960 Bom 225 .
47. Ghulam Ahmed v State of J&K, AIR 1954 J&K 59 .

Page 234 of 296
48. Venkataraman v UOI,(1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] ; Kalawati v
49. See Sangeethaben Mahendrabhai Patel v State of Gujarat,AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7 SCC
621 [LNIND 2012 SC 1473] ; see alsoPritam Singh v State of Punjab,AIR 1956 SC 415 : (1956) CrLJ 805 ; Manipur
Administration v Thokcham Bira Singh,AIR 1965 SC 87 [LNIND 1964 SC 73] : (1964) 7 SCR 123 [LNIND 1964 SC 73]
: (1965) 1 CrLJ 120 ; Workmen v Gujarat Electricity Board,AIR 1970 SC 87 [LNIND 1968 SC 388] : (1969) 1 SCC 266
[LNIND 1968 SC 388] ; Bhanu Kumar Jain v Archana Kumar,AIR 2005 SC 626 [LNIND 2004 SC 1265] : (2005) 1 SCC
787 [LNIND 2004 SC 1265] ; Baidyanath Basak v UOI,(1983) CrLJ 1542 (Cal); Ravinder Singh v Sukhbir Singh,(2013)
9 SCC 245 [LNIND 2013 SC 26] : AIR 2013 SC 1048 [LNIND 2013 SC 26] .
50. Thomas Dana v State of Punjab,AIR 1959 SC 375 [LNIND 1958 SC 136] (383) : 1959 (Supp-1) SCR 274.
51. Kunji Lal v State of MP,AIR 1955 SC 280 [LNIND 1954 SC 122] : (1955) 1 SCR 872 [LNIND 1954 SC 122] ; Gandhi v
State of Mysore,AIR 1960 Mys 111 ; Chintamanrao v Digram,AIR 1960 MP 149 [LNIND 1959 MP 60] .
52. Venkataraman v UOI,(1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] ; Kalawati v
53. Mohammed Ashraf v State, 1995 SCMR 626.
55. Retd. Judge of Pakistan Supreme Court, Justice Fazal Karim, Judicial Review of Public Action,2006 Edn, Vol I.
56. Alamdar Hussain Shah v Abdul Basheer Qureshi, PLD 1978 SC 121 .
57. Mohammed Ashraf v State, 1995 SCMR 643
58. Willis, Constitutional Law of the United States, Principal Press, 1936, p 528.
59. Commentary on the Constitution of India, Vol 2, see Article 16(3) for detailed discussion.
60. Annotation in 92 LEd 186–67.
62. O.P. Dahiya v UOI, (2003) 1 SCC 122 [LNIND 2002 SC 734] : AIR 2003 SC 4464 [LNIND 2002 SC 734] . See alsoShiv
Parshad Pandey v CBI : AIR 2003 SC 1974 [LNIND 2003 SC 290] : (2003) 11 SCC 508 [LNIND 2003 SC 290] .
63. Maqbool Hossain v State of Bombay,(1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] .
64. Bharat Bank v Employees of Bharat Bank,(1950) SCR 459 (477) : AIR 1950 SC 188 [LNIND 1950 SC 4] : 1950 LLJ
921 . See also Maqbool Hossain v State of Bombay,(1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND
1953 SC 51] .
65. Maqbool Hossain v State of Bombay,(1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] .
See alsoT.S. Balaih v ITO : AIR 1969 SC 701 [LNIND 1968 SC 381] : (1969) 3 SCR 65 [LNIND 1968 SC 381] ; State
Page 235 of 296
of Bihar v Murad Ali Khan,(1988) 4 SCC 655 [LNIND 1988 SC 507] : AIR 1989 SC 1 [LNIND 1986 SC 198] ; Institute of
Chartered Accountants of India v Vimal Kumar Sharma,(2011) 1 SCC 534 [LNIND 2010 SC 1170] : (2010) 12 Scale
667 [LNIND 2010 SC 1170] .
66. S.A. Venketaraman v UOI,AIR 1954 SC 375 [LNIND 1954 SC 55] : (1954) SCR 1150 [LNIND 1954 SC 55] .
67. See alsoSangeethaben Mahendrabhai Patel v State of Gujarat,AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7
SCC 621 [LNIND 2012 SC 1473] .
68. M. Seetharamaswami v CTO,AIR 1960 AP 451 [LNIND 1959 AP 270] .
69. Ebrahim Vazir v State of Bombay,AIR 1954 SC 229 [LNIND 1954 SC 26] : (1954) SCR 933 [LNIND 1954 SC 26] .
70. M. Natarajan v State,(2008) 8 SCC 413 [LNIND 2008 SC 1093] : (2008) 8 Scale 290 [LNIND 2008 SC 1093] .
71. UOI v Sunil Kumar Sarkar, AIR 2001 SC 1092 [LNIND 2001 SC 590] : (2001) 3 SCC 414 [LNIND 2001 SC 590] .
72. Director of Enforcement v MCTM Corpn. Pvt Ltd,(1996) 2 SCC 471 [LNIND 1996 SC 63] ; see alsoSEBI v Ajay
Agarwal,(2010) 3 SCC 765 [LNIND 2010 SC 203] : AIR 2010 SC 3466 [LNIND 2010 SC 203] .
73. AIR 1959 SC 375 [LNIND 1958 SC 136] : 1959 (Supp-1) SCR 274.
74. Debabratha Bandopadhyay v State of West Bengal, (1969) 1 SCR 304 [LNIND 1968 SC 156] : AIR 1969 SC 189
[LNIND 1968 SC 156] .
75. Delhi Judicial Service Association v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 4 SCC 406
[LNIND 1991 SC 446] .
76. See alsoSukhdev Singh Sodhi v Chief Justice and Judges of PEPSU High Court, AIR 1954 SC 186 [LNIND 1953 SC
108] : (1954) SCR 454 [LNIND 1953 SC 108] .
77. State of Haryana v Balwant Singh, (2003)7 SCC 362 : AIR 2003 SC 1253 [LNIND 2003 SC 272] . See also UOI v
Subedar Ram Narain, (1998) 8 SCC 52 [LNIND 1998 SC 876] : AIR 1998 SC 3225 [LNIND 1998 SC 876] ; UOI v P. D.
Yadav, (2002) 1 SCC 405 [LNIND 2001 SC 2356] ; State of Punjab v Dalbir Singh, (2001) 9 SCC 212 [LNIND 2000 SC
947] .
78. Lt. Governor Delhi v H.C. Narinder Singh, (2004) 13 SCC 342 .
79. UOI v Kunisetty Satyanarayana, AIR 2007 SC 906 [LNIND 2006 SC 1006] .
80. P. Arumugham v State of Madras,AIR 1953 Mad. 664 [LNIND 1952 MAD 251] .
81. AIR 1953 Mad 595 .
82. Saharanpur Municipality v Kripa Ram,AIR 1965 All 160 [LNIND 1964 ALL 43] .
83. State v A. Parthiban, AIR 2007 SC 51 [LNIND 2006 SC 804] : (2006) 11 SCC 473 [LNIND 2006 SC 804] .
84. R. v Wiggleswork, (1988) 1 WWR 193 (SCC).
85. Thomas Dana v State of Punjab,AIR 1959 SC 375 [LNIND 1958 SC 136] (383) : 1959 (Supp-1) SCR 274.
Page 236 of 296
86. Annotation in 92 LEd 186–67. See A.A. Mulla v State of Maharashtra, (1996) 11 SCC 606 ; Asst. Collector of Customs
v L.R. Melwani, AIR 1970 SC 962 [LNIND 1968 SC 311] : (1969) 2 SCR 438 [LNIND 1968 SC 311] . See alsoUpendra
v State of Assam,AIR 1954 Assam 106 .
87. Suresh Chandra v Himangshee Kumar Roy,AIR 1953 Cal 316 [LNIND 1951 CAL 124] .
88. Thomas Dana v State of Punjab, AIR 1959 SC 375 [LNIND 1958 SC 136] (383) : 1959 (Supp-1) SCR 274; Leo Roy
Frey v Supt., District Jail, AIR 1958 SC 119 [LNIND 1957 SC 115] (121) : 1958 SCR 822 [LNIND 1957 SC 115] .
89. Seetharamaswami v Commercial Tax Officer, AIR 1960 AP 451 [LNIND 1959 AP 270] (455).
90. Baccha v Lalji, AIR 1976 All 393 (para 3).
1. Jogendra v Addl. Registrar, AIR 1991 SC 2137 [LNIND 1991 SC 469] (para 6).
2. Baij Nath Prasad Tripathi v State of Bhopal, AIR 1957 SC 494 [LNIND 1957 SC 16] : (1957) SCR 650 [LNIND 1957 SC
16] .
3. Director of Enforcement v MCTM Pvt Ltd,AIR 1996 SC 1100 [LNIND 1996 SC 63] : (1996) 2 SCC 471 [LNIND 1996
SC 63] (supra).
4. Asstt. Collector v L.R. Malwani,(1969) 2 SCR 438 [LNIND 1968 SC 311] (442), [it was assumed that Article 20(2) was
applicable also in a case of previous acquittal].
5. Canada v Schmidt, (1987) 1 SCR 500 .
6. Bachcha Lal v Lalji,AIR 1976 All 393 .
7. Joginder Singh v Bar Council of India,AIR 1975 Del 192 [LNIND 1974 DEL 199] . See alsoMotising Chhagansingh
Vaghela v S.D. Mehta,AIR 1966 Guj 233 .
8. Jayaram Panda v D.V. Raiyani,AIR 1989 Ori. 109 [LNIND 1988 ORI 134] (FB); S. Pratap Singh v State of Punjab,AIR
1964 SC 72 [LNIND 1963 SC 211] : (1964) 4 SCR 733 [LNIND 1963 SC 211] ; T.V. Gowda v State of Mysore,(1975) 2
LLJ 513 ; P.H. Tripati v Central Bank of India,(1985) LLJ 991 ; Corpn. of City of Nagpur v Ramachandra G. Modak,AIR
1984 SC 626 [LNIND 1981 SC 119] .
Page 237 of 296
9. Annotation in 92 LEd 186–67. See A.A. Mulla v State of Maharashtra, (1996) 11 SCC 606 ; Asst. Collector of Customs
v L.R. Melwani, AIR 1970 SC 962 [LNIND 1968 SC 311] : (1969) 2 SCR 438 [LNIND 1968 SC 311] . See alsoUpendra
v State of Assam,AIR 1954 Assam 106 .
10. Dattu v Advya,AIR 1956 Hyd 127 . Re Devanugraham,AIR 1952 Mad. 725 [LNIND 1952 MAD 12] .
11. Sri Ram Ghai v Sri Ram Kishan Das,AIR 1952 All 642 [LNIND 1951 ALL 55] .
12. Mathai Manjuran v State,AIR 1952 Travancore-Cochin 556.
13. M. Dev v State of Tripura,AIR 1959 Tripura 51 .
14. (1957) SCR 650 [LNIND 1957 SC 16] .
15. See alsoPublic Prosecutor v Subhash Chandra Reddy,(2003) Cr LJ 4776 (AP).
16. Suba Singh v Davindar Kaur,AIR 2011 SC 3163 [LNIND 2011 SC 620] : (2011) 13 SCC 296 [LNIND 2011 SC 620] :
(2011) 4 LW 610 .
17. Baij Nath Prasad Tripathi v State of Bhopal, AIR 1957 SC 494 [LNIND 1957 SC 16] : (1957) SCR 650 [LNIND 1957
SC 16] .See alsoState of Karnataka v C. Nagarajaswamy,(2006) 1 Mad LJ (Crl) 19 (SC).
18. State of Karnataka v C. Nagarajaswamy, AIR 2005 SC 4308 [LNIND 2005 SC 808] : (2005) 8 SCC 370 [LNIND 2005
SC 808] .
19. Mohammed Safi v State of West Bengal, AIR 1966 SC 69 [LNIND 1965 SC 102] : (1965) 3 SCR 467 [LNIND 1965 SC
102] .
20. Ram Ghei v Ram Kishan,AIR 1952 All 642 [LNIND 1951 ALL 55] .
21. Mithailal v State,AIR 1954 All 680 [LNIND 1954 ALL 25] .
22. Ghulam Ahmed v State of J&K, AIR 1954 J&K 59 .
24. Maqbool Hossain v State of Bombay, (1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] .
25. Re Devanugraham, AIR 1952 Mad. 725 [LNIND 1952 MAD 12] .
26. Bapanaiah, in re, AIR 1970 AP 47 [LNIND 1967 AP 173] .
27. Bapanaiah, in re, AIR 1970 AP 47 [LNIND 1967 AP 173] ; Romesh v Supdt., (1975) CrLJ 739 (J&K).
Page 238 of 296
28. Raj Narain vAtmaram, AIR 1954 All 319 [LNIND 1953 ALL 120] (334, 339).
29. Arumugham v State of Madras, AIR 1953 Mad. 664 [LNIND 1952 MAD 251] (668).
30. Subeg v Emp., AIR 1942 Lah 84 .
31. Venkataraman vUOI, (1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] .
32. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCR 509 [LNIND 1989 SC 885] :
(1989) 1 SCC 678 [LNIND 1989 SC 885] (paras 19–20) (CB).
33. Bapanaiah, in re,AIR 1970 AP 47 [LNIND 1967 AP 173] .
34. Kapur v D.D.A., (1976) Cr LJ 1285 (para 17).
35. Pal alias Palla v State of UP,(2010) 10 SCC 123 [LNIND 2010 SC 909] ; Hajinder Singh v State of Punjab,(1985) 1
SCC 422 [LNIND 1984 SC 351] : AIR 1985 SC 404 [LNIND 1984 SC 351] .
36. Kariappa v Somanna,AIR 1955 Mys 138 .
37. State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] . See alsoState of Rajasthan v Hat
Singh, AIR 2003 SC 791 [LNIND 2003 SC 7] : (2003) 2 SCC 152 [LNIND 2003 SC 7] .
38. Monica Bedi v State of AP,(2011) 1 SCC 284 [LNIND 2010 SC 1080] : (2010) AIR SCW 6968 : (2011) Cr LJ 427 ; see
alsoT.W. Morgan v Alfanso J. Devine,(1914) 237 US 632.
39. Dipesh Chandok v UOI, (2004) 8 SCC 51 .
40. Bhagwan Swarup Lal Bishan Lal v State of Maharashtra, AIR 1965 SC 682 [LNIND 1963 SC 67] : (1964) 2 SCR 378
[LNIND 1963 SC 67] .
41. (1922) 260 US 377.
42. (2011) 1 SCC 284 [LNIND 2010 SC 1080] : 2011 CrLJ 427 (supra).
43. See alsoState of Bombay v S.L. Apte,AIR 1961 SC 578 [LNIND 1960 SC 328] : (1961) 3 SCR 107 [LNIND 1960 SC
328] (supra); Bhagawati Swarup Lal Bishan Lal v State of Maharashtra,AIR 1965 SC 682 [LNIND 1963 SC 67] : (1964)
2 SCR 378 [LNIND 1963 SC 67] ; State of Rajasthan v Hat Singh,(2003) 2 SCC 152 [LNIND 2003 SC 7] : AIR 2003 SC
791 [LNIND 2003 SC 7] .
44. Halsbury, Laws of England, 2nd Edn,Vol 9.
45. State of Bihar v Murad Ali Khan, AIR 1989 SC 1 [LNIND 1986 SC 198] : (1988) 4 SCC 655 [LNIND 1988 SC 507] .
Page 239 of 296
46. State of Bombay v Apte,AIR 1961 SC 578 [LNIND 1960 SC 328] (581) : (1961) 3 SCR 107 [LNIND 1960 SC 328] ;
Manipur Administration vThokchom Bira Singh,AIR 1965 SC 87 [LNIND 1964 SC 73] (90) : (1964) 7 SCR 123 [LNIND
1964 SC 73] ; Bhagwan Swarup Lal Bishan Lal v State ofMaharashtra,(1964) 2 SCR 378 [LNIND 1963 SC 67] (395) :
AIR 1965 SC 682 [LNIND 1963 SC 67] . See alsoV.K. Agarwal, Asst. Commissioner of Customs v Vasantraj Bhagwanji
Bhatia, (1988) 3 SCC 467 [LNIND 1988 SC 213] : AIR 1988 SC 1106 [LNIND 1988 SC 213] .
47. Ishodanand v State, AIR 1955 Pat. 396 .
48. Shyamlal v State, AIR 1954 Pat. 247 .
49. Leo RoyFrey v Supdt., District Jail, AIR 1958 SC 119 [LNIND 1957 SC 115] (121) : 1958 SCR 822 [LNIND 1957 SC
115] .
50. Lakshminarayan v State, AIR 1959 All 164 [LNIND 1958 ALL 139] (166).
51. Madan v State of Rajasthan, (1976) Cr LJ 1485 (paras 9–10) (Raj).
52. State of M.P. v Veereshwar, AIR 1957 SC 592 [LNIND 1957 SC 35] (594) : 1957 SCR 868 : 1957 Cr LJ 892 : 1957
SCJ 519 [LNIND 1957 SC 35] .
53. State of Bombay v Apte, AIR 1961 SC 578 [LNIND 1960 SC 328] (581) : (1961) 3 SCR 107 [LNIND 1960 SC 328] ;
Manipur Administration vThokchom Bira Singh, AIR 1965 SC 87 [LNIND 1964 SC 73] (90) : (1964) 7 SCR 123 [LNIND
1964 SC 73] ; Bhagwan Swarup Lal Bishan Lal v State ofMaharashtra, (1964) 2 SCR 378 [LNIND 1963 SC 67] (395) :
AIR 1965 SC 682 [LNIND 1963 SC 67] .
54. Kunjilal v State of M.P., AIR 1955 SC 280 [LNIND 1954 SC 122] : (1955) 1 SCR 872 [LNIND 1954 SC 122] : 1955 Cr
LJ 730 : 1955 SCJ 592 [LNIND 1954 SC 122] .
55. State of Bihar v Murad, AIR 1989 SC 1 [LNIND 1986 SC 198] (Para 7) : (1988) 4 SCC 655 [LNIND 1988 SC 507] :
1988 (Supp-3) SCR 455.
57. See alsoR. Viswan vUOI, AIR 1983 SC 658 [LNIND 1983 SC 147] : (1983) 3 SCC 401 [LNIND 1983 SC 147] .
Page 240 of 296
58. Sangeethaben Mahendrabhai Patel v State of Gujarat,AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7 SCC 621
[LNIND 2012 SC 1473] (supra). But see Kolla Veera Raghav Rao v Venketeswara Rao,AIR 2011 SC 641 [LNIND 2011
SC 128] : (2011) 2 SCC 703 [LNIND 2011 SC 128] .
60. Blockburger v United States, (1931) 248 US 299; Jeffers v U.S., (1977) 432 U.S. 137.
61. V.K. Agarwal v Vasantraj, AIR 1988 SC 1106 [LNIND 1988 SC 213] : (1988) 3 SCC 467 [LNIND 1988 SC 213] .See
alsoP v Mohammed Barmay Sons v Director of Enforcement,AIR 1993 SC 1188 [LNIND 1992 SC 537] : 1993 (Supp-2)
SCC 724; State of Bihar v Murad Ali Khan,AIR 1989 SC 1 [LNIND 1986 SC 198] : (1988) 4 SCC 655 [LNIND 1988 SC
507] ; UOI v K.V. Janakiraman,AIR 1991 SC 2010 [LNIND 1991 SC 949] : (1991) 4 SCC 109 [LNIND 1991 SC 949] ;
State of TN v Thiru K.S. Murugesan,(1995) 3 SCC 273 [LNIND 1995 SC 1372] : (1995) 2 Scale310; State of Punjab v
Dalbir Singh,(2001) 9 SCC 212 [LNIND 2000 SC 947] : (2000) 10 J 456; A.A. Mulla v State of Maharashtra,AIR 1997
SC 1441 : (1996) 11 SCC 606 .
62. Director of Enforcement v MCTM Corpn. Pvt Ltd, (1996) 2 SCC 471 [LNIND 1996 SC 63] : AIR 1996 SC 1100 [LNIND
1996 SC 63] .
63. Ebrahim Vazir Mavat v State of Bombay, AIR 1954 SC 229 [LNIND 1954 SC 26] : (1954) SCR 933 [LNIND 1954 SC
26] .
64. State of Haryana v Ghaseeta Ram, AIR 1997 SC 1868 [LNIND 1997 SC 362] : (1997) 3 SCC 766 [LNIND 1997 SC
362] .
65. State of Rajasthan v Hat Singh, AIR 2003 SC 791 [LNIND 2003 SC 7] : (2003) 2 SCC 152 [LNIND 2003 SC 7] .
67. See alsoState of MP v Veereshwar Rao Agnihotri,AIR 1957 SC 592 [LNIND 1957 SC 35] : (1957) SCR 868 : (1957)
Cr LJ 892 .
68. AIR 1958 SC 119 [LNIND 1957 SC 115] : (1958) SCR 822 [LNIND 1957 SC 115] : (1958) CrLJ 26 .
69. See alsoState of Bombay v S.L. Apte,AIR 1961 SC 578 [LNIND 1960 SC 328] : (1961) 1 Cr LJ 725 : (1961) 2 SCR
107 ; Kharkan v. State of UP,AIR 1965 SC 83 [LNIND 1963 SC 205] : (1964) 4 SCR 673 [LNIND 1963 SC 205] :
(1965) 1 Cr LJ 116 .
70. Canada v Schmidt, (1987) 1 SCR 500 .
71. Zaverbhai v State of Bombay,AIR 1953 SC 752 .
72. Om Prakash v State of U.P., AIR 1957 SC 458 [LNIND 1957 SC 2] : 1957 SCR 423 [LNIND 1957 SC 2] : 1957 Cr LJ
575 : 1957 SCJ 289 : (1958) 2 LLJ 645 [LNIND 1957 SC 2] .
73. Cf. Shyamlal v State, AIR 1954 Pat. 247 (249); Ramautar v Emp., AIR 1948 Pat. 32 .
74. State of Bihar v Mangal Singh,(1952) 7 DLR 157 (Pat).

Page 241 of 296
75. Reoti v Emp., AIR 1933 All 461 ,
76. Thanammal v Alamely, AIR 1942 Mad. 224 .
77. Cf. Shyamlal v State, AIR 1954 Pat. 247 (249); Ramautar v Emp., AIR 1948 Pat. 32 .
78. Agarwal v Vasantraj, AIR 1988 SC 1106 [LNIND 1988 SC 213] (paras 2–8) : (1988) 3 SCR 450 [LNIND 1988 SC 213]
: (1988) 3 SCC 467 [LNIND 1988 SC 213] .
79. Ganapathy v Emp., (1913) Mad 308.
80. Hari Nath Poddar v State, (1978) Cr LJ 1018 (Cal).
81. V. Kasi v State of Tamil Nadu, (2003) Cr LJ 3592 (Mad).
82. Kanai v Golap,(1952) 7 DLR 185 (Cal).
83. Loomchand v Official Liquidator, AIR 1953 Mad. 595 .
84. Ramadoss, in re, AIR 1958 AP 707 .
85. Kalawati v State of M.P., AIR 1953 SC 131 [LNIND 1953 SC 5] : (1953) SCR 546 [LNIND 1953 SC 5] : 1953 Cr LJ
668 : 1953 SCJ 144 [LNIND 1953 SC 5] .
86. D.A. Kelshiker v State of Bombay, AIR 1960 Bom 225 .
87. N.R. Ghose v State of W.B., AIR 1960 SC 239 [LNIND 1959 SC 190] (246) : (1960) 2 SCR 58 [LNIND 1959 SC 190] :
1960 Cr LJ 289 : 1960 SCJ 532 [LNIND 1959 SC 190] ; Sarkar J. See alsoBhagatram v State of Rajasthan,AIR 1972
SC 1502 [LNIND 1972 SC 72] : (1972) 2 SCC 466 [LNIND 1972 SC 72] ; Lalta v State of UP,AIR 1970 SC 1381
[LNIND 1968 SC 319] : (1970) Cr LJ 1270 ; In re. Sunder Lal Naraiji,(1991) 2 Crimes 52 (MP).
88. King v Wilkies, 77 CLR 511 at 518.
89. Ravinder Singh v Sukhbir Singh,AIR 2013 SC 1048 [LNIND 2013 SC 26] : (2013) 9 SCC 245 [LNIND 2013 SC 26] .
Page 242 of 296
90. Manipur Administration v Thokcham Bira Singh,AIR 1965 SC 87 [LNIND 1964 SC 73] : (1964) 7 SCR 123 [LNIND
1964 SC 73] : (1965) 1 Cr LJ 120 ; Ramesh Chandra Biswas v State,(1994) Cr LJ 1134 (Cal).
91. Piara Singh v State of Punjab,AIR 1969 SC 961 [LNIND 1969 SC 4] : (1969) 1 SCC 379 [LNIND 1969 SC 4] : (1969) 3
SCR 236 [LNIND 1969 SC 4] .
92. Pritam Singh v State of Punjab,AIR 1956 SC 415 : 1956 Cr LJ 805 .
93. Sambasivam v P.P., Federation of Malaya,(1950) AC 458 .
94. Yusofalli vKing,AIR 1949 PC 264 .
95. Pinkerton v U.S., (1945) 238 US 640 (643).
96. Manipur Administration v Thokchom Bira Singh,AIR 1965 SC 87 [LNIND 1964 SC 73] (90) : (1964) 7 SCR 123 [LNIND
1964 SC 73] .
97. Ravinder Singh v State of Haryana, AIR 1975 SC 856 [LNIND 1975 SC 51] : (1975) 3 SCC 742 [LNIND 1975 SC 51]
.See alsoChellappan v State of Kerala,1995 Cr LJ 150 (Ker).
98. Masud Khan v State of UP,AIR 1974 SC 28 [LNIND 1973 SC 290] : (1974) 3 SCC 469 [LNIND 1973 SC 290] ; G.N.
Deshpande v Ishwrlal U. Ahuja,(1992) Cr LJ 2665 (Bombay).
1. Chellappan v State of Kerala,(1995) Cr LJ 150 ; Ravindra Singh v State of Haryana,AIR 1975 SC 856 [LNIND 1975
SC 51] : (1975) 3 SCC 742 [LNIND 1975 SC 51] ; Manipur Administration v Thokcham Bira Singh,AIR 1965 SC 87
[LNIND 1964 SC 73] : (1964) 7 SCR 123 : (1965) 1 Cr LJ 120 ; Shankar Mahto v State of Bihar,AIR 2002 SC 2857
[LNIND 2002 SC 465] : (2002) 6 SCC 131 .
2. Pinkerton v U.S., (1945) 238 US 640 (643).
3. Asstt. Collector v Malwani,(1969) 2 SCR 432 [LNIND 1968 SC 312] (442–43). See alsoPiara Singh v State of Punjab,
AIR 1969 SC 961 [LNIND 1969 SC 4] : (1969) 3 SCR 236 [LNIND 1969 SC 4] : (1969) 1 SCC 379 [LNIND 1969 SC 4]
; Masud Khan v State of U.P., AIR 1974 SC 28 [LNIND 1973 SC 290] : (1974) 1 SCR 793 [LNIND 1973 SC 290] :
(1974) 3 SCC 469 [LNIND 1973 SC 290] ; Ravinder Singh v State of Haryana, (1975) 3 SCC 742 [LNIND 1975 SC 51] :
AIR 1975 SC 856 [LNIND 1975 SC 51] ; Lalta v State of U.P., (1969) 2 SCR 526 [LNIND 1968 SC 319] : AIR 1970 SC
1381 [LNIND 1968 SC 319] .
4. AIR 1970 SC 1381 [LNIND 1968 SC 319] : (1969) 2 SCR 526 [LNIND 1968 SC 319] .
6. (1950) AC 458 (PC).
7. Josheph Minattur, Indian Legal System, Indian Law Institute, 2nd Edn(revised).
8. Id. at p 244.
9. S.A. Venkataraman vUOI, AIR 1954 SC 375 [LNIND 1954 SC 55] : (1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954
SC 375 [LNIND 1954 SC 55] .
Page 243 of 296
11. State of Karnataka v T. Venkataramappa, (1996) 6 SCC 455 [LNIND 1996 SC 1508] : JT (1996) 9 SC 734 [LNINDORD
1996 SC 135] . See alsoC. Chenga Reddy v State of A.P., (1996) 10 SCC 193 [LNIND 1996 SC 1046] : AIR 1996 SC
3390 [LNIND 1996 SC 1046] .
12. State of UP v Madhav Prasad Sharma,(2011) 2 SCC 212 [LNIND 2011 SC 39] : (2011) 1 Scale209.
13. See alsoUOI v Datta Linga Toshatwad,(2005) 13 SCC 709 ; Maan Singh v UOI,(2003) 3 SCC 464 [LNIND 2003 SC
218] : AIR 2003 SC 1800 [LNIND 2003 SC 1156] .
14. State of Haryana v Balwant Singh, (2003) 3 SCC 362 [LNIND 2003 SC 272] : AIR 2003 SC 1253 [LNIND 2003 SC
272] . See alsoUOI v P. D. Yadav, (2002) 1 SCC 405 [LNIND 2001 SC 2356] : 2001 (Supp-4) SCR 209; UOI v Subedar
Ram Narain, AIR 1998 SC 3225 [LNIND 1998 SC 876] : (1998) 8 SCC 52 [LNIND 1998 SC 876] ; State of Punjab v
Dalbir Singh, (2001) 9 SCC 212 [LNIND 2000 SC 947] : 2002 SCC (Cr) 1018 : (2001) 1 LLJ 46 [LNIND 2000 MAD 864]
.
15. UOI v K.V. Janakiraman, AIR 1991 SC 2010 [LNIND 1991 SC 949] : (1991) 4 SCC 109 [LNIND 1991 SC 949] . See
alsoCollector of Thanjavur District v S. Rajagopalan, (2000) 9 SCC 145 .
16. Punjab State and Supplier Corpn. V. Sikander Singh, (2006) 3 SCC 736 [LNIND 2006 SC 136] .
17. Dharm Dutt vUOI, AIR 2004 SC 1295 [LNIND 2003 SC 1025] : (2004) 1 SCC 712 [LNIND 2003 SC 1025] .
18. Jai Singh v State of Haryana, AIR 1995 P&H. 243 .
19. Directorate of Enforcement v MCTM Corpon. Pvt Ltd, AIR 1996 SC 1100 [LNIND 1996 SC 63] .
20. Mayne, Criminal Law, 4th Edn1914.
21. Ex parte Reynolds,20 ChD 294; Blunt v Park Lane Hotel,(1942) 2 All ER 187 (190).
22. R. v Coote,LR 4 PC 599.
23. S. v E, (1967) All ER 593 .
24. See Civil Evidence Act, 1968.
25. Wilson v United States,(1911)149 US 60; Shapiro vU.S., (1948) 335 US 1. See alsoMurphy v Waterfront Commission,
(1964) 378 US 52; Griffin v California, (1965) 380 US 609; Carter v Kentuckuy, (1981) 450 US 288; Estelle v Smith,
(1981) 451 US 454; Mitchell v United States, (1999) 526 US 314.
26. Boyd v United States,(1886) 116 US 616.
27. Betts v Brady,(1942) 316 US 455.
28. (1964) 378 US 52 (supra).
29. See alsoMiranda v Arizona,(1966) 384 US 436.
30. (1972) 406 US 441.

Page 244 of 296
31. 18 US Code, section 6002 (Immunity generally).
32. See alsoUnited States v North,(1990) 910 F 2d. 843.
33. See (1991) 500 US 941
34. See Fisher v United States, (1976) 425 US 391; United States v Doe, (1984) 465 US 605.
35. California v Byers, (1971) 402 US 424.
36. See alsoSchmerber v California, (1966) 384 US 757.
37. See alsoSouth Dakota v Neville, (1983) 459 US 553; Pennsylvania v Muniz, (1990) 496 US 582.
38. Miranda v Arizona, (1966) 384 US 436.
39. See alsoEscobedo v State of Illinois, 378 US 478, where a confession alleged to have been made was declared
inadmissible. Espella v Smith, (1981) 451 U.S. 454; Berkemer v McCarthy, (1984) 368 US 420.
40. Feldaman v U.S., (1944) 322 US 487 (489).
41. Ullmann v U.S., (1956) 350 US 422 (428) : 100 L Ed 911.
42. William Malloy v Patrick J. Hogan, Sheriff of Hartford County, 378 US 1 : 12 L Edn2nd 653.
43. Rogers v Richmond, 365 US 534 : 5 L Edn2nd 760.
44. See alsoChambers v Florida,(1940) 309 US 227.
45. William Murphy and John Moody v Waterfront Commission of New York Harbour, 378 US 52 : 12 L Edn2nd 678.
46. U.S. v White,(1944) 322 US 694.
47. McCarthy v Arndstein,(1924) 266 US 34 (40).
48. Spevak v Klein,(1967) 385 US 11.
49. Garrity v N.J., (1967) 385 US 493.
50. Blau v U.S., (1950) 341 US 159; Hoffman v U.S., (1951) 341 US 479 (486).

Page 245 of 296
52. Counselman v Hitchcock,(1892) 142 US 547.
53. Emspak v U.S., (1955) 349 US 190; U.S. v Bryan,(1950) 339 US 323.
54. U.S. v Kahriger,(1953) 345 US 22.
55. Miranda v Arizona,(1966) 384 US 436.
56. Malloy v US,(1957) 354 US 449.
57. (1944) 322 US 143.
58. Wath v Indiana,338 US 49.
59. (1959) 360 US 315.
60. (1963) 373 US 503.
61. See alsoLynumn v Illinois,(1963) 372 US 528.
62. Miranda v Arizona,(1966) 384 US 436.
63. North Carolena v Bulter, (1979) 441 US 369.
64. Colorado v Connelly, (1986) 479 US 157.
65. Tague v Lausiana, (1980) 444 US 469.
66. Rogers v U.S., (1951) 340 US 367; Brown v Walker,(1896) 161 US 591.
67. Sawyer v U.S., (1906) 202 US 972.
68. Arizona v Fulminante,(1991) 499 US 279.

Page 246 of 296
69. (1966) 384 US 436 (supra).
70. New York v Quarles,(1984) 467 US 649.
71. U.S. v Murdock,(1931) 284 US 141 (148).
72. Brown v U.S., (1957) 356 US 148 (155).
73. Powers v U.S., (1912) 232 US 448.
74. Rogers v U.S., (1951) 340 US 367; Brown v Walker,(1896) 161 US 591.
75. U.S. v Murdock,(1931) 284 US 141 (148).
76. Arizona v Tulminate, (1991) 499 US 279.
77. Slochower v Board of Higher Education,(1956) 350 US 551.
78. Lefkowitz vTurley,(1947) 414 US 70.
79. Brown v U.S., (1957) 356 US 148 (155).
80. Adams v U.S., (1972) 406 US 441.
81. Smith v U.S., (1949) 337 US 135 (150).
82. Kastigar v U.S., (1972) 406 US 441.
83. Ullmann vU.S, (1955) 355 US, 422 (431).

Page 247 of 296
84. Holt v U.S., (1910) 218 US 245; Bram v U.S., (1899) 168 US 532.
85. Burdeau v McDowell,(1921) 265 US 465.
86. Burdeau v McDowell,(1921) 265 US 465.
87. Smith v U.S., (1949) 337 US 135 (150).
88. Hale v Henkel,(1906) 201 US 43.
89. Rogers v U.S., (1951) 340 US 367.
90. U.S. v White, (1944) 322 US 694 (699).
91. Wilson v U.S., (1911) 221 US 351.
92. Curcio v U.S., (1957) 354 US 118.
93. Glickstein v U.S., (1911) 222 US 139.
94. Gencecco v Fed. Petroleun Bd., (1944) 324 US 806; Oklahoma Press Co v Walling,(1946) 327 US 186.
95. Marchetti v U.S., (1968) 390 US 39.
1. Baltimare R. Co v ICC,(1911) 221 US 612.
2. U.S. v Darby,(1941) 312 US 100 (125).

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3. Shapiro v U.S., (1948) 335 US 1 (32).
4. U.S. v Sullivan,(1927) 274 US 259.
5. U.S. v Kahriger,(1953) 345 US 22.
6. U.S. v Mardock,(1931) 284 US 141 (149).
7. Marchetti v U.S., (1968) 390 US 39.
8. Shapiro v U.S., (1948) 335 US 1 (32).
9. Murray v U.K., (1996) 22 EHRR 29 .
10. Saunders v U.K., (1997) 2 DHRC 358.
11. Braw v Scott, (2001) 2 All ER 97 .
12. (1996) 23 EHRR 313 (supra).
13. SeeEdwin Shorts & Claire de Than,Civil Liberties,1998 Edn, p 487.
14. Brown v Walker,(1896) 161 US 596.
15. Ibid.
16. Vide observations in M.P. Sharma vSatish, (1954) SCR 1077 [LNIND 1954 SC 40] (1085–86) : AIR 1954 SC 300
[LNIND 1954 SC 40] .
17. AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] . (paras 92 to 101).
18. (1984) 467 US 649.
19. (1966) 384 US 436 (supra).
20. Salabaiku v France, (1988) 13 EHRR 379 .
21. Ong Ah Chuan v Public Prosecutor, (1981) AC 648 : (1980) 3 WLR 855 .
22. Mok Wei Tak v R, (1990) 2 AC 333 .
23. Morrison v California, (1933) 291 US 82 : 78 L Ed 664.

Page 249 of 296
24. See alsoUnited States v Gainey, (1965) 380 US 63 : 13 L Edn2nd 658; James Turner v United States, 396 US 398 :
(1970) 24 L Edn2nd 610; Barnes v United States, (1973) 412 US 837 : 37 L Edn2nd 380.
25. Country Court of Ulster, New Yark v Samuel Allen, (1979) 442 US 140 : 60 L Edn2nd 777. See alsoHerman Salem v
Jerry Buckley Helm, (1983) 463 US 277 : 77 L Edn2nd 637.
26. Veerasami vUOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] .
27. Sanjay Dutt v State, (1994) 5 SCC 410 [LNIND 1994 SC 1304] : 1994 (Supp-3) SCR 263.
28. Polavarapu Satyanarayana alias Narayana v Polavarapu Soundaryavalli, (1987) 1 An LT 762 (AP).
29. P. N. Krishnalal v Govt. of Kerala, 1995 (Supp-2) SCC 187 : JT 1994 (7) SC 608 .
30. Fali S. Nariman, Indian Legal System – Can it be Saved?, 2006 Edn.
31. Hartley Shawcross, Life Sentence: Memoirs of Hartley Shawcross (Biography & Memoirs), 1995 Edn.
32. (1996) 22 EHRR 29 .
33. Selvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
34. Rochin v California,(1952) 342 US 165.
35. Hoffman v U.S., (1951) 341 US 479.
36. U.S. v White,(1944) 322 US 694 (698).
37. Adamson v California,(1947) 332 US 46, Murphy J. dissenting.
38. Rogers v U.S., (1951) 340 US 367, dissenting opinion of Black, Frankfurter & Douglas JJ.
39. (2000) Crim LR 679 : (2000) 31 EHRR 1 .
40. (1996) 23 EHRR 313 .
41. Narayanlal v Maneck, AIR 1961 SC 29 [LNIND 1960 SC 186] (36–8): (1961) 1 SCR 417 [LNIND 1960 SC 186] : (1961)
1 SCJ 353 [LNIND 1960 SC 186] .
43. Taylor on Evidence, 12th Edn,1931.

Page 250 of 296
44. Laxmipat Choraria v State of Maharashtra, AIR 1968 SC 938 [LNIND 1967 SC 372] : (1968) 2 SCR 624 [LNIND 1967
SC 372] .
45. This view, expressed in this Commentary, has been affirmed by the Supreme Court in M.P. Sharma v Satish Chandra,
(1954) SCR 1077 [LNIND 1954 SC 40] (1085–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] . See alsoLaxmipat Choraria
v State of Maharashtra, AIR 1968 SC 938 [LNIND 1967 SC 372] : (1968) 2 SCR 624 [LNIND 1967 SC 372] .
46. Balakrishnan A. Devidayal v State of Maharashtra, AIR 1981 SC 379 [LNIND 1980 SC 298] : (1980) 4 SCC 600
[LNIND 1980 SC 298] .
47. See M.P. Sharma v Satish Chandra, AIR 1954 SC 300 [LNIND 1954 SC 40] : (1954) SCR 1077 [LNIND 1954 SC 40] .
48. Balkishen v State of Maharashtra,AIR 1981 SC 379 [LNIND 1980 SC 298] ; Delhi J.S.A. v State of Gujarat,AIR 1991
SC 2176 [LNIND 1991 SC 446] (para 12)(3 Judge Bench). See alsoMohd. Dastagir v State of Madras, AIR 1960 SC
756 [LNIND 1960 SC 57] : (1960) 3 SCR 116 [LNIND 1960 SC 57] .
49. Majority view in Kartar Singh v State of Punjab, (1994) 3 SCC 569 : (1994) 2 SCR 375 .
50. See Selvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC
438] .
51. Amrit Singh v State of Pujab, AIR 2007 SC 132 [LNIND 2006 SC 944] : (2006) 12 SCC 79 [LNIND 2006 SC 944] .
52. SeeState of Bombay v Kathi Kalu Oghad,AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND 1961
SC 259] : (1961) 2 Cr LJ 856 .
53. Nandini Satpathy v P.L. Dani,AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] .
54. Lefkowitz v Turley, (1974) 414 US 70.
55. (1963) 378 US 52.
56. Relied on in Selvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND
2010 SC 438] (supra).
57. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (36–8) : (1961) 1 SCR 417 [LNIND 1960 SC 186] :
(1961) 1 SCJ 353 [LNIND 1960 SC 186] .
58. Nandini Satpathy v P. L. Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] .
59. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : (1994) 2 SCR 375 .
Page 251 of 296
60. See alsoState of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND
1961 SC 259] .
62. This view, expressed in this Commentary, has been affirmed by the Supreme Court in Sharma v Satish,(1954) SCR
1087 (1085–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] . See alsoLaxmipat Choraria v State of Maharashtra, AIR
1968 SC 938 [LNIND 1967 SC 372] : (1968) 2 SCR 624 [LNIND 1967 SC 372] .
63. AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] .
64. AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND 1961 SC 259] : (1961) 2 CrLJ 856 .
65. State of Rajasthan v Daulat Ram, (2005) 7 SCC 36 [LNIND 2005 SC 634] .
66. State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] : AIR 2005 SC 3820 [LNIND 2005
SC 580] .
67. This view, expressed in this Commentary, has been affirmed by the Supreme Court in Sharma v Satish,(1954) SCR
1087 (1085–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] . See alsoLaxmipat Choraria v State of Maharashtra, AIR
1968 SC 938 [LNIND 1967 SC 372] : (1968) 2 SCR 624 [LNIND 1967 SC 372] .
68. State of Maharashtra v Nagpur Electric Co, AIR 1961 Bom 242 [LNIND 1960 BOM 116] .
69. Triplex Glass Co v Lancegaye Glass Ltd, (1939) 2 All ER 613 .
70. Godrej v State,1991 Cr LJ 829 (para 13).
71. State of Bombay v Kathi Kalu,AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND 1961 SC 259] .
72. Betts v Brady,(1942) 316 US 455.
73. Laxmipat Choraria v State of Maharashtra, AIR 1968 SC 938 [LNIND 1967 SC 372](paras 7, 23) : (1968) 2 SCR 624
[LNIND 1967 SC 372].
74. Phansalkar v State of Maharashtra, 1974 Cr LJ 995 (paras 2 : 4).
75. See State of Maharashtra v Abu Salem Abdul Kayyum Ansari, (2010) 10 SCC 179 [LNIND 2010 SC 958] : (2010) 10
Scale514.
76. Nayini Narasimha Reddy v Dr. K. Laxman, (2006) 5 SCC 239 [LNIND 2006 SC 369] : AIR 2006 SC 2050 [LNIND 2006
SC 369].
Page 252 of 296
77. Maqbool Hussain v State of Bombay,(1953) 4 SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] ;
Poolpandi v Supdt.,Central Excise, (1992) 3 SCC 259 [LNIND 1992 SC 405] (para 6) : AIR 1992 SC 1795 [LNIND 1992
SC 405] .
78. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (38-9) : (1961) 1 SCR 417 [LNIND 1960 SC 186] : (1961)
1 SCJ 353 [LNIND 1960 SC 186] , affirmingNarayanlal vManeck,AIR 1959 Bom 320 [LNIND 1958 BOM 124] (330).
79. Suryanarayana vVijaya Commercial Bank, AIR 1958 AP 756 (759); In re,Central Calcutta Bank, AIR 1957 Cal 520
[LNIND 1957 CAL 88] (523).
80. Dalmia v Delhi Administration,AIR 1962 SC 1821 [LNIND 1962 SC 146] (1870) : (1963) 1 SCR 253 [LNIND 1962 SC
146] .
81. Joseph v Narayanan,AIR1964 SC 1552 (1556) : (1964) 7 SCR 137 [LNIND 1964 SC 74] .
82. Veera v State of Maharashtra,AIR 1976 SC 1167 [LNIND 1976 SC 105] (para 9) : (1976) 3 SCR 672 [LNIND 1976 SC
105] .
83. Poolpandi v Supdt.,Central Excise, (1992) 3 SCC 259 [LNIND 1992 SC 405] (para 13) : AIR 1992 SC 1795 [LNIND
1992 SC 405] .
84. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (38-9) : (1961) 1 SCR 417 [LNIND 1960 SC 186] : (1961)
1 SCJ 353 [LNIND 1960 SC 186] , affirming Narayanlal vManeck,AIR 1959 Bom 320 [LNIND 1958 BOM 124] (330).
85. See Raja Narayanlal Bansilal v Manek Firoz Mistry,AIR 1961 SC 29 [LNIND 1960 SC 186] : (1961) 1 SCR 417
[LNIND 1960 SC 186] (supra).
86. See alsoRamesh Chandra Mehta v State of WB,AIR 1970 SC 940 [LNIND 1968 SC 317] : (1969) 2 SCR 461 [LNIND
1968 SC 317] : (1970) Cr LJ 863 (a case under Sea Custom Act).
87. AIR 1981 SC 379 [LNIND 1980 SC 298] : (1980) 4 SCC 600 [LNIND 1980 SC 298] : (1981) 1 SCR 175 [LNIND 1980
SC 298] .
88. AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] (supra).
89. Balasaheb v State of Maharashtra,AIR 2011 SC 304 [LNIND 2010 SC 1187] : (2011) 1 SCC 364 [LNIND 2010 SC
1187] .
90. Maqbool v State, of Bombay,(1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] .
1. Maqbool v State, of Bombay,(1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] ;
Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (3839) : (1961) 1 SCR 417 : (1961) 1 SCJ 353 [LNIND
1960 SC 186] .
2. Suryanarayana v Vijaya Commercial Bank,AIR 1958 AP 756 (759).
3. State of Gujarat v Shyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352] : (1965) 2 SCR 457 [LNIND
1964 SC 428] .
4. State (Delhi Administration) v Jagjit Singh, AIR 1989 SC 598 [LNIND 1988 SC 991] : (1989 (Supp-2) SCC 770.
Page 253 of 296
5. Sharda v Dharmpal, (2003) 4 SCC 493 [LNIND 2003 SC 366] : AIR 2003 SC 3450 [LNIND 2003 SC 366] . See also,
Shyam Sundar Chowkhani v Kajal KantiBiswas, AIR 1999 Gau 101 ; Gangadharappa v Basavaraj, AIR 1996 Kant. 155
[LNIND 1995 KANT 136] ; Nokbul v State of Bombay, AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 730
[LNIND 1953 SC 51] ; Narayanlal v Maneck, AIR 1961 SC 29 [LNIND 1960 SC 186] : (1961) 1 SCR 417 [LNIND 1960
SC 186] .
6. Nayini Narasimha Reddy v Dr. K. Laxman, (2006) 5 SCC 239 [LNIND 2006 SC 369] : AIR 2006 SC 2050 [LNIND 2006
SC 369] .
7. Joseph v Narayanan, AIR 1964 SC 1552 [LNIND 1964 SC 74] : (1964) 7 SCR 137 [LNIND 1964 SC 74] ; Popular
Bank v Madhava,AIR 1965 SC 654 .
8. Laxman v State,AIR 1965 Bom 195 [LNIND 1964 BOM 59] . See alsoRainbow Trading Co v Asst. Collector of
Customs,AIR 1963 Mad. 434 [LNIND 1962 MAD 235] ; Collector of Custom v Kotumel,AIR 1967 Mad. 263 [LNIND
1966 MAD 79] (FB).
9. Poolpandi v Supdt.,Central Excise, (1992) 3 SCC 259 [LNIND 1992 SC 405] (para 13) : AIR 1992 SC 1795 [LNIND
1992 SC 405] .
10. Malabar Tile Works v UOI,AIR 1968 Ker. 143 [LNIND 1967 KER 51] .
11. Ramanlal Bhogilal Shah v D. K. Guha, (1973) 1 SCC 696 [LNIND 1973 SC 23] : AIR 1973 SC 1196 [LNIND 1973 SC
23] .
12. Balakrishnan A. Devidayal v State of Maharashtra, AIR 1981 SC 379 [LNIND 1980 SC 298] : (1980) 4 SCC 600
[LNIND 1980 SC 298] .
13. Ramesh Chandra Mehta v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317] : (1969) 2 SCR 461 [LNIND 1968
SC 317] .
14. State of Rajasthan v Daulat Ram, (2005) 7 SCC 36 [LNIND 2005 SC 634] : AIR 2005 SC 3816 [LNIND 2005 SC 634] .
15. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (3839) : (1961) 1 SCR 417 : (1961) 1 SCJ 353 [LNIND
1960 SC 186] .
16. State vPadma Kant,AIR 1954 All 523 [LNIND 1953 ALL 310] (FB); In the matter of Basanta Chandra Ghosh, AIR 1960
Pat. 430 (441).
17. M.P. Sharma v Satish,AIR 1954 SC 300 [LNIND 1954 SC 40] : (1954) SCR 1077 [LNIND 1954 SC 40] .
19. Mohammed Dastagir v State of Madras,AIR 1960 SC 756 [LNIND 1960 SC 57] : 1960 3 SCR 116 [LNIND 1960 SC
57] .
20. Supra.
21. AIR 1960 Bom 443 [LNIND 1959 BOM 117] .
22. Delhi Judicial Service Association v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 4 SCC 406
[LNIND 1991 SC 446] .
Page 254 of 296
23. Sukhdev Singh v Chief Justice & Judges of Pepsu High Court,AIR 1954 SC 186 [LNIND 1953 SC 108] : (1954) SCR
454 [LNIND 1953 SC 108] : 1954 Cr LJ 460 .
24. Shyam Sunder Chowkhani v Kajal Kanti Biswas,AIR 1999 Gowhati 101 ; Gangadharappa v Basavaraj,AIR 1996 Kant.
155 [LNIND 1995 KANT 136] ; Nokbul v State of Bombay,AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 730
[LNIND 1953 SC 51] ; Narayan Lal v Manek Phiroz Mistry,AIR 1961 SC 29 [LNIND 1960 SC 186] : (1961) 1 SCR 417
[LNIND 1960 SC 186] ; Ramesh Chandra Mehta v State of WB,AIR 1970 SC 940 [LNIND 1968 SC 317] : (1969) 2
SCR 461 [LNIND 1968 SC 317] ; Balkishan A. Devidayal v State of Maharashtra,AIR 1981 SC 379 [LNIND 1980 SC
298] : (1980) 4 SCC 600 [LNIND 1980 SC 298] : (1981) 1 SCR 175 [LNIND 1980 SC 298] ; Selvi v State of Karnataka,
(2010) 7 SCC 263 [LNIND 2010 SC 438] : AIR 2010 SC 1974 [LNINDORD 2010 SC 207] .
25. Cf.Pulin v Pashupati,(1951) 56 Cal WN 585 (588); Calcutta Motor& Cycle Co v Collector of Customs,AIR 1956 Cal 253
[LNIND 1955 CAL 156] ; Dana v State of Punjab,AIR 1959 SC 375 [LNIND 1958 SC 136] (385) : 1959 (Supp-1) SCR
274.
26. Maqbool Hussain v State of Bombay,AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 730 [LNIND 1953 SC 51] .
27. Cf.Dana v State of Punjab,AIR 1959SC 375 : 1959 (Supp-1) SCR 274.
28. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (38) : (1961) 1 SCR 417 [LNIND 1960 SC 186] : (1961) 1
SCJ 353 [LNIND 1960 SC 186] .
29. K. Joseph Augusti vNarayanan, AIR 1964 SC 1552 [LNIND 1964 SC 74] : (1964) 7 SCR 137 [LNIND 1964 SC 74] .
30. Popular Bank v Madhavan Nair, AIR 1965 SC 654 .
31. Raja Narayanlal Bansilal v Maneck Firoz Mistry, AIR 1961 SC 29 [LNIND 1960 SC 186] : (1961) 1 SCR 417 [LNIND
1960 SC 186] .See alsoSelvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263
[LNIND 2010 SC 438] ; Balkishan A. Devidayal v State of Maharashtra,AIR 1981 SC 379 [LNIND 1980 SC 298] :
(1980) 4 SCC 600 [LNIND 1980 SC 298] : [1981] 1 SCR 175 [LNIND 1980 SC 298] .
32. Harban Singh Sardar Lana Singh v State of Maharashtra, AIR 1972 SC 1224 : (1972) 3 SCC 775 ; Romesh Chandra
Mehta v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317] : (1969) 2 SCR 461 [LNIND 1968 SC 317] , since the
statements are made not by an accused. See alsoPercy Rustomji Basha v State of Maharashtra, AIR 1971 SC 1087
[LNIND 1971 SC 174] : (1971) 1 SCC 847 [LNIND 1971 SC 174] ; Bhanabhai Khalpabhai v Collector of Customs, 1994
(Supp-2) SCC 143.
33. Veera v State of Maharashtra,AIR 1976 SC 1167 [LNIND 1976 SC 105] (para 9) : (1976) 3 SCR 672 [LNIND 1976 SC
105] .
34. Ramesh Chandra Mehta v State of WB,AIR 1970 SC 940 [LNIND 1968 SC 317] : (1969) 2 SCR 461 [LNIND 1968 SC
317] : (1970) Cr LJ 863 ; see alsoSelvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7
SCC 263 [LNIND 2010 SC 438] .
35. Sharma v Satish,1954 SCR 1077 [LNIND 1954 SC 40] (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40] .
36. Cf.Dana v State of Punjab,AIR 1959SC 375 : 1959 (Supp-1) SCR 274.
37. Bhagwandas vUOI,(1963) SC [C.A. 131/61], dated 2-9-1963.

Page 255 of 296
38. Ramanlal v Guha, AIR 1973 SC 1196 [LNIND 1973 SC 23]: (1973) 3 SCR 438 [LNIND 1973 SC 23] : (1973) 1 SCC
696 [LNIND 1973 SC 23].
39. Dalmia v Delhi Administration, AIR 1962 SC 1821 [LNIND 1962 SC 146]: (1963) 1 SCR 253 [LNIND 1962 SC 146];
State of Bombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1816) : 1962 (3) SCR 10 [LNIND 1961 SC
259] (11 Judges); Balakishan v State of Maharashtra, AIR 1981 SC 379 [LNIND 1980 SC 298](paras 66–70) : (1980) 4
SCC 600 [LNIND 1980 SC 298].
40. Mohanlal v Jabalpur Corpn., AIR 1962 MP 17 .
41. State of Bombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1816) : 1962 (3) SCR 10 [LNIND 1961 SC
259] (11 Judges).
42. Balasaheb v State of Karnataka, AIR 2011 SC 304 [LNIND 2010 SC 1187]: (2011) 1 SCC 364 [LNIND 2010 SC 1187];
Raja Narayanalal Bansilal v Manek Phiroz Mistry, AIR 1961 SC 29 [LNIND 1960 SC 186]: (1961) 1 SCR 417 [LNIND
1960 SC 186] (supra).
43. Sharma v Satish,1954 SCR 1077 [LNIND 1954 SC 40] (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40] .
44. Damodar v Ramchandra,(1974) Cr LJ 160 (paras, 7–8) (AP). See alsoBalasaheb v State of Maharashtra,AIR 2011 SC
304 [LNIND 2010 SC 1187] : (2011) 1 SCC 364 [LNIND 2010 SC 1187] .
45. State of Haryana v Jagbir Singh, (2003) 11 SCC 261 [LNIND 2003 SC 846] : AIR 2003 SC 4377 [LNIND 2003 SC
846]; State of U.P. v Ram Babu Misra, (1980) 2 SCC 343 [LNIND 1980 SC 79] : AIR 1980 SC 791 [LNIND 1980 SC
79].
46. Raja Narayanlal Bansilal v Maneck Phiroz Mistry, (1961) 1 SCR 417 [LNIND 1960 SC 186] : AIR 1961 SC 29 [LNIND
1960 SC 186].
47. Dalmia v Delhi Administration, AIR 1962 SC 1821 [LNIND 1962 SC 146]: (1963) 1 SCR 253 [LNIND 1962 SC 146].
48. K. Joseph Augusthi v M.A. Narayanan, AIR 1964 SC 1552 [LNIND 1964 SC 74](1556) : (1964) 7 SCR 137 [LNIND
1964 SC 74]; Popular Bank v Madhava, AIR 1965 SC 654.
Page 256 of 296
49. Illias v Collector,AIR 1970 SC 1065 : (1969) 2 SCR 613 [LNIND 1968 SC 329] (para 14) (CB); Poolpandi vSupdt.,
(1992) 3 SCC 259 [LNIND 1992 SC 405] : AIR 1992 SC 1795 [LNIND 1992 SC 405](para 7).
50. Malabar Tile Works vUOI, AIR 1968 Ker. 143 [LNIND 1967 KER 51](146).
51. Sharma v Satish,1954 SCR 1077 (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40].
52. State of Bombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1816) : 1962 (3) SCR 10 [LNIND 1961 SC
259] (11 Judges). See alsoBalasaheb v State of Maharashtra, AIR 2011 SC 304 [LNIND 2010 SC 1187]: (2011) 1 SCC
364 [LNIND 2010 SC 1187].
53. Joseph v Narayanan, AIR 1964 SC 1552 [LNIND 1964 SC 74](1556) : (1964) 7 SCR 137 [LNIND 1964 SC 74];
Popular Bank v Madhava, AIR 1965 SC 654; Illias v Collector, AIR 1970 SC 1065 [LNIND 1968 SC 329](para 14) :
(1969) 2 SCR 613 [LNIND 1968 SC 329] (CB); Poolpandi vSupdt, (1992) 3 SCC 259 [LNIND 1992 SC 405] (para 7) :
AIR 1992 SC 1795 [LNIND 1992 SC 405]; Malabar Tile Works vUOI, AIR 1968 Ker. 143 [LNIND 1967 KER 51](146);
Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57]: (1960) 3 SCR 116 [LNIND 1960 SC 57].
54. See Romesh Chandra Mehta v State of WB, AIR 1970 SC 940 [LNIND 1968 SC 317];Kanhaiyalal v UOI, AIR 2008 SC
1044 [LNIND 2008 SC 39]: (2008) 4 SCC 668 [LNIND 2008 SC 39].
55. Poolpandi v Supt., Central Excise, AIR 1992 SC 1795 [LNIND 1992 SC 405]: (1992) 3 SCC 259 [LNIND 1992 SC 405]
(supra).
56. M.P. Sharma v Satish, (1954) SCR 1077 [LNIND 1954 SC 40] (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40].
57. U.S. v White, (1944) 322 US 694.
58. Rajangam v State of Madras, AIR 1959 Mad. 294 [LNIND 1958 MAD 75]; Subedar v State, AIR 1957 All 396 [LNIND
1957 ALL 51](398).
59. Emp v Misri, (1909) 31 All 592 (FB); R.v Christian, AIR 1947 Pat. 152 (155); Durlav vR, (1932) 59 Cal 1040; Chinna, in
re AIR 1940 Mad. 136 [LNIND 1939 MAD 264]. It is to be noted that in Ramakrishna v State of Bombay, AIR 1955 SC
104 [LNIND 1954 SC 142]: (1955) 1 SCR 903 [LNIND 1954 SC 142], the Supreme Court stated that section 27 was an
Page 257 of 296
exception to sections 25 and 26. It is not clear whether the ommission to mention section 24 was due to oversight or
intentional.
60. Amin v State, AIR 1958 All 293 [LNIND 1957 ALL 184](303); seePershadi v State of M.P., AIR 1957 SC 211.
61. Madugula, in re, AIR 1957 AP 611.
62. A Single Judge of the Bombay High Court has expressed similar view in Amrut vState of Bombay, AIR 1960 Bom 488
[LNIND 1960 BOM 33].
64. Amin v State, AIR 1958 All 293 [LNIND 1957 ALL 184](303); seePershadi v State of M.P., AIR 1957 SC 211.
66. Narayanlal v Maneck, AIR 1961 SC 29 [LNIND 1960 SC 186](38) : (1961) 1 SCR 417 [LNIND 1960 SC 186] : (1961) 1
SCJ 353 [LNIND 1960 SC 186].
67. Dastagir, v.State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57](761) : (1960) 3 SCR 116 [LNIND 1960 SC 57].
SCJ 353 [LNIND 1960 SC 186].
69. Amin v State, AIR 1958 All 293 [LNIND 1957 ALL 184](303); see Pershadi v State of M.P., AIR 1957 SC 211.
70. M.P. Sharma v Satish, 1954 SCR 1077 [LNIND 1954 SC 40] (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40].
71. Collector of Customs v Motor & Cycle Co, AIR 1958 Cal 682 [LNIND 1958 CAL 259].
Page 258 of 296
72. Mehta v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317]; Veera v State of Maharashtra, AIR 1976 SC 1167
[LNIND 1976 SC 105]: (1976) 3 SCR 672 [LNIND 1976 SC 105].
73. State ofBombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259]: 1962 (3) SCR 10 [LNIND 1961 SC 259].
74. AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC 438].
75. (1965) 384 US 436 (supra).
76. AIR 1961 SC 1808 [LNIND 1961 SC 259]: [1962] 3 SCR 10 [LNIND 1961 SC 259].
77. Venkatachalam v Anantha Jhothi, 1997 (2) CTC 763 [LNIND 1997 MAD 996] (Mad).
78. Senthamarai v State, (1997) 3 CTC 196 [LNIND 1997 MAD 989] (Mad).
79. Corresponds to section 210 of the Companies Act, 2013.
SCJ 353 [LNIND 1960 SC 186].
84. Joseph v Narayanan, AIR 1964 SC 1552 [LNIND 1964 SC 74](1556) : (1964) 7 SCR 137 [LNIND 1964 SC 74]. See
Balasaheb v State of Maharashtra, AIR 2011 SC 304 [LNIND 2010 SC 1187]: (2011) 1 SCC 364 [LNIND 2010 SC
1187].
Page 259 of 296
85. Dalmia v Delhi Administration, AIR 1962 SC 1821 [LNIND 1962 SC 146](1870) : (1963) 1 SCR 253 [LNIND 1962 SC
146].
86. Balasaheb v State of Maharashtra, AIR 2011 SC 304 [LNIND 2010 SC 1187]: (2011) 1 SCC 364 [LNIND 2010 SC
1187]; see alsoRaja Narayanlal Bansilal v Manek Phiroz Mistry, AIR 1961 SC 29 [LNIND 1960 SC 186]: (1961) 1 SCR
417 [LNIND 1960 SC 186].
87. Veera Ibrahim v State of Maharashtra, AIR 1976 SC 1167 [LNIND 1976 SC 105]: (1976) 2 SCC 302 [LNIND 1976 SC
105].
88. Bhagwandas vUOI, AIR 1961 Mad. 47 [LNIND 1960 MAD 179](53).
89. Suryanarayana v Vijay Commercial Bank, AIR 1958 AP 756.
90. Madhava v Popular Bank Ltd, AIR 1961 Ker. 14 [LNIND 1960 KER 145].
91. Suryanarayana v Vijay Commercial Bank, AIR 1958 AP 756.
92. Veera Ibrahim v State of Maharashtra, AIR 1976 SC 1167 [LNIND 1976 SC 105](paras 9, 11) : (1976) 3 SCR 672
[LNIND 1976 SC 105]; Mehta v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317]: (1969) 2 SCR 461 [LNIND
1968 SC 317]; Poolpandi v Supdt., (1992) 2 SCC 259 (paras 6, 8, 13) : AIR 1992 SC 1795 [LNIND 1992 SC 405].
93. Veera Ibrahim v State of Maharashtra,AIR 1976 SC 1167 [LNIND 1976 SC 105] (paras 9, 11) : (1976) 3 SCR 672
[LNIND 1976 SC 105] ; Mehta v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317] ; Poolpandi v Supdt., (1992) 2
SCC 259 (paras 6, 8, 13) : AIR 1992 SC 1795 [LNIND 1992 SC 405] .
94. Rajangam v State, of Madras,AIR 1959 Mad. 294 [LNIND 1958 MAD 75] (307).
95. Suryanarayana v Vijay Commercial Bank,AIR 1958 AP 756 .
96. M.P. Sharma v Satish,(1954) SCR 1077 (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40] .
97. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] (38) : (1961) 1 SCR 417 : (1961) 1 SCJ 353 [LNIND
1960 SC 186] .
1. Ismat Sara v State of Karnataka,(1982) Cr LJ 1076 (Kant).
2. AIR 1960 Bom 377 [LNIND 1957 BOM 197] .

Page 260 of 296
3. Kalawati v State of H.P., (1953) SCR 546 [LNIND 1953 SC 5] : AIR 1953 SC 131 [LNIND 1953 SC 5] : 1953 Cr LJ 668
: 1953 SCJ 144 [LNIND 1953 SC 5] . See alsoRajendra Manubhai Patel v State of Gujarat, AIR 1992 Guj 10 [LNIND
1991 GUJ 134] .
4. State ofBombay v Kathi Kalu,AIR 1961 SC 1808 [LNIND 1961 SC 259] : 1962 (3) SCR 10 [LNIND 1961 SC 259] ;
Dalmia v Delhi Administration,AIR 1962 SC 1821 [LNIND 1962 SC 146] (1870) : (1963) 1 SCR 253 [LNIND 1962 SC
146] .
6. State of Bombay v Kathi Kalu Oghad,AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND 1961 SC
259] : (1961) 2 Cr LJ 856 .
7. Earl Jowitt, Dictionary of English Law.
8. Halsbury, Laws of England, 4th Edn,Vol IX, p 172, para 297.
9. Poolpandi v Supt., Central Excise,AIR 1992 SC 1795 [LNIND 1992 SC 405] : (1992) 3 SCC 259 [LNIND 1992 SC 405]
; R.K. Dalmia v Delhi Admn., AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1963) 1 SCR 253 [LNIND 1962 SC 146] ;
State of Bombay v Kathi Kalu Oghad,AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND 1961 SC
259] : (1961) 2 Cr LJ 856 .
10. Yusufalli v State of Maharashtra,AIR 1968 SC 147 [LNIND 1967 SC 152] (150) : (1967) 3 SCR 720 [LNIND 1967 SC
172] .
11. Nandini Satpathy v P.L. Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] .
12. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : JT (1994) 2 SC 423 .
13. Ananth Kumar v State of A.P., 1977 Cr LJ 1797 (AP).
14. Yusufalli v State of Maharashtra,AIR 1968 SC 147 [LNIND 1967 SC 152] (150) : (1967) 3 SCR 720 [LNIND 1967 SC
172] .
15. AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
16. Kalawati v State of H.P., (1953) SCR 546 [LNIND 1953 SC 5] : AIR 1953 SC 131 [LNIND 1953 SC 5] : 1953 Cr LJ 668
: 1953 SCJ 144 [LNIND 1953 SC 5] . See alsoRajendra Manubhai Patel v State of Gujarat, AIR 1992 Guj 10 [LNIND
1991 GUJ 134] . See alsoSelvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC
263 [LNIND 2010 SC 438] ; Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259] : [1962] 3 SCR 10 [LNIND
1961 SC 259] : (1961) 2 CrLJ 856 .
17. Collector of Customs v Calcutta Motor Cycles Co, AIR 1958 Cal 682 [LNIND 1958 CAL 259] .
18. Yusufalli v State of Maharashtra, AIR 1968 SC 147 [LNIND 1967 SC 152] (150) : (1967) 3 SCR 720 [LNIND 1967 SC
172] ; Malkani v State of Maharashtra, AIR 1973 SC 157 [LNIND 1972 SC 457] : (1973) 2 SCR 417 [LNIND 1972 SC
457] : (1973) 1 SCC 471 [LNIND 1972 SC 457] (para 30).
Page 261 of 296
19. Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57] (761) : (1960) 3 SCR 116 [LNIND 1960 SC 57] .
20. Tukaram G. Gaokar v R.N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68] (1053) : (1968) 3 SCR 422 [LNIND 1968
SC 68] .
21. Jethamal Pithaji v Asst. Collector of Customs, AIR 1974 SC 699 [LNIND 1973 SC 269] : (1974) 3 SCC 393 [LNIND
1973 SC 269] .
22. State of Maharashtra v Fundan Lalchanmal, AIR 1960 Bom 377 [LNIND 1957 BOM 197] .
23. Tukaram G. Gaokar v R.N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68] : (1968) 3 SCR 422 [LNIND 1968 SC 68] .
24. Ayyub v State of U.P., AIR 2002 SC 1192 [LNIND 2002 SC 156] : (2002) 3 SCC 510 [LNIND 2002 SC 156] .
25. Kuttan vRamakrishnan, AIR 1980 SC 185 [LNIND 1979 SC 377] : (1980) 1 SCR 673 [LNIND 1979 SC 377] : (1980) 1
SCC 264 [LNIND 1979 SC 377] (DB).
26. Nandini Satpathy v P. L. Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] .
27. Shyam Sundar Chowkhani v Kajal KantiBiswas, AIR 1999 Gau 101 (supra).
28. X v Y, AIR 2002 Del 217 [LNIND 2001 DEL 1771] .
29. Delhi J.S.A. v State of Gujarat,AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 3 SCR 936 [LNIND 1991 SC 446] :
(1991) 4 SCC 406 [LNIND 1991 SC 446] (para 13) (3 Judge Bench).
30. AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] (supra).
31. Dastagir v State of Madras,AIR 1960 SC 756 [LNIND 1960 SC 57] : (1960) 3 SCR 116 [LNIND 1960 SC 57] .
32. M.P. Sharma v Satish,(1954) SCR 1077 [LNIND 1954 SC 40] (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40] .
Page 262 of 296
34. Dushyant Somal v Sushma Somal, AIR 1981 SC 1026 : (1981) 2 SCC 277 .
35. See Nayini Narasimha Reddy v Dr. K. Laxman, (2006) 5 SCC 239 [LNIND 2006 SC 369] : AIR 2006 SC 2050 [LNIND
2006 SC 369] . See alsoE. Suresh Babu v Food Corp of India, AIR 2007 Ker. 281 [LNIND 2007 KER 457] .
36. Kehar Singh v State (Delhi Administration), (1988) 3 SCC 609 [LNIND 1988 SC 887] : AIR 1988 SC 1883 [LNIND 1988
SC 887] .
37. Yusufali Esmail Nagare v State of Maharashtra,AIR 1968 SC 147 [LNIND 1967 SC 152] : (1967) 3 SCR 720 [LNIND
1967 SC 172] .
38. R.M. Malkani v State of Maharashtra,AIR 1973 SC 157 [LNIND 1972 SC 457] : (1973) 1 SCC 471 [LNIND 1972 SC
457] .
39. Rajangam v State of Madras,AIR l959 Mad. 294 (307).
40. Ramanlal v Guha,AIR 1973 SC 1198 (paras 24–25) (CB).
41. State ofBombay v Kathi Kalu,AIR 1961 SC 1808 [LNIND 1961 SC 259] : 1962 (3) SCR 10 [LNIND 1961 SC 259] .
42. M.P. Sharma v Satish,(1954) SCR 1077 [LNIND 1954 SC 40] (1088) : AIR 1954 SC 300 [LNIND 1954 SC 40] .
43. Swati v State of Rajathan, (1991) Cr LJ 939 (Raj). See alsoKartar Singh v State of Punjab, (1994) 3 SCC 569 .
44. State ofBombay v Kathi Kalu,AIR 1961 SC 1808 [LNIND 1961 SC 259] : 1962 (3) SCR 10 [LNIND 1961 SC 259] .
45. A Single Judge of the Bombay High Court has expressed similar view in Amrut vState of Bombay,AIR 1960 Bom 488
[LNIND 1960 BOM 33] .
47. Followed in Ritesh Sinha v State of UP,AIR 2013 SC 1132 [LNIND 2012 SC 1337] : (2013) 2 SCC 357 [LNIND 2012
SC 1337] : (2013) Cr LJ 1301 .
48. See State of U.P. v Boota Singh, AIR 1978 SC 1770 [LNIND 1978 SC 203] : (1979) 1 SCC 31 [LNIND 1978 SC 203] ;
State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] .
49. Suryanarayana v Vijay Commercial Bank,AIR 1958 AP 756 . See alsoState of Bom v Kathi Kalu Oghad, AIR 1961 SC
50. In re, Palani Goundan, AIR 1957 Mad. 546 [LNIND 1956 MAD 59] .
51. Pakhar Singh v State of Punjab, AIR 1958 Pun 204 .
52. Ritesh Sinha v State of UP,AIR 2013 SC 1132 [LNIND 2012 SC 1337] : (2013) 2 SCC 357 [LNIND 2012 SC 1337] :
(2013) Cr LJ 1301 . See alsoSelvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC
263 [LNIND 2010 SC 438] .
53. Gautam Kundu v State of W.B., AIR 1993 SC 2295 [LNIND 1993 SC 469] : (1993) 3 SCC 418 [LNIND 1993 SC 469] .
See alsoAmrit Singh v State of Punjab, (2006) 12 SCC 79 [LNIND 2006 SC 944] .
Page 263 of 296
54. R. v Rhodes, (1899)1 QB 77 ; R. v Jackson,(1953) 1 All RR 872.
55. Kashiram v State of M.P., AIR 2001 SC 2902 [LNIND 2001 SC 2369] : (2002) 1 SCC 71 [LNIND 2001 SC 2369] .
56. Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
57. (1935) AC 462 : (1935) All ER (Rep) 1 (HL).
58. See alsoChandrikaben Navnital Dave v State of Gujarat, (1988) Crimes 110 (Guj); M.P. Abdul Nazar v S.V. Dileep
Kumar, 2004 Cr LJ 4707 (Ker); R.B. Chowdhari v State of MP, AIR 1968 SC 110 [LNIND 1967 SC 149] : (1967) 2 SCR
708 ; Kashisram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] : (2002) 1 SCC 71 [LNIND 2001 SC 2369] .
59. Williams, The Proof of Guilt, 1955, p 47.
60. Tara Singh v State, (1951) SCR 729 [LNIND 1951 SC 44] : AIR 1951 SC 441 [LNIND 1951 SC 44] .
61. Banwarilal v State, AIR 1956 All 341 [LNIND 1955 ALL 247] .
62. Vijendrajit v State of Bombay, AIR 1953 SC 247 : 1953 Cr LJ 1097 : 1953 SCJ 328 . See alsoDevandra Kumar Singla
v Baldev Krishan Singla, AIR 2004 SC 3084 [LNIND 2004 SC 228] : (2005) 9 SCC 15 [LNIND 2004 SC 228] , wherein
it was held that apart being the statement is not evidence, it is only the stand of the accused or versions by way of
explanation when incriminating materials appearing against him are brought to his notice.
63. Hate Singh v State of M.P., AIR 1953 SC 468 : 1953 Cr LJ 1933.
64. Vijendrajit v State of Bombay, AIR 1953 SC 247 : 1953 Cr LJ 1097 : 1953 SCJ 328.
65. Hanumant v State of M.P., (1952) SCR 1091 [LNIND 1952 SC 48] (1111) : AIR 1952 SC 343 [LNIND 1952 SC 143];
Karnail Singh vState of Punjab, (1954) SCR 904 [LNIND 1953 SC 126].
Page 264 of 296
66. Cf.Rajangam v State of Madras, AIR 1959 Mad. 294 [LNIND 1958 MAD 75] (308); Banwarilal vState, AIR 1956 All 385
[LNIND 1955 ALL 261] .
67. State v Lakhanamal, (1958) 60 Bom LR 403 (406).
68. Vijendrajit v State of Bombay, AIR 1953 SC 247 : 1953 Cr LJ 1097 : 1953 SCJ 328 .
69. Rohtash Kumar v State of Haryana, (2013) 14 SCC 434 [LNIND 2013 SC 553] : (2013) Cr LJ 3183 ; Sunil Clifford
Daniel v State of Punjab, (2012) 11 SCC 205 [LNIND 2012 SC 551] ; State of Maharashtra v Suresh, (2000) 1 SCC 471
[LNIND 1999 SC 1126] ; see alsoKhairuddin v State of WB, AIR 2013 SC 2354 [LNIND 2013 SC 506] : (2013) 5 SCC
753 [LNIND 2013 SC 506] .
70. Ranjit v State, AIR 1952 HP 81 ; Ramakrishna, in re, AIR 1955 Mad. 101 .
71. Vijendrajit v State of Bombay, AIR 1953 SC 247 : 1953 Cr LJ 1097 : 1953 SCJ 328 .
72. Ganesh Lal v State of Rajasthan, (2002) 1 SCC 731 [LNIND 2001 SC 2452] : 2001 (Supp-4) SCR 619.
73. Raj Kumar Singh v State of Rajasthan, (2013) 5 SCC 722 [LNIND 2013 SC 496] : (2013) Cr LJ 3276 .
74. State of MP v Ramesh, (2011) 4 SCC 786 [LNIND 2011 SC 312] : (2011) Cr LJ 2297 ; see alsoRafiq Ahmed v State of
UP, (2011) 8 SCC 300 [LNIND 2011 SC 726] .
75. Adumson v California,(1947) 332 US 46. The 5th Amendment has been held applicable to the States, in Malley v
Hogan,(1964) 378 US 1.
76. Adamson v California,(1947) 332 US 46. The 5th Amendment has been held applicable to the States, in Malley v
Hogan,(1964) 378 US 1.
77. Bruno v U.S., (1939) 303 US 287; Grunewald v U.S., (1957) 353 US 391.
Page 265 of 296
78. (1965) 380 US 609.
79. (1981) 450 US 288.
80. Estelle v Smith,(1981) 451 US 454.
81. Mitchell v US,(1999) 526 US 314.
82. Williams, The Proof of Guilt, 1955, p 57.
83. (1935) AC 462 : (1935) All ER (Rep) 1 (HL).
84. Adamson v California,(1947) 332 US 46.
85. P.N. Krishna Lal v Govt. of Kerala, 1995 (Supp-2) SCC 187.
86. Aloke Nath Dutta v State of W.B., (2007) 12 SCC 230 [LNIND 2006 SC 1131].
87. Selvi v State of Karnataka, (2010) 7 SCC 263 [LNIND 2010 SC 438] : AIR 2010 SC 1974 [LNINDORD 2010 SC 207].
88. State (Delhi Administration) v Pali Ram, AIR 1979 SC 14 [LNIND 1978 SC 265]: (1979) 2 SCC 158 [LNIND 1978 SC
265]; State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259]: (1962) 3 SCR 10 [LNIND 1961
SC 259].
89. State of U.P.v Ram Babu Misra, AIR 1980 SC 791 [LNIND 1980 SC 79]: (1980) 2 SCC 343 [LNIND 1980 SC 79];
State of Haryana v Jagbir Singh, (2003) 11 SCC 261 [LNIND 2003 SC 846].
90. It is to be noted that even in the special law embodied in the Prevention of Corruption Act, 1947, a similar prohibition
against comment upon silence is embodied in section 7, Proviso (b).
Page 266 of 296
91. Adamson v California,(1947) 332 US 46.
92. State v Mustaq Ahmed, (1988) 1 Crimes 322 [LNIND 1987 JNK 16] (J&K).
93. Alok Nath Dutta v State of WB, (2007) 12 SCC 230 [LNIND 2006 SC 1131]; Krishna Janardhana Bhutt v Dattatraya G.
Hegde, AIR 2008 SC 1325 [LNIND 2008 SC 55]: (2008) 4 SCC 54 [LNIND 2008 SC 55].
94. Joseph Minattur, Indian Legal System, Article “Crminal Procedure” by S.D. Balsara and revised by Dr. K.N.
Chandrasekharan Pillai, 2006, pp 247–48.
95. Earabhadrappa v State of Karnataka, (1983) 2 SCC 330 [LNIND 1983 SC 83]; Gulab Chand v State of M.P., (1995) 3
SCC 574 [LNIND 1995 SC 440]; Ganesh Lal v State of Rajasthan, (2002) 1 SCC 731 [LNIND 2001 SC 2452].
1. Nagesh v State of Karnataka, AIR 2012 SC 1965 [LNIND 2012 SC 332]: (2012) 6 SCC 477 [LNIND 2012 SC 332].
2. Akkamahadevi v State of Karnataka, (2011) 14 SCC 654 : (2011) 6 Scale530.
3. Neel Kumar v State of Haryana, (2012) 5 SCC 766 [LNIND 2012 SC 298].
4. Sunil Clifford Daniel v State of Punjab, (2012) 11 SCC 205 [LNIND 2012 SC 551] : (2012) Cr LJ 4657; see alsoMunish
Mubar v State of Haryana, (2012) 10 SCC 464 [LNIND 2012 SC 610] : AIR 2013 SC 912 [LNIND 2012 SC 610];
Tulsiram Sahadu Suryawanshi v State of Maharashtra, (2012) 10 SCC 373 [LNIND 2012 SC 588] : (2012) 8 Scale684;
Pudhu Raja v State, (2012) 11 SCC 196 [LNIND 2012 SC 567] : (2012) 9 Scale177.
5. See alsoState of Punjab v Karnail Singh, (2003) 11 SCC 271 [LNIND 2003 SC 669].
6. Tukaram G. Gaokar v R. N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68]: (1968) 3 SCR 422 [LNIND 1968 SC 68].
7. M.P. Sharma v Satish,(1954) SCR 1077 [LNIND 1954 SC 40] (1087–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] .
8. M.P. Sharma v Satish,(1954) SCR 1077 [LNIND 1954 SC 40] (1087–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] . See
alsoKartar Singh v State of Punjab, (1994) 3 SCC 569 .
Page 267 of 296
9. State of Gujarat vShyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352]: (1965) 2 SCR 457 [LNIND
1964 SC 428].
10. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : JT (1994) 2 SC 423 – per Ramaswamy J.
11. State of Gujarat vShyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352] : (1965) 2 SCR 457 [LNIND
1964 SC 428] .
12. V.S. Kuttan Pillai v Ramakrishnan, AIR 1980 SC 185 [LNIND 1979 SC 377] : (1980) 1 SCC 264 [LNIND 1979 SC 377]
.
14. M.P. Sharma v Satish,(1954) SCR 1077 [LNIND 1954 SC 40] (1087–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] . See
15. Nandini Satpathy v P.L. Dani, AIR 1978 SC 1025 : (1978) 2 SCC 425 .
16. AIR 1961 SC 1808 [LNIND 1961 SC 259] : (1962) 3 SCR 10 [LNIND 1961 SC 259] : (1961) 2 CrLJ 856 (supra).
17. Relied on in Selvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND
2010 SC 438] .
18. M.P. Sharma v Satish, (1954) SCR 1077 [LNIND 1954 SC 40] (1087–88) : AIR 1954 SC 300 [LNIND 1954 SC 40] . See
19. State of Bombay v KathiKalu, AIR 1961 SC 1808 [LNIND 1961 SC 259] (1817) : 1962 (3) SCR 10 [LNIND 1961 SC
259] .
20. Cf. State of Gujarat vShyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352]: (1965) 2 SCR 457 [LNIND
1964 SC 428] (para 29).
21. (1603) 5 Coke’s Rep. 91a : 71 ER 194 (KB).
22. Entick v Carrington,(1765) 19 St Tr 1030.
23. See alsoDavis v Lisle, (1936) 2 KB 434 .
24. R v IRC exp. Rossminster Ltd, (1980) AC 952 .

Page 268 of 296
25. Wilkes v Wood,(1763) 19 St Tr 1153; Leach v Money,(1765) 19 St Tr 1002.
26. Entick v Carrington (supra).
27. Elias v Pasmore, (1934) 2 KB 164 .
28. (1970) 1 QB 693 .
29. (1970) 1 QB 693 (supra).
30. For e.g., see Garfuntal v Metropolitan Police Commissioner,(1972) CrimesLR 44.
31. Jones v Owen, (1870) 34 JP 759 ; Kuruma v R., (1965) 1 All ER 236 (PC).
32. Cf. Henry v U.S., (1959) 361 US 98 (101).
33. Entick v Carrington,(1765) 19 St Tr 1030.
34. Griswold v State of Connecticut, 381 US 479 : (1965) 14 L Edn2nd 510
35. (1886) 115 US 616.
36. (1961) 367 US 643.
37. (1965) 381 US 479 (supra).
38. Warden v Heydon, (1967) 387 US 294; Katz v United States, 389 US 347 : (1967) 19 L Edn2nd 576.
Page 269 of 296
39. SeeT.M. Cooley,A Treatise on the Constitutional Limitation, 2005, Indian Reprint, Chap. 10, pp 305–06.
40. Go-Bart Importing Co v U.S., (1931) 282 US 344 (357).
41. See Chimel v California,(1968) 395 US 752.
42. Amos v U.S., (1921) 255 US 313.
43. Weeks v U.S., (1914) 232 US 383.
44. Wolf v Colorado,(1949) 348 US 25.
45. Mapp v Ohio,(1961) 367 US 643.
46. McDonald v U.S., (1948) 353 US 451 (455).
47. Johnson v U.S., (1947) 333 US 15.
48. Brinegar v U.S., (1948) 338 US 160.
49. Carroll v U.S., (1925) 267 US 132. See for exception Harris v US, (1968) 390 US 234; California v Ciraolo, (1985) 476
US 207; Florida v Riley,(1989) 488 US 445; Robbins v California,(1981) 453 US 420; US v Ross,(1982) 456 US 795;
New Jersey v TLO,(1985) 469 US 325.
50. Nathanson v U.S., (1933) 290 US 41.
51. Jones v U.S., (1960) 362 US 257.
52. Harris v U.S., (1947) 331 US 145.

Page 270 of 296
53. Frank v Maryland,(1958) 359 US 360 (373).
54. Boyd v U.S., (1886) 116 US 616 : 29 L Ed 746.
55. Giordenello v U.S., (1957) 357 US 480; Weeks v U.S., (1914) 232 US 383.
56. (1914) 232 US 383 (supra).
57. (1961) 367 US 643.
58. SeeUS v Leon,(1984) 486 US 897; Massachusetts v Sheppard,(1984) 468 US 981; Arizona v Evans,(1995) 514 US 1.
59. Harris v US,(1968) 390 US 234.
60. California v Ciraolo,(1985) 476 US 207. See alsoFlorida v Reiley,(1989) 488 US 445.
61. Jones v U.S., (1957) 357 US 493 (497).
62. Agnello v U.S., (1925) 269 US 20.
63. U.S. v Rabinowitz,(1950) 339 US 56, overrulingTrupiano v U.S., (1948) 334 US 699.
64. U.S. v Lefkowitz,(1932) 285 US 452.
65. Henry v U.S., (1959) 361 US 98.
66. Wolf v Colorado,(1949) 338 US 25; Elkins v U.S., (1960) 364 US 206.
Page 271 of 296
67. M.P. Sharma v Satish Chandra, (1954) SCR 1077 [LNIND 1954 SC 40] : AIR 1954 SC 300 [LNIND 1954 SC 40].
68. V.S. Kuttan Pillai v Ramakrishnan, AIR 1980 SC 185 [LNIND 1979 SC 377]: (1986) 1 SCC 264 [LNIND 1985 SC 362];
Kochappi Chellappan, 1985 Cr LJ 1517 (Ker).
69. See AIR 1991 Journal Section, p 113
70. SeeFrancis Coralie Mullin v Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27]: (1981) 1 SCC 608
[LNIND 1981 SC 27]; Bandhua Mukti Morcha v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564]: (1984) 3 SCC 161
[LNIND 1983 SC 564].
71. See AIR 1991 Journal Section, p 113.
72. Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC 438].
73. Ramlila Maidan Incidents, In re., (2012) 5 SCC 1 : (2012) CrLJ 3516.
74. Ram Jethmalani v UOI, (2011) 8 SCC 1 [LNIND 2011 SC 568] : (2011) 6 Scale691.
75. Kharak Singh v State of U.P., (1964) 1 SCR 332 [LNIND 1962 SC 436].
76. Govind v State of M.P., (1975) 2 SCC 148 [LNIND 1975 SC 124].
77. R. Rajagopal v State of T.N., (1994) 6 SCC 632 [LNIND 1994 SC 958]
78. Peoples’ Union for Civil Liberties vUOI, (1997) 1 SCC 301; X v Hospital Z, (1998) 8 SCC 296 [LNIND 1998 SC 1239];
Peoples’ Union for Civil Liberties vUOI, (2003) 4 SCC 399 [LNIND 2003 SC 342]; and Sharda v Dharmpal, (2003) 4
SCC 493 [LNIND 2003 SC 366].
79. District Registrar and Collector v Canara Bank, AIR 2005 SC 186 [LNIND 2004 SC 1478]: (2005) 1 SCC 496 [LNIND
2004 SC 1478].
Page 272 of 296
80. The decision was followed and relied on in UOI v W.N. Chadha, 1993 (Supp-4) SCC 260; Directorate of Enforcement v
Deepak Mahajan, (1994) 3 SCC 440.
81. Rajmal Heeralal Jain v Mammal, (1989) Cr LJ 1279 (MP); Bimal Kanti v M. Chandrasekhar, (1986) Cr LJ 689 (Ori).
82. State of Gujarat v Shyamlal Mohanlal, AIR 1965 SC 1251 [LNIND 1964 SC 352]: 1965 Cr LJ 256.
83. Lakhan Lal Baronia v State of UP, (1991) Cr LJ 2546 (All).
84. State of Gujarat v Shyamlal Manoharlal,(supra); see alsoM. Kalanithi Maran, (2004) Cr LJ 1288 (Madras); Shiv Dayal v
Sohan Lal, 1970 Cr LJ 1517 (P&H); K. Hiriyanna Setty v State of Mysore, 1975 Cr LJ 96 (Kant); Ramaswamy Iyer v S.
Subramaniam,1990 MLW (Cal) 484; Anandraj v S.R. Jain, (1990) Mad LW (Crl.) 163.
85. V.G. Nayanar v K.V.S. Nambiar, 1996 Cr LJ 1302 (Ker).
86. M.P. Sharma v Satish Chandra, AIR 1954 SC 300 [LNIND 1954 SC 40](supra).
87. State of Gujarat v Shyamlal Mohanlal Chokshi, AIR 1965 SC 1251 [LNIND 1964 SC 352]; State of Bombay v Kathi
Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259].
88. V.S. Kuttan Pillai v Ramakrishnan, AIR 1980 SC 185 [LNIND 1979 SC 377]: (1980) 2 SCC 264.
89. Ramakrishnan v V.S. Kuttan Pillai, 1979 Cr LJ 177.
90. Shyam M. Sachdev v State, 1991 Cr LJ 305 (Del).
91. Md. Asghar Hussain v Reshma Nazneen, (1996) Cr LJ 3602 (Calcutta); Revanappa v S.N. Ragunath, 1983 Cr LJ 321.
Page 273 of 296
92. V.D. Ray v State of Kerala, AIR 2001 SC 137 [LNIND 2000 SC 1496]: (2000) 8 SCC 590 [LNIND 2000 SC 1496] :
(2000) (Supp-4) SCR 539; see alsoState of Punjab v Balbir Singh, AIR 1994 SC 1872 [LNIND 1994 SC 283]: (1994) 3
SCC 299 [LNIND 1994 SC 283].
93. M.P. Shama v Satish Chandra, (1954) SCR 1077 [LNIND 1954 SC 40] : AIR 1954 SC 300 [LNIND 1954 SC 40]. See
alsoRajmal Heeralal Jain v Mammal, 1989 Cr LJ 689 (Ori).
1. M.P. Sharma v Satish Chandra, (1954) SCR 1077 [LNIND 1954 SC 40] : AIR 1954 SC 300 [LNIND 1954 SC 40] .
2. Swarnalingam, in re, AIR 1955 Mad. 685 [LNIND 1955 MAD 57]; Swarnalingam v Inspector, AIR 1956 Mad. 165
[LNIND 1954 MAD 318].
3. State of Gujarat vShyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352] (paras 37, 40) : (1965) 2 SCR
457 [LNIND 1964 SC 428] .
457 [LNIND 1964 SC 428] ; Kuttan v Ramakrishnan,AIR 1980 SC 185 [LNIND 1979 SC 377] (paras 8, 13, 14).
5. Surya Narayan v M.V. Vijayan,(1995) 3 Crimes 765 (Mad); see alsoK. Hiriyanna v State of Mysore,1975 Cr LJ 96
(Kant).
6. Dhulipalla Veeraiagh Chandar v Kurra Veeriah,1988 Cr LJ 274 (AP).
7. SeeAuthor’s Criminal Procedure Code ,1973.
8. State vPrabhu,AIR1964 Punj 325.
9. Hiriyana v State of Mysore,1975 Cr LJ 96 .
10. Satyakinkar v Nikhil, AIR 1951 Cal 101 [LNIND 1951 CAL 75].
11. M.P. Sharma v Satish Chandra, (1954) SCR 1077 [LNIND 1954 SC 40] : AIR 1954 SC 300 [LNIND 1954 SC 40].
12. See Commentary on the Constitution of India, Vol I, 8th Edn,2007.
13. State of Bombay v Kathi Kalu,AIR 1961 SC 1808 [LNIND 1961 SC 259] (1815) : 1962 (3) SCR 10 [LNIND 1961 SC
259] .
14. State of Gujarat vShyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352] : (1965) 2 SCR 457 [LNIND
1964 SC 428] .
15. Dastagir v State of Madras,AIR 1960 SC 756 [LNIND 1960 SC 57] (761) : (1960) 3 SCR 116 [LNIND 1960 SC 57] .
Page 274 of 296
16. Cf. Narayanlal v Maneck,AIR 1961 SC 29 [LNIND 1960 SC 186] : (1961) 1 SCR 417 [LNIND 1960 SC 186] : (1961) 1
SCJ 353 [LNIND 1960 SC 186] ; Dalmia v Delhi Administration, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1963) 1
SCR 253 [LNIND 1962 SC 146] .
17. Cf.Laxmipat Chorasia v State of Maharashtra, AIR 1968 SC 938 [LNIND 1967 SC 372] : (1968) 2 SCR 624 [LNIND
1967 SC 372] .
18. Parameshwari Devi v State,AIR 1977 SC 403 [LNIND 1976 SC 442] : (1977) 1 SCC 169 [LNIND 1976 SC 442] : 1977
Cr LJ 245 .
457 [LNIND 1964 SC 428] .
20. Kuttan vRamakrishnan,AIR 1980 SC185 [LNIND 1979 SC 377] (paras 8, 13, 14) : (1980) 1 SCR 264 .
21. Yadav Ram v Ashok Dube,(1983) 2 Crimes 630 (All).
22. Pramod Kumar Bhandari v State,1997 Cr LJ 1015 (Del).
23. G. Subhash Chandra Sabu v H. Suresh Kumar,2001 Cr LJ 3258 (Ker).
24. M.P. Sharma v Satish Chandra,AIR 1954 SC 300 [LNIND 1954 SC 40] : (1954) SCR 1071 ; see alsoV.S. Kuttan Pillai
v Ramakrishnan,AIR 1980 SC 185 [LNIND 1979 SC 377] : (1980) 1 SCC 264 [LNIND 1979 SC 377] .
25. Kuttan vRamakrishnan,AIR 1980 SC 185 [LNIND 1979 SC 377] (paras 8, 13, 14).
26. Kuttan vRamakrishnan,AIR 1980 SC 185 [LNIND 1979 SC 377] (paras 8, 13, 14); Rajmal v Manmal,(1989) Cr LJ
1279 (para 12) (MP).
27. Olmstead v U.S., (1928) 277 US 438.
28. (1928) 277 US 438.
29. (1967) 389 US 342.
30. Benanti v U.S., (1957) 355 US 96 (100).See alsoBerger v New York, (1967) 388 US 41.
31. Nardone v U.S., (1937) 302 US 379 : (1939) 308 US 338.
32. Rea v U.S., (1955) 350 US 214.
33. Schwartz v Texas,(1952) 344 US 199; On Lee v U.S., (1952) 343 US 747; Irvine v California,(1954) 347 US 128.
Page 275 of 296
34. Coplon v U.S., (1952) 342 US 926.
35. Silverman v U.S., (1961) 365 US 505.
36. (1967) 388 US 41.
37. Katz v U.S., (1967) 389 US 347 (353).
38. Reliance was placed on Weeks v U.S., (1914) 232 US 383; Hester v U.S., (1924) 265 US 44.
39. Lopez v U.S., (1963) 373 US 427 (466); U.S. v White,(1970) 401 US 745 (756).
40. Smith v Maryland, (1979) 442 US 735.
41. (1972) 407 US 297.
42. Report of the Committee of Privy Councillors, 1957 Comnd. 283 : (1958) Public Law, 71-3.
43. Kuruma v R., (1955) 1 All ER 236 (239) (PC).
44. R. v Maqsood,(1966) 1 QB688.
45. Mapp v Ohio, 367 US 643 : (1961) 81 S Ct 1684.
46. SeeUnited States v Leon, 468 US 897 : (1984) 104 S Ct 3405.See alsoArizona v Evans,(1995) 514 US 1;
Massachusetts v Sheppard,(1984) 468 US 981.
47. Arizona v Evans,(1995) 514 US 1.

Page 276 of 296
48. Stone v Powell, 428 US 465 : (1976) 96 S Ct 3037.
49. California v Greenwood, 486 US 35 : (1988) 108 S Ct 1625.
50. See Janda, Berry and Goldman, The Challenge of Democracy- Government in America, Chap. XVII, “Order and Civil
Liabilities”, 2nd Edn1989, at p 648.
51. Pooran Mal v The Director of Inspection (Investigation) New Delhi, (1974) 1 SCC 345 [LNIND 1973 SC 400] : AIR 1974
SC 348 [LNIND 1973 SC 400]; Kuldip Singh v State of Punjab, (1996) 10 SCC 659 [LNIND 1996 SC 1467]. See
alsoBarindra Kumar Ghose v Emperor, ILR 37 Cal. 467 : 71 C 359; Emperor v Allahabad Khan, ILR 35 All 358 : 19 IC
332; Karuma vR, 1955 AC 197. See alsoState (NCT of Delhi) v Novjot Sindhu, (2005) 11 SCC 600 [LNIND 2005 SC
580]; R.M. Malkani v State of Maharashtra, (1973) 1 SCC 471 [LNIND 1972 SC 457]; Raja Ram Pal v Hon’ble Speaker
Lok Sabha, (2007) 3 SCC 184.
52. Herman King vR, (1969) 1 AC 304.
53. SeeUmesh Kumar v State of AP, (2013) 10 SCC 591 [LNIND 2013 SC 793] : (2013) 8 Scale28 : AIR 2013 SC 1106
[LNIND 2012 SC 608].
54. SeeYusuffali Esmail Nagree v State of Maharashtra, AIR 1968 SC 147 [LNIND 1967 SC 152]: 1968 Cr LJ 103; Magraj
Patodia v R.K. Birla, (1970) 2 SCC 888 [LNIND 1970 SC 359]; R.M. Malkani v State of Maharashtra, AIR 1973 SC 157
[LNIND 1972 SC 457]: (1973) 1 SCC 345.
55. Holt v U.S., (1909) 218 US 245.
56. Rochin v California,(1952) 342 US 165 (179).
57. Holt v U.S., (1909) 218 US 245.
58. Mc Farland v U.S., (1946) 90 LEd 478.

Page 277 of 296
59. Leeper v Texas,(1890) 35 LEd 225.
60. R. v Castleton,(1909) 3 Cr App R 74.
61. (1993) 16 EHRR 297 .
62. SeeSaunders v UK, (1997) 23 EHRR 318 .
63. M.P. Sharma v Satish, (1954) SCR 1077 [LNIND 1954 SC 40] : AIR 1954 SC 300 [LNIND 1954 SC 40].
64. State of U.P. v Boota Singh, AIR 1978 SC 1770 [LNIND 1978 SC 203]: (1979) 1 SCC 31 [LNIND 1978 SC 203].
65. State of Bombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1813–16) : 1962 (3) SCR 10 [LNIND 1961
SC 259].
67. State of Bombay v Kathi Kalu, AIR 1961 SC1808 [LNIND 1961 SC 259](1813–16); Dastagir v State of Madras, AIR
1960 SC 756 [LNIND 1960 SC 57]: (1960) 3 SCR 116 [LNIND 1960 SC 57].
68. Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57]: (1960) 3 SCR 116 [LNIND 1960 SC 57].
69. Ram Swarup v State, AIR 1908 All 119 (126); Pakhar Singh v State, AIR 1958 Punj 294 (298).
70. Ram Swarup v State, AIR 1908 All 119 (126).
71. Palani, in re, AIR 1955 Mad 495 [LNIND 1955 MAD 1].
72. Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57]: (1960) 3 SCR 116 [LNIND 1960 SC 57].
Page 278 of 296
73. SeeBhondar v Emperor, AIR 1931 Cal 601; Deomam Shanji Patel v State of Maharashtra, AIR 1959 Bom 284 [LNIND
1958 BOM 128].
74. By Emerson G. Spies, “Due Process and American Criminal Law”, 33 Australian Law Journal 223, 231, 1964, and
referred to by Supreme Court in Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7
SCC 263 [LNIND 2010 SC 438] at p 348.
75. Pakhar Singh v State, AIR 1958 Punj 294 (298).
77. Goutham Kundu v State of West Bengal, (1993) 3 SCC 418 [LNIND 1993 SC 469] : AIR 1993 SC 2295 [LNIND 1993
SC 469].
78. See alsoVasu v Santha, 1975 KLT 533; wherein it was held that the test is a constraint on the personal liberty and
cannot be carried out without consent. It was further observed that even Legislature cannot compel a blood test
(approved by Supreme Court in the above case); Hargovind Soni v Ramdulari, AIR 1986 MP 57 [LNIND 1985 MP 65];
Venketachalam v Anantha Jothi, (1997) 2 CTC 763 [LNIND 1997 MAD 996] (Mad).
79. AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC 438] (supra).
80. Holt v U.S., (1909) 218 US 245.
81. Gellhorn, American Rights (1960), pp 109–10; Gilbert v California,(1967) 388 US 263.
82. Wigmore, Evidence, 3rd Edn,Vol 8, pp 374–75.
83. Rajmal v Manmal, (1989) Cr LJ 1279 (para 12) (MP).
84. See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law,13th Edn,pp 470–471.
Page 279 of 296
85. AIR 1961 SC 1808 [LNIND 1961 SC 259]: (1962) 3 SCR 10 [LNIND 1961 SC 259].
86. Supra.
87. SeeSelvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC
438] – paras 162 & 163.
88. State of Bombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1813–16) : 1962 (3) SCR 10 [LNIND 1961
SC 259].
89. The following High Court decisions to the contrary would no longer be good law: Rajamuthukoil v Perisyasami, AIR
1956 Mad. 632 [LNIND 1954 MAD 328]; State v Ramkumar, AIR 1957 MP 73 [LNIND 1957 MP 178]; Bhaluka v State,
AIR 1957 Ori. 172 [LNIND 1957 ORI 2]; Brij Bhusan v State, AIR 1957 MP 106 [LNIND 1957 MP 158]; Balraj v
Ramesh, AIR 1960 All 157 [LNIND 1959 ALL 122](159).
90. See alsoThaniel Victor v State, 1991 Cr LJ 2416 (Mad).
91. State of Haryana v Jagbir Singh, (2003) 11 SCC 261 [LNIND 2003 SC 846]. See alsoState of U.P. v Ram Babu Misra,
(1980) 2 SCC 343 [LNIND 1980 SC 79]; Aher Raja Khima v State of Saurashtra, AIR 1956 SC 217 [LNIND 1955 SC
117]; Sukhvinder Singh v State of Punjab, (1994) 5 SCC 152 [LNIND 1994 SC 517].
92. State of Bombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1813–6) : 1962 (3) SCR 10 [LNIND 1961 SC
259]. See alsoState (NCT of Delhi) v Navjot Singhu, (2005) 11 SCC 600 [LNIND 2005 SC 580].
93. The Calcutta view in Farid Ahmed v State, AIR 1960 Cal 32 [LNIND 1959 CAL 109](34) is not tenable in view of the
Kathi Kalu decision, and the Author’s observations discussed in Article 20(3) in Vol 2 (8th Edn,2007) of Commentary
are thus affirmed by the Supreme Court.
94. AIR 1961 SC 1808 [LNIND 1961 SC 259] (para 16(5)) (supra).
1. Holt v U.S., (1909) 218 US 245.

Page 280 of 296
2. Cf. Ram Swarup v State, AIR 1958 All 119 [LNIND 1957 ALL 204](126).
3. Iqbal v Ketki, 1976 Cr LJ 244 (paras3–4) (All).
4. Peoples’ Union for Civil Liberties vUOI, AIR 2004 SC 456 [LNIND 2003 SC 1103]: (2004) 9 SCC 580 [LNIND 2003 SC
1103].
7. Lopez v U.S., (1963) 373 US 427 (466); U.S. v White,(1970) 401 US 745 (756).
9. Breithaupt v Abram,(1957) 352 US 432.
10. Followed in Schmerber v California,(1966) 384 US 757; U.S. v Wade, (1967) 388 US 218 [compelled to exhibit his
body and to wear adhesive tapes on the face, for an identification parade]. See alsoSouth Dakota v Neville, 459 US
553 : (1983) 103 S Ct 916.
11. Pennsylvania v Haniz, 496 US 582 : (1990) 110 S Ct 2688.

Page 281 of 296
15. Cf.A.G. v Begin, (1955) SCR 593 (Can).
16. Ref. re Vehicles Act, (1958) SCR 608(Can).
17. Cf.Emp v Bhondar,(1930) 35 Cal WN 1212.
18. Yusuf Ali v State of Maharashtra, AIR 1968 SC 147 [LNIND 1967 SC 152]: (1967) 3 SCR 720 [LNIND 1967 SC 172].
19. Magraj Patodia v R.K. Birla, AIR 1971 SC 1295 [LNIND 1970 SC 359]: (1971) 2 SCR 118 [LNIND 1970 SC 359].
20. R.M. Malkani v State of Maharashtra, AIR 1973 SC 157 [LNIND 1972 SC 457]: (1973) 1 SCC 471 [LNIND 1972 SC
457].
21. See alsoPooran Mal v The Director of Inspection (Investigation) New Delhi, (1974) 1 SCC 345 [LNIND 1973 SC 400] :
AIR 1974 SC 348 [LNIND 1973 SC 400](supra); Kuldip Singh v State of Punjab, (1996) 10 SCC 659 [LNIND 1996 SC
1467] (supra).
22. Mapp v Ohio, (1961) 367 US 643 : 6 L Edn, 2nd 1081.
23. See H.M. Seervai, Constitutional Law of India, 4th Edn,pp 1075–76.
25. For interpretation, see Author’s New Code of Criminal Procedure.
26. Neeraj Sharma v State of U.P., 1993 Cr LJ 2266.
27. Thogorani v State of Orissa, 2004 Cr LJ 4003 (Ori).
28. Benanti v U.S., (1957) 355 US 96 (100).

Page 282 of 296
29. Jamshed v State of U.P., (1976) Cr LJ 1680 (para 12); Swati v State of Rajasthan, (1991) Cr LJ 939 (paras 7, 16)
(Raj).
438] (para 166 of SCC).
31. Swati v State of Rajasthan, (1991) Cr LJ 939 (paras 7, 16) (Raj).
32. Payne v Arkansas,(1957) 356 US 560 (566); Blackburn v Alabama,(1959) 361 US 199; Brown v Mississippi,(1936) 297
US 278.
33. Brown v Mississippi,(1936) 297 US 278.
34. Upshaw v U.S., (1949) 335 US 410; Lynum v Illinois,(1963) 372 US 528; Haynes v Washington,(1963) 373 US 503.
35. McNabb v U.S., (1943) 318 US 332; Turner v Pennsylvania,(1949) 338 US 62.
36. Mathis v U.S., (1968) 391 US 1; Orozco v Texas,(1969) 394 US 324.
37. Leyra v Denno,(1954) 347 US 556.
38. Ashcraftv Tennessee,(1944) 322 US 143.
39. Watts v Indiana,(1949) 338 US 49.
40. Stein vN.Y., (1953) 346 US 156.
41. Haley v Ohio, (1948) 332 US 596; Spano v N.Y., (1958) 360 US 315.
Page 283 of 296
42. Crooker v California,(1957) 357 US 433 (438).
43. Mallory v U.S., (1957) 354 US 449 (453).
44. Brown v Allen,(1953) 344 US 443; Stein vN.Y., (1953) 346 US 156.
45. Gallegos v State of Nebraska,(1951) 342 US 55.
46. McNabb v U.S., (1943) 318 US 332; Upshaw v U.S., (1948) 335 US 410.
47. Supra.
48. (1940) 309 US 227.
49. Supra.
50. Supra.
51. Spano v NY,(1959) 360 US 315.
52. Rodgers v Richmond,(1961) 365 US 534.
53. Lymum v Illinois,(1963) 382 US 528.
54. Townsend v Sain,(1963) 372 US 293 etc.
55. Brady v U.S., 397 US 742 : (1970) 90 S Ct 1463.
56. Santebello v New York, 404 US 257 : (1971) 92 S Ct 495.

Page 284 of 296
57. Escobedo v State of Illinois, 378 US 478.
58. (1966) 384 US 436.
59. Miranda v Arizona, (1966) 384 US 436.
60. Dickerson v U.S., (2000) 530 US 428.
61. Sparf vU.S., (1895) 156 US 51 (55).
62. Crooker v California,(1957) 357 US 433 (438).
63. Mellory v U.S., (1957) 354 US 449.
64. Ash Craft v Tennesse, (1944) 322 US 143.
65. Watts v Indiana, 838 US 49.
66. Spano v New Yark, (1959) 360 US 315.
67. Haymes v Washingtan, (1963) 373 US 503; Lynumn v Illinois, (1963) 372 US 528.
68. Thomas v Arizona,(1957) 356 US 390 (393).
69. Haley v Ohio, (1948) 332 US 596; Spano v N.Y., (1958) 360 US 315. See alsoNew York v Quarles, (1984) 467 US
649.
70. (1971) 401 US 222.
71. (1975) 420 US 714.
72. (1984) 467 US 431.
73. (1984) 467 US 649.

Page 285 of 296
74. (1989) 492 US 195.
75. Payne v Arkansas,(1957) 356 US 560 (566).
76. Malloy v Hogan,(1964) 378 US 1; Griffin v California,(1965) 380 US 609.
77. Felton’s case, (1628) Howell’s St Tr, Vol 3, p 367.
78. Mac Dermott, Protection from Power, 1957, p 22; Felton’s case, (1628) Howell’s St. Tr., Vol 3, p 367; lbrahim v. R.,
(1914) AC 599 (609).
79. Sarwan Singh v State of Punjab, AIR 1957 SC 637 [LNIND 1957 SC 39](643); Ram v State ofPunjab, AIR 1957 SC 1
[LNIND 1956 SC 77]. See alsoBabu Singh v State of Punjab, (1963) 3 SCR 749 [LNIND 1962 SC 279]; Bheru Singh v
State of Rajasthan, (1994) 2 SCC 467 [LNIND 1994 SC 153] : 1994 (1) JT 501 (SC).
80. State of Assam v Rabindra Nath Guha, 1982 Cr LJ 216 (Gau).See alsoBabu Singh v State of Punjab, (1963) 3 SCR
749 [LNIND 1962 SC 279]; Bheru Singh v State of Rajasthan, (1994) 2 SCC 467 [LNIND 1994 SC 153] (1994) 1 JT
501; Govinda Pradhan v State, 1991 Cr LJ 269 (Ori); Aher Raja Khanna v State of Saurashtra, AIR 1956 SC 217
[LNIND 1955 SC 117]: 1956 Cr LJ 421.
81. Henry Westmuller v State of Assam, AIR 1985 SC 823 [LNIND 1985 SC 105]: (1985) 3 SCC 291 [LNIND 1985 SC
105] : 1985 Cr LJ 1079.
82. Kehar Singh v State (Delhi Admn.), AIR 1988 SC 1883 [LNIND 1988 SC 887]: (1988) 3 SCC 609 [LNIND 1988 SC
887] : 1989 Cr LJ 1; see alsoAyub v State of UP, AIR 2002 SC 1192 [LNIND 2002 SC 156]: (2002) 3 SCC 510 [LNIND
2002 SC 156].
83. Mahabir Singh v State of Haryana, AIR 2001 SC 2503 [LNIND 2001 SC 1485]: (2001) 7 SCC 148 [LNIND 2001 SC
1485] : 2001 Cr LJ 3945.
84. Hemant Kumar v State of UP, (1991) 2 Crimes 382.

Page 286 of 296
LJ 668 : 1953 SCJ 144 [LNIND 1953 SC 5] .
86. State of Bombay v Kothi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259]: (1962) 3 SCR 10 [LNIND 1961 SC
259].
88. Pyare Lal v State of Rajasthan, AIR 1963 SC 1094 [LNIND 1962 SC 341](1096) : 1963 (Supp-1) SCR 689.
89. Kartar Singh v State of Punjab, (1994) 3 SCC 569.
1. State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259]; Mohd. Dastagir v State of Madras,
AIR 1960 SC 756 [LNIND 1960 SC 57].
2. State of Rajasthan v Daulat Ram, (2005) 7 SCC 36 [LNIND 2005 SC 634].
438]; State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259]: (1962) 3 SCR 10 [LNIND 1961
SC 259] : 1961 (2) Cr LJ 856.
4. Preetam v State of M.P., AIR 1997 SC 445 [LNINDORD 1996 SC 224]: (1996) 10 SCC 432 [LNINDORD 1996 SC
224].
5. Mahabir Singh v State of Haryana, AIR 2001 SC 2503 [LNIND 2001 SC 1485]: (2001) 7 SCC 148 [LNIND 2001 SC
1485].
6. Dev Das v State, (1996) Cr LJ 1441 (Cal).
7. A.P. Grain and Seed Merchants Associations vUOI, AIR 1971 SC 2346 [LNIND 1970 SC 178]: (1970) 2 SCC 71
[LNIND 1970 SC 178].
Page 287 of 296
8. Krishna v State, AIR 1958 Pat. 167; Jangir Singh, v.State, AIR 1952 Pepsu 19.
9. Thimma v State of Mysore, (1970) 2 SCC 105 [LNIND 1970 SC 184] : AIR 1971 SC 1871 [LNIND 1970 SC 184]:
(1971) 1 SCR 215 [LNIND 1970 SC 184].
10. R. v Thompson,(1836)1 Mood CC 465; Ibrahim v R., (1914) AC 599; R. v Hammond, (1941) 3 All ER 318.
12. Kalawati v State of H.P., (1953) SCR 546 [LNIND 1953 SC 5] (549) : AIR 1953 SC 131 [LNIND 1953 SC 5]: 1953 Cr
LJ 668 : 1953 SCJ 144 [LNIND 1953 SC 5].
13. Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC 438]
(supra).
14. Miranda v Arizona,(1965) 384 US 436 (supra).
15. See alsoSelvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010
SC 438].
16. Kumaraswami v R., (1912) 35 Mad 397 (475); Deonandan v Emp., AIR 1928 Pat. 491; Jalla v Emp., AIR 1931 Lah
278.
17. State v Hussain, AIR 1959 Bom 534 [LNIND 1958 BOM 154]; Santokhi v Emp., AIR 1933 Pat. 149.
18. Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57]: (1960) 3 SCR 116 [LNIND 1960 SC 57];
Narayanlal v Maneck, AIR 1961 SC29 [LNIND 1960 SC 186](38).
19. Cf.M.P. Sharma v Satish, (1954) SCR 1077 [LNIND 1954 SC 40] (1087) : AIR 1954 SC 300 [LNIND 1954 SC 40].
Page 288 of 296
LJ 668 : 1953 SCJ 144 [LNIND 1953 SC 5] .
21. Puran vState of Punjab,AIR 1953 SC 459 : 1953 Cr LJ 1925 .
22. Muthuswami v State of Madras,AIR 1954 SC 4 [LNIND 1964 MAD 332] : 1954 Cr LJ 236 : 1953 SCJ 619 .
23. Bharat v State of U.P., (1971) 3 SCC 950 [LNIND 1998 SC 1112] .
24. M. Nageswara Rao v State of AP,(2011) 2 SCC 188 [LNIND 2011 SC 23] : (2011) 1 Scale99.
25. Cf.State of Orissa v Basanta, AIR 1959 Ori. 33 [LNIND 1958 ORI 55] (37); Dhoon Singh vState, AIR 1957 All 196
[LNIND 1956 ALL 162] (203); Govinda, in re, AIR 1958 Mys 150 . See alsoFettya v State, AIR 1955 Raj. 147 [LNIND
1955 RAJ 246] .
26. State of Bombay v Kathi Kalu,AIR1961 SC 1808 (1815–6; 1820) : 1962 (3) SCR 10 [LNIND 1961 SC 259] . See
alsoPershadi v U.P. State, AIR 1957 SC 211 .See alsoSelvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010
SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
27. State of U.P. v Deoman Upadhyay, AIR 1960 SC 1125 [LNIND 1960 SC 161] : (1961) 1 SCR 14 [LNIND 1960 SC
161] .
29. Pulukuri v K.E., AIR 1947 PC 67 .
30. State of Bombay v Kathi Kalu,AIR1961 SC 1808 (1815–6; 1820) : 1962 (3) SCR 10 [LNIND 1961 SC 259] . See
alsoPershadi v U.P. State, AIR 1957 SC 211 .See alsoSelvi v State of Karnataka,AIR 2010 SC 1974 [LNINDORD 2010
SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
31. The minority view of Jaswant Singh, J. in State v Suram,(1976) Cr LJ 96 (98) (J&K).
32. Maha Singh v State (Delhi Administration),AIR 1976 SC 449 [LNIND 1976 SC 6] : (1976) 3 SCR 119 [LNIND 1976 SC
6] : (1976) 1 SCC 644 [LNIND 1976 SC 6] (paras 37–38); Podda v State of A.P., AIR 1975 SC 1252 [LNIND 1975 SC
147] : 1975 Supp SCR 84 : (1975) 4 SCC 153 [LNIND 1975 SC 147] : 1975 Cr LJ 1062 (para 10).
33. Shakila v Nausher,AIR 1975 SC 1324 (para 4) : (1975) 4 SCC 122 .
34. Raghunandan v State of U.P., AIR 1974 SC 463 [LNIND 1974 SC 6] (para 16) : (1974) 3 SCR 92 [LNIND 1974 SC 6] :
(1974) 4 SCC 186 [LNIND 1974 SC 6] .
35. Pakala Narayanaswami, (1939) 66 IA 66 .
36. State of Bombay v Kathi Kalu,AIR1961 SC 1808 (1815–16; 1820) : 1962 (3) SCR 10 [LNIND 1961 SC 259] .
37. Mathew v State of Kerala,(1974) Cr LJ 1198 (para 4) (Ker—DB).
38. Raghunandan v State of U.P., AIR 1974 SC 463 [LNIND 1974 SC 6] (para 16) : (1974) 3 SCR 92 [LNIND 1974 SC 6] :
(1974) 4 SCC 186 [LNIND 1974 SC 6] ; Pakala Narayanaswami, (1939) 66 IA 66 ; Mathew v State of Kerala,(1974) Cr
LJ 1198 (para 4) (Ker–DB); Gajendra v State of U.P., AIR 1975 SC 1703 (para 10) : (1975) 4 SCC 241 .
Page 289 of 296
39. Ramesh v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317] : (1969) 2 SCR 461 [LNIND 1968 SC 317] : 1970 Cr
LJ 863 ; Badaku v State of Mysore,AIR 1966 SC 1746 [LNIND 1966 SC 68] : (1966) 3 SCR 698 [LNIND 1966 SC 68] :
1966 Cr LJ 1353 ; Rustomji v State of Maharashtra,AIR 1971 SC 1087 [LNIND 1971 SC 174] : 1971 Supp SCR 35 :
(1971) 1 SCC 847 [LNIND 1971 SC 174] ; Hazari vUOI,AIR 1973 SC 62 : (1973) 3 SCC 401 .
40. Illias v Collector,AIR 1970 SC 1065 [LNIND 1968 SC 329] : (1969) 2 SCR 613 [LNIND 1968 SC 329] .
41. Boile v Wiseman,10 Ex 647.
42. Webb v East,5 ExD 108.
43. R. v Boyes,(1861) 1 B&S 311.
44. Geenese re,3 Morell 223 (CA).
45. R. v Boyes, (1861)1 B&S 311.
46. R. v Slaney,(1832) 5 C&B 213.
47. Mason v U.S., (1916) 244 US 362.
48. Cf.Hoffman v U.S., (1951) 341 US 479.
49. Mason v U.S., (1916) 244 US 362; Cf.Hoffman v U.S., (1951) 341 US 479.
50. Counselman v Hitchock,(1892) 142 US 547.
51. Emspak v U.S., (1955) 349 US 190.
52. Blau v U.S., (1950) 340 US 159.

Page 290 of 296
53. Laxmipat Choraria v State of Maharashtra, AIR 1968 SC 938 [LNIND 1967 SC 372]: (1968) 2 SCR 624 [LNIND 1967
SC 372] (para 7); State ofBombay v Kathi Kalu, AIR 1961 SC 1808 [LNIND 1961 SC 259](1816) : 1962 (3) SCR 10
[LNIND 1961 SC 259]; Romesh v State of W.B., AIR 1970 SC 940 [LNIND 1968 SC 317]; Illias v Collector, AIR 1970
SC 1065 [LNIND 1968 SC 329]: (1969) 2 SCR 613 [LNIND 1968 SC 329].
54. State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259]: (1962) 3 SCR 10 [LNIND 1961 SC
259] : (1962) 2 Cr LJ 856.
55. See Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC
438].
56. AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607].
57. Cf.Boyd v U.S., (1886) 116 US 616; M.P. Sharma v Satish,(1954) SCR 1077 [LNIND 1954 SC 40] (1082–83) : AIR
1954 SC 300 [LNIND 1954 SC 40] ; Collector of Customs v Calcutta Motor & Cycle Co, AIR 1958 Cal 682 [LNIND
1958 CAL 259] (689); Cf. State v Balwant,(1960) 63 Bom LR 88 (93).
58. Cf. State v Balwant,(1960) 63 Bom LR 88 (93); Slochower v Board of Higher Education,(1956) 350 US 551.
59. Cf. State of Gujarat vShyamlal Mohanlal Choksi, AIR 1965 SC 1251 [LNIND 1964 SC 352] : (1965) 2 SCR 457
[LNIND 1964 SC 428] .
60. Cf.Ram Swarup v State,AIR 1958 All 119 [LNIND 1957 ALL 204] (123).
61. Blau v U.S., (1950) 340 US 159.
62. Hoffman v U.S., (1951) 341 US 479.
63. Tukaram G. Gaokar v R.N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68] : (1968) 3 SCR 422 [LNIND 1968 SC 68]
(para 6).
64. Roshanlal v State,(1975) Cr LJ 1877 (para 14).
65. Yusuf Ali v State of Maharashtra,AIR 1968 SC 147 [LNIND 1967 SC 152] : (1967) 3 SCR 720 [LNIND 1967 SC 172] .
66. A.P. Grain and Seed Merchants vUOI,AIR 1971 SC 2346 [LNIND 1970 SC 178] : (1971) 1 SCR 166 [LNIND 1970 SC
178] : (1970) 2 SCC 71 [LNIND 1970 SC 178] .
67. Tukaram G. Gaokar v R.N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68] : (1968) 3 SCR 422 [LNIND 1968 SC 68]
(para 6).
68. M.P. Sharma v Satish, (1954) SCR 1077 [LNIND 1954 SC 40] : AIR 1954 SC 300 [LNIND 1954 SC 40] .
Page 291 of 296
69. Pakhar Singh v State, AIR 1958 Punj 294 (297).
70. Cf. Subedar v State, AIR 1957 All 396 [LNIND 1957 ALL 51] (397).
71. Cf. Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57] (761) : (1960) 3 SCR 116 [LNIND 1960 SC 57] ,
where this position was assumed.
72. R. v Garbett,(1847) 1 Den 236.
73. Twining v New Jersey,(1908) 211 US 78.
74. Chambers v Florida,(1940) 309 US 227.
75. T.M.Cooley, Constitutional Limitations, Vol I, p 371; Palko v Connecticut,(1937) 302 US 319.
76. Pierce v Somerset,(1898) 171 US 641; U.S. v Murdock,(1931) 284 US 367.
77. Rogers v U.S., (1951) 340 US 367; Brown v U.S., (1958) 356 US 148.
78. Emspak v U.S., (1955) 349 US 190.
79. (1966) 384 US 436 (supra).
80. U.S. v Ball,(1896) 163 US 662.
81. Amos v U.S., (1921) 255 US 313; Zap v U.S., (1946) 66 S Ct 1277.
82. Shepard v Barron,(1903) 194 US 553 (568).
83. Shepard v Barron,(1903) 194 US 553 (568); Pierce Oil Co v Phoenix Refining Co, (1921) 259 US 125 (128).
84. Wall v Parrot Silver Co, (1916) 244 US 407 (412).
85. Adams v U.S., (1942) 317US 269; Von Motike v Gilles,(1948) 332 US 708.
86. Levine vU.S., (1950) 340 US 921, denying cert. from 182 F 2d 556.
87. U.S. v Sorrentino,(1949) 338 US 868 (896).
88. Tompsett v State of Ohio,324 US 869.

Page 292 of 296
89. Patton v U.S., (1930) 281 US 276.
90. Adams v US,(1942) 317 US 269; Von Motika v Gilles,(1948) 332 US 708.
91 Adams v US,(1942) 317 US 269; Von Motika v Gilles,(1948) 332 US 708 (supra).
92 See D.D. Basu, Human Rights in Constitutional Law, Revised 3rd Edn(2008), pp 149–150.
93. Dawson’s Bank v Nippon Kaisha, AIR 1935 PC 79 (82).
94. Maritime Electric Co v General Diaries, (1937) AC 610; Swallow v Middlesex C.C., (1953) 1 All ER 581 (582); Edward
v African Woods, (1960)1 All ER 627 (630) (PC); Dhirendra v Sudhir, AIR 1964 SC 1300 [LNIND 1964 SC 58](1304) :
(1964) 6 SCR 1001 [LNIND 1964 SC 58].
1. Kameshwar v State of Bihar, AIR 1962 SC 1166 [LNIND 1962 SC 83](1170) : 1962 (Supp-3) SCR 369 : 1962 (I) LLJ
294 (SC); Ghosh v Joseph, AIR 1963 SC 812 [LNIND 1962 SC 348]: 1963 (Supp-1) SCR 789 : 1962 (II) LLJ 615 (SC);
State of Punjab v Joginder, AIR 1963 SC 913 [LNIND 1962 SC 373]: 1963 (Supp-2) SCR 169 : (1964) 1 SCJ 627; Moti
Ram v GeneralManager, AIR 1964 SC 600 [LNIND 1963 SC 282]: (1964) 5 SCR 683 [LNIND 1963 SC 282] : (1964) 2
LLJ 467 [LNIND 1963 SC 282].
2. Emspak v U.S., (1955) 349 US 190.
3. Arunachellum v Arunachellum,12 Mad 19 (PC).
4. Vilayan v Prov. of Madras,AIR 1947 PC 197 [LNIND 1947 PC 41] (199).
5. Waman v R.B.& Co, AIR 1959 SC 689 [LNIND 1959 SC 19] (694) : 1959 (Supp-2) SCR 217; Equitable L. A. Soc v
Reid,(1914) AC 587 (595).
6. Brown v U.S., (1958) 356 US 148.
7. Palko v Connecticut,(1937) 302 US 319.
8. Behram v State of Bombay, AIR 1955 SC 123 [LNIND 1954 SC 116] : (1955) 1 SCR 613 [LNIND 1954 SC 116] : 1955
Cr LJ 215 : 1955 SCJ 73 [LNIND 1954 SC 116] .
9. Jain Exports Pvt Ltd v UOI,AIR 1991 SC 1721 : (1991) 2 Scale 561 (2).
10. Basheshar v Commr. of I.T.,AIR 1959 SC 149 [LNIND 1958 SC 147] : 1959 (Supp-1) SCR 528 : (1959) 35 ITR 190
[LNIND 1958 SC 147] (SC).
11. Behram v State of Bombay, AIR 1955 SC 123 [LNIND 1954 SC 116] : (1955) 1 SCR 613 [LNIND 1954 SC 116] : 1955
Cr LJ 215 : 1955 SCJ 73 [LNIND 1954 SC 116] .
Page 293 of 296
12. Olga v Bombay Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215] (paras 28–29) : 1985 (Supp-2) SCR 51 : (1985) 3
SCC 545 [LNIND 1985 SC 215] .
13. Nar Singh Pal v UOI,AIR 2000 SC 1401 [LNIND 2000 SC 541] : (2000) 3 SCC 589 .
14. General Manager v Rangachari,AIR 1962 SC 36 [LNIND 1961 SC 220] : (1962) 2 SCR 586 [LNIND 1961 SC 220] :
(1970) 2 LLJ 289 : (1961) 2 SCJ 424 .
15. State of Punjab v Jogendra,AIR 1963 SC 913 [LNIND 1962 SC 373] : 1963 (Supp-2) SCR 169 : (1964) 1 SCJ 627 .
16. Ram Dial v State of Punjab,AIR 1965 SC 1518 [LNIND 1965 SC 24] : (1965) 2 SCR 858 [LNIND 1965 SC 24] .
17. Yousuf Ali Abdulla Fasalbhoy v M.S. Kasbekar,AIR 1982 Bom 135 [LNIND 1981 BOM 107] .
18. Basheshar v Commr. of I.T., AIR 1959 SC 149 [LNIND 1958 SC 147]: 1959 (Supp-1) SCR 528 : (1959) 35 ITR 190
[LNIND 1958 SC 147] (SC).
19. Gazula Dasaratha Rama Rao v State of A.P., AIR 1961 SC 564 [LNIND 1960 SC 313](570) : (1961) 2 SCR 931
[LNIND 1960 SC 313] : (1961) 1 SCJ 310.
20. Bhaskar v Arjun, AIR 1962 Ori. 167 [LNIND 1962 ORI 70](paras 11–12).
21. Nain Sukh v State of U.P., (1953) SCR 1184 [LNIND 1953 SC 66] (1187) : AIR 1953 SC 384 [LNIND 1953 SC 66].
22. General Manager v Rangachari, AIR 1962 SC 36 [LNIND 1961 SC 220] : (1962) 2 SCR 586 : (1970) 2 LLJ 289 :
(1961) 2 SCJ 424 .
23. Nain Sukh v State of U.P., (1953) SCR 1184 (1187) : AIR 1953 SC 384 [LNIND 1953 SC 66].
24. Nain Sukh v State of U.P., (1953) SCR 1184 [LNIND 1953 SC 66] (1187) : AIR 1953 SC 384 [LNIND 1953 SC 66].
25. Kochunni v State of Madras, AIR 1959 SC 725 [LNIND 1959 SC 27]: 1959 (Supp-2) SCR 316.
26. Basheshar v I.T. Commr., AIR 1959 SC 149 [LNIND 1958 SC 147]: 1959 (Supp-1) SCR 528 : (1959) 35 ITR 190
[LNIND 1958 SC 147] (SC).
27. Kochunni v State of Madras, AIR 1959 SC 725 [LNIND 1959 SC 27]: 1959 (Supp-2) SCR 316.
Page 294 of 296
28. Basheshar v I.T. Commr., AIR 1959 SC 149 [LNIND 1958 SC 147]: 1959 (Supp-1) SCR 528 : (1959) 35 ITR 190
[LNIND 1958 SC 147] (SC).
29. Behram v State of Bombay, (1955)1 SCR 613 [LNIND 1954 SC 116] (639) : AIR 1955 SC 123 [LNIND 1954 SC 116]:
1955 Cr LJ 215 : 1955 SCJ 73 [LNIND 1954 SC 116].
30. Behram v State of Bombay, (1955)1 SCR 613 [LNIND 1954 SC 116] (639) : AIR 1955 SC 123 [LNIND 1954 SC 116] :
1955 Cr LJ 215 : 1955 SCJ 73 [LNIND 1954 SC 116] .
31. Palko v Connecticut,(1937) 302 US 319.
32. National Assocn v Alabama,(1957) 357 US 382 (393).
33. Schneider v Irvington,(1939) 308 US 147 (160); Thornhill v Alabama,(1940) 310US 88.
34. Khare v State of Delhi, (1950) SCR 519 [LNIND 1950 SC 30] : AIR 1950 SC 211 [LNIND 1950 SC 30].
35. PLD 1965 SC 527.
36. PLD 1957 SC (Pak) 157.
37. U.S. v Ball,(1896) 163 US 662 (672); Trono v U.S., (1905) 199 US 521.
38. Hutcheson v U.S., (1962) L 8 Edn137 (148); Emspak v U.S., (1955) 349 US 190.
39. Cf. DAS C.J., &SUBBA RAO J. in Basheshar v I.T. Commr., AIR 1959 SC 149 [LNIND 1958 SC 147](159 : 182) :
1959 (Supp-1) SCR 528 : (1959) 35 ITR 190 [LNIND 1958 SC 147] (SC).
40. Grunewald v U.S., (1957) 353 US 391.
41. Brown v U.S., (1958) 356 US 148 (154–55; 162).

Page 295 of 296
42. Pritchett, American Constitution,1959, p 513; Antieu, Commentaries on the Constitution of the US, (1960) p 333.
43. U.S. v Monia,(1942) 317 US 424.
44. Quinn v U.S., (1955) 349 US 155.
45. Quinn v U.S., (1955) 349 US 155; Emspak vU.S., (1955) 349 US 190.
46. Smith v U.S., (1949) 337 US 137 (150); Rogers v U.S., (1951) 340 US 367.
47. U.S. v Murdock,(1931) 284 US 141 (148).
48. Rogers v U.S., (1951) 340 US 367.
49. (1996) SCMR 1668.
50. See Justice Fazal Karim(retired judge of Pakistan Supreme Court), Judicial Review of Public Action,2006 Edn, Vol I,
pp 561–562.
51. Subedar v State, AIR 1957 All 396 [LNIND 1957 ALL 51].
52. H. M. Seervai, Constitutional Law of India, 4th Edn,Vol 2, p 1086.
53. T.G. Gaokar v R.N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68]: (1968) 3 SCR 422 [LNIND 1968 SC 68].
54. See alsoDushyant Somal v Sushma Somal, AIR 1981 SC 1026 (supra); State of U.P. v Mohammed Nooh, AIR 1958
SC 86 [LNIND 1957 SC 99]: 1958 SCR 595 [LNIND 1957 SC 99].
55. 21-A Am. Jur. 2nd section 710.
56. Justice Fazal Karim, Judicial Review of Public Action,Vol I, 2006 Edn, pp 653–54.
57. P.N. Krishna Lal v Govt. of Kerala, 1995 (Supp-2) SCC 187 : JT 1994 (7) SC 608. But see Murugesan@Abdullah v
State, (2007) 2 Mad LJ (Crl) 894.
58. Basheshar v I.T. Commr., AIR 1959 SC 149 [LNIND 1958 SC 147](176, 182) : 1959 (Supp-1) SCR 528 : (1959) 35
ITR 190 [LNIND 1958 SC 147] (SC).
59. Varkey v State, AIR 1969 Ker. 191 [LNIND 1968 KER 118](para 19).
Page 296 of 296
ITR 190 [LNIND 1958 SC 147] (SC).
61. Ref. on the Kerala Education Bill, AIR 1958 SC 956 (982–85).
62. In Re: The Kerala Education Bill, AIR 1958 SC 956 (982–85).
63. Rogers v U.S., (1951) 340 US 367.
64. In Re: The Kerala Education Bill, AIR 1958 SC 956 (982–85).
ITR 190 [LNIND 1958 SC 147] (SC).
66. State of Rajasthan v Nathmal, AIR 1954 SC 307 [LNIND 1954 SC 38]: 1954 SCR 982 [LNIND 1954 SC 38] : 1954
SCJ 404 [LNIND 1954 SC 38]; Keshavananda v State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154]: (1973) 4
SCC 225 [LNIND 1973 SC 154] : 1973 Supp SCR 1 (paras 420, 608, 759, 1222, 1329, 2156).
67. This view of the Author is now affirmed by the Constitution Bench in Olga v Bombay Corpn., AIR 1986 SC 180 [LNIND
1985 SC 215](paras 28–29) : 1985 (Supp-2) SCR 51 : (1985) 3 SCC 545 [LNIND 1985 SC 215] (CB).
End of Document
Art 21 . Protection of life and personal liberty.-
No person shall be deprived of his life or personal liberty except according to procedure established by law.
[ART 21.1] OTHER CONSTITUTIONS 1. (A) England.— U.K.
In the Magna Carta (which King John was forced to sign, in 1215), it was demanded that: “Ne Corpus liberi
hominis capiatur nec imprisonetur nec dissaisetur nec utlagetur nec exuletur nec aliquot modo destruator nec
vex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem terre” which means, “No free man
shall be taken, or imprisoned or disseised or outlawed or banished or any ways destroyed, nor will the King
pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land”.
In the Petition of Grievances, 1610, it was stated thus:
Among many other points of happiness and freedom which your Majesty’s subjects have enjoyed under your royal
progenitors, there is none which they have accounted more dear and precious than this, to be guided and governed by
the certain rule of law, …and not by any arbitrary form of government…Out of this root hath grown the indubitable right
of the people of this kingdom, not to be made subject to any punishment... other than such as are ordained by the
common laws of this land, or the statutes made by their common consent in Parliament.
Personal liberty guaranteed against the Executive but not against the Legislature
Page 2 of 467
This demand was reiterated in the Petition of Rights, 1628, and since then the observance of this principle has
established what is known as the Rule of Law in England. The phrase “due process of law” was first used in a
statute of the 14th century2. and the framers of the American Constitution appear to have borrowed the phrase
from there. But under the English Constitution, the expression “law of the land” has a different meaning than the
“due process of law” of the American Constitution. In England, “law” means the law as declared by Parliament.
It does not mean any fundamental law limiting the powers of Parliament itself. The “law of the land” in the above
Charters thus simply means the absence of any arbitrary power by the Executive and that no man can be
punished except after being tried for a definite offence, i.e., for violation of a “law” and in the ordinary legal
manner.3. As explained by the Privy Council:4.
In accordance with British jurisprudence no member of the Executive can interfere with the liberty or property of a
British subject except on the condition that he can support the legality of his action before a court of justice. And it is
the tradition of British justice that judges should not shrink from deciding such issues in the face of the Executive.4
Under the English “Rule of Law”, the Executive has no privileges other than what the law for the time being
concedes and it has to defend its action before the ordinary courts and that only by the authority of law. Thus,
when a statute does not authorise the arrest of a person without warrant, it cannot be justified on the ground
that it was “convenient” to the Police or any other executive authority.5.
But as against the legislative competence of Parliament, there is no limit under the English constitutional
system. Thus,
The concessions of Magna Carta were wrung from the King as guarantees against the oppressions and usurpations of
his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favour of
the commons by limiting the power of Parliament… the omnipotence of Parliament was absolute, even against
common right and reason.6.
In short—
The subject is entitled to have the law impartially administered; but he has no right that the law shall not be changed to
his detriment. In other words, he has no ‘absolute’ rights which are guaranteed against an Act of Parliament. This is a
consequence of the general principle that Parliament is sovereign.7.
As May observed:
Page 3 of 467
The Constitution has assigned no limits to the authority of Parliament over all matters and persons within its
jurisdiction. A law may be unjust and contrary to the principles of sound government. But Parliament is not controlled in
its discretion and when it errs, its errors can be corrected by itself.8.
So, LESLIE STEPHEN went so far as to say:
If a legislature decided that all blue-eyed babies should be murdered, the preservation of all blue-eyed babies would be
illegal.
In short, in England, it is not open to a Court to invalidate a law on the ground that it seeks to deprive a person of his
life or liberty contrary to Court’s notions of justice of “due process.”
For the most authoritative pronouncement on this question in recent years, we must refer to LORD WRIGHT’S
observation in Liversidge v Anderson:9.
All the Courts to-day and not least this House, are as jealous as they have ever been in upholding the liberty of the
subject. But that liberty is a liberty confined and controlled by law, whether common law or statute.9
The year 1688 marked the glorious Revolution in England whereby the people gained the right to limited control
over governance. The Revolution was followed by the passage of Bill of Rights 1689. The Bill highlighted the
respective powers of the Monarch and Parliament. The Bill provided limited guarantees against arbitrary legal
penalties. Prior to this, England recognised certain rights under Magna Carta of 1215.
As to how personal freedom is maintained in England as against the Executive, the words of the Magna Carta
are clear enough, viz., that no man can be deprived of his personal freedom save “by the law of the land”.
Though there is no constitutional guarantee safeguarding the freedom, it is safeguarded by the ordinary law
itself, which means the common law, as it stands modified or supplemented by the common law itself. Thus,
most of the safeguards which are included in the American guarantee of “due process”, as will appear from the
pages hereafter, are ensured in England by common law. But if the Legislature alters or modifies these
common law principles, as it has, in many respects, the individual cannot challenge the constitutionality of such
Page 4 of 467
legislation before a court of law. These broad common law safeguards of personal liberty in England may now
be noticed. If anybody’s personal freedom is interfered with without lawful justification, he can—
(a) regain his freedom through the ordinary Courts, by means of the writ of “habeas corpus” (see under
Article 226, post);
(b) sue the person (whether a public official or not) who has arrested to detain him unlawfully, for damages
for false imprisonment10. or prosecute him criminally for assault. To such an action brought by a
citizen, “act of State” is no defence.10
On 4 July 1776 came the historic American Declaration of Independence. The Declaration specifically says:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator
with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure
these rights, governments are instituted among men deriving their just powers from the consent of the
government, that whenever any form of government becomes destructive of these ends, it is the right of the
people to alter or abolish it and institute a new government, laying its foundation on such principles and
organising its powers in such form as to them shall seem most likely to effect their safety and happiness”.
The French Declaration of the Rights of Man and of the Citizen 1789 states:—“In the presence and under the
auspices of the Supreme Being, the following rights of man and citizen:—
Men are born and remain free and equal in respect of rights. The purpose of all civil associations is the
preservation of the natural and imperceptible rights of man. These are liberty, property and resistance to
oppression.”
Taking of life, again, is a criminal offence, even when committed by a a public official, save when it is
committed— (i) in execution of the lawful sentence of a competent court; (ii) in defence of person or property; or
(iii) in course of the advancement of public justice or the preservation of public order.11.
The courts can, however, interfere only on the ground of absence, excess or abuse of authority, but cannot
revise decisions lawfully taken by the Executive, on the ground that the Judges are of a different opinion. Of
course, in order to make an executive action lawful, it must be in conformity not only with the substantial
provisions but also with the procedural requirements laid down by the law. Again, when the executive action is
something more than an administrative action and simulates a judicial decision, the courts impose another
common law requirement, namely, that the decision (which is called quasi-judicial) must be arrived at in
compliance with the principles of natural justice (see Article 14, Vol. 2, 9th Edn., 2014, p. 1972).12.
The right to life concerns the sanctity of human life. The sanctity of human life is probably the most fundamental
Page 5 of 467
of the human social values. It is recognised in all civilized societies and their legal systems and by the
internationally recognised statements of human rights.13. The right to life is the most fundamental right of all
human beings and any decision affecting human life or which may put an individual’s life at risk, must call for
the most anxious scrutiny.14.
Again, though a law cannot be invalidated in England on the ground that it violates “due process”, the concept
of “fairness” involved in “due process” is applied by the courts in interpreting the law itself, so that an individual
may escape from executive encroachment upon his liberty or property even though the executive action may be
apparently supported by a law. Thus, as will appear shortly,—
(a) In construing statues depriving a person of his liberty or property, the courts habitually lean in favour of
the individual and would not support the executive action unless the terms of the statute authorising the
action are clear and explicit.15.
(b) No person can be punished for an alleged crime unless the terms of the statute which creates the
offence are reasonably certain.16.
(c) The court leans strongly against an interpretation of a statute which deprives the subject of rights of
property without compensation17. and such intention is not imputed to the Legislature unless the
intention is expressed in unequivocal terms.18. The presumption is, of course, weakened, in times of
national emergency.19.
(d) At a criminal trial, the accused is entitled to a presumption of innocence, and the prosecution is bound
to prove all the ingredients of the charge beyond reasonable doubt;20. subject, of course, to statutory
exceptions, relating to special cases.21.
It has often been presumed that Parliament does not intend to take away common law rights by
mere implication as distinct from express words. Thus the courts have presumed that Parliament
does not intend to take away the property of a subject without payment of compensation or to
deprive a subject his access to the courts22. and have interpreted penal statutes strictly in favour
of the citizen; thus a statute creating a criminal offence will not, in the absence of express words,
be held to be retrospective.23. It has been said that Parliament may legislate in vacuum, but not
against a background of constitutional democracy that includes the principle of legality. The
principle of legality means that Parliament must squarely confront what it is doing and accept the
political cost. Fundamental rights cannot be overridden by general or ambiguous words.24.
Page 6 of 467
From this principle it has been deduced that even when the accused confesses his guilt, he cannot be
convicted on such confession, so long as the prosecution does not show that it was not obtained from him
under any threat or promise.25. Even apart from this, in criminal cases, the Judge has a discretion to exclude
evidence which, though legally relevant, would “operate unfairly against the defendant”.26.
In general, natural justice has been identified with “fairness” and “fair hearing”. Hence, the doctrine that where a
statute is silent, “the justice of the common law” will supply the omission of the Legislature, by reading into the
statute a requirement of giving the party an opportunity to be heard,27. has come to mean, further, that such
opportunity shall be a “fair” opportunity28. and that a statutory tribunal29. or other authority30. has a duty to act
“fairly”30 and must listen fairly to both sides,31. and arrive at a decision by a process32. that was fair to the
parties. The courts came to explain “natural justice” purely in terms of “fairness”.33. LORD DIPLOCK said that
whenever statute gives power to make decisions which affect to their detriment the right of other persons or
curtail their liberty to do as they please, Parliament is presumed to have intended that the administrative body
should act “fairly” towards them.34.
The requirements of natural justice are essentially rules of common law which are now buttressed under the
Human Rights Act, 1998. Article 6(1) of ECHR says: “In the determination of his civil rights and obligations or of
any criminal charge against him, every one shall be entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law”. With the growth of governmental powers affecting
an individual’s property or livelihood, natural justice served to supplement the shortcomings of legislation.35.
(B) U.S.A.— (I) Due Process
The Fifth Amendment to the Constitution of U.S.A. (1791) declares—
No person shall be… deprived of his life, liberty or property, without due process of law.36.
U.S.A.
The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are
conveniently referred to as the “due process clauses”. Under the above clauses the American Judiciary claims
to declare a law as bad, if it is not in accord with “due process”, even though the legislation may be within the
competence of the Legislature concerned. Due process as conveniently understood means procedural
regularity and fairness.37.
While in England, all that Parliament enacts is “law of the land”, however, a legislative enactment in the U.S.A.,
is not “law” unless it is in conformity with “due process”. This was explained in the early case of Murray’s
Lessee:38.
Page 7 of 467
That the warrant now in question is legal process, is not denied. It was issued in conformity with an act of Congress.
But is it ‘due process of law’?... It is manifest that it was not left to the legislative power to enact any process which
might be devised. The article is a restraint on the legislative as on the executive and judicial powers of the government
and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will. 38
In Joint Anti-Farcist Refugee Committee v Mc Grath,39. JUSTICE FELIX FRANKFURT said: “Due process,
unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and
circumstances. Expressing as it does in its ultimate analysis respect enforced by law for the feeling of just
treatment which has been evolved through centuries of Anglo-American constitutional history and civilization,
“due process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound
attitude of fairness between man and man, and more particularly between the individual and the government,
due process is compounded in history, reason, the past course of decision and stout confidence in the strength
of the democratic faith which we profess”.
Since the guarantee applies against the Judiciary also, it follows that any judicial proceeding which forfeits the
life or liberty of a person, however guilty he may be, without complying with the procedural requirements of due
process, must be held to be invalid.40.
Curiously, though the very expression “due process of law” was borrowed from an English statute,41. in
evolving this concept of “due process” the fathers of the American Constitution went ahead of the English
doctrine of Rule of Law. In Chambers v Florida,42. Justice BLACK explained the difference in attitude as
follows:
… A liberty loving people won the principle that criminal punishments could not be inflicted save for that which proper
legislative action had already by ‘the law of the land’ forbidden when done. But even more was needed from the
popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the ‘law of
the land’ evolved the fundamental idea that no man’s life, liberty or property be forfeited as criminal punishment for
violation of that law until there had been a charge fairly made and fairly tried…. Thus, as assurance against ancient
evils, our country, in order to preserve “the blessings of liberty,” wrote into its basic law the requirement, among others,
that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards
of due process have been obeyed.43.
Page 8 of 467
The Constitution, however, does not define “due process of law”, and the courts, taking advantage of that, have
given it such a liberal interpretation according to the facts of each case, as to enable itself to invalidate laws
which may be supposed to offend the “spirit of the Constitution”. This is clearly brought out in the observations
of FRANKFURTER, J. in Wolf v Colorado:44.
Due process of law conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all
those rights which the courts must enforce because they are basic to our free society.... It is of the very nature of a free
society to advance in its standards of what is deemed reasonable and right.... To rely on a tidy formula for the easy
determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but
ignores the movements of a free society. It belittles the scale of the conception of Due Process. The real clue to the
problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and
for all to be drawn but to recognise that it is for the court to draw it by the gradual and the empiric process of ‘inclusion
and exclusion’.44
The contents of “due process” cannot, therefore, be enumerated once for all.45.
The pattern of due process is picked out in the facts and circumstances of each case.46.
At the same time, there is a well-understood standard which determines the contents of the “Due Process”
concept which are to be applied to the facts of a particular case before the court. This standard has been
variously described as “the fundamental principles of liberty and justice”,47. the essentials of a “fair trial”,48. or
“fundamental fairness”,49. absence of conduct that “shocks the conscience”.50. Students of comparative
constitutional jurisprudence should note, that basically, the corollaries derived by the American Supreme Court
from the Due Process Clause are nothing but the applications of the English common law safeguards against
arbitrary deprivation of life and liberty, derived from the guarantee in the Magna Carta, and epitomised in the
phrase “law of the land”,51. which became the “traditions” of the American Colonists.52.
The application of the guarantee of “Due Process” in the case of civil rights has already been explained (See
Article 19, Vol. 3, 9th Edn., 2014, p. 3601).53. In the present context, we are concerned with its application to
cases of infringement of the freedom of the person or personal liberty and to criminal proceedings.
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As explained earlier (See Article 19, Vol. 3, 9th Edn., 2014, p. 3330),54. “Due Process” has both a procedural
and a substantive meaning.
Application to criminal proceedings
Historically speaking, the procedural meaning was the original meaning attributed to the Clause. As will be just
seen, it was interpreted as meaning “the process of law which hears before it condemns”.55. Any law which
sought to deprive a person of his liberty or property without such hearing was condemned by the Supreme
Court as unconstitutional and invalid, notwithstanding the competence of the Legislature to enact it. Thus,
originally concerned with securing procedural safeguards to a person accused of crime, the Supreme Court
soon came to apply the Clause to question the substantive reasonableness of social and economic legislation
from the standpoint of individual liberty, inspired by the doctrine of laissez faire.56. Though the substantive
attitude has also been extended to nullify criminal laws, in the realm of personal safety and liberty, it is the
procedural aspect which has played a more important part. We should, therefore, deal with the two aspects
separately.
(i). Procedural Due Process
Procedural due process means that in dealing with individuals, the Government must proceed with “settled
usages and modes of procedure”, e.g., that there should be no conviction without a hearing. Due process
requires that before a person is deprived of life, liberty or property, he must be given notice of the case against
him and opportunity to meet it.57. But this does not mean that due process includes a general right to
procedural regularity. Constitutionally speaking, it may use any procedure it wants, including arbitrary and
capricious procedures. PROF. WILLIAM VAN ALSTYNE has argued that while procedural regularity “is
evidently” not a free standing human interest, it is plausible to treat freedom from arbitrary adjudicative
procedures as a substantive element of one’s liberty. Of course, if procedural regularity were regarded as a
substantive entitlement, there would have been no need for the Founders to specify life, liberty and property, as
the substantive interests to which procedural due process attaches.
Procedural due process involves two central issues – (1) What constitutes a life, liberty or property interest that
cannot be taken away by govt. without “due process of law”, and (2) Once due process is required, what sort of
notice and opportunity to be heard constitutes “due process”. By contrast, substantive due process identifies
unenumerated substantive rights which are implicit in “liberty” and assesses the government’s justification for
their infringement. The focus of procedural due process is to identify substantive rights – life, liberty or property
– to assess whether the government’s procedure for taking them away are constitutionally adequate.58.
Due process focuses on the means by which the government deprives people of things—whether life, liberty or
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property—and calls to mind assurances that policy will be implemented in ways that are not irregular, arbitrary
or unreasonable. When governmental action that imposes some deprivation or limits an individuals’ right of
action, is at issue, interpreters of the clause who focus on this variety of due process essentially ask whether
the affected person received all the process that was due. This way of putting the question accurately suggests
that procedural due process deals in degree of protection.59. Due process unlike some legal rules, is not a
technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible
and calls for such procedural protection as the particular situation demands.60.
In Hovey v Elliot,61. the Supreme Court approved of Daniel Webster’s argument in the Dartmouth case,62. the
“due process”—“is the process of law which hears before it condemns, which proceeds upon enquiry, and
renders judgment only after trial. Its meaning is that every citizen shall hold his life, liberty and property and
immunities under the protection of the general rules which govern society.” In a later case,63. the Court said:
By due process of law is meant one which, following the forms of law, is appropriate to the case and just to the Parties
to be affected. It must be pursued in the ordinary modes prescribed by law, it must be adapted to the end to be
attained, whenever it is necessary for the protection of the parties it must give them an opportunity to be heard
respecting the justness for the judgment sought. The clause, therefore, means that there can be no proceeding against
life, liberty or property which may result in deprivation of either, without the observance of those general rules
established in our system of jurisprudence for the security of private rights.63
“ … that some form of hearing is required before an individual is finally deprived of a property interest”.64. The
right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve
the stigma and hardships of a criminal conviction, is a principle basic to our society.65. In the concurring
judgment by justice Frank Furker, it was observed that the fundamental requirement of “due process is the
opportunity to be heard” at a meaningful time and in a meaningful manner.
In some contexts, such as criminal charges or assertions of substantial civil liability, a formal trial is required. In
others, a semi-formal evidentiary hearing may be required. The decision in Mathews v Elridge,66. makes it clear
that depending on the circumstances, evidentiary hearing is not indispensable. In Goss v Lopez,67. the court
held that an informal conversation between public school administrator and a student prior to the student’s
suspension from school for 10 days was enough to comply with “due process”, so long as the conversation
included the charges, or summary of the evidence supporting the charges and a chance for the student to tell
his or her version of events.
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Procedural Due Process involves two central issues—(1) what constitutes a life, liberty or property interest that
cannot be taken away by government without “due process of law”; and (2) once due process is required, what
sort of notice and opportunity to be heard “constitutes due process”?
The focus of procedural due process is to identify substantive rights—life, liberty or property— to assess
whether the government’s procedures for taking them away, are constitutionally adequate.68. The learned
author has further stated that “a court necessarily must first decide whether the status in question is life, liberty
or property, right to which due process attaches. If so, then the court must decide whether pre-deprivation
procedures are sufficient to constitute due process.
Although due process generally requires prior notice and opportunity to be heard “before” deprivation of life,
liberty or property, some times due process is satisfied by post-deprivation hearing or other remedy. When
government deprives persons of property to prevent immediate public harm and provides adequate post-
deprivation remedies, a pre-deprivation hearing is not necessarily required.69. In cases where it was virtually
impossible to provide pre-deprivation hearing, post-decisional hearing is sufficient.70. But in a pair of cases,
namely, Daniels v Williams,71. and Davidson v Cannon,72. it was held that even when no past deprivation tort
remedy was available to recover damages caused by the negligence of government officials, due process was
not offended. When a government official is merely negligent in causing the injury, no procedure for
compensation is constitutionally required. Due process is not a guarantee of due care on the part of State
officials. A contrary rule would eliminate the ability of government to shield themselves from civil liability (at
least liability related to negligent behaviour) by assertion of sovereign immunity.
In Handi v Rumsfield,73. the court concluded that an American citizen alleged to be an enemy combatant in the
terror war and thus held as a prisoner by the government in the terror war was entitled to challenge his status
as an enemy combatant. Due process requires that the imprisoned citizen should receive notice of the factual
basis for his classification and a fair opportunity to rebut the Government’s factual assertion before a neutral
decision-maker. Court further said, but at the same time the exigencies of the circumstances may demand that,
aside from core elements, enemy combatant proceedings may be tailored to alleviate their uncommon
potential, to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be
accepted as the most reliable evidence from the Government in such proceeding. Likewise, the Constitution
would not be offended by a presumption in favour of Government’s evidence, so long as that presumption
remains a rebuttable one and fair opportunity for rebuttal was provided.
A law which provide for registration and prior disclosure of whereabouts of certain category of convicts was held
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valid and no prior hearing is required, since the registration and prior disclosure is consequence of conviction. It
was held that criminal trial which ended in conviction affords ample due process protection.74.
According to Willis,75. the requirements of procedural due process are—
(1) Notice; (2) Opportunity to be heard; (3) An impartial tribunal; (4) An orderly course of procedure.
“Due process” as regards criminal trial means that “no person could be punished except for a violation of
definite76. and validly enacted laws of the land, and after a trial conducted in accordance with the specific
procedural safeguards written in the Bill of Rights”,77. to secure, in short, a “fair trial”.78. The State is free to
regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it
“offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental”.79. In Brown v Mississippi the court overturned the conviction of three defendants whom police
had physically tortured in order to extort confession. The court made it abundantly clear that use of such
confession violated due process clause of Fourteenth Amendment. The freedom of the State in establishing its
policy is the freedom of constitutional government and is limited by the requirement of due process of law.
Because a State may dispense with a jury trial, it does not follow that it may substitute a trial of ordeal. The rack
and torture chambers may not be substituted for the witness stand.
In Chambers v Florida,80. the court overturned the conviction – this time because the defendant had been
arrested on suspicion, without warrant, denied contact with friends or attorney and questioned for long periods
of time by different squads of police officers. Thus, the State may abolish trial by jury but it cannot substitute
trial by ordeal. In other words “due process” is violated when there is a failure to observe “that fundamental
fairness” which is “essential to the very concept of justice.”81.
In criminal charges or assertion of substantial civil liability, a formal trial is required. In other, a semi-formal
evidentiary hearing may be required.82.
In short,
Every procedure which would offer a possible temptation to the average man as a judge to forget the burden or proof
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required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the
State and the accused denies the latter due process of law.”83.
The deduction is that life, liberty and property are placed under the protection of known and established principles
which cannot be dispensed with either generally or specially; either by courts or executive officers, or by legislators,
themselves. Different principles are applicable in different cases, and require different forms and proceedings; in some
they must be judicial; in others the government may interfere directly, and ex parte; but due process of law in each
particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction,
and under such safeguards for the protection of individual rights as those maxims prescribed for the class of cases to
which the one being dealt with belongs. When life and liberty are in question, there must in every instance be judicial
proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper
jurisdiction, and a conviction and judgment before the punishment can be inflicted.84.
The requirement of “due process,” thus,
inescapably imposes upon this court an exercise of Judgment upon the whole course of the proceedings in order to
ascertain whether they offend those canons of decency and fairness which express the notions of justice of English
speaking people even toward those charged with the most heinous offences.85.
Whether such fundamental fairness has been denied is to be determined:
by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of
fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other
considerations fall short of such denial.86.
The burden is, of course, upon the person who alleges such unfairness to show that it was sustained “not as a
matter of speculation but as a demonstrable reality”.87.
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Procedural due process, thus, requires—
(i) That the trial shall be held in public,88. as a safeguard against any attempt to employ the criminal
courts as “instruments of persecution”.89. This rule is popularly stated as that the accused must have
“a day in court”.89 It has also been deduced from the guarantee of due process.89 The requirement of
public trial is satisfied if (a) members of the public and (b) the Press have an opportunity to attend the
trial and to report what they have observed.89
Even a summary trial for contempt of court cannot be held in secret or in the Judge’s chamber.89
Due process requires that a person may be deprived of his life, liberty or property only after he has
been advised of the charges against him, offered a reasonable opportunity of meeting those
charges, aided by a counsel, and in open court.89
The essence of due process is this requirement that a person in jeopardy of serious loss be given
notice of the case against him and opportunity to meet it.90. It was held therein that the
fundamental requirement of due process is the opportunity to be heard “at a meaningful time and
in a meaningful manner”. A Georgia law automatically suspended the vehicles registration and
drivers licence of any uninsured motorist who failed to post a security bond to cover the claimed
damages in accidents to which he was a party. The court invalidated the law because it failed to
provide any form of pre-deprivation hearing. The court said that due process attached because the
licenses were essential in the pursuit of a livelihood. Suspension adjudicates important interest of
licencees.91.
(ii) That the trial shall not be vitiated by pressure from any mob92. or other external factor, e.g., adverse
newspaper comments93. or television broadcast of the accused confessing94. causing such a
“community prejudice”95. in the locality where the trial was held,1. as to preclude a fair trial.2. It is also
held that in general any undue publicity of the trial is likely to prejudice the minds of the witnesses and
the jury and is likely to impair a fair trial3. and the right of the accused to a verdict based solely upon
the evidence and the relevant law.4. The court could, therefore, quash a conviction where the trial
atmosphere has been utterly corrupted by press coverage.5. This principle has been applied to pre-trial
publicity as well.6. But in such cases, the defendant must be prejudiced by the publicity and the same
has to be considered on totality of circumstances.7. It is the duty of court to take protective measures
so that publicity through the Press may not prejudice the accused at the trial.8.
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(iii) That the judge shall be impartial,9. i.e., not influenced by a “direct, personal, substantial pecuniary
interest in reaching, a conclusion against” the accused10. [Article 19(2)-(6) of the Commentary].
One meaning of “impartiality” in the judicial context – and of course its root meaning – is the lack of
bias for or against either party to proceedings. Impartiality in this sense guarantees a party that the
judge who hears his case will apply the law to him in the same way he applies to any other party. It
is perhaps possible to use the term “impartiality” in the judicial context (though this is certainly not a
common usage) to mean lack of preconception in favour of or against a particular “legal view”. This
sort of impartiality would be concerned, not with guaranteeing litigants’ equal protection of the law,
but rather with guaranteeing them an equal chance to persuade the court on the legal points in
their case. Impartiality in this sense may well be an interest served by the announce clause, but it
is not a compelling State interest as strict scrutiny requires.11.
Hence, conviction by a Mayor who received a share of the fines as his fees, such fees being
payable only in case the accused was convicted, was held violative of “Due Process,”12. but not so
where the Mayor received a fixed salary even though the salary was paid from a fund to which the
fines imposed by him contributed.13.
(iv) That the court shall have jurisdiction.14.
(v) That the accused shall have real notice of the true charge against him for which he is tried.15.
Conviction upon a charge not made would be “sheer denial of due process”.16.
Thus, due process was held denied—
(a) Where an ignorant layman, without counsel, entered a plea of guilty to what he believed to be a
charge of simple burglary, on the representation of the prosecuting attorney that he would be
leniently dealt with if he entered such a plea, when in fact he was charged with “burglary with
explosives”.17.
(b) Where, on appeal from conviction for an offence under one section of a statute, the appellate court
sustained the conviction for violation of another section of that statute for which the appellants had
never been charged or tried.18.
Where, however, the accused was charged with a bigger offence, he was allowed to plead
guilty of a lesser offence since the charge of the graver offence gave sufficient notice of
the lesser offence involved in the act for which he was charged.19.
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(vi) That the charge should be specific 18 and worded in such language as “men of ordinary intellect” could
follow.20.
(vii) That the nature and cause of the accusation should be communicated to the accused sufficiently in
advance of the trial so as to enable him to prepare his defence.21. In Powell v Alabama the court while
appreciating the approach of trial court for prompt disposal of criminal cases, said that it should not be
done at the risk of the defendant being denied of his right to have sufficient time to have advice with
counsel and prepare his defence. To do that is not to proceed promptly in the calm spirit of regulated
justice, but to go forward with the haste of the mob.
In Gideon v Wainwright,22. the court concluded that an indigent defendant’s right to court-
appointed counsel is fundamental and essential to a fair trial in State as well as federal felony
prosecution. In that case, the court said that in our adversary system of criminal justice any person
hauled up in court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him. In US v Wade,23. the court said: “It is central that principle (i.e., to provide a
lawyer) that in addition to counsel’s presence at trial, the accused is guaranteed that he need not
stand alone against the State at any stage of the prosecution, formal or informal, in court or out,
where counsel’s absence might derogate from the accused’s right to fair trial.” On the basis of this
principle, the court has ruled that the accused has the right to counsel at such “critical stages” as in
custody, police interrogation, following arrest,24. the police line-up held for eye witnesses for
identification,25. preliminary hearing,26. the arraignment27. and in appeal,28. parole29. and even at
a post-trial proceeding for the revocation of probation and parole.30.
(viii) That there should be an “ascertainable standard of guilt”.31. This requirement will be fully dealt with
under “substantive Due Process”, post.
Several corollaries have been drawn from this rule—
(a) The accused is presumed to be innocent and can be convicted only on proof of all the elements of
the crime charged against him.32.
Because the onus lies entirely on the prosecution, the accused in a criminal case has the
constitutionally guaranteed right “to remain completely silent, requiring the State to prove
its case without any assistance of any kind from the defendant himself.”33. It is, therefore,
fundamentally unfair to require a defendant to divulge the details of his own case.34.
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(b) In view of the above presumption, it is not within the province of the Legislature to declare an
individual guilty,35. or presumptively guilty of a crime. A judicial finding of fact cannot, therefore, be
substituted by a statutory presumption that is arbitrary or that operates to deny a fair opportunity to
repel it.35
A statutory presumption cannot be sustained if there be no rational connection between

the fact proved and the ultimate fact presumed, if the inference of the one from the other is
arbitrary because of lack of connection between the two in common experience.36.
But even in the sphere of criminal proceedings a presumption or inference will not be unconstitutional if
there is a rational connection between the facts proved and the fact presumed.37.
But, notwithstanding the presumption of innocence, it is permissible for the Legislature to shift the
burden of proof to the accused provided the limits of fairness are not transgressed.38. These limits, for
instance, are—
(a) That the State must have proved enough to make it just for the accused to rebut what has been
proved.38
(b) That upon a balancing of convenience or of the opportunities for knowledge, the shifting of the
burden will be found to aid the accuser without subjecting the accused to hardship or
oppression.39.
(ix) That the accused shall have the opportunity of summoning and examining witnesses to refute the
charges against him. This has been acknowledged as a requirement of due process,40. apart from the
right of obtaining compulsory process for summoning witnesses which is guaranteed by the 6th
Amendment.
(x) That the accused shall have the opportunity of confronting the prosecution witnesses41. and of cross-
examining them face to face.42. So far as federal criminal proceedings are concerned, this is secured
by the Sixth Amendment.43. This has now been acknowledged as an ingredient of the 14th
Amendment,44. and hence, applicable to the States.45. The confrontation clause of 6th Amendment
guarantees an accused person the right to be confronted with witnesses against him. Court has held
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that right to confrontation includes (1) the accused’s right to cross-examine those witnesses who are
produced by the State; (2) severely limits the use of “hearsay evidence”, and (3) limits the admissibility
at a trial of two or more defendants of a confession that implicates a defendant other than the
confessor. In Coy v Iowa,46. the court held that confrontation clause also literally guarantees the
defendant a face to face meeting with witnesses appearing before the trier of fact. But in Maryland v
Craig,47. it was held that right to face to face meeting is not absolute; that the central concern of the
confrontation clause is to ensure the reliability of evidence against a criminal defendant by subjecting
him to rigorous testing in the context of an adversary proceeding and that use of one-way closed circuit
television testimony for child victim in sexual abuse is consistent with the central concern of the right to
confrontation.48.
Certain exceptions have been admitted to the right of cross-examination owing to the very nature
of the exceptional circumstances, viz., in respect of—
(a) Dying Declarations.49.
(b) Stenographic report of the evidence at former trial of a witness who is dead or not available.50.
(c) Undisclosed confidential information may be relied upon in excluding an alien from admission,51.
which, of course, is not a criminal proceeding.
(d) The same principle has been applied (by a 5 to 4 majority) in denying an application for
suspension of deportation of a resident alien. This exception of the usual principle of due process
to a person who was otherwise entitled to the constitutional protection was justified on two
grounds—(a) that suspension of deportation to an alien was a matter of grace, not of right, and,
accordingly, there was no right to a hearing in such proceeding as in the like proceeding for
suspension of a criminal sentence;52. (b) that the interests of national security justified the
exception.53.
(xi) That the accused shall not be convicted upon coerced or involuntary confession.54. In Brown v
Mississippi,55. the court set aside the conviction which was based on coerced confession. The three
defendants were physically tortured in order to extort confession. Court said that such confession
violated “Due process” clause of the Fourteenth Amendment. Court further said that the freedom of the
State in establishing its policy is the freedom of constitutional government and is limited by the
requirement of due process of law. Because a State may dispense with a jury trial, it does not follow
that it may substitute a trial by ordeal. The rack and torture chamber may not be substituted for a trial
stand.
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In Spano v New York,56. the court said that a confession had to be the result of “free and rational”
choice. The prohibition of the use of pressure did not mean that interrogation could not resort to
trickery in dealing with the accused, but it did not mean that the police engage in deceit. Mere
trickery would not taint a confession, but trickery that caused coercion would, in the absence of a
counsel, and substantial use of tricks by police was constitutionally risky.
An extension of this principle has led to the holding that evidence obtained through force or by
means which “shock the conscience” shall be inadmissible, e.g., the evidence of morphine
capsules extracted from the person of an accused through the use of a stomach pump.57.
(xii) That the accused shall not be convicted by evidence obtained by means of entrapment or through
informers or the like;58. or by testimony known to be perjured59. or by suppressing material
evidence,60. or evidence favourable to the accused.61. Entrapment may be defined as “the conception
and planning” by an officer and his procurement of its commission by one who would have perpetrated
it except for the trickery, persuasion or fraud of the officer.62.
It is open to a prisoner to establish facts, subsequently discovered, to show that the evidence upon
which he was convicted was perjured.63. In short, due process is violated if the State seeks to
secure the conviction of a person by means of a contrivance, through the pretence of a trial,64. or
when there has been a “fundamental unfairness in the use of evidence whether true or false”.65.
(xiii) That the accused shall have adequate legal assistance66. where the denial of such assistance works
as a “fundamental unfairness”.67. The requirement of “Due Process” includes not only the right of
representation at the trial by a counsel,68. but also the right to prepare the defence with the help of a
counsel,69. and to consult him in private before and during trial,70. from the moment of indictment.71.
The guarantee is violated if the accused is not given reasonable time and opportunity to secure a
counsel for the preparation of defence72. [see, further, under Article 22(1), post].
(a) Where the accused is in a position to secure a counsel of his own, he has, in a criminal
proceeding, an unqualified right to be heard through him.73.
(b) Where the accused is not in a position to secure a counsel, it is the duty of the court to employ a
counsel for the accused, irrespective of any question of prejudice.74. In Gideon v Wainwright the
court overruled an earlier decision in Betts v Brady,75. wherein it was held: “We are unable to say
that the concept of due process incorporated in Fourteenth Amendment obliges the States,
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whatever may be their own views to furnish counsel in every case.” While overruling the decision,
court concluded that an indigent defendant’s right to court appointed counsel is fundamental and
essential for a fair trial in State as well as federal felony prosecution. It was observed that
precedent, reason and reflection “require us to recognize that in our adversary system of criminal
justice, any person hauled into court, who is too poor to hire a lawyer cannot be assured a fair trial
unless counsel is provided for him”. Court said: “Lawyers in criminal courts are necessaries and
not luxuries”.
Does a defendant in a criminal trial have a constitutional right to proceed without a

counsel when he voluntarily and intelligently elects to do so? Can a State constitutionally
haul a person into its criminal courts and then force a lawyer upon him, even when he
insists that he wants to conduct his own defence? Court gave a negative answer to this
question in Faretta v California,76. stressing that the language of the provision provides for
“assistance” of counsel and that an assistant, however expert, is still an assistant.
Developing this argument further, it was concluded that thrusting a counsel upon an
unwilling defendant would violate the logic of the amendment. In such a case, counsel is
not an assistant, but a master and the right to make a defence is stripped of the personal
character upon which the Amendment insists.
(xiv) That the accused shall have adequate opportunity of being heard in defence of the charge brought
against him.
(xv) But in cases, where the person alleges that his reputation is affected and before the reputation is
affected, he should be afforded procedural due process was not accepted. The court developed the
change-in-legal-status-equals-loss of liberty rule and held “reputation alone” apart from some more
tangible interest such as employment is neither liberty nor property, by itself sufficient to invoke the
procedural protection of Due Process clause.77.
(xvi) In cases, where no liberty interest is involved, as in the case where a prisoner is being shifted from a
medium security prison to a maximum security prison, the procedural due process has no
application.78. But in a case where a prisoner is being shifted from a prison to a mental asylum on a
State physician finding that the prisoner suffers from a mental disease or disorder that cannot be
treated and equally in prison, the prisoner is entitled to procedural due process. It was held that
“because of prisoner”, “residium of liberty” would be infringed by transfer to a mental hospital. This loss
of residual liberty was the result of the stigma of commitment to a mental hospital, the possibility of
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compelled drugging and behaviour modification treatment and the lesser freedom permitted to mental
patients.79.
(xvii) In the case of denial of parole, procedural due process has no application since it is the refusal to
exercise discretion to confer a benefit. But a “revocation” of parole implicated a constitutional liberty
interest, for which the principle will apply.80.
(xviii) To determine whether the due process requirements apply in the first place, the court has to
consider “not to the weight”, but to the “nature of interest” at stake. To have a property interest in a
government benefit, one must have more than a unilateral expectation of it. It must have a legitimate
claim of entitlement to it. Property rights are not created by the Constitution. Rather they are created
and are defined by existing rules or understandings that stem from an independent source such as a
State law—rules or understandings that secure certain benefits and support claim of entitlement to
those benefits. In a case, a person who was appointed for a fixed term challenged the termination on
the expiry of term. Rejecting the claim the court held, there is no scope of application of procedural due
process doctrine.81.
Article 8 of American Convention on Human Rights read as follows:
“Right to a Fair Trial.—(1) Every person has the right to a hearing, with due guarantees and within a reasonable time,
by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of his rights and obligation, of a civil, labor,
fiscal or any other nature.
(2) Every person accused of a criminal offence has the right to be presumed innocent so long as his guilt has not been
proved according to law. During the proceedings, every person is entitled, with full equality, to the following minimum
guarantees:
(a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand
or does not speak the language of the tribunal or court;
(b) prior notification in detail to the accused of the charges against him;
(c) adequate time and means for the preparation by his defence;
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(d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing,
and to communicate freely and privately with his counsel;
(e) the inalienable right to be assisted by counsel provided by the State, paid or not as the domestic law provides,
if the accused does not defend himself personally or engage his own counsel within the time period
established by law;
(f) the right of the defence to examine witnesses present in the court and to obtain the appearance, as witnesses,
of experts or other persons who may throw light on the facts;
(g) the right not to be compelled to be a witness against himself or to plead guilty; and
(h) the right to appeal the judgment to a higher court.
(3) A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.
(4) An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same
cause.
(5) Criminal proceedings shall be public, except in so far as may be necessary to protect the interests of justice.
Article 6 of European Convention on Human Rights says:—
Right to a Fair Trial.—(1) In the determination of his civil rights and obligations or of any criminal charge against
him, every one is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following rights –
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(a) to be informed promptly, in a language which he understands and in details, of the nature and cause of
the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has no sufficient
means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or to have examined witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 10 of Universal Declaration of Human Rights says: “Everyone is entitled to full equality to a fair and
public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him”.
Article 11(1) says: “Everyone charged with a penal offence has the right to presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.
(ii). Substantive Due Process
(I) The foremost substantive application of the Due Process Clause to annul criminal legislation comes from the
conflict of a criminal law with the rights guaranteed by the First Amendment, e.g., the freedom of speech and of
the press;82. freedom of assembly;83. freedom of association,84. either because the restriction was excessive
or because the danger was not “clear and present” so as to justify the restriction or because the means adopted
had no substantial relation to the object to be achieved. These aspects have been fully explained under Article
19.
(II) The same principles have been applied to hold that “mere public intolerance or animosity cannot
constitutionally justify the deprivation of a person’s physical liberty.”85. Thus,
(i) Though the State would be justified in confining dangerous lunatics or like persons, to prevent injury to
the public, to ensure his own survival or to cure his illness,86. it cannot constitutionally confine, without
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more, a mentally ill person who is not dangerous to any one and can live safely in freedom by himself
or with the help of family members or friends.87.
(ii) A person cannot be punished for exercising his legal or constitutional rights merely because it is
“annoying” to others.88. Unless the “fighting words” are used, which are likely to provoke the average
person to retaliation and thereby cause a breach of peace,89. an expression of ideas cannot be
prohibited or punished merely because the ideas,90. or the language used,91. organizations,92.
themselves are offensive to some of the hearers, or simply because bystanders object to peaceful and
orderly demonstration.93. Mere apprehension of disturbance is not enough to overcome the right to
freedom of expression.94. Peaceful and orderly opposition to government by legal means cannot be
made punishable.95.
(III) Another corollary from the “Due Process” concept in the realm of criminal proceedings is that no man can
be punished for violation of a law which is vague, i.e., which is not definite96. as to the act prohibited; in such a
case, the statute will be void. The court may annul a statute if it is vague.1. Vagueness implies that the law does
not provide an “ascertainable standard” of guilt.2. If a man of common intelligence is unable to determine
whether or not he is committing a crime, then such law is vague.3.
In Krishian v Board of Regents,4. it was pointed out that a law fails to meet the requirements of due process
clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or
leaves judges and jurors free to decide without any legally fixed standards, what is prohibited and what is not in
each particular case. Certainly one of the basic purposes of Due Process clause has always been to protect a
person against having the Government to impose burden upon him except in accordance with a valid law of the
land. Implicit in this constitutional safeguard is a promise that the law must be one that carries an
understandable meaning with legal standards that the court must enforce.5.
Though this rule has an affinity to the procedural requirement that no man can be punished on a charge which
is not “specific” (which we have already noticed), the instant principle should be classified as substantive “Due
Process” because it does not relate to the procedure for the trial of an accused, but cuts at the root by striking
at the law which substantively created the offence.
It may be explained as follows:
A criminal statute which is either vague6. or gives contradictory commands,7. offends Due Process.
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Vagueness may invalidate a criminal law for either of two independent reasons—(1) it may fail to provide the
kind of notice that will enable ordinary people to understand what conduct it prohibits; (2) it may authorise an
even inaccurate arbitrary and discriminatory enforcement. The test is whether a law identifies prohibited
conduct with reasonable clarity to a person of normal intelligence.8.
It follows from the requirement of “notice”9. that the law should—(a) clearly provide that it shall be an offence to
do or to fail to do, the acts specified therein; and also (b) clearly indicate those to whom it applies.
Legislation may run afoul of the due process clause because it fails to give adequate guidance to those who would be
law-abiding, to advise defendants of the nature of the offence with which they are charged, or to guide courts in trying
those who are accused.6
I. If a statute fails to give notice of what acts will be punished, the statute itself will be unconstitutional,10. and a
specification of the details of the offence in the charge will not serve to validate the statute.11.
A statute also offends “Due Process” if it is so broad as to prohibit an act which is constitutionally protected.12.
It is one of the basic principles of Anglo-American jurisprudence that a man can be punished only on a specific
charge and that accordingly no punishment can be sustained where the terms of the statute that creates the
offence are not reasonably certain.13. A restriction cannot be said to be reasonable if it is so vague or wide as
to include within its sweep not only conduct which the Constitution empowers the State to suppress, but also to
punish the lawful exercise of a fundamental right guaranteed by the Constitution.14. In Smith v Goguen,15. the
court invalidated as vague a State law that made it a crime to treat the US flag contemptuously in public. The
ban did not “draw reasonably clear lines” between the kinds of non-ceremonial treatment that are criminal and
those that are not. Moreover, the court stated that when a statute impinges upon expression, they will be held
to “a greater degree of specificity” in order to avoid invalidation as vague.
In Coates v Cincinnati,16. the court struck down as facially invalid a State law that made it unlawful for three or
more persons to assemble on public side-walks and conduct themselves in a manner annoying the persons
passing by. Court said that the law was unconstitutionally vague because it subjects the exercise of the right of
assembly to an unascertainable standard and unconstitutionally broad because it authorises the punishment of
constitutionally protected conduct. It was vague because what constitutes “annoyance” is inherently subjective
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and variable standard. It was overbroad because to paraphrase JUSTICE HARLAN in Cohen v California17.
“one person’s annoyance is another’s delight and the First Amendment prohibits muzzling expression merely
because it might offend a passerby”.
Applying the above tests, the court has invalidated statutes imposing criminal sanctions—
(a) For the exaction of “unjust or unreasonable” charges for “necessaries”.18.
(b) For showing films of such character as to be prejudicial to the “best interests of the people”.19.
(c) For printing, publishing, etc., of printed matter containing “criminal news, … .or stories of deeds of
bloodshed, lust or crime.”20.
(d) For committing acts injurious to the “public morals”.
II. As to the vagueness relating to the persons to whom a criminal statute is applicable,—the court has
invalidated a statute which sought to penalise as a “gangster” any person “not engaged in any lawful
occupation, known to be a member of any gang consisting of or more persons, who has been convicted....”, for
want of a definition of “gangster” either in the statute or in common law.
III. Though the principle that “ignorance of law” is no excuse21. is acknowledged in the U.S.A. and it is also
competent for the Legislature to make the commission of an act an offence irrespective of a requirement of the
knowledge that such act constitutes an offence,22. in the matter of an offence constituted by an omission or
failure to do an act, e.g., failure to get oneself registered in a State,23. it has been held that it would be a
violation of due process to provide that the omission will constitute an offence even when a person fails to do
the act prescribed without knowing that it constitutes an offence.24.
IV. The court will not, on the other hand, invalidate a statute for vagueness if the language used in the statute—
(a) has a well-settled meaning which is commonly known;25. or a technical meaning known to those who
are affected by the statute;26. or
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(b) may be clarified by reference to, well-developed common-law concepts27. or when viewed “in its
statutory setting”;28. or
(c) has been interpreted by court already;29.
(d) requires a specific intent to constitute an offence.30.
The doctrine of vagueness does not, in other words, require “impossible standards of specificity”.31. What the
rule of certainty demands is “no more than a reasonable degree of certainty”.32. All that is required is that the
language conveys a sufficiently definite warning as to the prescribed conduct when measured by common
understanding and practices.33.
Thus, the court has refused to invalidate a statue which penalises—
(i) the pasturing of sheep on any public domain “range” “usually occupied by any cattle grower”;34.
(ii) the coercion of an employer to employ persons “in excess of the number of employees needed to
perform actual services;”35.
(iii) work in excess of the prescribed maximum hours except in case of emergency;36.
(iv) a “conspiracy in restraint of trade”;37.
(v) a material that is “obscene, lewd, lascivious or filthy”,37 “obscene or indecent”,38.
even though these words were not defined or explained.
The statute, in short, will fail if it does not give a “fair notice or warning” to the individual and a reasonably clear
guidance to the law enforcement officials.
In general, when the act prohibited relates to a right protected by the First Amendment (i.e., a fundamental
right), the court would demand a more definite standard than in the case of conduct which is not constitutionally
protected;39. when civil, as distinguished from military personnel, are affected.40.
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A provision may be precise, but overbroad. In one case, the court voided as overbroad a provision that public
school teachers declare annually every organisation to which the teacher belonged or contributed. Though law
was precise, it had a sweeping and chilling effect on school teacher’s right to association which is protected
under free expression guarantee. Conversely a statute may be vague, but not overbroad. A law that prohibits
“any public speech that is not protected by federal or State constitution” is “not overbroad”—it does not prohibit
any protected speech, but may be vague. The ordinary person must probably guess about the boundaries of
constitutionally protected speech.41.
What is the concept of “Substantive Due Process”?
According to MASSEY, “some liberties not mentioned in the Constitution but identified by the court are
considered so fundamental to the idea of liberty that their invasion by government is presumed to be void and
can be sustained only if the government justifies the invasion. Substantive due process, thus is simply the
major doctrinal part of a larger constitutional enterprise of judicial protection of fundamental, but unwritten
rights. The court has extended constitutional protection, not always using due process, to such fundamental
rights as the right to associate with others, the right to note, the right to be accorded equal protection of the
laws by the federal government, the right to be presumed to be innocent and to have that presumption
overcomes only by proof beyond reasonble doubt, the right to interstate migration, the right to marry or not, the
right to have children or not, and the right to enjoy a zone of personal privacy or autonomy into which the
government may not intrude.
Substantive due process has two eras. First era was an era, now repediated, in which economic regulation
covering private property and contracts were struck down as offensive to an unwritten liberty to contract. The
second era, still continuing, is one in which the government regulation of intimate relationships or decision have
been invalidated. The case of substantive due process is the idea that some laws invade life, liberty or property
in such a fashion that they cannot be considered valid law.42.
In Treatise on Constitutional Law,43. “Substiantial Due Process” is concerned with the ability of the Judiciary to
review the substance legislation. By “substantive review”, we mean the judicial determination of the
compatibility of the substance of a law or governmental action with the Constitution. The court is concerned with
the constitutionality of the underlying rule rather than the fairness of the process by which the government
applies the rule to an individual. Every form of review other than that involving procedural due process is a form
of substantive review.” Because of the guarantee of due process in the State in the 5th and 14th Amendments,
the police power of the State must be exercised subject to the constitutional limitations including due
process.44. The result is that the regulation which may legitimately be imposed by the State in the exercise of
police power, to safeguard collective interests must not be arbitrary or oppressive.45.
In Muglar v Kansas,46. while enunciating the doctrine of substantive due process, it was held as follows: “It
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does not follow at all that every statute enacted ostensibly for the promotion of these ends, is to be accepted as
a legitimate exertion of the police powers of the State. If therefore a statute purporting to have been enacted to
protect public health, public morals or the public safety have no real or substantial relation to those objects or is
a palpable invasion of rights secured by fundamental law, it is the duty of court to so adjudge and thereby give
effect to the Constitution”.
In Meyer v Nebraska,47. the court invalidated a State law prohibiting the teaching of any modern language
other than English in any public or private school. In Pierce v Society of Sisters,48. the court invalidated a State
statute requiring students to attend public rather than private schools. The court held that the statute
“unreasonably interferred” with the liberty of parents and guardians to bring the upbringing and education of
children under their control.
Following this decision in NAACP v Albama,49. it was observed that “a government purpose to control or
prevent activities constitutionally subject to State regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedom.50. The court immdiated a law which
prohibits any person to use “any drug, medicinal article or instrument for the purpose of preventing conception”.
It was held that this law offends the right to privacy and intimate marital relationship.”
In a concurring judgment, JUSTICE HARLAN observed: “Due Process has not been reduced to any formula; its
content cannot be determined by reference to any code. The best that can be said is that through the course of
this courts decisions it has represented the balance which our Nation, built up on postulates of respect for the
liberty of the individual, has struck between that liberty and demands of an organised society. If the supplying of
content of this constitutional concept has of necessity been a rational process, it certainly has not been one,
where judges have felt free to decide where unguided speculation might take them. The balance of which I
speak is the balance struck by the county, having regard to what history teaches are tradition from which it
developed as well as the tradition from which it broke. That tradition is a living thing … ”
The liberty guaranteed by Due process is not a series of isolated points represented by the Bill of Rights. It is a
rational continuum which broadly speaking includes freedom from all substantial arbitrary imposition and
purposeless restraints and which also recognises what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the State needs asserted to justify their abridgment … ”
Habeas Corpus
Habeas corpus means a court order that is based upon a determination that one in custody is being detained
contrary to due process and that commands the custodian of the prisoner to deliver the prisoner up for the
court.51.
Apart from the “Due Process” Clause, the other safeguard for the protection of personal liberty in the U.S.A., as
in England, is the remedial writ of habeas corpus, by which the guarantee of “due process” is enforced in cases
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of deprivation of personal liberty. The power to issue the writs was assumed by the courts in the American
colonies as an incident of English common law, so much so that the framers of the national Constitution did not
think it necessary to insert any provision in the Constitution, specifically conferring this power. On the other
hand, it was assumed that the power exists and in Article I, section 9(2), what was sought to be guarded
against was a suspension of this writ.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the
public safety may require it.
Thus, though habeas corpus is a procedural remedy, it constitutes a substantive limitation against the Legislature.
Article 9 of the International Covenant and Article 5 of the European Convention, after prohibiting arbitrary or
unlawful detention, provided that a person who has been detained by the State is entitled to take proceedings
by a court by which the lawfulness of his detention shall be decided and his release ordered if the detention is
not lawful.
The exercise of this jurisdiction by the Federal Courts is governed by statute. The Judiciary Act, 1789, gave the
Federal Courts the power to issue the writ (inter alia) of habeas corpus “agreeable to the principles and usages
of law”. The jurisdiction of the American Federal Courts is wider than that of the English courts, by reason of the
wide language of a statute of 1867 (Habeas Corpus Act) which lays down that the Federal Courts shall have
power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation
of the Constitution, or of any treaty or law of the United States.
As a result of this—
(a) A Federal Court may issue the writ even in cases where person is detained in execution of a sentence
imposed by a court of competent jurisdiction52. and up to the moment of execution of a death
sentence.53.
(b) Since the writ exists for the protection of the Constitution, the court has a responsibility in this matter
whenever a violation of the Constitution is alleged.53
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The proponent before the court is not the petitioner but the Constitution of the United States.53
If the court is satisfied as to the violation of “due process”, neither delays54. nor technicalities and forms55. may
stand in the way of issuing the writ.
Writ of habeas corpus was issued in cases, where a person though convicted to death penalty, same was
found by the court to be unconstitutional, because it was racially discriminatory.56.
In the U.S.A., it is established that in a criminal case, the accused is entitled to have a collateral review of
conviction on the ground of violation of his fundamental rights in an application for habeas corpus, even when
he did not appeal from his conviction or did not take any constitutional question, in the appeal, if any filed.57.
Habeas corpus will be issued when the guarantee of due process was violated because the court threw the
burden of proving his defence or innocence on the accused, and the conviction was solely based on coerced or
involuntary confession58. or when the conviction was prompted by mob domination and racially
discriminatory59. or was otherwise tainted by unfairness60. or that he was denied the right to counsel which is
violative of 6th Amendment61. or when the equal protection of 14th Amendment was violated by a
discriminatory selection of the Jury.62.
(C) Eire.—
Article 40(4) of the Constitution of 1937 says:
No citizen shall be deprived of his personal liberty save in accordance with law.
“Save in accordance with law” has been interpreted to mean “in accordance with the law as it exists at the time
when the Article is sought to be invoked”.63.
Eire
The view of DUFFY, J.,64. that “law” in the above Article, meant law which was consistent with the constitutional
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guarantees and not any law enacted by the Legislature, was not supported by the Supreme Court, on a
reference by the President.63
In the result, this provision (like Article 21 of our Constitution) is no safeguard against the Legislature itself.
Article 38(1) of the Constitution of Eire says: “No person shall be tried of any criminal charge save “in due
course of law”. The said Constitution does not use the expression “due process of law”. It uses the analogous
expression “due course of law” which has been interpreted by the court in much the same way as “due process”
as importing a “fair procedure”.65. “Due course of law” has been interpreted to include the following:—(a) The
court must be independent and impartial; (b) The accused must be adequately informed of the nature and
substance of the charge; (c) The accused must have the right to cross-examine the prosecution witnesses and
also to give evidence in his defence and to the assistance of a lawyer for his defence at State expense when
such assistance is required because of the seriousness of the charge and his lack of education.66. (d) The
accused shall have the presumption of innocence and the onus of proving the guilt shall be on the
prosecution.67. A statute which permitted the accused to be held guilty of an offence on the basis of his
previous conviction for another offence was struck down by Supreme Court.68. (e) A person cannot be
convicted on the basis of incriminating statements made while he was in unlawful custody.69. (f) A non-minor
offence must be made by jury.70.
While Article 38(1) of Constitution of Eire deals with the stage of trial for an offence, Article 40(4) (extracted
earlier) deals with pre-trial stage. In the former state, the Constitution insists on due process at the stage of
suspicion or investigation, still the Constitution is merely insisting that there must be authority of law enacted by
the Legislature before a person may be arrested or detained. In short, Article 40(4) is merely a guarantee
against arbitrary arrest or detention by the Executive or the police. Not only should there be a legal sanction,
but the terms of the statute must have been fully complied with in order to justify an arrest.71. Again, the court
would strike down a statute which prevented an arrested person from challenging the validity of his arrest on
the ground of contravention of Article 40(4). The court has, in general, condemned “preventive detention”
without trial on the ground that such detention amounts to punishment so as to attract Article 38(1) except in an
emergency.72.
(D) West Germany.—
Article 2(2) of the West German Constitution (1948) declares:
Everyone shall have the right to life and physical inviolability. The freedom of the individual shall be inviolable, These
rights may be interfered with only on the basis of the legal order.
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West Germany
Though the freedom of life and liberty guaranteed by the above Article may be restricted, such restriction will be
valid only if it is in conformity with the “legal order” (or “pursuant to a law”, according to official translation).
Being a basic right, the freedom guaranteed by Article 2(2) is binding on the legislative, administrative and
judicial organs of the State [Article 1(3)]. This gives the individual the right to challenge the validity of a law or
an executive act violating the freedom of the person by a constitutional complaint to the Federal Constitutional
Court, under Article 93.
Procedural guarantee is given by Articles 103(1) and 104. Article 104(1)-(2) provides:
(1) The freedom of the individual may be restricted only on the basis of a formal law and only with due
regard to the forms prescribed therein....
(2) Only the Judge shall decide on the admissibility and continued deprivation of liberty.
These provisions correspond to Article 21 of our Constitution and the court is empowered to set a man to liberty
if it appears that he has been imprisoned without the authority of a formal law or in contravention of the
procedure prescribed therein.
Article 103(1) goes beyond Article 12 of our Constitution by ensuring “due process” in a judicial hearing:
Everyone brought before a Court shall have a claim to proper legal hearing.
Under Article 104, a person whose liberty, is infringed is entitled to be brought before a court and in the court he
is entitled to a “fair hearing”. If, therefore, the trial does not conform to the standard of a fair hearing, the
aggrieved individual can have the judgment annulled on that ground by a constitutional complaint to the Federal
Constitutional Court.
(E) Japan.—
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Japan
Article XXXI of the Japanese Constitution of 1946 says:
No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according
to procedure established by law.
This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine
or forfeiture within its ambit.
(F) Canada.—
Canada
I. Section 1(1) of the Canadian Bill of Rights Act, 1960, adopted the “Due Process” Clause from the American
Constitution. But the difference in the Canadian set-up was due to the fact that this Act was not a constitutional
instrument to impose a direct limitation on the Legislature but only a statute for interpretation of Canadian
statutes, which, again, could be excluded from the purview of the Act of 1960, in particular cases, by an
express declaration made by the Canadian Parliament itself (section 2). The result was obvious: The Canadian
Supreme Court held73. that that the Canadian Court would not import “substantive reasonableness” into section
1(a), because of the unsalutary experience of substantive due process in the U.S.A.; and that as to “procedural
reasonableness”, section 1(a) of the Bill of Rights Act only referred to “the legal processes recognized by
Parliament and the Courts in Canada”. The result was that in Canada, the “due process clause” lost its utility as
an instrument of judicial review of legislation and it came to mean practically the same thing as whatever the
Legislature prescribes,—much the same as “procedure established by law” in Article 21 of the Constitution of
India, as interpreted by Gopalan.74.
II. The foregoing shortcomings of the Bill of Rights Act, 1960 have been removed in 1982.
In 1982, Canada adopted the Canadian Charter of Rights and Freedoms, and incorporated it as Pt I of the
Canada Act, 1982,75. which was a Constitution Act enacted by the British Parliament, by way of amending the
British North America Act, 1867.
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After some controversy, in 1984, the Canadian Supreme Court has established judicial review founded on the
Charter,76. on the ground that it is a constitutional document as distinguished from an ordinary statute, and that
by reason of section 52(1) of the Canada Act, 1982, any law inconsistent with the Charter would be void, unless
saved by section 1 which permits of reasonable limits.77. Decisions under the Bill of Rights, 1960, therefore, are
not binding authority for interpretation of the Charter.78.
(G) Bangladesh.—
Bangladesh
Article 32 of the Constitution of Bangladesh, 197279. says:
No person shall be deprived of life or personal liberty save in accordance with law.
This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by some other
provision, it should be interpreted as in India.
Article 9. Right to Life and Liberty

(H) Pakistan.—
Pakistan
Article 9. Right to Life and Liberty.—
“Security of Person : No person shall be deprived of life or liberty save in accordance with law.” Pakistan
Constitution uses the expression “in accordance with law” and it has not adopted the expression “due process”
as in American Constitution or procedure established by law as provided in Article 21 of the Indian Constitution.
The European Convention on Human Rights uses a number of variants such as “prescribed by law”, as
provided by law, established by law, in accordance with law and the European Courts of Human Rights has
held that the phrases “prescribed by law” and “in accordance with law” must be given an identical interpretation
in order to ensure that Articles 8 and 10 (privacy/freedom of expression) can be read as a coherent whole.80.
(I) Nepal.—
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Nepal
In the 1962—Constitution of Nepal, there was Article 11(1) which was identical with Article 21 of the Indian
Constitution.
[ART 21.2] INTERNATIONAL CHARTERS (A) Universal Declaration, 1948.—
Article 3 of the Universal Declaration says:
Everyone has the right to life, liberty and security of person.
Article 9 provides:
No one shall be subjected to arbitrary arrest, detention or exile.
Clause 10 says:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against him.81.
Article 9(l) of the U.N. Covenant on Civil and Political Rights, 1966 says:
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Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No
one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established
by law.
Subsidiary rights and safeguards in relation to life and personal liberty are guaranteed by Articles 6–7, 10-11,
as follows:
Article 6.—1. Every human being has the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the
most serious crimes in accordance with the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of
the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a
competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall
authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under
the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death, shall have the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and
shall not be ‘carried out on pregnant women’.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State
Party to the present Covenant.
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Article 7.—No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentations.
Article 10.—1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be, segregated from convicted persons and shall be
subject to separate treatment appropriate to their status as unconvicted persons.
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation
and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to
their age and legal status.
Article 11.—No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
(C) European Convention on Human Rights, 1950.—
European Convention
This Convention contains a most elaborate and detailed codification of the rights and safeguards for the
protection of life and personal liberty against arbitrary invasion, in various Articles:
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Article 2 .—(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article, when it results from the use of
force which is no more than absolutely necessary—
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
As far as UK is concerned, the main “right to life” issues involve acts of terrorism and the right of unborn child.
The question whether an unborn child has a right to life and comes within the meaning of the word “life” has not
until now been settled under the Convention. It has been argued that “everyone” connotes a person who comes
within the exception laid out in Article 2 which assumes that such a person is already born.
Article 3.—No one shall be subjected to torture or to inhuman or degrading treatment or punishment.82.
Article 3 places freedom from torture and inhuman treatment as one of the most fundamental rights of a citizen
and in fact puts these rights at a higher priority than the right to life. Article 2 allows to have death penalty and
also places right to life in the balance against other lawful interests. By contrast, the rights under Article 3 are
given unqualified protection. Unlike almost all other articles, there are no exceptions in Article 3 and derogation
from these rights is impossible for a State even in times of war or national emergency. In Ireland v UK,83. it was
specified that “ill-treatment” must attain a minimum level of severity and the assessment of this minimum
depends on all circumstances of the case and in some cases the sex, age and state of health of the victim, etc.
The article intentionally distinguishes between torture and inhuman and degrading treatment, the first of these
being considered the most detrimental and serious. “Torture” may be defined as “deliberate inhuman treatment
or punishment causing very serious and cruel suffering”. It is the level of intensity and cruelty which will
determine whether or not the treatment amounted to torture.84. In Aydin v Turkey, the court said that an
authorised rape constituted a torture and referred to the act as “especially grave and abhorrent”. Apart from
physical injuries, consideration must be given to the mental problems which accompany such horrible
experience. Wall-standing i.e., standing on their toes with their legs and feet apart for hours against a cell wall,
“loading” i.e., putting a bag over the internees’ head throughout most of their period of imprisonment, subjecting
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a person to continuous load and hissing noises depriving the person of continual sleep, depriving the persons
of sufficient nourishment, etc. were held as torture. Such practices on detainees were held to be degrading, and
causing intense physical and psychological suffering during questioning constituted inhuman treatment under
Article 3.85.
In regard to inhuman and degrading punishment under Article 3, the humiliation or debasement involved must
attain a particular level of severity; it depends on all the circumstances of the case and in particular on the
matter and context of the punishment itself and the manner and method of execution. A factor which the court
will take into account is its deterrent effect. Court said that legal inflicting of corporal punishment by those in
authority constituted an attack on a person’s dignity and physical integrity which Article 3 sought to protect. In
Ireland’s case, the court sentenced a boy of fifteen years age to receive three strokes of the birch, who was
found guilty to assault charges, which the boy admitted. The punishment was carried out in police station. Court
said that the possible psychological problems from having to wait six weeks before the sentence was carried
out and being over the table with his buttocks naked to receive the punishment from strangers all contributed to
the court’s conclusion that “the element of humiliation attained the level inherent in the notion of degrading
punishment which is violative of Article 3”.86.
Article 5.—(1) Everyone has the right to liberty, and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order
to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholic or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country
or of a person against whom action is being taken with a view to deportation or extradition.
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(2) Everyone who is arrested shall be informed promptly, in a language, which he understands, of the reasons
for his arrest and of any charge against him.
(3) Everyone arrested or detained in accordance with the provisions of para 1(c) of this Article shall be brought
promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for
trial.87.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is
not lawful.
(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article
shall have an enforceable right to compensation.
Article 6.—(l) In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so require or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice.88.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of
the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
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(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.
[ART 21.3] INDIA [Art 21.3.1] Scope of Article 21
Right to life is the most fundamental of all human rights, and any decision affecting human life, or which may
put an individual’s life at risk, must call for the most anxious scrutiny.89. The sanctity of human life is probably
the most fundamental of the human social values. It is recognized in all civilized societies and their legal system
and by the internationally recognized statements of human rights.90. The object of Article 21 is to prevent
encroachment upon personal liberty by the Executive, save in accordance with law.91.
In a United Nations Report on Human Rights prepared by MR. EL HADJI GUISSE, it has been said: “Individual
economic, social and cultural rights are essentially the right to work and the right to adequate food, health,
housing and education. There is no doubt that those rights rest on the most important right of all, namely, the
right to life. They all revolve around and centre on this right, if by “life” is everything that contributes to the
continued existence and improvement of the humans’ condition. In the view of some people, these rights
constitute an idea to be achieved i.e., they are not immediately claimable. This view is incorrect since these
rights have a firm legal foundation and can be claimed at any moment and their violation punished”.92.
Originally it was held that the question of livelihood is included only in the freedoms enumerated in Article 19
particularly Cl. (g) or even in Article 16 in a limited sense; but the word “life” in Article 21 does not include
livelihood.93. But this view has been changed by subsequent decisions. It has now been held in a series of
cases that right to livelihood is included in the right to life “because no person can live without the means of
living, i.e., the means of livelihood”.94. Right to livelihood is an integral part of right to life under Article 21
although it has not been incorporated by specific language in Pt III by the framers of the Constitution. The
framers of the Constitution, in the Preamble to the Constitution, guaranteed to secure to its citizens justice,
social, economic and political as well as equality of status and opportunity. While interpreting the scope of
National Rural Employment Guarantee Act, 2005, the court said that the Act has clearly placed the “right to
livelihood” at a higher pedestal than a mere legal right.95. While considering the scope of Building and other
Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, the court said that the
enabling provision which empowers the Central & State Governments to constitute Welfare Boards to provide
and monitor social security schemes and welfare measures for the benefit of building and other construction
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workers recognises the right to live with basic human dignity enshrined in the Indian Constitution. The Act
regulates the employment and conditions of service.96. While reiterating the right to livelihood as an integral
facet of right to life, the court said that when an employee is afflicted with an unfortunate disease due to which
he is unable to perform the duties of the post he is holding, the employer must make every endeavour to adjust
him in a post in which the employee would be suitable to discharge the duties.1. The right to wages of seamen,
as right to wages of any employee is an integral part of the right to livelihood and is entitled to protection of
Article 21.2. In M. Paul Anthony v Bihar Gold Mines Ltd.,3. the court insisted that when a government servant or
one in public undertaking is suspended pending the holding of a departmental inquiry against him, subsistence
allowance must be paid to him. Court emphasised that a government servant does not surrender his right to life
under Article 21 or other basic human rights. Non-payment of subsistence allowance is an inhuman act which
has an unpropitious effect on the life of an employee.4. If the right to livelihood is not treated as part and parcel
of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him
of his means of livelihood to the point of abrogation. Any person who is deprived of his right to livelihood except
according to just and fair procedure established by law, can challenge the deprivation as offending the right to
life conferred by Article 21.5.
A person who is denied minimum wages by law can possibly contend that apart from violation of statutory
rights, it also constitutes violation of human right. But a person who is being paid above minimum statutory
wage, claiming higher remuneration for a desired better standard of living can hardly contend that it constitutes
violation of human right. By its very nature, such a claim is relative in nature to the status of the person
claiming. The Constitution maintains a subtle distinction with regard to human rights under Chapter III dealing
with fundamental right to life under Article 21 and prohibition of “Begar” and other similar forms of forced labour
under Article 23. That payment of desired wages could never constitute violation of a fundamental right finds
reflection in Chapter IV, Directive Principles of State Policy. Article 39(a) only provides for adequate means of
livelihood. Likewise, Article 43 talks of living wages only. It says that denial of a claim for higher remuneration
by a labourer cannot constitute violation of a fundamental right to life under Article 21 of the Constitution.6.
Right to get minimum wages is included in the right to life. Non-payment of minimum wage is a breach of Article
23 also.7.
Right to life is one of the basic human rights and not even the State has the authority to violate that right.8.
Article 21 is a repository of all important human rights, essential for a person or a citizen and when there is a
natural calamity, the State as guardian of people is obliged to provide support to the victim to save their lives.9.
It is also the duty of the State to create a climate where members of society belonging to different faiths live
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together and the State has a duty to protect the life of all and if it unable to do so, it cannot escape the liability to
pay compensation.10. The State is obliged to protect the life of every person and could not shake off its hands
on the ground that it is a case of exception where a policeman under grave provocation acted violently causing
death of a person.11.
Article 21, though couched in a negative language, confers on every person the fundamental right to life and
personal liberty.12. Foreigners are also entitled to these rights as citizens, i.e., life and liberty.13. The two rights,
i.e., life and liberty have been given paramount importance by the court.14. It was held that these twin attributes
enjoy a fundamental ascendancy over all other attributes of the political and social order and consequently, the
Legislature, the Executive, and the Judiciary are more sensitive to them than to other attributes of daily
existence. Right to life and personal liberty are compendium terms which include a variety of rights and
attributes. The expanded meaning includes the right to hold a particular opinion, to sustain and to nurture that
opinion.15.
Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter
III of this Constitution, personal liberty of man is at the root of Article 21 and each expression used in this article
enhances human dignity and values. It lays foundation for a society where rule of law has primacy and not
arbitrary or capricious exercise of power.16.
While examining the width, scope and content of the expression “personal liberty” in this Article, it was held that
the term is used in this Article as a compendious term to include within itself all varieties of rights which goes to
make up the “personal liberties” of man other than those dealt within several clauses of Article 19(1). While
Article 19(1) deals with the particular species or attributes of that freedom, “personal liberty” in Article 21 takes
on and comprises the residue.17.
Personal liberties may be compendiously summed up as the right to do as one pleases within the law, because
liberty is not unbridled licence. It is called regulated freedom. MONTESQUIEU in his book Spirit of the Laws18.
said: “In Governments, that is, in societies directed by laws, liberty can consist only in the power doing what we
ought to will, and in not being constrained to do what we ought not to will. We must have continually present to
our minds the difference between independence and liberty. Liberty is a right of doing whatever the law permits
and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow
citizens would enjoy the same power”.
“Liberty is the creation of law, essentially different from the authorised licentiousness that trespasses on right. It
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is a legal and refined idea the offspring of high civilisation, which the savage never understands and never can
understand. Liberty exists in proportion to wholesome restraint, the more restraints on others to keep-off from
us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws. … The working
of our complex system, full of checks and restraints on legislative, executive and judicial power is favourable to
liberty and justice. These checks and restraints are so many safeguards set around individual rights and
interests. That man is free is protected from injury”.19.
The early approach to Article 21 which generates right to life and personal liberty was circumscribed by literal
interpretation.20. But in course of time, the scope of this application of the articles against arbitrary
encroachment by the Executive has been expanded by liberal interpretation of the components of the article in
tune with the relevant international understanding. Thus, protection against arbitrary privation of “life” no longer
means mere protection of death, or physical injury, but also an invasion of the right to “live” with human dignity
and would include all these aspects of life which would go to make a man’s life meaningful and worth living,
such as his tradition, culture and heritage.21.
Giving a very liberal interpretation to this article it was held: “The right to live with human dignity and same does
not connote continued drudging. It takes within its fold some process of civilization which makes life worth living
and expanded concept of life would mean the tradition, culture, and heritage of the person concerned.”22. The
expression “personal liberty” is used in a compendious term to include within its a variety of rights of a person
which go to make up “personal liberty” of an individual.23. The minority view in Kharak Singh’s case (supra)
said: “No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an
attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and
therefore the expression ‘personal liberty’ in Article 21 excludes the attribute. In our view, this is not the correct
approach. Both are independent fundamental rights, though there is overlapping. There is no question of one
being carved out of another. The fundamental right of life and personal liberty has many attributes and some of
them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely
upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid
down in Article 19(2), so far as the attributes covered by Article 19(1) are concerned”. In Satwant Singh
Sawhney v Asst. Passport Officer,24. the court said: “Liberty in our Constitution bears the same comprehensive
meaning as is given to the expression ‘liberty’ by the 5th and 14th Amendments to the US Constitution, and the
expression ‘personal liberty’ in Article 21 only excludes the ingredients of liberty enshrined in Article 19 of the
Constitution. In other words, the expression ‘personal liberty’ in Article 21 is the right of locomotion and to travel
abroad, but the right to move throughout the territories of India is not covered by it in as much as it is
specifically provided in Article 19”. In R.C. Cooper v UOI,25. the court accepted the minority view in Kharak
Singh’s case and held that the majority view must be held to have been overruled. As per this decision, which
was given by full court, the fundamental rights conferred by Pt III are not distinct and mutually exclusive rights.
Each freedom has different dimensions and merely because the limits of interference with one freedom are
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satisfied, the law is not free from the necessity to meet the challenge of another guaranteed freedom. The view
of the minority was accepted as correct in Maneka Gandhi v UOI,26. wherein JUSTICE BHAGAVATI said: “The
expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to
constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental
rights and given additional protection under Article 19”.
In Suchitha Srivastava v Chandigarh Admn.,27. the court observed that strict boundaries of personal liberty
cannot be identified, but at the same time mandates that such liberty must also accommodate public interest. A
woman’s right to make reproductive choices has been held to be a dimension of “personal liberty” within the
meaning of Article 21. Court said that it is important to recognise that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that the woman’s right to privacy,
dignity and bodily integrity should be respected. The court however said that there is also a “compelling State
interest” in protecting life of the prospective child and termination of pregnancy could only be permitted under
the conditions specified in the Medical Termination of Pregnancy Act, 1971. In that case, an orphan woman of
age of 19–20 years who was already suffering from mild mental retardation was found pregnant while staying in
a Government-run Welfare Institution. The Punjab & Haryana High Court directed termination on the basis of
report by an expert Committee, though the woman was desirous to have the child.
In view of the liberal interpretation given to the Article, the Constitution Review Commission had recommended
the following amendment to Article 21. The Review Commission took into consideration the Universal
Declaration of Human Rights 1948 and also the provisions of the International Covenant as Civil and Political
Rights 1966 (ICCPR) for this said purpose.
[Art 21.3.2] Review Commission Recommendations28. ‘3.9 Rights against torture and inhuman, degrading
and cruel treatment and punishment
Torture and inhuman, degrading and cruel treatment and punishment grossly violate human dignity. The Supreme
Court has implied a right against torture, etc. by way of interpretation of Article 21 which deals with the right to life and
liberty. The Universal Declaration of Human Rights 1948 and the ICCPR prohibit such acts in Article 5 and Article 7
respectively.
It is, therefore, recommended that the existing Article 21 may be re-numbered as Clause (1) thereof, and a new clause
(2) should be inserted thereafter on the following lines :
(2) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
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Right to compensation for being illegally deprived of one’s right to life or liberty
3.10 Right to compensation for being illegally deprived of one’s right to life or liberty
Article 9(5) of the ICCPR states, “any one who has been victim of unlawful arrest or detention shall have an
enforceable right to compensation.” In D.K. Basu, the Supreme Court of India held that the reservation made by India
to this clause while acceding to the convention does not come in the way of the court’s awarding compensation in the
cases of illegal arrest or detention. The High Courts in India has also been awarding compensation.
It is, therefore, recommended as under:-
After Clause (2) in the Article 21 as proposed in para 3.9, a new Clause (3) should be added on the following lines :
(3) Every person who has been illegally deprived of his right to life or liberty shall have an enforceable right to
compensation.
Right to travel abroad and return to one’s country
3.11 Right to travel abroad and return to one’s country
The Supreme Court has spell out in Articles 14 and 21 the right to travel abroad and return to one’s country. Again, the
right finds a place in Article 13(2) of the Universal Declaration of Human Rights, 1948 as well as in Articles 12(2), (3)
and (4) of the ICCPR.
It is, therefore, recommended that after Article 21, a new Article, say Article 21-A should be inserted on the following
lines:
21-A. (1) Every person shall have the right to leave the territory of India and every citizen shall have the right to return
to India.
(2) Nothing in Clause (1) shall prevent the State from making any law imposing reasonable restrictions in the interests
of the sovereignty and integrity of India, friendly relations of India with foreign states and interests of the general public.
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3.12 Right to Privacy
The Supreme Court has included “Right to Privacy” in the Right to “Life” under Article 21.
It is, therefore, proposed that a new Article, namely Article 21-B should be inserted on the following lines:
21-B. (1) Every person has a right to respect for his private and family life, his home and his correspondence.
(2) Nothing in Clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise
of the right conferred by Clause (1), in the interests of security of the State, public safety or for the prevention of
disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.
3.13 Right to Work
3.13.1 It is in the rural sector that widespread poverty, under-employment, malnutrition, lack of access to health care
and oppressive social customs that bear down heavily on women and children create a social landscape of appalling
misery. It is here major action plan has to be launched to create additional jobs to enhance incomes of those at the
bottom rung of the social ladder and to create the physical and social infrastructure of a vibrant economy.
3.13.2 The Commission, therefore, recommends that a new Article say Article 21-C may be added to make it obligatory
on the State to bring suitable legislation for ensuring the right to rural wage employment for a minimum of eighty days
in a year.
3.14 Preventive Detention
3.14.1 Article 22(3)(b) permits “preventive detention” and the rule in Clause (2) of Article 22 which requires production
before the nearest magistrate within 24 hours does not also apply in such cases. No doubt, several preventive
detention laws have been upheld by the courts. But, being detention without trial, there is a view that such a detention
is a negation of the rule of law and the principles of fair trial. The arrest is supposed to be made on the basis of
information that the person is likely to commit some serious offences. There are complaints that this law is misused
quite frequently.
3.14.2 While the Commission does not propose to recommend deletion of clauses dealing with preventive detention
under Article 22, it recommends the following changes :-
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(i) The first and second provisos and Explanation to Article 22(4) as contained in section 3 of the Constitution (44th
Amendment) Act, 1978 should be substituted by the following provisos and the said section 3 of the 1978 Act as
amended by the proposed legislation should be brought into force within a period of not exceeding three months :-
Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the
Chairman and the other members of the Board shall be serving judges of any High Court :
Provided further that nothing in this clause shall authorize the detention of any person beyond a maximum period
of six months as may be prescribed by any law made by Parliament under sub-clause(a) of clause (7).
(ii) In clause (7) of Article 22 of the Constitution, in sub-clause (b), for the words “the maximum period”, the words “the
maximum period not exceeding six months” shall be substituted.’
1. The words “except according to procedure established by law” suggest that Article 21 does not apply where a
person is detained by a private individual and not by or under authority of the State; no fundamental right is infringed
when the detention complained of is by a private individual. Article 32 also cannot be invoked in such a case.29. [But a
petition under Article 226 would lie; see post.]
2. But the protection of the article extends to all “persons”, not merely citizens,30. including even persons under
imprisonment (as regards restrictions imposed in jail).31.
3. It also applies to preventive detention, under Article 22, post.
It was held that while interpreting the Constitution, especially Article 21, the provisions of the International
Covenant and Declaration as adopted by the United Nations have to be respected by all signatory States and
the meaning given to the provisions of these Declaration and Covenants have to be such as would help in
effective implementation of those rights. The applicability of the Universal Declaration of Human Rights and the
principles thereof may have to be read, if need be, with domestic jurisprudence. According to the tenor of the
language used in Article 21, it will be available not only to every citizen of this country, but also to a “person”
who may not be a citizen of this country. Even those who are not citizens of this country, and come here as
tourists or in any other capacity will be entitled to the protection of their lives in accordance with the
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constitutional provision. Just as the State has to protect the life of every citizen within the country, so also the
State is under an obligation to protect the life of a person “who lives in India” though they are not citizen.32. A
foreigner who has not acquired Indian citizenship, though not entitled to the protection article, is entitled to
protection under Article 21.33.
A prisoner though lodged in jail continues to enjoy all his fundamental rights including the right guaranteed
under Article 21. On being convicted of crime and deprived of their liberty in accordance with the procedure
established by law, prisoners still retain the residue of constitutional rights.34.
In Kalyan Chand Sarkar v Rajesh Ranjan alias Pappu Yadav,35. the court observed that a convict or under-trial
who disobeys the laws of the land cannot contend that it is not permissible to transfer him from one jail to
another because the Jail Manual does not provide for it. If the factual situation requires that the transfer of a
prisoner from one prison to another, be he a convict or under-trial, the court is not a helpless bystander when
the rule of law is being challenged with impunity. The arms of law are long enough to remedy the situation even
by transferring a prisoner from one prison to another. Exercising the right under Article 142, the Supreme Court
directed that the under-trial prisoner be transferred outside the State even though the Jail Manual did not
provide for it.
“Life” in Article 21 of the Constitution has the extended meaning given to the word and those citizens who are
detained in prison either as under-trials or as convicts are also entitled to the benefit of guarantee subject to
reasonable restriction. It is guaranteed to every person and not even the State has any authority to violate the
right merely because the person is an under-trial or a convict. The prisoner, whether an under-trial or convict,
does not cease to be a human being. Even when lodged in jail, he continues to enjoy all his fundamental rights
including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of
their liberty in accordance with procedure established by law, prisoners still retain the residue of constitutional
rights.
Thus, the fundamental rights which also include basic human rights continue to be available to a prisoner and
these rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign
acts which have been rejected by various decisions.36.
In a case, as a result of plea bargaining, the accused pleaded guilty and the trial court awarded a light
punishment. But on appeal, the sentence was enhanced. The Supreme Court objected to the enhancement of
the sentence by the appellate court. The court emphasised that it would be violative of Article 21 to induce or
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lead an accused to plead guilty under an assurance that he would be let off lightly and then in appeal or
revision to enhance the sentence. If the appellate court feels that the sentence is disproportionately low, it
should set aside the conviction and remand the case for trial, so that the accused can defend himself if he so
wishes. It would not be reasonable, fair and just to act on the plea of guilty for the purpose of enhancing the
sentence.37. It has been observed that the right of an accused to watch the prosecution witnesses deposing
before court of law has not yet been accepted as a fundamental right within the meaning of Article 21 of the
Constitution. In the absence of such an express provision in the Constitution as such, one has to proceed on
the premise that such a right is only of a statutory character.38.
In the U.S.A., it has been held that the suffering inflicted upon a prisoner which is unrelated to or in excess of
the requirement of security, order and rehabilitation amounts to cruel punishment as well as an affront to the
prisoner’s human dignity.39.
The Universal Declaration of Human Rights professed that “no one shall be subjected to torture, cruel, inhuman
or degrading treatment or punishment”. The legal resources of prisoner’s right strengthen the declaration and
the guarantee in Article 10 of the Covenant. The definition of Human Rights under section 2(d) of the Protection
of Human Rights Act, 1993 (PoHRA) expressly includes the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution of India or embodied in the International Covenant on Economic,
Social and Cultural Rights adopted by the General Assembly of the United Nations in 1966. The PoHRA was
enacted to provide for better protection of human rights and for matters connected therewith or incidental
thereto. Constitution of National Human Rights Commission and State Human Rights Commission in the States
is for this purpose. Section 12 of the PoHRA enables the Commissions to inquire suo moto or on a petition
presented to it by a victim or any person on his behalf, into complaint of violation of human rights or abetment
thereof or negligence in the prevention of such violation by a public servant. It is significant that another function
of the Commission specifically mentioned in section 12 is to visit any jail or any other institution where persons
are detained or lodged for purpose of treatment, reformation or protection, to study the living conditions of the
inmates and make recommendation thereof. In this manner, prisoner’s rights have statutory recognition as
human rights and provision is made for their better protection and supervision by an autonomous body of high
status. Thus, by these provisions alone, prisoner’s rights are recognised as enforceable human rights.
Article 21 of the Constitution of India guarantees right to life with dignity for every individual. In a catena of
decisions of the Supreme Court of India, prisoner’s rights have been read into the guarantee under Article 21.
The Supreme Court has also held in Vishaka v State of Rajasthan,40. that provisions of international
instruments and norms can be read into justiciable fundamental rights for filling gaps, if any, or enlarging the
scope thereof as a canon of statutory construction unless there is any inconsistency between them. It is
obvious that the wide meaning given to “right to life” and “personal liberty” guaranteed by Article 21 is to include
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therein “life with dignity”, i.e., every aspect of human life unless it be inconsistent with the need for
incarceration, and makes it also a prisoner’s right to which he is entitled to under Article 21. “Right to live with
dignity” is the quintessence of human right and this is the express constitutional guarantee in India under Article
21.
Several International Conventions, guidelines and rules exist to ensure humane treatment to the prisoners. In
its General Comment on Article 10 of ICCPR, the Human Rights Committee held that it supplements Article 7
on torture. For all persons deprived of their liberty, the prohibition of treatment contrary to Article 7 (on
prohibition, on torture etc.) is supplemented by the positive requirement of Article 10(1) of the Covenant that
they shall be treated with humanity and with respect for the inherent dignity of the human person. Detention of
persons in prisons is a part of administration of justice. The subject of human rights and administration of
justice, therefore, deals with the protection of persons in prisons. Standard Minimum Rules for the Treatment of
Prisoners; Code of Conduct for Law Enforcement Officials; Standard Minimum Rules for Administration of
Juvenile Justice; Convention Against Torture, etc. of the United Nations are all international instruments dealing
with protection of persons in prisons as a part of the human rights in the administration of justice. Even without
any express domestic legislation to make them part of the domestic law, these provisions dealing with the
human rights of prisoners, by virtue of Vishaka judgment (supra) have all become a part of constitutional
guarantee under Article 21.
The wide expanse of these provisions provides a solid legal foundation to prisoner’s right and leave no doubt
that every prisoner is entitled to the same, and the human rights, even of a prisoner, are curtailed only to the
extent necessary because of the incarceration. It has to be remembered that a person is sent to prison as
punishment for the offence of which he is found guilty or is facing trial and not for punishment independent of
that cause. Accordingly, a prisoner is entitled to all human rights within the limitation of incarceration.
A brief account of some of the above international instruments is useful. Standard Minimum Rules for the
Treatment of Prisoners, as the title indicates, are the minimum conditions which are expected as suitable by the
United Nations. These rules require that different categories of prisoners shall be kept separate, their
accommodation shall meet all requirements of health, etc. Every prisoner is to be provided separate and
sufficient clean bedding and food of adequate nutritional value, special care of women prisoners would be
taken, prisoners shall be allowed contact with outside world and the prison administration would comprise of
suitable professionals sensitive to the needs of prisoners. These are the stated minimum conditions which must
invariably be satisfied. The rights of the prisoners emanate from these duties of the detaining authority.41.
The decision in P. Rathiram v UOI42. held section 309 of IPC as violative of Article 21. The decision was over-
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ruled in Gian Kaur v State of Punjab,43. wherein it was held that “Right to life” is a natural right embodied in
Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of “right to live”. When a man commits suicide, he has to undertake certain
positive overt acts and the genesis of these acts cannot be traced to or be included with the protection of the
right to life under Article 21. This significant aspect is also not to be overlooked. Article 21 which guarantees
“protection of life” cannot be construed so as to read therein “extinction of life” or “right to die”, whatever may be
the philosophy of permitting a person to extinguish his life by committing suicide. In that case, the court,
however, appears to have approved passive euthanasia by holding that one may, in a given case, have “a right
to die” with dignity as a part of “right to live” with dignity. A person having death knocking at the door because of
his terminal illness or extreme old age and where death is imminent and the process of death has already
commenced, may deny or may be denied any further medical aid so that his suffering may not be prolonged,
because these are not cases of extinguishing life, but only accelerating conclusion of the process of natural
death which has already commenced. This may fall within the concept of right to live with human dignity when
his life is ebbing out and cannot be equated with the right to die an unnatural death curtailing the natural span
of life.44.
From Article 21, the Supreme Court has deduced an affirmative obligation to preserve human life – which
extends to the medical staff of a Government Hospital. The court would annul any law or regulation which
interferes with this duty.45.
Since the right to live would include the right to a reasonable accommodation which is necessary for the
development of the personality of every human being, reading it together with the Directive Principles of State
Policy in Article 46, the court has spelt out a duty of the State so as to utilise the surplus lands under Urban
Land Ceiling Act, such that every member of Weaker Section of the society should be provided with a
reasonable home.46.
[Art 21.3.3] Articles 14, 19 and 21
It is now settled that the validity of a law coming under Article 21 must be tested also with reference to Articles
14 and 19.47.
It was held in Maneka Gandhi’s case that the expression “personal liberty” in Article 21 is of the widest
amplitude and it causes a variety of rights which go to constitute the personal liberty of man and some of them
have been raised to the status of distinct fundamental rights and given “additional protection” under Article 19.
Any law interfering with personal liberty of a person must satisfy a triple test: (1) it must prescribe a procedure;
(2) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19
which may be applicable to a given situation; and (3) it must also be liable to be tested with reference to Article
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14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing
interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary,
fanciful or oppressive. If the procedure prescribed does not satisfy the requirements of Article 14, it would be no
procedure at all within the meaning of Article 21.48. In Maneka Gandhi’s case it was further observed that the
fundamental rights embodied in Pt III of the Constitution are not to be viewed as distinct and mutually exclusive.
On the other hand, lack thereof has different dimensions and merely because the limits of interference with
freedom is satisfied, the law is not freed from the security to meet the challenge on other guaranteed freedoms.
Reliance was placed on this decision.49.
The term “liberty” which is subject to reasonable restrictions needs to be examined with reference to other
constitutional rights. Article 21 is the foundation of the Constitutional Scheme. The procedure established by
law for deprivation of right conferred by this article must be fair, just and reasonable. The rules of justice and
fair play require that State action should neither be unjust nor unfair, lest it attract the vice of unreasonableness,
thereby vitiating the law which prescribed that procedure and consequently, the action taken thereunder. Any
action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the
application of two standards – first, the action must be within the scope of the authority conferred by law and
second, the action must be reasonable. If any action, within the scope of the authority conferred by law is found
to be unreasonable, it means the procedure established under which the action is taken is itself unreasonable.
The law itself has to be reasonable and furthermore, the action under the law has to be in accordance with the
law so established. Non-observance of either of these can vitiate the action, but if the former is invalid, the latter
cannot withstand. The concept of “procedure established by law” changed its character after the judgment in
Maneka Gandhi v UOI.50. In that case, the court took the view that “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 and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary,
fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be
satisfied”. In M.H. Hoskot v State of Maharashtra,51. it was observed that “procedure established by law” are
words of deep meaning for all lovers of liberty and judicial sentinels.52. In Cooper’s case, it was observed that
right to personal liberty in Article 21 must be read with Article 19 and Article 14, whenever necessary with a
view to strengthen the right to personal liberty and to overcome the weakness of the guarantee of “procedure
established by law”. The earlier decision in A.K. Gopalan v State of Madras,53. which held that certain articles
in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the
individual’s guaranteed rights, the object and the form State action alone need be considered and the effect of
the laws on the fundamental rights of the individuals in general will be ignored, was held as not correct. In State
of W.B. v Anwar Ali Sarkar,54. the special procedure prescribed for trial was struck down whereas in Kathi
Raning Rawat v State of Saurashtra,55. similar law was upheld. But in both cases, it was held that the
procedure established by law by the special law must not be violative of the equality clause.56.
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The main difference in the concept of personal liberty between the case of A.K. Gopalan and today is that the
new needs of a person for liberty in the different spheres of life can now be claimed as a part of personal liberty
under Article 21 and these personal liberties cannot be restricted either by legislation or by law except satisfying
Articles 14 and 19.57.
The decision in Maneka Gandhi v UOI,58. completely overrides the decision taken in A.K. Gopalan v State of
Madras,59. which held the field for nearly three decades. Since Maneka Gandhi, the Supreme Court has again
and again underlined the theme that Articles 14, 19 and 21 are not mutually exclusive, but they “sustain,
strengthen and nourish each other”.60. A detenu under preventive detention has the right to publish his book
written on a scientific subject and the authority cannot restrain him from writing a book without any specific legal
provision. The refusal of the permission was held unconstitutional being violative of Article 21, read with Articles
14 and 19.61.
In Special Courts Bill,62. the court, following Maneka Gandhi, held that the procedure must be right, just and fair
and not arbitrary, fanciful and oppressive. Court further said that the Bill requires three modifications – (1) there
should be a provision for transferring cases from one Special Court to another; (2) the sitting judge of the High
Court should be appointed in the place of a retired judge, and lastly (3) instead of consultation with the Chief
Justice, there should be provision for his concurrence to the appointment of the presiding Judge.
But at the same time Article 21 is not attracted in the case of trade or business and the right to carry on any
trade or business in the concept of life and personal liberty within Article 21 are too remote to be combined
together.63. Eviction of street hawkers will not amount to deprivation of their right to livelihood or violation of
Article 21.64. In regard to cases of loss caused due to financial transaction undertaken by individuals with open
eyes, an argument of breach of Article 21 cannot be accepted.65.
[Art 21.3.4] Articles 21 and 22
See under Article 22, post.

[Art 21.3.5] Articles 21 and 33: Applicability to the Armed Forces
As to the applicability of Article 21 to members of the Armed Forces, see under Article 33, post.
[Art 21.3.6] Articles 21 and 359
See under Article 359, post.

[Art 21.3.7] Object of Article 21
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1. Prior to the decision in 1978 in Maneka’s case,66. Article 21 was construed narrowly only as a guarantee
against executive action unsupported by law.67.
2. But Maneka’s case 66 opened up a new dimension and laid down that it imposed a limitation upon law
making as well,68. namely, that while prescribing a procedure for depriving a person of his life or personal
liberty, it must prescribe a procedure which is reasonable, fair and just.68
Hence, in each case where a person complains of the deprivation of his life or personal liberty, the court, in the
exercise of its constitutional power of judicial review, has to decide whether there is a law authorising such
deprivation and whether, in the given case, the procedure prescribed by such law is reasonable, fair and just,
and not arbitrary, whimsical and fanciful.68
3. After the 1978 decision in Maneka’s case,66 thus, there has been or round-about-turn in the interpretation of
this Article as will appear from the various captions below.
[Art 21.3.8] Persons
1. While the rights under Article 19 are confined to citizens, the protection of Article 21 is extended to all
“persons”, including foreigners.69. But the right of foreigners are confined to the article for life and liberty and do
not include the right to reside or stay in India. It was held that the power of Government to expel foreigners is
absolute and unlimited and there is no provision in the Constitution fettering its discretion and the executive
government has unrestricted right to expel a foreigner. The principle of right to be heard may not fully apply in
the matter of identification of a foreigner and his deportation since he is not deprived of his life or personal
liberty. The deportation proceedings are not proceedings for prosecution, where a man may be convicted and
sentenced.70.
2. Though the word “person” indicates an individual, through “public interest litigation” under Articles 32 or 226,
collective rights of the people have come to be enforced under Article 21.71.
[Art 21.3.9] Deprived
1. In Gopalan’s case,72. it was held that Article 21 was attracted only in cases of “deprivation” in the sense of
“total loss” and that, accordingly, it had no application in case of a restriction upon the right to move freely,
which came under Article 19(l)(d).72
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2. The foregoing view has, however, been modified by later decisions to the effect that Article 21 would require
authority of law for restrictions on personal liberty, e.g.—
(i) Interference with the freedom of movement e.g., by domiciliary visits by the Police at night.73.
(ii) Interference with the right of a prisoner in jail to publish a book outside the jail.74.
(iii) Any other restriction imposed while in jail, which is not authorised by law.74
3. “Deprived” does not mean that the Court is powerless to interfere with an imminent threat to the freedom of
life or personal liberty, and must wait until the person has actually been taken into custody.75. Use of the word
“deprive” in Article 21 is of great significance. According to the dictionary it means “debar from enjoyment”;
prevent (child, etc.) from having normal home life. Since deprivation of right of any person by the State is
prohibited except in accordance with procedure established by laws, it is to be construed strictly against the
State and in favour of this person whose rights are affected.76.
The words “deprived” and “deprive” have been used in the 5th and 14th American Amendments. According to
Black’s Law Dictionary, (6th Edn.) deprivation means a taking away or confiscation as the deprivation of a
constitutional right or taking of property under eminent domains without “due process of law” (i.e., without just
compensation) and “deprivation of property” means that Due Process guarantee which is abridged when
government takes private property without just compensation except under extraordinary circumstances of the
police power, though for deprivation of property there is not required an actual, physical taking for private or
public use. Even a temporary deprivation of property constitutes deprivation within the meaning of the
Fourteenth Amendment.
Blackstone says personal liberty consists in the power of locomotion of changing one’s situation, or removing
one’s person to whatever place one’s inclination may direct without imprisonment or restraint unless by due
course of law. The definition implies that certain qualifications and limitations rest upon this power, which are
known to the law and enforced by it without infringing upon constitutional liberty.77.
4. But in order to constitute “deprivation”, there must be some direct, overt and tangible act which threatens the
fullness of the life of a person or members of the community, as distinguished from vague or remote acts
threatening the quality of life of people or at large.
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Even if the deprivation of livelihood is temporary or non-final, nonetheless it is a deprivation for the purpose of
this article.78.
But if a person is alleged to have deceived millions of countrymen who have invested their entire life’s saving in
fictitious and frivolous companies promoted by the accused and thousands of cases are pending against him in
different parts of the country, he cannot at all complain of infraction of Article 21 of the Constitution on the
ground that he is not being able to be released out of jail custody in view of different production warrants issued
by different courts. Issuance of production warrant by the court and production of accused in court in cases
where he is involved is a procedure established by law and consequently, accused cannot be permitted to
complain of infraction of rights under Article 21 of the Constitution. It would be a misplaced sympathy of the
court on such white collared accused person whose acts of commission and omission have ruined a vast
majority of citizens of the country.79.
Article 21 is not restricted to violation of right to life and liberty committed by State above, but it is also to be
protected from being interfered with by private individuals.80. But it is held that Article 21 cannot be enforced
against a private person.81.
The Supreme Court has evolved the right to compensation in cases of established unconstitutional deprivation
of personal liberty or life though there is no express provision with the Constitution for grant of compensation for
violation of fundamental right of life.82. It was held therein that the defence of sovereign immunity is not
available in such cases. The compensation that is awarded in public law is summary in nature and does not
prevent the claimants from recovering full civil damages in tort under the same wrong, though of course the
sum awarded in public law would be reduced from the amount finally awarded in a suit for compensation.83.
Claim for compensation is also available to prisoners, under-trials and detenus since right under Article 21
cannot be kept in abeyance. Allowing police to violate fundamental right of such persons would amount to
anarchy and lawlessness which cannot be permitted in a civilised society.84.
Reduction in age of superannuation does not amount to “deprivation” of livelihood.85. Abolition of part time
village officer posts or by ceasing to be holders of these posts, they are not “deprived” of life and liberty.86. The
right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too
remote to be connected together. The right to carry on trade or business is not covered by Article 21.87. Though
right to life is protected under Article 21, and does protect livelihood, but its “deprivation” cannot be extended
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too far or projected or stretched to the avocation, business or trade injurious to public interest or have insidious
effect on public morale or public order.88.
At the same time, it cannot be said that in a case of compulsory retirement, the provisions of Article 21 have to
be observed.89. But the right of the employee to continue in employment is a fundamental right and it cannot be
taken away except in accordance with law.90. Where deprivation of property would lead to deprivation of life or
liberty or livelihood, Article 21 would come into action, and any such deprivation without just payment of
compensation would amount to infringement of right guaranteed thereunder.91.
A regulation conferring power on the authority to terminate the services of a permanent and confirmed
employee by issuing a notice without assigning any reason and without giving him a hearing has been held to
be wholly arbitrary and violative of Article 21 in Delhi Transport Corpn v DTC Mazdoor Congress.92. The Court
explained the position thus: “The right to life” includes the right to livelihood. The right to livelihood therefore
cannot hang on to the fancies of individuals in authority. The employment is not a bounty for them nor can its
survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole
source of income, the right to work becomes as much fundamental. Fundamental rights can ill afford to be
consigned to the limbs of undefined premises and uncertain application. That will be a mockery of them”.
In M. Paul Anthony v Bihar Gold Mines Ltd.,93. the court insisted that when a government servant or one in a
public undertaking is suspended pending the holding of a departmental inquiry against him, subsistence
allowance must be paid to him. The court emphasised that a government servant does not surrender his right to
life under Article 21 or the basic human rights. Non-payment of subsistence allowance is an inhuman act which
has an unpropitious effect on the life of an employee.94. At the same time, the court acknowledged that what
should be the salary structure to lead a life with human dignity is a difficult exercise and cannot be measured in
absolute terms. In the absence of any material on record to show that the salary currently paid is so low that
they are not able to maintain their living having regard to the post which they are holding, a complaint of
violation of Article 21 cannot be sustained.95. Side by side, with the right to means of livelihood while a person
is able to work, there arises a question of maintaining him by old age pension while he is no longer able to
work. This obligation has been drawn by the Supreme Court from the object of social justice in the Preamble
and Directive Principles in Article 41.96. This has enabled the court to have a new look at the pension available
to government servants which was during British days regarded as a bounty.97.
Article 21 does not confer a fundamental right to carry on any means of livelihood at any place of one’s
choice.98. It means, however, that slum dwellers can be removed only under a just procedure.99.
[Art 21.3.10] Life
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According to JUSTICE FAZAL KARIM in his book on JUDICIAL REVIEW OF PUBLIC ACTIONS1. the right to
life has been so expanded as to include, for example, the right to legal aid, the right to speedy trial, the right to
basic necessities of life, protection against adverse effects of electro-magnetic fields, the right to pure and
unpolluted water, the right access to justice, etc..
Right to life embodies several aspects of life and it includes “opportunity”.2. Hence before a person’s reputation
is likely to be affected, he must be heard even if the same is passed by the High Court.
The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal
interpretation in A.K. Gopalan v State of Madras.3. But, in course of time, the scope of this application of the
article against arbitrary encroachment by the Executive has been expanded by liberal interpretation of the
components of the article in tune with the relevant international understanding. Thus, protection against
arbitrary privation of “life” no longer means mere protection from death or physical injury, but also invasion of
the right to “live” with human dignity and would include all those aspects of life which would go to make a man’s
life meaningful and worth living, such as his tradition, culture and heritage.4. The right to live with human dignity
and the same does not connote continued drudging. It takes within its fold some process of civilisation which
makes life worth living and the expanded concept of life would mean the tradition, culture and heritage of the
person concerned.5.
The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is the
repository of all human rights essential for a person or a citizen. A fruitful and meaningful life pre-supposes life
full of dignity, honour, health and welfare. In the modern “Welfare Philosophy” it is for the State to ensure these
essentials of life to all the citizens, and if possible to non-citizens. While invoking the provision of Article 21 and
by referring to the oft-quoted statement of JOSEPH ADISON “Better to die ten thousand times than wound my
honour”, the Supreme Court in Khedat Mazdoor Chetna Sangath v State of MP,6. posed to itself a question “If
dignity or honour vanishes, what remains of life?” This is the significance of right to life and personal liberty
guaranteed under the Constitution of India in its Pt III.7.
In the Magna Carta, it is stated: “No free man shall be taken or imprisoned or disseized or outlawed or banished
or in any way destroyed nor will the King pass upon him or commit him to prison, unless by the judgment of his
peers or the law of the land”. In R v Secy. of State for the Home Dept. ex parte Bugdaycay,8. it was held that
right to life is the most fundamental of all human rights and any decision affecting human rights or which may
put an individual’s life at risk must call for the most anxious scrutiny. The sanctity of human life is probably the
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most fundamental of all human social values. It is recognised in all civilised societies and their legal systems
and by the internationally recognised statements of human rights.9.
Privacy and dignity of human life have always been considered as the fundamental rights of every human being
like any other key values such as freedom of association and freedom of speech. Therefore, every act which
offends or impairs human dignity tantamounts to deprivation pro tanto of his right to live and the State action
must be in accordance with reasonable, fair and just procedure established by law which stands the test of
other fundamental rights.10.
In Chameli Singh v State of U.P.,11. it was held that in an organized society, right to live as a human being is
not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to
develop himself and is freed from restrictions which inhibit the growth. All human beings are designed to
achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent
environment, education, medical care, and shelter. These are basic human rights known to any civilised
society. Shelter for human being is not a mere protection of his life and limb. It is the house where he has
opportunities to grow physically, mentally, intellectually, and spiritually. Right to shelter includes adequate living
space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity,
sanitation and other civic amenities like roads etc., so as to have easy access to his daily avocation … want of
decent residence, frustrates this very object of constitutional animation of right to equality, economic justices,
fundamental right to residence, dignity of person and right to live itself.12.
Former Chief Justice of India J.S. VERMA in one of his lectures13. has observed: The right to life with dignity is
a recognized fundamental right under Article 21 of the Constitution of India and it is a basic human right
inherent in human existence which is not the gift of any law. The law merely recognized an inherent right and is
not its source. In this connection, it is better to take into consideration the distinction between the human right
and civil liberty. In the book,14. the learned authors EDWIN SHORTS & CLAIRE DE THAN have made a
distinction between the two, i.e., human right derived from natural law and other from positivistic (State made)
law. In essence, it amounts to the distinction between a political right and natural right. The learned authors
further go on to say thus:
Human rights are those that have derived from natural law which have evolved out of natural rights; rights
inherent to people by virtue of their being human and being of a moral and rational nature and having a
common capacity to reason. This comprises a core base of basic guarantees, including the right to life; freedom
from torture or inhuman or degrading treatment or punishment; freedom from slavery, servitude, and forced
labour; the right to free movement (mobility); and, the right to food and shelter.
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These are very basic rights that are necessary for a human being to survive in the world at large. For being
subjected to torture or forced labour is not conducive to survival. On a more basic level, being deprived of the
right to seek food or shelter will invariably deprive one of his or her capacity to survive. Hence, today’s notion of
human rights has descended from that of natural laws which have evolved as a part of natural rights. They are
positivistic in the sense that the State has contracted a deal with its citizenry, and they are more natural in
origin.
The words “life” and “personal liberty” are used in Article 21 as compendious terms to include within themselves
all varieties of life which go to make up the personal liberties of a man and not merely the right to the
continuance of a person’s animal existence. All these aspects of life, which make a person live with human
dignity are included within the meaning of the word “life”. The State has a duty to enforce the human rights of a
citizen providing for fair and impartial investigation against any person accused of commission of a cognizable
offence which may include its own officers. Article 21, in its broad application, not only takes within its fold
enforcement of the rights of an accused, but also rights of the victim. In certain situations, even a witness to the
crime may seek for and shall be granted protection by the State. The right to life and personal liberty is
paramount. Likewise, if Articles 14 and 19 are put out of operation, Article 32 will be drained of its blood.15.
Right to enjoyment of a good reputation is protected equally with the right to enjoyment of life, personal liberty
and property. The term “person” includes not only the physical body and members, but also every bodily sense
and personal attribute among which is the reputation a man has acquired. Reputation can also be defined to be
good name, the credit, honour or character which is derived from a favourable public opinion or esteem and
character by report. The right to enjoyment of a good reputation is a valuable privilege of ancient origin and
necessary to human society. Republic is an element of personal security and is protected by the Constitution
equally with the right to enjoyment of life, liberty and property.16. Reputation has been held to be a necessary
element in regard to right to life of a citizen under Article 21 of the Constitution. The International Covenant on
Civil and Political Rights 1966 recognises the right to have opinion and the right of freedom of expression under
Article 19 of the Constitution is subject to the right of reputation of others. Reputation is not only the salt of life,
but also the purest treasure and most precious perfume of life.17. Right to reputation is a facet of right to life
and is inseparable.18. In Om Prakash Chautala’s case, the court relied on an earlier decision in Kiran Bedi v
Committee of Inquiry19. wherein the court reproduced the following observation from the decision in D.F.
Marison v Davis20. which said: “The right to the enjoyment of a private reputation, unassailed by malicious
slander is of ancient origin. A good reputation is an element of personal security and is protected by the
Constitution equally with the right to the enjoyment of life, liberty and property”.21.
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In another case, the court said: “The reverence of life is insegregatably associated with the dignity of human
being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms
when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive
soul. The essence of dignity can never be treated as momentary spark of light or for that matter a brief candle
or a hollow bubble. The spark of life gets more resplendent when man is treated with dignity sans humiliation,
for, every man is expected to lead an honourable life which is a splendid gift of creative intelligence. When a
dent is created in the reputation, humanism is paralysed.22.
[Art 21.3.11] Civil Liberties
Civil rights, or civil liberties, on the contrary are positivistic in nature. They are rights which the State has
contracted with its citizens and are political in nature. State-made, and State enforced rights of this nature are
now synonymous with what are known as civil liberties. Such rights would include the right to participate in free
elections or perhaps the right to a fair and impartial hearing when accused of a criminal offence. Civil liberties of
this nature are based on the western notion of democracy and are permitted by laws enacted by respective
governments.
But despite the fact that there is a generally accepted concept of democracy within the developed world, there
are many variations thereon. For example, the British concept of civil liberties is slightly different from that in
America. The caution given upon arrest serves as an excellent example to illustrate this point. In Britain, the
right to silence is somewhat fettered in that adverse inferences may be drawn if that individual fails to mention
something at the time of arrest that he or she later relies on in his or her defense. In America, this is unheard of;
indeed, civil libertarians would construe such a proposition as an affront to their civil liberties as absurd. This
example illustrates that civil liberties are political in nature and to an extent, societally contextual within a given
democracy. A human right, on the other hand, is very different, for the right to life, food and shelter is very basic
regardless of whether one is in the United States or the UK. It is not based on a democratic notion which is
couched in political ideology. Instead, it is very rudimentary and pragmatic in nature.
[Art 21.3.12] Human Rights and Civil Liberties: Inextricably Linked
Although the author makes a distinction between human rights and civil liberties, it is important to note that they
are indeed inextricably linked. There is a seamless web where one sometimes folds into the other. So if
someone is denied a fair trial by an independent and impartial tribunal, they are denied their civil rights as
guaranteed by the State. But, if they are imprisoned for this and thus denied their freedom of movement or
subjected to servitude (for no legitimate reason) then they are being denied their basic human rights as well.
There is a cross-words effect between civil liberties and human rights. As a result of this overlap many theorists
and practitioners would not make a distinction between human rights and civil liberties. For it is often difficult to
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tease out the differences between the two. Seeing that the two concepts are so inextricably linked, today they
have virtually become one.23.
It is also relevant to note that the Protection of Human Rights Act, 1993, which is most exhaustive, defines
human rights as under:
“Human rights’ means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by courts of India.”
It includes rights like equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth, equality of opportunity in matters of public employment, freedom of speech and expression,
freedom to form associations or unions, to practice any profession, to carry on any occupation, trade or
business, protection of life and personal liberty, prohibition of traffic in human beings and forced labour, right to
freedom of religion, protection of interests of minorities etc. International documents, namely, Universal
Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on
Economic, Social and Cultural Rights and other International Treaties and Declarations as also various
Resolutions have widened the scope of human rights and all the rights associated with human beings, directly
or indirectly, have come within the ambit of the term. All such rights must be respected, acted upon and
implemented by all civilized nations. These rights include human dignity, personal freedom, equality before law,
equality of opportunity in matters of employment, private or public protection of privacy, the right not to be
subjected to torture or other cruel, inhuman or degrading treatment or punishment, prohibition of discrimination
on grounds of race, caste, colour, sex, language, religion, political and other opinion, national or social origin,
property, birth or status, freedom of speech and expression, freedom to assemble peacefully, freedom to form
associations and unions, freedom to move freely, freedom to reside anywhere, freedom to practice any
profession, freedom to carry on any occupation, trade or business, protection of life and personal liberty, right
against exploitation, prohibition of traffic in human beings and forced labour, prohibition of employment of
children in factories etc., right to freedom of religion including freedom of faith, conscience, creed and free
profession, practice and propagation of religion, freedom to manage religious affairs, freedom as to attendance
at the religious instructions or religious worships in certain educational institutions, protection of interests of
minorities, right of minorities to establish and administer educational institutions, women’s rights, namely,
improving their status and standing in the society, their civil, political, social, economic, sexual and cultural
rights, rights of elimination of all forms of discrimination against women, provision for healthy healthcare, rights
of children, such as parental guidance, separation from parents, family reunification, illicit transfer and non-
return, abuse, and neglect, recovery and reintegration, periodic review of placement into foster care, basic
health and welfare, the survival and development of the child, disabled children, social security and childcare
services and facilities, education, including vocational training and guidance, leisure, recreation and cultural
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activities, special protection measures, children in situations of emergency, refugee children, children in armed
conflicts, including physical and psychological recovery and social reintegration, children in conflict with the law,
the administration of juvenile justice, children deprived of their liberty, including any form of detention,
imprisonment or placement in custodial settings, the sentencing of juveniles, in particular, the prohibition of
capital punishment and life imprisonment, children in situations of exploitation, including physical and
psychological recovery and social reintegration, economic exploitation, including child labour, drug abuse,
sexual exploitation and sexual abuse, sale, trafficking and abduction of children belonging to a minority or an
indigenous group, other human rights, such as right to development, protection against death penalty,
protection to refugees, right to constitutional and other legal remedies as also fair trial, right to franchise, right to
environmental protection, right to health and medical care, standard of living, protection of wild life, fauna and
flora, etc. Thus human rights include all civil, political, economic, social and cultural rights as enshrined in
various international documents.24. Since right to education is indispensable in the interpretation of right to this
development, as a human right, the right to development is also considered to be a basic human right.25.
Thus, it is on the above basis that we have to interpret “Life” as expressed in Article 21. In Francis Coralie
Mullin v Administrator, Union Territory of Delhi,26. it was held thus:
We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare
necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing, and expressing
oneself in diverse forms, freely moving about, mixing and commingling with fellow human beings, of course the
magnitude and economic development of the country, but it must in any view of the matter, include the right to the
basic necessities of life and also the right to carry on such functions and activities to constitute the bare minimum
necessities of the human self.
Dignity of man and privacy at home appear to run into each other; they are rights related to one another and
that is the reason that they have been dealt with together.27. In Benazir Bhutto v President of Pakistan,28. it
was held: “The inviolability of privacy is directly linked with the dignity of man. If a man is to preserve his dignity,
if he is to live with honour and reputation, his privacy, whether in home or outside the home, has to be saved
from invasion and protected from illegal intrusion. While the dignity of man is an absolute right and is not
subject to law is an unqualified guarantee, the right to privacy of home is subject to law”.29.
I. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation
which make life worth living, and its expanded connotation would mean the tradition and cultural heritage of the
persons concerned.30. It was held that the right to life includes the right to carry on such functions and activities
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adequate to give expression to “human self”.31. It was held therein that life and personal liberty will not only
include physical security, but would comprehend those rights enumerated in Article 19, as well as others which
would go to make a man’s life meaningful and worth living. But right to livelihood or right to work cannot be
stretched so for as to mean that every one must be given a job, especially taking into consideration of Article
41.32. Every child has the inherent right to life, i.e., right to life to be meaningful to all and in all respects, i.e.,
socially, economically even to the deprived segments of the society in the dignity of person and in pursuit of
happiness. It was held that the fallen/trapped victims of flesh trade are subjected to cruel, inhuman and
degrading treatment, which is obnoxious and an affront to Article 21.33.
Right to life is not negotiable and it would cover a case where the State fails to discharge the duty to care cast
upon it, resulting in deprivation of life and limit of a person.34.
In Ram Saran v UOI,35. it was held: “It is true that life in its expanded horizons today includes all that which
gives meaning to man’s life including his tradition, culture and heritage, and protection of that heritage in its full
measure would certainly come within compass of an expanded concept of Article 21 of the Constitution.”
In Ashok v UOI,36. the Supreme Court has given an expansive and wide interpretation to right to life and
personal liberty namely right of speedy trial, right to legal aid, right to livelihood, right to work, right to shelter,
right to education, right to health etc., have been read in to the right to life and liberty in Article 21. In a nutshell,
now this right to life and personal liberty contains all those aspects of life, which make the life meaningful,
complete and worth living.
Under the Protection of Human Rights Act, expression used is “liberty” and not “personal liberty” and it seems
that the Legislature intended the term to cover all aspects of liberty including those which have been expressly
enumerated in Article 19(1) Cls. (a) to (g). In the opinion of the learned author,37. referring to Maneka Gandhi v
UOI,38. it was observed that Article 21 does not exclude Article 19 and even if there is a law prescribing
procedure for depriving liberty and there is consequently no infringement of the fundamental right conferred by
Article 21, such law in so far as it abridges or takes away any fundamental right under Article 19, would have to
meet this challenge.
In one of the earlier decisions in American Supreme Court in Munn v Illinois,39. it was observed: “By the term
“life” as here used something more is meant than mere animal existence. The inhibition against its deprivation
extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of
the body or amputation of an arm or leg or the putting out of an eye on the destruction of any other organ of the
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body through which the soul communicates with the outer world.” In Allegeyer v Louisiana,40. the court said:
“The liberty mentioned in the Fourteenth Amendment means not only right of the citizen to be free from mere
physical restraint of his person as by incarceration but the term is deemed to embrace the right of the citizen to
be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he
will; to earn his livelihood by any lawful calling to pursue any livelihood or avocation and for that purpose to
enter into all contracts which may be proper, necessary and essential to his carrying out to a successful
conclusion the purpose above mentioned”.
The above definition is adopted by our Supreme Court in Kharak Singh v State of U.P.41. and also Sher Singh v
State of Punjab.42. Pakistan Supreme Court also has taken a similar view in the case Benazir Bhuto v
President of Pakistan,43. it was held that “the right to life guaranteed by Article 9 is a sacred right which cannot
be violated, discriminated or abused by any authority.” In another case Shehla Zia v WAPDA44. it was held
thus:
“The word ‘life’ is very significant as it covers all facets of human existence. The word ‘life’ has not been defined
in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere
existence from conception to death. Life includes all such amenities and facilities which a person born in a free
country is entitled to enjoy with dignity, legally and constitutionally … ”
Though the right to life is something more than mere survival, and it includes to live with human dignity, it
cannot be stretched too far as to include the right to non-revision of pay scale.45.
Right to life implies right to food.46. In Shantistar Builders v Narayan Khimlal Totame the court stated: “Right to
life is guaranteed in any civilised society. That would take within its sweep the right to food … ”.
The constitutional law in America provides an extensive and wide meaning to the word “life” which includes all
such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The
requirement of acquiring knowledge, to establish a home, the freedoms as contemplated by the Constitution,
the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal
rights and to be protected from encroachments on such personal rights, freedoms and liberties. Any action
taken which may create hazard to life will be encroaching upon the personal rights of a citizen to enjoy the life
according to law.47.
II. It would include all that given meaning to a man’s life, e.g., his tradition, culture, heritage and protection of
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that heritage in its full measure.48. The right to life has been so expanded as to include, for example, the right to
legal aid;49. the right to speedy trial;50. the right to bare necessities of life;51. protection against adverse effects
of electro-magnetic fields;52. the right to pure and unpolluted water and the right of access to justice.53.
Right to live of which Article 21 speaks can be said to bring in its scope the right not to live a forced life.54.
III. It would, thus, include—
(a) The right of a person not to be subject to “bonded labour”55. or to unfair conditions of labour.56.
(b) The right of a bonded labourer to rehabilitation after release with supply of the necessities of life.57.
(c) Right to livelihood by means which are not illegal, immoral or opposed to public policy.58.
Hence, public employment cannot be taken away by any procedure which is not reasonable, fair
and just.59.
(d) An obligation upon the State to preserve the life of every person—by offering immediate medical aid to
every patient, regardless of the question whether he is an innocent or a guilty person.60. The criminal
law shall operate after the life of the injured is saved.60 A doctor at the Government hospital positioned
to meet the State obligation is therefore duty bound to extend medical assistance for preserving life.
Every doctor, whether at a government hospital or otherwise, has a professional obligation to extend
his services with due expertise for protecting life. No law or State action can intervene to avoid or delay
the discharge of this paramount obligation cast upon members of the medical profession. The
obligation being totally absolute and paramount, law of procedure whether in statute or otherwise
which would interfere with the discharge of this obligation cannot be sustained and must therefore give
way.61.
In Paschim Bangla Khat Mazdoor Samiti v State of WB,62. the court said that Constitution
envisages establishment of a Welfare State and in a Welfare State, the primary duty of government
is to provide adequate medical facilities for the people. The Governmentt discharges this obligation
by running hospitals and health centres to provide medical care to those who need them. Article 21
imposes an obligation on the State to safeguard the right to life to every person. Preservation of
human life is thus of paramount importance. In that case, the court further said that State cannot
plead lack of financial resources in discharging its obligation.63. At the same time, the court also
recognised that provision for health facilities cannot be unlimited. “It has to be to the extent
finances permit”. No country has unlimited resources to spend on any of its projects.64. And, right
to get free and full medical aid or facilities has been held to be not a fundamental right of an ex-
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serviceman. Court said that policy decision in formulating contributory scheme for ex-servicemen
and asking them to pay “one-time contribution” does not violate Article 21 nor it is inconsistent with
Directive Principles.
In Common Cause v UOI,65. the Supreme Court highlighted the serious deficiencies and
shortcomings in the matter of collection, storage and supply of blood through various blood centres
operating in the country especially in the context of incidence of HIV infected cases. Various
directions were given to Centre and States in that case including that all blood banks ought to be
registered under the Drugs Control Act.
Article 21 also contemplates “right to life” which includes the right of all persons to essential drugs
at affordable prices.66. Prices of pharmaceutical products should not be allowed to go up beyond
certain limits.
(e) The right to a basic minimum compensation when death is caused by accidents by motor vehicles or
the railway.60 In State v Sanjeev Nanda,67. the Supreme Court gave various directions to Union &
States to provide immediate medical relief to accident victims and police was also directed to treat
accident victims respectfully and not to subject them to hassles and further directed the States to make
necessary statutory provision. Court relied on the 201st Law Commission Report (2006) and wanted
the same to be implemented immediately.68.
(f) The right of the public to a proper management of hospitals to ensure humanitarian conditions.69.
(g) The right of the public in cases of deaths caused by Police “encounters” or excesses.70.
(h) The right of a member of the weaker sections of society to have residential accommodation,71.
including pavement dwellers.72.
(i) The customary right of tribals to live in forest areas with incidental rights e.g., fodder, fuelwood etc.73.
(j) The right of a “protective home”, to living conditions consistent with human dignity.74. In Peoples’
Union for Civil Liberties v UOI,75. the court said that food, shelter with basic amenities is part of Article
21 and directed that night shelters have to be provided for homeless and destitute persons.76.
(k) The right to reputation.77. No judicial order can ever be passed by any court without providing a
reasonable opportunity of being heard to the person likely to be affected by such order and particularly
when such order results in drastic consequences of affecting one’s own reputation, since it violates the
guarantee under Article 21.78. Reputation of an individual is an important part of one’s life. One has the
right to have and preserve his reputation and also to protect it. An individual is entitled to be heard
before any order is passed affecting its reputation.79.
(l) The right to education.80.

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(l) Article 21 also contemplates the right to safety against crime by motor vehicles as instruments of
crime.81.
(m) Right to sleep is a biological necessity and its deprivation affects a person’s health and mental
condition. Interference with a person’s right to sleep amounts to a form of third degree method
prohibited by Article 21 of the Constitution.82.
(n) Right against malnutrition is also a part of right to life.83.
(o) Right to life and livelihood comprehends right to life insurance policies of LIC and such policies must be
within the paying capacity and means of the assured. Appropriate life insurance policy within the
paying capacity and means of the assured to pay premium is one of the social security measures
envisaged under the Constitution to make the right to life meaningful, worth living and right to livelihood
for means of sustenance.84. If the right to livelihood is not treated as a part of the constitutional right to
life, the easiest way of depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation.85. But the right to livelihood under Article 21 is only the right to
earn such livelihood as is necessary for substance of persons and the deprivation of which would
threaten their existence. It is only such activity or means, which is essential to earn one’s living for
subsistence that would constitute the right to livelihood. It was held that it is the right to earn livelihood
at the marginal level that would be a component of the right to life.86. It was held therein that if a
person having sufficient means to live is being deprived of some of his earning capacity, that would not
interfere with the right to livelihood so as to attract Article 21, as it is not likely to have any impact on
his right to live. Likewise, a rule prohibiting the entry of other professionals into the legal professon is
not violative of Article 21 as other professionals are not denied their right to livelihood since they are
already carrying on source profession.87. Similarly, shifting of the market from one place to another
without providing for an alternative site or shop to a licenced dealer is not violative of the article.88. In
cases, where the small depositors were deprived of their life’s savings, it would amount to violation of
Article 21, as it includes the right to livelihood and the right to live with human dignity.89.
(p) Right to health and medical care to protect health and vigour while in service or post-retirement is a
fundamental right of a worker under Article 21 read with Articles 39(c), 41, 43, 48(a) of the Constitution
and all related articles and fundamental human rights to make life of the workman meaningful and
purposeful with dignity of person.90. Public health is the condition on which right to life and
developmental activities in the city and elsewhere can flourish and the same is to be protected.91.
Requirement of wearing “helmet” cannot be challenged on the ground of discomfort. Individual
discomfiture has to succumb to paramount object of saving one’s life and hence is not violative of
Article 21.92. Though right to health is guaranteed right under Article 21, it is regulated by validly
enacted legislation. Right to cure ailments through religious practices including “faith healing” cannot
be claimed as fundamental right. Professing of “faith healing” in public on charging consideration
violates the constitutional and legislative scheme.93.
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(q) Right to water is part of right to life under Article 21. Water is the basic need for survival of human
beings and is part of the right to life and human right as enshrined in Article 21 and can be served only
by providing sources of water where there are none.94. In this view, pollution free drinking water was
held to be paramount and the same would prevail over other needs.95.
(r) Economic empowerment to tribals, dalits and poor is a facet of right to life under Article 21.
Government policy to allot agricultural land to them is to render socio-economic justice, and a
stipulation in the grant that prior permission is necessary for alienation or sale of such land is only to
effectuate the constitutional policy of economic empowerment of such person being protected under
Articles 14, 21, 38, 39 and 46 read with the Preamble of the Constitution.96.
(s) Right of agriculturist to cultivation is a part of their fundamental right to livelihood under Article 21.97.
Where agricultural lands are acquired by the executive action of the State in flagrant violation of Article
300A and second proviso to Article 31A(1), there will be a violation of right to livelihood under Article
21.98. Even though by an acquisition of compulsory nature, the owner may be deprived of the land,
and means of livelihood, an acquisition in accordance with the procedure is a valid exercise of power
which would not amount to deprivation of right to livelihood.99.
(t) Non-payment of subsistence allowance during the pendency of suspension order is violative of the
fundamental right to live. The act of non-payment of such allowance can be linked to slow poisoning of
an employee, if not permitted to sustain himself on account of non-payment of subsistence allowance
would gradually starve to death.1.
(u) Right to dignity and fair treatment is not confined to the living man, but also to his dead body.2.
(v) The right to fair trial which includes right to speedy trial is part of international obligation and the same
is recognized under Article 21. In A.R. Autulay v Nayak,3. the court observed: “ … In other words, such
laws should provide a procedure which is fair, reasonable and just. Then alone, would it be in
consonance with the command of Article 21. Indeed, wherever necessary such fairness must be read
into such law. Now, can it be said that a law which does not provide for a reasonably prompt
investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest
of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he
ought to be declared so. Social interest is in punishing the guilty and exoneration of the innocent, but
this determination (of guilt or innocence) must be arrived at with reasonable dispatch … .Reasonable in
all circumstance of the case.”4. The right to fair trial includes the right to free legal aid.5.
(w) Food, shelter and clothing are minimal human rights.6.
In Chameli Singh v State of UP,7. while considering the right to shelter, the court said: “Shelter for
a human being is not a mere protection of his life and limb. It is home where he has opportunities
to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes
adequate living space, safe and decent structure, clean and decent surroundings, sufficient light,
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pure air and water, electricity, sanitation and other civic amenities like roads, etc. so as to have
easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a
roof over one’s head, but right to all the infrastructure necessary to enable them to live and
develop as a human being. Right to shelter when used as an essential requisite to the right to live,
should be deemed to have been guaranteed as a fundamental right”. In subsequent decisions, the
court further said that right to shelter is a fundamental right which springs from right to reside
assured in Article 19(1)(e) and right to life under Article 21 of the Constitution.8. It was held in
Shantistar Builders v Narayan Khimlal Totame,9. that the right to life is guaranteed in any civilized
society. That would take within its sweep the right to food.10. The learned editors in the book,
Human Rights and Development have concluded the chapter with the following remarks:
The basic argument of this paper is something like this. First, the Indian Constitution and its
underlying ideas (chiefly due to DR. AMBEDKAR) provide a sound framework for thinking about the
right to food. In this framework, the right to food is one of the basic economic and social rights that
are essential to achieve ‘economic democracy’, without which political democracy is at best
incomplete. Indeed, there is an obvious sense in which mass hunger is fundamentally incompatible
with democracy in any meaningful sense of the term.
Secondly, the right to food is nowhere near being realized in India. In fact, under nutrition levels in
India are among the highest in the world. Further, the improvement of nutrition indicators over time
is very slow. There is also some evidence of increasing disparities in nutritional achievements
(between rural and urban areas as well as between boys and girls) in the nineties. The recent
accumulation of nearly 70 million tonnes of grain against a background of widespread hunger is a
particularly startling violation of the right to food.
Thirdly, the nutrition situation in India is a sort of ‘silent emergency’: little attention is paid to it in
public debates and democratic politics. This illustrates a more general feature of Indian democracy
— its tremendous lack of responsiveness to the needs and aspirations of the underprivileged.
Against this background, economic and social rights have a crucial role to play as built-in
safeguards against the elitist biases of public policy.
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Fourthly, the right to food is somewhat complex right that does not readily translate into well-defined
entitlements and responsibilities. The scope for enforcing it through the courts can be significantly
enlarged (e.g., by consolidating legal provisions for the right to food), but serious difficulties are
involved in making it fully justiciable. Nevertheless, the right to food can bring new interventions
within the realm of possibility in at least three different ways: through legal action, through
democratic practice, and through public perceptions.
Fifthly, I have illustrated these different roles of the right to food with reference to the provision of
mid-day meals in primary schools. It goes without saying that I am not proposing mid-day meals as
an answer to India’s massive nutrition problem. Yet, this experience is a helpful illustration of the
possibility of effective action in this field. Similar things can be done with respect to many other
means of intervention: employment guarantee acts, the public distribution system, social security
arrangements, anganwade facilities, and land rights, among others.
I end by reiterating that, if the right to food is to be achieved, it needs to be linked with other
economic and social rights, such as the right to education, the right to work, the right to information,
and the right to health. These economic and social rights complement and reinforce each other.
Taken in isolation, each of them has its limitations, and may not even be realizable within the
present structure of property rights. Taken together, however, they hold the promise of radical
change in public priorities and democratic politics. This is why it is so important to revive the
Directive Principles of the Constitution as well as the visionary conception of democracy that
informs them.11.
(x) The importance of fair and speedy trial has been reiterated in many cases.12.
“Speedy trial” and “fair trial” to a person accused of a crime are integral parts of Article 21. There
is, however, a qualitative difference between the right to speedy trial and the accused’s right to fair
trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se
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prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It
depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be
seen in the facts and circumstances of each case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the discontinuance of prosecution or
dismissal of indictment. The factors concerning the accused’s right to speedy trial have to be
weighed vis-à-vis the impact of the crime on society and the confidence of the public in judicial
system. Speedy trial secures rights to an accused, but it does not preclude the right of public
justice. The nature and gravity of crime, persons involved, social impact and societal needs must
be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of
the former, the long delay in conclusion of criminal trial should not operate against the continuance
of prosecution, and if the facts and circumstances of the case and exigencies of the situation tilt in
favour of the accused, prosecution may be brought to an end. These principles must apply even
when the appellate court is confronted with the question whether or not retrial of an accused
should be ordered.13. In Hussainara Khatoon’s case, the court even directed release of under trial
prisoners where no charge sheet had been framed. The court also held that State’s financial
constraints should not stand in the way so as to avoid its constitutional obligations. Direction was
also issued for setting up new courts, providing more staff and equipment and appointment of
additional judges etc.14. If there is inordinate delay in trial due to reasons for which the accused is
responsible, it cannot be said that the article is violated and the court will not quash the
proceedings.15. The principle applies to disposal of mercy petitions.16.
(y) The concept of fair trial as envisaged under Article 21 entails the familiar triangulation of this interest of
the accused, the victim and the society. Interests of society are not to be treated completely with
disdain and as persona non grata. A fair trial is aimed at ascertaining the truth for all concerned.17. It
was held that failure to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of law. Fair hearing requires an opportunity to preserve the
process, it may be vitiated and violated by an over-hasty, stage-managed, tailored and partisan trial.
Denial of right of accused to adduce evidence in support of his defence amounts of denial of fair
trial.18. It was held that the courts should be zealous in seeing that there is no breach of procedure,
which should be scrupulously followed.
Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor, and an
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the
accused, the witnesses or the cause which is being tried is also eliminated. If the witnesses get
threatened or are forced to give false evidence that would result in failure of fair trial. The failure to
hear material witnesses is certainly denial of fair trial.19. Right to fair trial in a criminal prosecution
is enshrined in Article 21. Section 142 of the Evidence Act does not give power to the prosecution
to put leading questions on the material part of the evidence which the witness intends to give
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against the accused. To do so infringes the right of the accused to have a fair trial which is
enshrined in Article 21 of the Constitution. This is not a curable irregularity.20.
Right to have a fair trial strictly in terms of the Juvenile Justice Act, which would include procedural
safeguards, is a fundamental right of the juvenile.21.
Court’s order of stay effecting indefinite suspension of trial would be manifestly unjust and unfair.
An accused cannot be subjected to tyranny of legal process which may go on endlessly for no fault
of the accused himself.22. Right to life and personal liberty cannot be deprived by law. A tainted
investigation definitely leads to miscarriage of criminal justice. It deprives a man of his fundamental
right guaranteed under Article 21. An investigation cannot be interfered with or influenced by court.
In this way, the investigating agencies are guardians of liberty of innocent citizens. A duty is cast
upon police or investigating officers to ensure that innocent persons do not suffer from
unnecessary harassment of false implication. Investigation must be carried out with equal alacrity
and fairness irrespective of status of the accused or complainant. Ethical conduct on the part of
investigating agency is absolutely essential and there must be no scope for any allegation of mala
fides or bias.23.
(za) Right to privacy, though not expressly provided in the Constitution, can be traced from the “right to life”
in Article 21.24. In Gobind v State of M.P.,25. it was held that right to privacy was implied within right to
speech and further it could be gathered from the entirety of fundamental rights in the constitutional
scheme. It was held that the right is not absolute and is subject to reasonable restrictions and the same
can be denied only when an “important countervailing interest is shown to be superior”.
It was held that any right to privacy must encompass and protect the personal intimacies of the
house, the family, marriage, mother-hood, procreation and child-bearing. It was observed that the
right also comes within the purview of Article 21.
R. Rajagopal v State of T.N.26. held that right to privacy is implicit in the right to life and liberty
guaranteed under Article 21. The above principle has now been accepted in People’s Union for
Civil Liberties v UOI.27. Right to privacy is a fundamental right of every person, being an integral
part of Article 21. Illegitimate intrusion into privacy of a person is not permissible as right to privacy
is implicit in the right to life and liberty guaranteed under our Constitution. Such a right has been
extended even to a woman of easy virtues as she has been held to be entitled to her right to
privacy. However, the right of privacy may not be absolute and in exceptional circumstances,
particularly surveillance in connection with the statutory provision, may not violate such a right.28.
Recently, the Supreme Court has held that right to privacy is an integral part of life. This is a
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cherished constitutional value and it is important that human beings be allowed privacy, and be
free of public scrutiny unless they act in an unlawful manner. The solution for the problem of
abrogation of one zone of constitutional values cannot be the creation of another zone of
abrogation of constitutional values. The notion of fundamental rights, such as the right to privacy
as part of right to life is not merely that the State is enjoined from derogating them. It also includes
the responsibility of the State to uphold them against the action of others in the society, even in the
context of exercise of fundamental rights by those others.29.
Privacy is an aspect of personal liberty. Court said that while physical privacy may be curtailed to
some extent in reasonable exercise of police power under the Code of Criminal Procedure, there is
no corresponding provision for intruding upon a person’s mental privacy. Extracting testimonial
responses by means of narco-analysis, polygraph and BEAP test (Brain Electrical Activation
Profile), was held, will intrude upon a person’s mental privacy and are impermissible under the
Constitution since they violate Article 21. Protection of mental privacy is available to accused as
well as to the victim of an offence. A female who alleges to be a victim of sexual offence cannot be
subjected to polygraph test to ascertain whether she is making a truthful allegation.30. DNA test
being an extremely delicate and sensitive aspect, a direction for such test can be given if a strong
prima facie and an eminent need is made out for such a course, for, such a direction affects the
right to privacy which may not only be prejudicial to the parties, but may have a devastating effect
on the child.31.
Right to privacy is subject to public safety. In cases where competing rights are to be considered
such as shaded glasses on motor vehicles, which facilitate criminal activities and individual privacy
to obstruct inside view of vehicle, the safety of public or society outweighs individual privacy.32.
Whether to take vegetarian or non-vegetarian food is one’s personal affair and is one’s right to
privacy.33.
A person, if he does not break the law, would be entitled to enjoy his life and liberty which would
include the right not to be disturbed. A right to be let alone is recognised to be a right which would
fall under Article 21. Although a statutory power to make a search and seizure by itself may not
offend the right to privacy, in a case where the power to search and seizure is given by a statute
(NDPS Act), the court has to see that such a power does not unnecessarily infringe the right. If a
statute confers the power to search and seizure of a person at all hours and at all places, the same
may be held ultra vires unless the restrictions imposed are reasonable ones. What would be a
reasonable restriction would depend upon the nature of statute and the extent of the right sought to
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be protected.34. In Directorate of Revenue v Mohd. Nisar Holia it was also held that right to privacy
deals with persons and not places.
In State of Maharashtra v Bharat Shanti Lal Shah,35. the court held that statutory provision
authorising interception of communication, though is an infringement of privacy, will be valid if the
procedure for authorising such curtailment is fair, just and reasonable and not arbitrary, fanciful or
oppressive.
Right to privacy is not enumerated as a fundamental right in terms of Article 21 or otherwise.

Hence, surveillance ordered under the Extradition Act, 1962 and under the Interpol red corner
notice does not violate Article 21. It does not violate individual or private right including right to
privacy.36.
(zb) Right to health, i.e., a right to live in clean, hygienic and safe environment is a right flowing from Article
21. It guarantees a right of person to life with human dignity. Right to live in freedom from noise
pollution is a fundamental right under Article 21. Noise constitutes a real and present danger to
people’s health, such that use of fire-works during 10 pm to 6 am was prohibited.37. Clean
surroundings lead to healthy body and healthy mind. Freedom from stray cattle and animals in urban
areas is a right under Article 21. Where meanace of stray cattle had reached a stage where the entire
planning of the city had gone haywire and the stray cattle were creating nuisance for the citizen, same
was held violative of rights under this article.38. But installations of base stations by mobile telephone
service procedure does not cause health hazards to people residing nearby nor will it infringe
fundamental right to life under Article 21. It was held radiation from mobile base stations is much less
than from radio or T.V. transmission.39. Compulsory exposure of unwilling persons to dangerous and
disastrous levels of noise would amount to infringement of Article 21.40. Allowing advertisments
hoarding on the streets is prejudicial and infringes upon this freedom of life and liberty.41.
Supreme Court has emphasised in Vincent v UOI42. that a healthy body is the very foundation of
human activities. Article 47, a Directive Principle, lays stress on improvement of public health and
prohibition of drugs injurious to health as one of the primary duties of the State. It was observed
that maintenance and improvement of public health have to rank high as these are indispensable
to the very physical existence of the community and on the betterment of these depends on the
building of the society which the Constitution makers envisaged. Attending to public health, in our
opinion, is of high priority – perhaps on the top.
A scheme relating to maternity benefit which provides for giving the benefit irrespective of the
number of children goes against family planning scheme which is intended to curb population
growth. Age of mother, and number of children have to be considered for getting the benefit.43.
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Right to life guaranteed under Article 21 is the most fundamental of all human rights and any
decision affecting human life or which may put an individual’s life at risk must call for the most
anxious scrutiny. In Democratic Youth Federation of India v UOI, the court was considering the ill-
effects of pesticide Endosulfan on human health and environment. Various directions were given
including the appointment of an expert Committee.44. On establishment of nuclear power plant at
Kudankulam in Tamil Nadu, various directions were given after considering an expert opinion.45.
White asbestos, which is highly carcinogenic, is imported into India without any restriction, which
creates serious environmental problem and affects health of people. Court suggested a total ban
on import and use of white asbestos and promoting use of alternative materials. Various directions
were given.46.
Under Article 21, all persons are entitled to hygienic, clean and safe environment and if any
person’s health is affected, compensation or remedial action for loss suffered by citizenry due to
pollution can be ordered against the authority or establishment which causes the pollution.47.
(zc) Police atrocities or custodial violence violates Article 21. It infringes not only right to life but also basic
human rights and strikes a blow at rule of law. Tortures involves not only physical suffering, but also
mental agony which is a naked violation of human dignity and destructive of human personality. Third-
degree methods of interrogation and investigation cannot be permitted. It was held that transparency of
action and accountability are two safeguards against abuse of police power, though the right to
interrogate the detenus, culprits or arrestee in the interest of nation, must take precedence over the
individual’s right to personal liberty, and the action of the State must be “right, just and fair”. Supreme
Court gave certain guidelines in the nature of requirements to be followed in all cases of arrest or
detention.
(i) The police personnel carrying out the arrest and handling interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their designation. The particulars of all
such police personnel who handle interrogation of the arrestee must be recorded in the register.
(ii) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may either be a
member of the family of the arrestee or a respectable person of the locality from where the arrest is
made. It shall also be counter-signed by the arrestee and shall contain the time and place of arrest.
(iii) A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up shall be entitled to have one friend or relative or other person
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known to him or having interest in his welfare, being informed as soon as practicable that he has
been arrested and is being detained at the particular place, unless the attributing witness of the
memo of arrest is himself or such a friend or a relative of the arrestee.
(iv) The time, place of arrest and venue of custody of the arrestee must be notified by the police where
the next friend or relative of the arrestee lives outside the district or town through this Legal Aid
Organization in the District and the police station of this area concerned telegraphically within a
period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of his right to have someone informed of his arrest or
detention as soon as he is put under arrest or detained.
(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person,
which shall also disclose the name of the next friend of this person who has been informed of the
arrest and the name of the particulars of the police officials in whose custody the arrestee is.
(vii) The arrestee should, when he so requests, be also examined at the time of arrest and major and
minor injuries, if any present on his or her body must be recorded at that time. The “inspection
memo” must be signed by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody, by a doctor of the panel approved doctors appointed by the
Director, Health Services of the State or Union Territory concerned. Director, Health Services
should prepare such a panel for all tehsil and districts as well.
(ix) Copies of all documents including the memo of arrest should be sent to the Magistrate for his
record.
(x) The arrestee may be permitted to meet his lawyer during interrogations, though not throughout the
interrogation.
(xi) A police control-room should be provided at all district and State Headquarters where information
regarding the arrest and the place of custody of the arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and at the police control-room, it should
be displayed on a conspicuous notice board.
It was declared that the requirements flow from Articles 21 and 22(1) and should be strictly followed. The
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requirement was held to apply with equal force to the other governmental agencies like Directorate of Revenue
Intelligence, Directorate of Enforcement, Coastal Guard, CRPF, BSF, CISF, State Armed Police, Intelligence
Agencies like Intelligence Bureau, RAW, CBI, CID, Traffic Police, Mounted Police and ITBP. The requirements
declared are in addition to the constitutional and statutory requirements and also other directives given by the
court from time-to-time in connection with safeguarding of the rights and dignity of the arrestee.48. Supreme
Court in implementation of the above requirements has requested the Human Rights Commission to get the
response from the States and to take steps to implement the same.49.
The Supreme Court also took note of alarming increase in custodial torture, assault and death in police custody
and held that since direct evidence in such cases is not available, exaggerated adherence to and insistence of
proof beyond every reasonable doubt by prosecution and sometimes by court will cause miscarriage of justice.
It held that in such cases, the court should deal with cases in a realistic manner and suggested amendment to
the Evidence Act, to provide that injury received by a person during police custody may be presumed to have
been caused by the police officer having custody of this person during that period.50. Use of excessive force or
power by police officials in discharge of their duties is in violation of Article 21. Court said that police is also
governed by rule of law and any power exercised beyond the law in the name of maintaining discipline or
dealing with anti-national elements is liable to be punished and their action is open to critical scrutiny and
examination by courts.51. Merely because a person is a dreaded criminal or a proclaimed offender, it does not
mean that he/she should be killed in cold blood. Though police have a right to retaliate in case of murderous
attack which might result in death of criminal, the endeavour of police should be to arrest and not to kill.52. In
Rohtash Kumar v State of Haryana the court found that the death of petitioner’s father was the result of a fake
encounter and since registration of FIR was not possible due to long lapse of time, compensation of Rs 20 lakh
was awarded to the petitioner. In Extra-Judicial Execution Victims Families Assn v UOI,53. the Supreme Court
strongly deprecated fake encounters, custodial death and administrative liquidation by police officials and said
that even in case of great threat of insurgency and where a number of policemen and civilians have lost their
lives, such practice is impermissible. In that case, the court further held that a petition under Article 32 is
maintainable, even though the petitioner’s remedy under Human Rights Act is possible and complaint could be
filed before National Human Rights Commission seeking relief because it is a case of violation of right to life
and personal liberty.54.
In Mehmood Nayyar Azam v State of Chandigarh,55. the court said that for grant of compensation, torture may
not necessarily be only physical. It can be mental and psychological torture calculated to create fear so as to
submit to police demand. In such cases, the only issue is custodial torture and humiliation affecting rights under
Article 21 and not whether it is a case of defamation or not.56. In cases where death was due to fake encounter,
the concerned police official must be punished with death sentence since it is the rarest of rare cases.57.
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Blinding of under trials was held to be inhuman and violative of Article 21. State was directed to ensure proper
treatment.58. Wherein it was held that when a court trying the writ petition proceeds to inquire into the violation
of any right to life or personal liberty, while in police custody, if does so, not for the purpose of adjudicating upon
the guilt of any particular officer with a view to punishing him, but for the purpose of deciding whether the
fundamental right of the petitioners under Article 21 has been violated, this State is liable to pay compensation
to them for such violation. The nature and object of the enquiry is altogether different from that in a criminal
case and any decision arrived at in the writ petition on this issue cannot have any relevance much less binding
effect in any criminal proceeding which may be taken against the particular police officer.
It was further declared that for such violation of the fundamental right, award of compensation in a proceeding
under Articles 32 or 226 is available in public law. It is part of enforcement of the constitutional right, and grant
of redress embraces award of compensation as part of the legal consequence of its controversies.59. It was
held that monetary compensation is an appropriate and effective remedy for the redressal of the infringement of
the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts.60.
In Sube Singh v State of Haryana,61. the above view was reiterated and it was held that award of compensation
against the State is an appropriate and effective remedy for redressing an established infringement of a
fundamental right under Article 21 by a public servant and quantum of compensation would depend on the facts
and circumstances of each case. In that case, the court also clarified that a writ petition under Articles 32 or 226
should not be used as a substitute for enforcement of this right to claim compensation for infringement of
fundamental right through the ordinary process of civil court and it is only in exceptional cases that
compensation could be awarded, i.e., “in appropriate cases”.62. It was held in Sube Singh’s case that where
custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is “established”,
the court may award compensation. Before awarding compensation, the court has to consider the following:
(i) whether the violation of Article 21 is “patent” and “incontrovertible”.
(ii) whether the violation is gross and of a magnitude to shock the conscience of the court.
(iii) whether the custodial tortures alleged has resulted in the death or whether the custodial torture is
supported by medical report or visible marks or scars or disability.
In cases where there is no evidence of custodial torture except one’s own statement and where such allegation
is not supported by any medical evidence or where there are clear indications that this claim is exaggerated or
false, no compensation could be awarded.
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1. Article 21 guarantees right to live with dignity.63. Right to live with human dignity enshrined in Article 21
derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article
39 and Articles 41 and 42. The said right includes protection of the health and strength of workers, men and
women and of the underage children against abuse, opportunities and facilities for children to develop in
healthy manner and in condition of freedom and dignity, educational facilities, just and humane conditions of
work and maternity relief. These are the minimum requirements which must exist to enable a person to live with
human dignity.64. Every person is entitled to a quality of life consistent with human personality. The right to live
with human dignity is the fundamental right of every citizen. It is incumbent upon the State when assigning
children to “Care Homes” to provide at least the minimum conditions ensuring human dignity.65.
Assault on woman cannot be accepted on social norms. What impact an assault will have on a woman would
depend on the circumstances of each case and court cannot proceed with any fixed rule. Assault on a woman
offends her dignity.66. There are various instances where girls of young age are being harassed, which
sometimes may lead to serious psychological problems and even committing suicide. Eve-teasing is against the
constitutional mandate and Article 21 is violated because dignity of woman is not respected.67. Sex workers are
also entitled to have their dignity respected.68. In Budhadev Karmaskar v State of W.B. the court said that
prostitutes also have a right to live with dignity under Article 21 of the Constitution since they are also human
beings and their problems also need to be addressed. A woman is compelled to indulge in prostitution not for
pleasure, but because of abject poverty. If such a woman is granted opportunity to avail some technical or
vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by
selling her body.69.
In Francis Coralie Mullin v Administrator, Union Territory of Delhi,70. the court said: “But the question which
arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace
something more. We think that the right to life includes the right to live with human dignity and all that goes
along with it viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
mingling with fellow human beings. Of course, the magnitude and context of the components of this right would
depend upon the extent of the economic development of the country, but it must, in any view of the matter,
include the right to basic necessities of life and also the right to carry on such functions and activities as
constitute the bare minimum expression of human self”.
In Chameli Singh v State of UP,71. the court said: “In any organised society, right to live as a human being is
not ensured by meeting only the minimal needs of man. It is secured only when he is assured of all facilities to
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develop himself and is freed from restrictions which inhibit his growth. All human beings are designed to
achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent
environment, education, medical care and shelter. These are basic human rights known to any civilised
society”. In CERC v UOI,72. the court observed: “The right to life with human dignity encompasses within its fold
some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life
would mean the tradition and cultural heritage of the persons concerned”.
Life of a human being must be meaningful, complete and worth living. It is also expected that there is a right to
decent environment. The Development Plans which regulate or prohibit use of land or building are a positive
step in the direction of providing a decent life with human dignity. Any act or attempt which amounts to nothing
but mischief with the Development Plan is violative of Article 21.73. The residents have a statutory right to live in
a clean city.74. The right to live being a fundamental right under Article 21, it includes the right to enjoyment of
pollution-free water and air for full enjoyment of life.75.
The Preamble in International Covenant as Civil and Political Rights, 1966, (ICCPR) and International Covenant
of Economic, Social and Cultural Rights, 1966, (ICESCR) proclaims recognition of the inherent dignity and of
the equal and inalienable rights of all members of this human family is the foundation of freedom, justice and
peace of the world. And also “recognizing that these rights derive from inherent dignity of the human person
and had agreed upon the rights contained in the Covenant”. Article 10(1) of ICCPR proclaims: “All persons
deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human
person”.
The Preamble “assures dignity of the individual”. In Maneka Gandhi v UOI,76. it was observed that this
fundamental right represents the basic values cherished by the people of our country since Vedic times and
they are calculated to protect the dignity of the individual and create conditions in which every human being can
develop his personality to the fullest extent. In D.K. Basu v State of W.B.,77. it was held that “custodial torture”
is a marked violation of human dignity and degradation, to a very large extent, of the individual personality. It is
a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step
backward — flag of humanity must on occasion fly half mast.
Any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Article 21, whether it
occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-
breakers, it is bound to breed contempt for the law and would encourage lawlessness and every man would
have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to
happen, for, a citizen does not shed his fundamental right to life the moment the policeman arrests him. The
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right to life of a citizen cannot be put in abeyance on his arrest. The precious right guaranteed under Article 21
cannot be denied to convicts, under-trial, detenus and other prisoners in custody except according to the
procedure established by law by placing reasonable restrictions as are permissible. The term “harassment” in
its connotative expanse includes torment and vexation. The term “torture” also engulfs the concept of torment.
The word “torture” in its denotative concept includes mental and psychological harassment. The accused in
custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment.
Police officers should have greatest regard for personal liberty of citizens as they are custodians of law and
order and hence they should not flout the law by stooping to bizarre acts of lawlessness. Inhuman treatment
has many facets. It fundamentally can cover such acts which have been inflicted with an intention to cause
physical suffering or severe mental pain. It would also include a treatment that is inflicted that causes
humiliation and compels a person to act against his will or conscience. Torture is not merely physical, but may
consist of mental and psychological torture calculated to create fear to submit to the demands of the police.
Right to reputation is a facet of the right to life of a citizen under Article 21 of the Constitution. Any treatment
meted to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept
of human dignity. The majesty of law lies in protecting the dignity of citizens in a society governed by law. An
investigator of a crime is required to possess the qualities of patience and perseverance. A citizen in custody is
not denuded of his fundamental right under Article 21. The restrictions imposed have the sanction of law by
which his enjoyment of fundamental right is curtailed, but his basic human rights are not crippled so that police
officers can treat him in an inhuman manner. On the contrary, they are under an obligation to protect his human
rights and prevent all forms of atrocities. A balance has to be struck.78.
The “right to life” including the right to “live with human dignity” would mean the existence of such a right up to
the end of a natural life. This also includes the right to dignified life up to the point of death including a dignified
procedure of death. In other words, this may include the right of a dying man to also die with dignity when his
life is ebbing out. But the “right to die” with dignity at the end of life is not to be confused or equated with “right
to die” an unnatural death curtailing the natural span of life. Since “right to die” is not included in the “right to
life” under Article 21, for the same reason “right to live with human dignity” cannot be construed to include
within its ambit the right to terminate natural life, at least before commencement of this natural process of
certain death.79.
In Aruna Ramachandra Shanbaug v UOI,80. the question of the right to die was considered. Court explained
the decision in Gian Kaur v State of Punjab (supra) by stating that the only point that was decided in that case,
namely, that right to live includes the right to die as was decided in P. Rathinam v UOI81. (supra) was not
correct. The court further explained that “Euthanasia” is of two types – active and passive. An active euthanasia
entails the use of lethal substances or forces to kill a person e.g., lethal injection given to a person with terminal
cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of
life e.g., withholding of antibiotics where without giving it, a patient is likely to die or removing the heart-lung
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machine from a patient in coma. Court said that the general legal position all over the world seems to be that
active euthanasia is illegal unless there is legislation permitting it; passive euthanasia is legal without legislation
provided certain conditions and safeguards are maintained. Passive euthanasia is usually defined as
withholding medical treatment with a deliberate intention of causing patient’s death. The difference between
“active” and “passive” euthanasia is that in “active euthanasia”, something is done to end patient’s life while in
passive euthanasia something is not done that would have preserved the patient’s life. An important idea
behind this distinction is that in passive euthanasia the doctors are not actively killing any one, they are simply
not saving him.
Court concluded that passive euthanasia should be permitted in India in certain situations and Supreme Court
laid down the law invoking power under Article 142 of the Constitution till Parliament makes a law on the
subject. Following conditions have to be fulfilled before withdrawing the life support of a patient: (a) A decision
has to be taken to discontinue life support either by the parents or spouse or other close relative or in the
absence of any of them, such a decision can be taken even by a person or body of persons acting as a next
friend. It can also be taken by the doctors attending on the patient. However, the decision should be taken bona
fide in the best interest of the patient and the decision so taken must be approved by the High Court which is in
the interest of the protection of the patient, protection of the doctors, relatives and next friend and for
reassurance of the patient’s family as well as the public. Court concluded that in the case of an incompetent
person who is unable to take a decision whether to withdraw life support or not, it is the court “alone” as “parent
patriae” which ultimately must take this decision, though no doubt, the views of near relatives, next friend and
doctors must be given due weight. The High Court can exercise the power under Article 226, which is
empowered to issue directions. The decision also provides for the procedure to be followed by the High Court
when an application is filed to withdraw the life support.
Right to dignity and fair treatment is not only available to a living man, but also to his dead body,82. and the
same principle is also applicable to a homeless deceased.83.
Beauty contests repugnant to dignity or decency are in violation of Articles 21 and 51-A.84. It was held therein
that any violation of the woman in the society in the country in body or body leading to justifiable unhappy
existence is bound to attract Article 21. The beauty contests tend to offend the dignity of a woman to deal with
her indecently and would offend Article 21.
Nobody has a right to call another person dishonest and claim oneself as an honest person as the Constitution
has guaranteed a right to dignity to every individual. A person can be condemned only if the law has
established his guilt.85.
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In Union Pacific Railway Co v Botsford,86. the Supreme Court of America held: “No right is held more sacred or
is more carefully guarded by the common law than the right of every individual to the possession and control of
his own person free from all restraint or interference of others, unless by clear and unquestionable authority of
law”. In Buck v Bell,87. it was held that “there are limits to the extent to which a legislatively represented
majority may conduct biological experiments at the expense of the dignity and personality and natural powers of
a minority — even those who have been guilty of what the majority defines as crimes”.
In Katz v U.S.,88. the American Supreme Court made it clear that both wire-tapping and eavesdropping are to
be considered, searches and intercepted communications are to be regarded as seized materials under the
terms of Fourth and Fourteenth Amendments. The court required that electronic searches and seizures be
brought back into line with constitutional standards governing more usual kinds of searches and seizures. The
earlier decision in Olmstead v United States,89. which held a contrary view, was over-ruled.
In People’s Union for Civil Liberties v UOI,90. it was held that when a person is talking on telephone, he is
exercising his right to freedom of speech and expression and telephone tapping, unless it comes within the
reasonable restrictions under Article 19(2), amounts to interference in right to privacy.
Right to privacy is not an absolute right. For example, if in matrimonial cases relating to divorce based on the
ground of impotency, schizophrenia, etc. if the respondent avoids medical examination on the ground that it
would violate her right or his right to privacy, then in most cases it becomes impossible to arrive at a conclusion.
Therefore, with the extensive interpretation of the phrase “personal liberty”, the Supreme Court held that the
right could not be treated as an absolute right. If the court passes an appropriate order for medical examination,
the question of such action being violative of Article 21 would not arise.91. Certain laws have been enacted by
the Parliament where the accused may be subjected to certain medical or other examination. For example,
under sections 185, 202, 203 and 204 of the Motor Vehicles Act, sections 53 and 54 of the CrPC and section 3
of the Identification of Prisoners Act, 1920 or sections 269 and 270 of the IPC. Supreme Court said that if the
constitutionality of these laws is challenged, it would be upheld.92. Recently, the court held that privacy is an
aspect of personal liberty. Court said that in the case of physical privacy, it may be curtailed to some extent in
reasonable exercise of police powers under CrPC. There is no corresponding provision for intruding upon a
person’s mental privacy. Extracting testimonial responses by means of narco analysis, polygraph and Brain
Electrical Activation Profile (BEAP) test is impermissible in law since such tests violate the right to privacy.93.
Whether there is an unwarranted infringement of privacy in a particular case, is a matter of fact. In R.v.
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Broadcasting Standards Commission,94. it was observed: “An interference with privacy is not even like an
elephant, of which it can be said it is at least easy to recognize if not to define. The meaning of privacy can be
influenced by the context in which it appears.” In Gobind v State of M.P.,95. it was held that the right to privacy
will necessarily have to go through a process of case by case development.
The European Convention for the Protection of Human Rights and Fundamental Freedom (Article 8) provides:
“(1) Everyone has the right to respect for his private and family life, his home, and his correspondence. (2)
There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, public
safety … ….”
In Marchx v Belgium,96. it was observed: “The context in which the reference to the person’s “home” (in Article
8) must be understood is indicated by this reference in the same paragraph to his private and family life and to
his correspondence. The emphasis is on the “person’s home as a place where he is entitled to be free from
arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person’s right to the
peaceful enjoyment of his home as a possession, or as a property right. Rights of that kind are protected by
Article 1 of the first Protocol.”1. Privacy is seen as including not only protection from unwarranted invasion on a
person’s life, but also such rights as freedom of parental choice in education,2. the right of woman to choose
what happens to her own body in terms of decision whether to have an abortion,3. the right to use
contraceptives4. and other aspects of personal autonomy. Each of the privacy rights has been subjected to
heated debate in terms of policy and politics particularly where abortion is concerned, but the concept of privacy
has emerged from the battle largely unscathed. Refusal to extend the scope to include freedom of sexual
choice has been based in fear that this would encourage homosexuality, but the campaign for change
continues.5.
In regard to this “right to privacy” to companies or other corporate bodies, it was held in R. v Broadcasting
Standards Commission:6. “the concept is hard indeed to define, but if this gives something of its flavour, I do
not see how it can apply to an impersonal corporate body, which has no sensitiveness to wound, and selfhood
to protect”.
Article 14 of the Constitution of Pakistan provides for the dignity of man, privacy of home and right against
tortures. In Benazir Bhutto v President of Pakistan7. it was held: “The inviolability of privacy is directly linked
with the dignity of man. If a man is to preserve his dignity, if he has to live with honour and reputation, his
privacy whether in house or outside the house has to be saved from invasion and protected from illegal
intrusion.”
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2. Right to life includes the right to live with human dignity. Women also have the right to life and liberty; they
also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or
violated. They also have the right to lead an honourable and peaceful life. Rape is a crime not only against the
person, but also against the entire society. It destroys the entire psychology of a woman and pushes her into
deep emotional crisis. It is a crime again basic human rights and it violates the right to life.8. Rape is the most
morally and physically reprehensible crime in a society as it is an assault on the body, mind and privacy of the
victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a
helpless female. Rape reduces a woman to an animal as it shakes the very core of her life. Rape leaves a
permanent scar on the life of the victim. Rape is a crime against the entire society and it violates the human
rights of the victim. Being the most hated crime, rape tantamounts to a serious blow on the supreme honour of
a woman and offends both her esteem and dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.9. Rape is a monstrous burial of woman’s dignity in darkness. It is a crime
against society. It is a crime against the holy body of a woman and the soul of the society.10.
All those rights and aspects of life which would go to make a man’s life complete and worth living would form a
part of right to life.11. But a restriction on a prisoner as to his right to vote under the Representation of People’s
Act is not a violation of Article 21 on the ground that it denies dignity of life.12. Violation of dignity and right to
full development is violative of Article 21. It was held that section 10 of the Divorce Act, which provides for
different treatment to Christian women, was violative of dignity.13.
The offence of kidnapping in any form would impinge upon human rights and right to life and the same has to
be condemned by imposing deterrent punishment.14.
In Vishaka v State of Rajasthan,15. it was held that sexual harassment of working women amounts to violation
of gender equality and right to life and liberty under Article 21. The Supreme Court formulated certain guidelines
to safeguard the interest of working women in that case.16. The court said that physical contact and advances,
a demand or request for sexual favours, sexually coloured remarks, showing pornography or any other
unwelcome physical, verbal or non-verbal conduct of sexual nature amounts to sexual harassment. In Apparel
Export Promotion Council v A.K. Chopra (supra) the court further said that in cases involving violation of human
rights, the court must forever remain alive to the international instruments and conventions and apply the same
to a given case when there is no inconsistency between the international norms and the domestic law
occupying the field. In that case, the court further said: “Each incident of sexual harassment, at the place of
work results in violation of Fundamental Rights to Gender Equality and the Right to Life and Liberty – the two
most precious fundamental rights guaranteed by the Constitution of India. The contents of the fundamental
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rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality,
including prevention of sexual harassment and abuse, and the courts are under a constitutional obligation to
protect and preserve these fundamental rights. The sexual harassment of a female at the place of work is
incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no
compromise with such violation admits of no debate”.17. Subsequent to these decisions, the Parliament has
enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In
Medha Kotwal Lele v UOI,18. the court directed the Government to make necessary amendments in the
Industrial Employment (Standing Orders) Rules, 1946 and Central Civil Services (Conduct) Rules, 1964 to form
Committees to inquire into the complaints of sexual harassment as directed in Vishaka’s case.19.
The direction issued by the court places certain obligations on the employers or other responsible persons in
workplaces and other institutions, “whether in public or private sector”. These persons are required to take
appropriate steps to prevent sexual harassment. This means that in the area of sexual harassment, the court
has used Articles 14, 15, 19(1)(g), 21 and 32 of the Constitution not only against the Govrnmentt and its
instrumentalities, but even against private parties and private employers. This portends that, in course of time,
the coverage of certain fundamental rights may be expanded by the Supreme Court so as to bring within their
scope even private parties and non-governmental organisations.20. In Hussainara Khatoon v State of Bihar,21.
the practice of safe custody of women in prison where they are not accused of any offence was disapproved.
Protective custody in jail is nothing but imprisonment and violates Article 21.
3. Right to travel abroad is a fundamental right under Article 21.22. A person having a valid passport cannot be
interdicted nor can be prevented from traveling abroad merely on the basis of some oral order.23. The right of a
citizen to hold a passport which enables him to go abroad is part of one’s fundamental right under Article 21.24.
4. Right to Education is guaranteed under Article 21. In Mohini Jain (Miss) v State of Karnataka,25. it was held
that right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by
the right to education. It was declared that State is under an obligation to establish educational institutions to
enable the citizens to enjoy that right. It was further observed that when the State grants recognition to private
educational institutions, it creates an agency to fulfill its obligations under the Constitution. When students are
given admission to educational institution—whether State owned or State recognized, it is in recognition of their
“right to education”. The said decision was explained in Unnikrishnan J.P. v State of Andhra Pradesh,26.
wherein it was observed that right to education must be understood in the context of Articles 45 and 41, which
means: (1) every child or citizen of their country has a right to free education until he completes the age of 14
years; and (2) after completion of 14 years, his right to education is circumscribed by the limits of economic
capacity of the State and its development. While explaining the decision, the court also held that right to
education flows from Article 21 and is a fundamental right. It was further observed that while education is one of
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“the most important functions of the Indian State” it has no monopoly therein. Private educational institutions —
including minority educational institutions — too have a role to play. In Jayashree Ravi v University of Delhi,27.
the court said that every citizen has a right to education under the Constitution and the State is under an
obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may
discharge this obligation through State owned or State recognised educational institutions. The Kerala High
Court said that right to education is implicit in the right to life and personal liberty enshrined in Article 21 and the
said right is to be understood in the background of Articles 41 and 45 of the Constitution.
There is a duty cast on the State to make effective provision for securing right of disabled persons and those
suffering from other infirmities within the limits of economic capacity and development. It is imperative that
authorities should look into the real grievances of visually impaired people as that is constitutional and statutory
policy and in such cases the University has to play the role of “loco parentis” and show its concern to redress
grievances in proper perspective.28. The right to education under Article 21-A of the Constitution has to be read
in conformity with Articles 14 and 15 and there must be no discrimination in quality of education. Thus, a
common syllabus and common curriculum are required. The right of a child should not be restricted only to free
and compulsory education, but should be extended to have quality education without any discrimination on the
ground of the child’s economic, social and cultural background.29. It was held in State of Tamil Nadu v K.
Shyam Sundar that a uniform education system would achieve the code of a common culture, and lead to
removal of disparity and depletion of discriminatory values in human relations. It would enhance virtues and
improve the quality of human life, elevate the thoughts which advance our constitutional philosophy of equal
society. In future, it may prove to be a basic preparation for the Uniform Civil Code as it may help in diminishing
opportunities to those who foment fanatic and fissiparous tendencies.
Right to education as contained in the original text of the Constitution only states: “The State shall endeavour to
provide within a period of 10 years from the commencement of Constitution, for free and compulsory education
for all children until they complete the age of 14 years”.
In Unnikrishnan’s case (supra) it was observed: “It is noteworthy among the several Articles in Pt IV (of the
Constitution) only Article 45 speaks of a time limit … Does not the passage of 44 years — more than four times
the period stipulated in Article 45, convert the obligation created by this Article into an enforceable right? In this
context, we feel constrained to say that the allocation of available funds to different sectors of education in India
discloses an inversion of priorities indicated by the Constitution.” The said article was relied upon as a link
between the right to life recognized in Article 21 as a fundamental right and right to education as a directive
principle. In view of the decision, a child below the age of 14 who has been denied the facilities for education
could approach the court for an order directing the authorities to initiate appropriate measures. It was declared
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therein that a citizen has a right to call upon the State to provide educational facilities to him within the limits of
economic capacity and development.
In State of H.P. v H.P. State Recognized and Aided Schools Managing Committee,30. while reiterating the
fundamental right to free education to all children up to 14 years, it was further declared that the State is bound
to provide full grant-in-aid to all private schools from the State Government. It was also held that even in High
Schools and Senior Secondary Schools up to 8/9th class, the students who are below 14 years are entitled to
free education and the State is obliged to provide grants in such cases.
Based on the above decisions, an amendment to the Constitution was moved in 1997 — making education free
for all children between the age of 6 and 14, and the amendment was passed by incorporating Article 21-A,
which read thus: “The State shall provide free and compulsory education to all children of 6 to 14 years in such
manner as the State, may by law determine, Constitution 86th Amendment Act, 2002, dated December 12,
2002”. But there is no fundamental right to education for a professional degree.31.
“The emphasis on treating education as a right brings two important dimensions which are all too often down
played in the context of other approaches to education policy. They are empowerment and accountability, while
each of these terms have been overused in the social science and development literature in recent years, their
significance in this context is nonetheless considerable.” Education is a process which engages many different
actors. The one who provides education (the teacher, the owner of the educational institution, the parents), the
one who receives education (the child, the pupil) and the one who is legally responsible for the one who
receives education (the parents, the legal guardian and the State). These actors influence the right to
education. Article 21 says that no person shall be “deprived” of his life, whereas Article 19(1)(g) under the
Chapter “Right to Freedom” says that all citizens have the right to practise any profession or to carry on any
occupation, trade or business, which freedom is not absolute but could be subjected to social control under
Article 19(6) in the interest of general public. By judicial decision, right to education has been read into right to
life in Article 21. A child who is denied right to access education is not only deprived of his right to live with
dignity, but he is also deprived of his right to freedom of speech and expression enshrined under Article
19(1)(a). Court said that the Right of Children to Free and Compulsory Education Act, 2009 seeks to remove all
these barriers including financial and psychological barriers which a child belonging to the weaker section and
disadvantaged group has to face while seeking admission. Court said that earmarking of seats for children
belonging to a special category who face financial barrier in the matter of accessing education satisfies the test
of classification in Article 14 and the legislation provides for a level playing field in the matter of right to
education to children who are prevented from accessing education because they do not have the means or
their parents do not have the means to pay for their fees. The Act was held (by majority) valid and shall apply to
all aided schools including minority aided schools receiving aid or grant to meet the whole or part of its
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expenses from government or local authority, schools belonging to special category and to a school (i.e.,
unaided non-minority school not receiving any aid).32.
The Right of Children to Free and Compulsory Education Act, 2009 has been enacted by Parliament. The Act
provides among other things the right of every child who has attained the age of six years to be admitted in a
neighbourhood school and to be provided free and compulsory education in such school. Every school is
responsible for making such neighbourhood school available. All schools, whether State school, aided or
unaided private schools, will now have to provide free and compulsory education upto a specified percentage of
the total number of children admitted. Charging capitation fee is prohibited nor can a child or her/his family be
subjected to any screening procedure by a school. In keeping with Article 51-A, the Act casts a duty on every
parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an
elementary education in the neighbourhood school. The Act also provides for reservation of seats for children
from financially weaker background in unaided non-minority schools, government schools and schools run by
local authority. The provision regarding the applicability of the Act to unaided minority schools was alone held
invalid in Society for Unaided Private Schools of Rajasthan v UOI.33.
Article 2 of the Protocol of European Convention on Human Rights says: “No person shall be denied the right to
education. In the exercise of any functions which it assumes in relation to education and to teaching, the State
shall respect the right of parents to ensure such education and teaching in conformity with their own religious
and philosophical convictions”. In UK, the applicability of this article is modified i.e., the principle affirmed in the
second sentence of Article 2 is accepted by UK only so far as it is compatible with the provision of efficient
instruction and training and the avoidance of unreasonable public expenditure in view of certain provisions of
the Education Act in force.34.
In terms of empowerment, the recognition of right to education and the adoption of an approach to education
policy, which accords some prominence to that dimension, serves to emphasize that the individual holder of this
right is entitled to make certain demands, not only upon a Government, but perhaps more importantly upon the
right holders’ immediate community. The responsibilities which attach to human rights apply not only to
governments in accordance with the traditional State-Centre analysis of the functioning of international human
rights norms, they also encapsulate and help to inform community expectations. In the context of the rights to
education, for example, this will play out as much at the family and village levels as it will in any of the more
routine bureaucratic levels. “Where a child is being denied educational opportunities, whether by reasons of
gender, disability, caste, race, order in the family or whatever a community which has come to internalize a
sensibility to, and set of expectations about every child’s inherent right to education will react to the perceived
deprivation.” The same applies at the village or community level where a right to education is based on
obligation of those in charge, which will have an impact regardless of the insistence of those responsible that
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there are simply no available resources … … .. The right is also directly related to the notion of accountability
which is an essential part of the human rights concept. In asserting that there is a human right to primary
education it follows that, if some persons avoidably lack access to it, there must be some culpability in the
social systems.
The importance of elements of empowerment and accountability which flow from treating education as a human
right also serve to underscore the importance of distinguishing those policy approaches which are premised, to
a greater or lesser degree, upon the recognition of the right to education, from those that set broad
development goals relating to education.35.
Right to pursue education is a fundamental right. Regarding persons detained in custody on suspicion of
committing crime, their right to appear for examination or an interview seeking job should not be defeated
because of their being in custody.36.
The right to education uninterrupted by any outside forces, political or otherwise is a fundamental right
guaranteed under Article 21 read with Articles 39, 41, 45 and 46, which will make “life” more meaningful and
purposeful.37.
But prescribing age limit for admission to a course is not violation of Article 21, as long as there is an avenue
open to the students to pursue their higher education.38. The formation of Student Union or election of office
bearers are not fundamental rights and the function of Students Union also does not amount to imparting of
education.39.
A policy decision providing that a candidate who had already acquired a higher speciality degree in medicine in
any discipline is ineligible to apply for another course is not in violation of Article 21.40.
In regard to admission to professional courses, it was held that merit shall be the basis for admission. It was
held that mediocracy over meritocracy cuts at the root of justice and hurts the right to equality. To deprive a
man of his due even marginally, no rule can sustain except by the aid of the Constitution. To get admission on
the basis of merit is a fundamental right and admission of any candidate who is less meritorious would be
discriminatory and arbitrary.41. In T.M.A. Pai Foundation v State of Karnataka,42. it was held that for admission
into any professional institution, merit must play an important role. Any candidate who is more meritorious, but
refused admission is entitled to know why he is refused admission. Rejection of admission must not be
whimsical or for extraneous reasons.
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In Islamic Academy of Education v State of Karnataka,43. it was declared that right to admission to professional
courses must be on the basis of merit, which is in national interest. The principle will apply irrespective of
whether the institution is a minority or non-minority and inter se merit shall not be bypassed. But in regard to
minority institution, inter se merit as among minority students shall be basis for admission. The same principle
was reiterated in P.A. Inamder v State of Maharashtra,44. whereby direction was given for giving admission on
the basis of merit and making it equally accessible to eligible students through a fair and transparent admission
procedure.
While discussing the right to education in Unnikrishnan’s case (supra), MOHAN J. held: “The personal liberty
and life have come to be given expanded meaning. It would, therefore, not be incorrect to hold that life, which
means to live with dignity, takes within it education as well. Education is enlightenment. It is the one that lends
dignity to man. The fundamental purpose of education is the same at all times and in all places. It is to
transfigure the human personality into a pattern of perfection through a synthetic process of the development of
the body, the enrichment of the mind, the submission of the emotions and the illumination of the spirit.
Education is a preparation for a living and for life, here and hereafter in the context of democratic form of
Government which depends for its sustenance upon the enlightenment of the populace, education is at once a
social and political necessity.”
In Super Star Education Society v State of Maharashtra,45. the court observed that it was the duty of the
government to provide access to education. Unless new schools in private section are permitted, it will not be
possible for the State to discharge its constitutional obligation.46.
Grant-in-aid is neither a fundamental right or nor a statutory right and it depends upon the economic capacity of
the State. If the State has taken a policy decision that no aid will be given to schools established after a
particular date, the same cannot be held as invalid. It does not amount to denial of right to education, especially
when free education is given to children upto the age of fourteen.47. Similarly, right to education cannot cover
the right of institution to get land allotted by government.48. Right to education includes the right to choose the
medium of instruction and such rights could be exercised by parents. Any government order restraining the
exercise of such choice as to medium of instruction is not valid.49.
Article 350A provides for facilities for instruction in mother-tongue at primary stage. The article says: “It shall be
the endeavour of every State and of every local authority within the State to provide adequate facilities for
instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority
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groups and the President may issue such direction to any State as he considers necessary or proper for
securing the provision of such facilities”. An order by the State Government that Kannada be made compulsory
and sole subject for all children in the State of Karnataka from 1st Standard which deprived the parents to
choose the medium of instruction was struck down by Karnataka High Court in General Secretary, Linguistic
Minorities Protection Committee v State of Karnataka.50. The above decision was affirmed by Supreme Court in
English Medium Students Parents Assn v State of Karnataka.51. In State of Karnataka v Associated
Management of (Govt. Recognised and Unaided English Medium) Primary & Secondary Schools,52.
considering the importance of medium of instruction in schools and the earlier judgment, the court has referred
the following questions to be heard by a Constitution Bench: (1) What does mother tongue mean? If it is
referred to as the language in which the child is comfortable with, then who will decide the same? (2) Whether a
student or a parent or a citizen has the right to choose a medium of instruction at primary stage? (3) Does the
imposition of mother tongue in any way affect the fundamental rights under Articles 14, 19, 29 and 30 of the
Constitution? (4) Whether the Government recognised schools are inclusive of both Government aided schools
and private and unaided schools? (5) Whether the State Government by virtue of Article 350A of the
Constitution can compel the linguistic minorities to choose their mother tongue only as the medium of
instruction in primary schools?
The questions referred have been answered in State of Karnataka v Associated Management of (Govt.
Recognised and Unaided English Medium) Primary & Secondary Schools53. wherein the Constitution Bench
has said that Article 350A casts a duty on every State and every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to
linguistic minority groups. Hence the expression “mother tongue” in the above article means the mother tongue
of the linguistic minority group in a particular State and this would obviously mean the language of the particular
linguistic minority. It is the parent or guardian of the child who will decide what the mother tongue of the child is.
The Constitution nowhere provides that mother tongue is the language which the child is comfortable with and
while the meaning of “mother tongue” may be a possible meaning of the expression in Article 350A or in any
other provision of the Constitution, neither power of the State can be expanded nor a fundamental right can be
restricted by saying that mother tongue is the language which the child is comfortable with. The freedom of
speech and expression under Article 19(1)(a) includes the freedom of child to be educated at the primary stage
of school and the State cannot impose controls on such choice just because it thinks that it will be more
beneficial for the child if he is taught at primary stage of school in his mother tongue. A child or his parent or
guardian has a right to freedom of choice with regard to medium of instruction in which he would like his child to
be educated at the primary stage in school. The right of the child to choose the medium of instruction cannot be
excluded from the right to freedom of speech and expression only for the reason that the State will have no
power to impose reasonable restriction on this right of the child for the purpose other than those mentioned in
Article 19(2) of the Constitution. The Court said that right to free education does not include the right to choose
medium of instruction and parent or child has the right to choose medium of instruction under Article 19(1)(a)
and not under Articles 21 and 21A. Court further said that imposition of mother tongue as medium of instruction
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violates Article 30 and compulsion of mother tongue as medium of instruction cannot also be imposed under
Article 350A. Private unaided schools have the right to choose medium of instruction and State cannot compel
it to impart education in particular language even in its power of regulation. Court concluded that the decision in
English Medium Students Parents Assn v State of Karnataka54. is not an authority for the proposition that
prescription of mother tongue in Class I to IV in primary school can be compelled by the State as a regulatory
measure for maintaining the standard of education.
5. Enjoyment of life and its attainment including right to life and human dignity encompasses within its ambit,
protection and preservation of environment, ecological balance, pollution free air and water, sanitation without
which life cannot be enjoyed. Environmental, ecological, air, water pollution, etc. should be regarded as
amounting to violation of Article 21. Hygienic environment is an integral part or facet of right to healthy life and it
would be impossible to live with human dignity without a humane and healthy environment.55. Environmental
protection, has now become a matter of grave concern for human existence. Promoting environmental
protection implies maintenance of environment as a whole comprising the man-made and the natural
environment. There is a constitutional imperative on the Central Government, State Governments, and bodies
like municipalities, not only to ensure and safeguard proper environment, but also an imperative duty to take
adequate measures to promote, protect and improve the man-made environment and natural environment.
Providing separate schools with vocational training, hostels etc. for children of lepers in the State in just and is
in accordance with Article 21.56. The court has depended upon Articles 47 and 48A of Directive Principles as
well as on Fundamental Duties contained in Article 51A(g) of the Constitution to decide cases on various
environmental problems and for giving necessary direction to the authorities. The right to healthy environment
is an internationally recognised essential. For example, the Basel Convention effectuates the Fundamental
Right guaranteed under Article 21, the right to information and community participation for protection of
environment and human health.57.
Since time immemorial, people across the world have always made efforts to preserve and protect natural
resources like air, water, plants, flora and fauna and majority of people consider it as their sacred duty to
protect the plants, trees, rivers, wells, etc. because it is believed that they belong to all living creatures. The
ancient Roman Empire developed a legal theory known as “the doctrine of public trust”. It was founded on the
premise that certain common properties such as air, sea, water and forest are of immense importance to the
people in general and they must be held by the Government as a trustee for the free and unimpeded use by the
general public and it would be wholly unjustified to make them subject to private ownership. Although the
Constitution of India which was enforced on 26 January 1950 did not contain any express provision for
protection of environment and ecology, people continued to treat it as their social duty to respect the nature,
natural resources and protect environment and ecology. After 26 years, Article 48A was inserted in Pt IV of the
Constitution and the State was burdened with the responsibility of making an endeavour to protect and improve
the environment and to safeguard the forces and wildlife of the country. By the same amendment, Article 51A
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(Pt IV-A) was inserted. Any violation of the above duties results in violation of fundamental right to life
guaranteed to the people of the area under Article 21 of the Constitution.58.
The word “environment” has a broad spectrum and within its ambit fall “hygienic atmosphere” and “ecological
balance”. The State is thus obliged to maintain hygienic environment and ecological balance. Article 21 protects
right to life as a fundamental right and it encompasses within it enjoyment of life and right to life with dignity,
protection and preservation of environment, ecological balance free from pollution of air and water without
which life cannot be enjoyed. Environmental, ecological, air, water pollution, etc. amount to violation of Article
21. Hygienic environment is thus an integral part of healthy life as it is not possible to live without human
dignity, without a humane and healthy environment. Therefore, there is a constitutional imperative on the
Government, not only to ensure and safeguard proper environment, but also to take adequate measures to
promote, protect and improve both man-made and natural environment.
Article 48-A in Pt IV (Directive Principles) of the Constitution of India 1950, brought by the Constitution (42nd
Amendment) Act, 1976 enjoins that “State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country”.59. Article 47 further imposes a duty on the State to improve
public health as its primary duty. Article 51-A(g) imposes a “fundamental duty” on every citizen of India to
protect and improve the “natural environment” including forests, lakes, rivers and wildlife and to have
compassion for living creatures. The word “environment” is a broad spectrum and brings within its ambit
“hygienic atmosphere” and “ecological balance”.60.
In view of Article 21, read with Articles 48A, 51-A(g), it is the obligation of the local authority to scavenge and
clean the city. Non-availability of funds and insufficiency of machinary cannot be a ground for not during so.61.
Right of access to one’s residence as recognised by Indian Easements Act is a substantive right and is part of
right to life.62.
In Subhash Kumar v State of Bihar,63. the court held that right to life includes the right to enjoy unpolluted air
and water.64.
Article 21 of the Constitution protects not only human rights, but also casts an obligation on human beings to
protect and preserve a specie from becoming extinct. Conservation and protection of environment is an
inseparable part of right to life. The thrust of “public trust” doctrine is that certain common properties such as
rivers, sea-shore, forests and the air are held by the Government in trusteeship for the free and unimpeded use
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of the general public. And it would be totally unjustified to make them a subject of private ownership. The State
as a custodian of natural resources has a duty to maintain them not only for the benefit of the public, but also in
the best interest of flora and fauna, wildlife and so on. The doctrine of public trust has to be addressed in that
perspective. Human beings have a duty to prevent the species from becoming extinct and have to advocate for
effective species protection regimes. No State, organisation or person can claim ownership or possession over
wild animals in the forest. Several migratory birds, mammals, and animals in wild cross national and
international borders created by man and every nation has a duty and obligation to ensure their protection. No
nation or organisation can claim ownership or possession over them.65. See also T.N. Godavarman
Thirumulpad v UOI66. – direction issued to treat red sandalwood as a specified plant under Wildlife Protection
Act (Schedule VI)67. to protect wild and domestic buffaloes being an endangered species.
It also includes decent environment, right to live peacefully, right to sleep at night and have a right to leisure.68.
Any provision prohibiting the general public from entering the green park is violation of Article 21 since every
person has a right to breathe fresh air.69.
While considering the legality of building residential houses in recreational areas, it was held: “The slow
poisoning by polluted atmosphere caused by environmental pollution and spoilation should also be regarded as
amounting to violation of Article 21 of the Constitution”. The court prohibited construction of residential buildings
in recreational areas.70.
In Vellore Citizen Welfare Forum v UOI,71. the Supreme Court taking into consideration various environmental
problems caused by tanneries which were polluting water resources, rivers, canals, underground water and
agricultural land, issued many directives, including closure, shifting of the unit, etc. To this same effect, M.C.
Mehta v UOI72. ordered closure of tanneries which were polluting water. In M.C. Mehta v UOI,73. the court
issued several guidelines to protect Taj Mahal, an ancient monument from environmental degradation.
Supreme Court also laid down the “Precautionary Principle” and “Polluter Pays Principle” as essential features
of sustainable development and declared that the above concepts are part of Environmental Law of the court.
Precautionary Principle means that the State Government and the concerned statutory authorities must
anticipate, prevent and attack causes of environmental degradation. The principle of “polluter pays” means that
one who carries on a hazardous activity is liable to make good the loss caused to another person by such
activity.74. In that case, it was observed that environmental concerns arising in this court under Article 32 or
under Article 136 or under Article 226 in the High Courts are in our view, of equal importance as Human Rights
concerns. In fact, both are traced to Article 21 which deals with fundamental right to life and liberty. While
environment aspects concern “life”, human right aspects concern “liberty”. “Polluter pays” principle as
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interpreted by the Supreme Court means that absolute liabilities for harm to the environment extends not only
to compensate the victims of pollution, but also the cost of restoring the environmental degradation.
Remediation of the damages and environment is part of the process of sustainable development and therefore,
polluter is liable not only to pay the costs to the individual users, but also the cost of reversing the damaged
ecology.75. The principle basically means that the producer of goods or other items should be responsible for
the cost of preventing or dealing with any pollution which the process causes. It also covers costs incurred in
avoiding pollution, which also includes environmental costs as well as direct costs to people or property. It also
covers costs incurred in avoiding pollution and not just those related to remedying the damage. These costs
include the full environmental costs, not just those which are immediately tangible.76. The Supreme Court held
that sustainable development is one of the means to achieve this object and purpose of this Act [i.e.
Environment (Protection) Act, 1986] as well as the protection of life under Article 21.77. No person is permitted
to restrict the flow of water to the neighbouring lands or discharge effluent in such a manner as to affect the
right of the neighbour to use water for his own purposes, nor any person has a right to contaminate the water to
cause damage to the holders of neighbouring agricultural fields. Large-scale defoulment in the quality of water
so as to make it unusable by others or as a result whereof the water is contaminated and becomes unpotable
would be violative of Article 21.78.
In Narmada Bachao Andolan v UOI,79. the Supreme Court by majority held inter alia that where the effect of
setting up an industry on ecology or environment is known, what has to be seen is that if the environment is
likely to suffer, then what mitigating steps can be taken to offset the same. Merely because there will be a
change is no reason to presume that there will be an ecological disaster. It is when the effect of the project is
known that the principle of sustainable development would come into play which will ensure that mitigating
steps are and can be taken to preserve the ecological balance. Sustainable development means what type or
extent of development can take place which can be sustained by nature/ecology with or without mitigation.
The Supreme Court has explained the inter-relation between ecological issues and Fundamental Rights as
follows: Environmental concerns arising in this court under Article 32 or under Article 136 or under Article 226 in
the High Court are, in our view, of equal importance as human rights concerns. In fact both are traced to Article
21 which deals with Fundamental Rights to life and liberty. While environmental aspects concern “life”, human
rights aspects concern liberty.80.
Right to have living atmosphere congenial to human existence is a part of the right to life. When an approved
scheme is in force, the State has power only to effectuate the purpose of the scheme and if any area is
reserved for a particular purpose, Government cannot give directions to change the user of such land. Public
interest has to be understood and interpreted in the light of the entire scheme, purpose and object of the
enactment.81.
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Right to life under Article 21 includes the right of a person to live without being hounded by the Police or the
CBI to find out whether he had committed any offence or was living as a law-abiding citizen.82.
Any disturbance of the basic environmental elements viz, air, water and soil which are necessary to “life” would
be hazardous to “life” within the meaning of Article 21. The court also applied the doctrine of “public trust” in our
legal system, which is intended to prevent misuse of power and damage to the environment.83.
No one can have an absolute right to indulge in activities in environmental degradation in the land owned by
him. Merely because of absence of any Act or Rules, restricting removal of ordinary earth (which is not a minor
mineral) will not entitle a person to remove the same if it affects the rights of neighbours or if affects the
environment.84.
Under section 19 of Water (Prevention and Control of Pollution Act), the State can restrict the operation of the
Act to any particular area. But it cannot grant any exemption to any particular industry from the operation of the
Act. If exemption is granted even to a particular industry, it may be sufficient to pollute water in the reservoir
which becomes totally unsafe for drinking purpose. The Supreme Court set aside the order granting exemption
to an industry, holding that the right to clean drinking water, which is a part of right to life was violated
thereby.85.
To protect the rapidly deteriorating quality of air so as to protect the health of people of Delhi, which is a facet of
Article 21, Supreme Court directed that the entire fleet of public transport buses be run on CNG and not diesel.
The court put a ban on running diesel buses in Delhi.86. In European Community, vehicle emissions have been
controlled under a number of increasingly complex amendments to the originally controlling Directive 70/200.
Generally directives have set product standards by fixing emission limits for carbon monoxide, hydro-carbons,
nitrogen dioxide and particulates, various amendments have culminated in Directive 99/102 which sets out
limits for cars and light vans which came into force in 1999. Emissions from larger vans and heavy duty
vehicles are controlled under separate directives. In addition to the fixed emission limits, there have been a
number of directives controlling the road worthiness of the vehicle to ensure that the original product standards
are being maintained. Directive 99/52 sets the procedure for checking the road worthiness of private cars.
These Directives are implemented in UK legislation through the Construction and Use Regulation and Type
Approval Regulation. When a new motor vehicle is produced, it must comply with all relevant standards
including EC emission limits. The Motor Vehicles (Type Approval) (Great Britain) Regulation (SI 1994/981) sets
out type approval procedures which are applied to specimen examples of vehicles prior to general sales. The
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Road Vehicles (Construction and Use) Regulations are a series of regulations which set out requirements in
reaction to a variety of construction details, including catalytic converters, the use of unleaded petrol and
emission levels for vehicles in use. In particular, the annual MOT tests (and more recently road-side checks)
have standards for smoke and carbon monoxide which must not be exceeded.87. Court also recognized the
right to live in freedom from noise pollution as a fundamental right guaranteed under Article 21. It was held that
anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent noise as a
pollutant reaching him. Necessary directive was given to law enforcing agencies towards controlling noise
pollution.88. In the same manner, the court also prohibited bursting of crackers between 10 pm to 6 am89.
Fundamental right guaranteed under Article 21 provides that no one shall be deprived of his life without due
process of law. There is no reason why a non-smoker should be afflicted by various diseases including lung
cancer only because he is required to go to public places. It is indirectly depriving him of his life without due
process of law. Supreme Court, therefore, directed that smoking should be prohibited in public places including
public conveyance, which includes railways.90.
Taking into consideration that slaughter houses are being run under highly polluted atmosphere, direction was
given regarding maintenance of slaughter houses.91.
To have a clean atmosphere, which is a part of Article 21, the Supreme Court gave direction to municipal
authorities to discharge their statutory duties, reminding the authorities of their constitutional obligation under
Article 21. It was held that local authorities should not plead their inability to discharge their obligation due to
lack of financial resources.92.
On ecology and environment, the Supreme Court has given various direction invoking the applicability of Article
21 in various cases under Article 32. High Courts are also invoking their power under Article 226.
6. Right to road to residents of hilly areas was held within the ambit of Article 21.93. In State of H.P. v Umed
Ram Sharma the court emphasized upon the importance of roads in hilly areas for the enjoyment of life. The
entire Himachal Pradesh is in hills and without workable roads, no communication is possible. The access to
people in such an area to life outside is obstructed by absence of roads. Reading Article 21 with Article 19(1)(d)
in the background of the directive principle contained in Article 38(2) will show that every person has right under
Article 19(1)(d) to move freely throughout the territory of India. He has, under Article 21, right to life which right
embraces not only physical existence of life, but the quality of life and, therefore, access provided to the
residents of hilly area is access to life itself.
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7. Right to free legal aid comes within the ambit of Article 21.94. Bar Council resolution that no legal practitioner
should defend the accused policemen is violative of Articles 21 and 22. Every person however wicked,
depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by
society, has a right to be defended in a court of law and correspondingly, it is the duty of the lawyer to defend
him.95. The right to fair trial is one to be enjoyed by the guilty as well as innocent, for, an accused is presumed
to be innocent until proved to be otherwise in a fairly conducted trial. This right would include that he be
defended by a competent counsel. The provision of an amicus curiae for an accused, in case the accused is
unable to engage an advocate to conduct his defence is to ensure the goal of a fair trial which is guaranteed by
the Constitution. The right to be represented by a lawyer must not be an empty formality. It must not be sham or
eyewash. The appointment of an amicus curiae for the defence of an accused person must be in true letter and
spirit with due regard to the effective opportunity of hearing that is to be afforded to every accused person
before being condemned. The due process of law incorporated in our constitutional system demands that a
person should not only be given an opportunity of being heard before being condemned, but also that such
opportunity should be fair, just and reasonable.1. At trial stage, a failure to provide free legal aid to an accused
vitiates the trial unless the accused voluntarily, in clear and unambiguous terms, makes an informal decision to
defend himself personally without assistance of a lawyer. However, at pre-trial stage, such failure would vitiate
the trial and would depend on facts and circumstances of the case. Such failure to provide free legal aid would
vitiate the trial only if such failure has caused some material prejudice to the accused. Such failure, whether at
pre-trial or trial stage, may entitle the accused to claim compensation from the State and may make the
Magistrate concerned liable for disciplinary proceedings.2. The right to free legal aid is available at trial and
appellate stages.3. But it is not obligatory on the part of appellate court while hearing a criminal appeal to
appoint an amicus curiae and the appellate court may decide the appeal after considering the entire materials
before it.4.
The constitutional obligation to provide free legal aid to an indigent person arises not only when the trial
commences, but also when the accused is for the first time produced before the Magistrate, for, it is elementary
that the jeopardy to his personal liberty arises as soon as the person is arrested and produced before the
Magistrate, for, it is at that stage that the accused gets his first opportunity to apply for bail and obtain his
release as also to resist remand to police or jail custody. That is the stage at which an accused person needs
competent legal advice and representation and no procedure can be said to be reasonable, fair and just which
denies legal advice and representation to him at that stage.5.
After the introduction of the concept of fair procedure under Article 21 in Maneka Gandhi v UOI,6. the court
found no difficulty in asserting that free legal assistance at State cost is a fundamental right of a person
accused of an offence which may involve jeopardy to his life or personal liberty.7. This right is implicit in the
requirement of reasonable, fair and just procedure prescribed in Article 21.8. (a) The condition precedent to
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such free legal aid is that the accused is indigent or illiterate and is otherwise unable to engage a lawyer.9. This
benefit has been extended to civil cases also;10. (b) This right to free legal aid arises as soon as the accused is
arrested and subsists throughout the trial;11. (c) This right is not dependent upon the accused applying for such
assistance. Being a constitutional mandate, it is the duty of the Magistrate or Sessions Judge concerned to
inform the accused that if he is unable to engage the services of a lawyer, he is entitled to free legal aid at the
cost of the State. Where the court fails to inform the accused and he remains unrepresented, his conviction will
be set aside for violation of Article 21;12. (d) The assistance offered must be effective for a meaningful defence.
Assigning an inexperienced lawyer will not discharge the obligation of the State;13. (e) The right extends to all
criminal cases to which Article 21 is attracted. But the court recognises that there may be cases where social
justice requires that free legal service may not be provided by the State e.g., economic offences, offences
involving prostitution, child abuse or the like.14.
In the U.S.A., the specific guarantee in the 6th Amendment that in all criminal prosecution the accused has a
right to assistance for his or her defence has also been deduced from the omnibus Due Process clause15. as
an ingredient of a fair trial because a layman “may be put on trial without proper charge and convicted upon
incompetent evidence”.16.
8. Right to family pension attracts Article 21.17.
9. Right to livelihood, is implied in right to life. Originally, the Supreme Court was of the view that “right to
livelihood” would not come within Article 21.18. But subsequently, the Supreme Court has changed the view
and has declared that Article 21 includes “right to livelihood”.19.
Even though the right to livelihood would include all attributes of life, it cannot be extended to the extent it may
take all sorts of claim relating to legal or contractual rights,20. nor will it enable a person to take recourse to or
earn his livelihood by violating the provision of any law.21.
Terminating the services of all appointees on the ground that appointments were made beyond sanctioned
strength is not valid because of the mandate of Article 21, which would not permit taking away the livelihood of
so many of the incumbents unless satisfied that they were among the persons who had not been legally and
validly appointed.22.
Article 21 protects the right to livelihood as an integral facet of right to life, as such, when an employee is
afflicted with an unfortunate disease due to which he is unable to perform the duties of the post he was holding,
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the employer must make every endeavour to adjust him in a post in which the employee is suitable.23. A
legislation to protect unrecognised construction workers, traditionally exploited section of society and to provide
for their safety, health and other welfare measures is a legislation to protect such weaker sections for their
livelihood and is protected by Article 21. The sole aim of such a legislation is the welfare of building and
construction workers directly related to their constitutionally recognised right to live with basic human dignity
enshrined in Article 21.24.
While considering the scope of Central legislation “National Rural Employment Guarantee Act, 2005”, the court
said that “right to livelihood” is an integral part of “right to life” under Article 21 although it has not been
incorporated by specific language in Pt III by the framers of the Constitution. The framers of the Constitution, in
the Preamble to the Constitution, have guaranteed to secure to its citizens justice, social, economic and political
as well as equality of status and opportunity. Court said that the legislation clearly places the right to livelihood
at a high pedestal than a mere legal right.25. The fundamental right of a farmer to cultivate is a part of his right
to livelihood. Agricultural land is the foundation for a sense of security and freedom from fear. Assured
possession is a lasting source for peace and prosperity. India being a predominantly agricultural society, there
is a strong linkage between land and person’s status in the social system. But in case the land is acquired
under the Land Acquisition legislation, the plea of deprivation of right to livelihood under Article 21 is
unsustainable.26.
In Olga Tellis v Bombay Municipal Corp,27. it was held that the right to livelihood is born out of the right to life,
as no person can live without means of living, i.e., means of livelihood. It was held that if the right to livelihood is
not treated as part and parcel of the constitutional right to life, the easiest way of depriving a person of his right
to life would be to deprive him of his means of livelihood to this point of abrogation.28.
But no hawker or squatter has any right to identify any particular place as a public road to do his trade or
business.29. Prohibiting the training and exhibition of animals would not be violative of Article 21, since the right
under Article 21 cannot be extended to trade or business which is injurious to public health.30. A trade in
poisonous chemicals which are unfit for human consumption could be regulated or prohibited and is not
violative of Article 21.31.
But the occupation of slum dwellers for a fairly long time on footpaths, pavements or road margins would attract
Article 21. The rights of slum dwellers are to be protected under Article 21 and they can be enacted as
provisions of alternative shelters.32.
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Right to livelihood does not mean that Article 21 confers a fundamental right to carry on any means of livelihood
at any place of one’s choice. It means however that even pavement and slum dwellers can be removed only
under a just procedure.33.
The importance of livelihood under Article 21 leads to the corollary that before terminating an employment, the
competent authority must give the employee an opportunity to be heard.34.
In Delhi Transport Corp v DTC Mazdoor Congress,35. it was held that right to public employment and its
concomitant right to livelihood receive their succour and nourishment under the canopy of protective umbrella of
Articles 14, 16(1), 19(1)(g) and 21. Article 21 guarantees the right to live which includes the right to livelihood.
The deprivation of livelihood must be in accordance with procedures prescribed by law conformable to the
mandate of Articles 14 and 21 as to be fair, just and reasonable, but not fanciful, oppressive and vagary.
Unreasonable restriction on the landlord to enhance the fair rent and imposing restriction on the landlord to
receive anything in excess even from a willing tenant is violative of the freedom to livelihood and also freedom
to trade or business.36. A circular or government order which directs that if the employee is found to HIV
positive, his services will be terminated is unconstitutional.37.
But regarding the “right to work”, it was held that this does not obligate the State to provide work or livelihood to
the people. Court took note of Article 41 of Directive Principles of State Policy for the above purpose.38.
It was held that though right to work is not declared as a fundamental right, the right to work for workmen, lower
class, middle-class and poor people is a means of development and a source of livelihood.39.
Right to employment though cannot be claimed as of right, but after the appointment to the post of an officer, be
it under the State, its agency, its instrumentality, juristic person or private entrepreneur, it is required to be dealt
with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and all
other concomitant rights emanating therefrom are species to make the right to life and dignity of person real
and meaningful.40. Non-payment of subsistence allowance during the period of suspension is violative of right
to live. Non-payment of subsistence allowance can be linked to slow poisoning as an employee who is not
permitted to sustain himself on account of non-payment of subsistence allowance would gradually starve to
death.41.
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Though not a Constitutional right, the Central Government has now enacted: National Rural Employment
Guarantee Act, 2005 (Central Act 42 of 2005) which received the assent of the President on 5 September 2005
and came into force on different dates in different states or in different areas in a state. The Act guarantees at
least one hundred days of work in every financial year to every household whose adult members volunteer
manual work on payment of minimum wages. Some early American decisions say that the right to work for a
living in the common occupation of the community is of the very essence of the personal freedom and
opportunity. The right to earn a livelihood by following the ordinary occupations of life is protected by the
Constitution. Liberty means more than freedom from servitude and the constitutional guarantee is an assurance
that a citizen shall be protected in the right to his powers of mind and body in any lawful calling.42.
Right to privacy being implicit in the life and liberty, the same cannot denied or violated even in respect of a
woman of easy virtue. No one has a right to invade her privacy as and when he likes. She is entitled to protect
her person if there is an attempt to violate it against her wish.43. Right to privacy may, apart from contract, also
arise out of a particular relationship which may be commercial, matrimonial, or even political. Doctor-patient
relationship, though basically commercial, is professionally a matter of confidence. Doctors are morally and
ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may
amount to invasion of the right to privacy, which may sometimes lead to clash of one person’s “right to be let
alone” with another person’s right to be informed. The right, is not absolute and may be lawfully restricted for
the prevention of crime, disorder or protection of health or moral or protection of rights of freedom of others. In
Mr. “X” v. Hospital “Z”,44. it was held that where there is a clash of two fundamental rights, i.e., the right to
privacy as part of right to life and a right to lead a healthy life which is a fundamental right under Article 21, this
right which would advance the public morality or public interest would alone be enforced through the process of
court, for the reasons that moral considerations cannot be kept at bay, and the Judges are not expected to sit
as mute spectators of clay in the hall known as courtroom, but have to be sensitive “in the sense that they must
keep their fingers firmly upon the pulse of the accepted morality of this day”. A person who is suffering from the
dreadful AIDS disease, cannot claim his right of privacy and cannot maintain the right of secrecy against his
proposed bride and the laboratory which tested his blood.45. The above decision was clarified in Mr. “X” v.
Hospital “Z”,46. wherein it was reiterated that it is open to the hospital or the doctor concerned to reveal such
information to persons related to the girl whom he intended to marry and the bride has a right to know about the
health of the proposed husband.
Matrimonial court has the power to order a person to undergo medical test. Passing such an order by the court
would not be in violation of Article 21, nor will it be a violation of right to privacy. However, the court should
exercise such a power only if the applicant has a prima facie case and there is sufficient material before the
court. If inspite of the order, the person refuses to undergo medical test, the court will be entitled to draw an
adverse inference against him.47.
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At the same time, allowing medical examination of a woman for her virginity, would be violative of right to
privacy and personal liberty.48.
But the party to a legal proceeding cannot be compelled to any scientific test against his or her will, which has
the effect of violating her right to privacy.49. A law imposing reasonable restrictions upon right to privacy for
compelling interest of State is held valid. Where under a local law, there is a prohibition to get elected for a
person who has more than two children, the same does not offend the right to liberty, dignity or privacy of the
individual. The restrictions are imposed for a social purpose, i.e., to control population.50.
Between banker and customer, the customer can claim right to privacy and the power to search and seize
without any material is violative of that right.51. The notion of fundamental right, such as the right to privacy as
part of right to life, is not merely that the State is enjoined from derogating them. It also includes the
responsibility of the State to uphold them against action of others in the society, even in the context of exercise
of fundamental right by those others. The revelation of details of bank account of individuals without proof of
prima facie grounds to accuse them of wrong doing, would be a violation of their right to privacy. It is only after
the State has been able to arrive at a prima facie conclusion of wrongdoing based on material evidence, would
rights of others in the nation to be informed, enter the picture. Right to know cannot be extended to being
inquisitive of fellow citizens.52. In Ram Jethmalani v UOI the court said that the mere fact that a citizen has a
bank account in a bank located in a particular jurisdiction cannot be a ground for revelation of details of his or
her account that the State has acquired. The State cannot compel a citizen to reveal or itself reveal details of
their account to the public at large, either to receive benefits from the State or to facilitate investigation and
prosecution of such individuals unless the State itself has, through properly conducted investigation, within the
four corners of constitutional permissibility, been able to establish prima facie grounds to accuse the individuals
of wrongdoing.
Right to privacy comes into play as and when any party to a proceeding is called upon to undergo any scientific
test for the purpose of collecting evidence aginst his or her will.53. Subjecting a person to narco analysis,
polygraph (lie detector) or brain electrical activation profile (BEAP) in an involuntary manner violates the
boundaries of privacy. Forcible interference with a person’s mental processes is not provided under any statute
and it most certainly comes into conflict with the right against self-incrimination.54.
In U.S.A., there is no express Constitution guarantee of the right to privacy. However, a broad-ranging species
of privacy has come to be guaranteed in the United States by means of a liberal interpretation of the
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Constitution by courts and academics. It is generally argued that the key stage of the development of the right
was the publication of an article of WARREN AND BRANDEIS, “The Right to Privacy”,55. where it claimed that
the existing common law and equitable rights of property and confidentiality, although limited in their scope,
were rooted in a more basic principle of the protection of privacy. After a few years, US courts began to
recognize that there existed a tort of interference with privacy, and then the common law was employed to
protect such interests as the right to private life, the right to reputation, human dignity, and the right to a
persons’ own image. Each of these rights came to be developed to a wider extent as did the comparable rights
in English law. But the process did not stop there: the privacy has become subject to constitutional protection
via a complicated series of implication. The First Amendment which guarantees freedom of religious belief, of
worship and assembling has been interpreted to include right to personal autonomy. The Fourth Amendment
which provides: “The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures … .”, is seen as a recognition of a more general privacy right. In effect,
privacy is treated as if it were among the specific rights listed in the Constitution. In Griswold v Connecticut,56. it
was urged that the narrow privacy rights seen in the First, Third, Fourth, Fifth and Ninth Amendments were part
of a much greater right, but it has never been entirely clear just how far this general rights extends or where it
applies. There is a basic objection to the judicial law making in the US, just as there is in the UK, although
judicial creativity is obvious in both jurisdictions. Certain applications of privacy have been particularly
controversial giving rise to potent arguments that reform of the Constitution is the only method by which the
rights which protects should be extended in order to keep pace with changes in society. However, it is now
clear that the US, not only has a right to privacy within its laws, but also the right is regarded as constitutional
and is enforced in a positive — than negative interpretation. Privacy is seen as including not only protection
from unwanted invasions of a person’s life, but also such rights as freedom of parental choice in education. See
Meyon v Nebraska,57. for the right of a woman to choose what happens to her own body in terms of the
decision whether to have an abortion, Roe v Wade,58. for the right to use contraception,56 and other aspects of
personal autonomy. Each of the primary rights has been subjected of heated debate in terms of policy and
politics, particularly where abortion is concerned, but the concept of privacy has emerged from the battle largely
unscattered. Refusal to extend its scope to include freedom of sexual choice has been based in fear that this
would encourage homosexuality, but campaigns for change continues.59.
Before closing this topic it is only proper to consider what is privacy and how it is distinguished from other
competing liberties.
[Art 21.3.13] What is Privacy
A society which permits individuals to choose how they are to lead their lives is one which will recognize the
choice of privacy. This encompasses not only seclusion from neighbours or the avoidance of publicity but
freedom from unwarranted interference by the State.
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Various definitions have been put forward which tend to be too broad; it has been termed as “a circle, around
every individual human being which no government ought to be permitted to overstep and some space in
human existence thus entrenched around and sacred from authoritative intrusion”. Such phrases suggest that
aspects of individual’s life which can be identified as private aspects of particular value and therefore warrant
special protection.
Privacy is not only accepted as part of the domestic law of a number of countries, but also of international
human rights instruments.60. It ranges from the right to engage in homosexual practices,61. to the right to
receive information about oneself.62.
“In its most basic form, privacy is simply a condition, the state of seclusion, anonymity and secrecy …. It is a
state which can be lost, whether through the choice of the person in that state or through the action of another
person …. It is also an interest, to which people accord value: people have a need for privacy. When that
interest is defeated, that is not just a loss, but an invasion or infringement of privacy. The question is, to what
extent is it a legal right, so that infringements should be actionable at law?
Privacy may be regarded as a basic right of every human being, but there is surprisingly little consistency
between the definitions which are used by authors, judges and reformers. For STONE63. the right to privacy is
narrowly drawn as: “The right to prevent, or to be compensated for, the unauthorized acquisition or publication
of secret personal information.” This definition limits the scope of privacy to a right to control the use of
information about oneself; its ambit is the protection of reputation, the prevention of snooping and the regulation
of chequebook journalism. It recognizes a private realm relating to every individual which should not be
invaded, but limits this realm to “secret personal information”. But others regard the scope of privacy as being
far wider. For the Calcutt Committee it was: “The right of the individual to be protected against intrusion into his
personal life or affairs, or those of his family, by direct physical means or by publication of information”.64. The
CALCUTT definition treats physical intrusions such as breaking into a person’s home or stalking as invasions of
privacy rights rather than excluding criminal offences from the scope of privacy. It is submitted that STONE’S
definition is too narrow; why should it be an invasion of privacy to rifle through a person’s private papers in
order to obtain information, but no such invasion to rifle through the same papers in order to steal valuables?
The two acts may be different when perceived from the perspective of the actor, but from the victim’s point of
view there may be no difference in their effect.
Other definitions go much further, regarding privacy as involving not only control over personal information and
physical invasion, but also a “right to be left alone”. “Privacy is the claim of individuals, groups or institutions to
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determine for themselves when, how and to what extent information about them is communicated to others … ..
privacy is the voluntary and temporary withdrawal of a person from the general society through physical or
psychological means ….”.65.
The concept of the right to privacy did not originate in American Constitution, but in personal injury law. It was
first recognised in Griswold v Connecticut.66. In their article, “The Right to Privacy”, learned authors WARREN
AND BRANDEIS distinguished the right to privacy from such things as injury to reputation by emphasising that
the nature of damage lay in the lowering of the affected individual’s estimation of himself. The invasion of
privacy was on a personal right, not a proprietary right, whose infringement impairs peoples’ sense of their
uniqueness, trammeled their independence, impaired their integrity and assaulted their dignity – the right to
inviolate personality. Court sought to establish privacy as a personal right. In Union Pacific Railway Co v
Batsford,67. the court said: “No right is held more sacred or is more carefully guarded, by the common law, than
the right of every individual to the possession and control of his own person, free from all restraints or
interference of others, unless by clear and unquestionable authority of law”. In Buck v Bell,68. it was observed:
“There are limits to the extent to which a legislatively represented majority may conduct biological experiments
at the expense of dignity and personality and natural powers of a minority – even those who have been guilty of
what the majority defines as crimes”. In that case, the court upheld a State policy of sterilizing mental
defectives. Noting that Buck was the daughter of a feeble-minded mother in the same institution and the mother
of an illegitimate feeble-minded child, the court said: “We have seen more than once that the public welfare
may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap
the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute
degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough
to cover cutting the fallopian tubes. Three generations of imbeciles are enough”.
In Meyer v Nebraska,69. the court said: “While this court has not attempted to define what exactly the liberty
thus guaranteed, the term has received much consideration and some of the included things have been
definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the
individual to contract, to engage in any common occupation of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of his own conscience and
generally to enjoy those privileges long recognised at common law as essential to the orderly pursuit of
happiness of free man”.70.
Article 11 of the American Convention on Human Rights provides for right to privacy. It read: (1) Everyone has
the right to have his honour respected and his dignity recognised. (2) No one may be the object of arbitrary or
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abusive interference with his private life, his family, his home or his correspondence or an unlawful attack on his
honour or reputation. (3) Everyone has the right to the protection of the law against such interference or
attacks.
Every person wants, and needs a private life, regardless of whether a particular person may be generally in the
public eye. Evidence gathered by the Younger Committee indicated that the public were most concerned about
invasions of privacy in the forms of unwanted media publicity or exposure; misuse of personal information by
bodies which hold personal records such as banks, employers, credit rating agencies, colleges and doctors;
invasions of the home and home life by the media, private detectives, nosy neighbours, “doorsteppers” and the
like; and problems in the commercial world as industrial espionage. But a right to privacy will, by its nature,
conflict with freedom of information and other competing liberties.71.
Right to information and right to privacy were considered by the Supreme Court in S.P. Gupta v President of
India,72. and it was held thus:
“The demand for openness is based principally on two reasons. It is now widely accepted that democracy does
not consist merely of people exercising their franchises once in five years to choose their rulers and once the
vote is cast, then retiring in passitivity and not taking any interest in the Government.”
“Today it is common knowledge that democracy has more positive intent and its orchestration has to be
continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes
but should also exercise sound judgment in the conduct of the Government and merits of public policies or that
democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of
Government’s attitude and habit of mind.”
The Judges went on to add:
“But this important role people can fulfill in a democracy only if it is an open Government where there is full
access to information in regard to the functioning of the Government.” The Apex Court laid down that the right
to information formed part of Article 19(1)(a).73.
In Indian Express v UOI,74. it was held thus:

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“Public interest in freedom of discussion of which freedom of the press is one aspect stems from the
requirement that members of a democratic society should be sufficiently informed that they may influence
intelligently, the decisions which may affect themselves.”
Similarly in L.K. Koolwal v State,75. the Rajasthan High Court observed thus:
“The citizen has a right to know about the activities of the State, the instrumentalities, the departments and the
agencies of the State. The privilege of secrecy which existed in old times that the State is not bound to disclose
certain facts to its citizens does not survive to a great extent now.”
The performance of an employee or officer in an organization is primarily a matter between the employee and
employer and normally these aspects are governed by service rules which falls under the expression “personal
information”, the disclosure of which has no relationship to any public activity or public interest and on the other
hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. The details
disclosed by a person in his income-tax returns are personal information which stand exempted from disclosure
under clause (j) of section 8 of the Right to Information Act. But, if the Central Public Information Officer or the
State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the
disclosure of such information, appropriate orders could be passed, but a petitioner cannot claim these details
as of right.76.
It is clear from the above that right to privacy by its nature conflict with freedom of information and other
competing liberties.
IV. Right to live of which Article 21 speaks as applied to a prisoner, would include his right to the bare
necessaries of life such as adequate nutrition, clothing, shelter over the head, facilities for reading, writing,
interviews with members of his family and friends,77. subject, of course, to prison regulations, if any.78. [See
post] A prisoner who has to work (when the punishment is rigorous imprisonment) is entitled to wages as per
rules. But when undergoing simple imprisonment, the prisoner has an option either to work or not and an under-
trial prisoner is not required to work.79. In D. Bhuvan Mohan Patnaik v State of AP,80. the court said: “Convicts
are not, by mere reason of conviction, denuded of all the fundamental rights which they otherwise possess. A
compulsion under the authority of law following upon a conviction, to live in a prison house entails by its own
force the deprivation of fundamental freedom like the right to move freely throughout the territory of India or the
right to practise a profession. A man of profession would stand stripped of his right to hold consultations while
serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and
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dispose of property, for the exercise of which incarceration can be of no impediment. Likewise, even a convict
is entitled to the precious right guaranteed by Article 21, that he shall not be deprived of his life or personal
liberty except according to procedure established by law.
In State of Maharashtra v Prabhakar,81. it was held that a prisoner is entitled to read and write a book while in
jail.82.
The personal liberty of a citizen is guaranteed under the scheme of Articles 20, 21 and 22 of the Constitution.
However, a person may be deprived of his liberty only according to procedure established by law. It follows
therefore, that some persons will be called upon to deprive other persons of their personal liberty in the
discharge of what they conceive to be their duty, who must strictly and scrupulously observe and follow the rule
of law.83. It was also held therein that such a principle would apply in the case of punitive as well as preventive
detention.
Speedy trial is a fundamental right and in a manner, an ingredient of Article 21. It is the obligation of the State,
otherwise there will be failure of justice. Supreme Court directed for the release of under-trial prisoners under
the NDPS Act except those charged under sections 31 and 31-A of the Act who were languishing in jails in the
State of Maharashtra for a period exceeding half of the punishment provided under the Act and also laid down
terms and conditions therein.84. The right of a prisoner to have a speedy trial shall encompass all the stages of
trial and would be applicable even at the stage of investigation, enquiry, trial, appeal, revision and retrial.85.
If the trial against the prisoner ends in acquittal, the prisoner must be released from jail forthwith.86.
Where under-trials were kept in jail without any trial for a long time, court held that they should be released.
Likewise, in cases where even charges were not framed against the under-trials and long period had elapsed,
for no fault of the under-trials, court directed them to be released forthwith.87. When mentally sick persons were
languishing in jails for nearly two or three decades, although acquitted, the court directed their release.88.
An under-trial prisoner as well as a convicted prisoner is entitled to all the facilities to live as a human being.89.
Prisoners are entitled to protection against cruel and inhuman treatment.90. Ill-treatment complained of must
have attained a minimum level of severity, having regard inter alia to its duration, its physical or mental effect
whether its object was to humiliate or debase the person concerned and whether it adversely affected his or her
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personality in a manner incompatible under Article 3 of the European Convention.91. Torture is an affront to
human dignity and no prisoner can be tortured or be subjected to custodial violence.92. All prisoners have a
right of fair treatment and basic dignity. This would include all measures of security, remand, parole, premature
release, condition of prisonalisation as well as prison transfer and prison visiting system.93.
Similar to section 54 CrPC, the Supreme Court has ruled that under-trial prisoners have a right to get
themselves medically examined.94.
V. But it would not include—
(i) A right, under a settlement, to claim bonus or dearness allowance.95.
(ii) A right of a wife not to be subjected to a decree for restitution of conjugal rights.96.
(iii) A right not to be arrested for default in payment of public revenue.97.
(iv) A right not to be subjected to death penalty on conviction for an offence under the criminal law.98. But
execution by public hanging would offend Article 21.99.
(v) A right to carry on any trade or business free from reasonable restrictions imposed under Article 19(6).
[Art 21.3.14] Life and Unborn Child
The question whether an unborn child has a right to life and comes within the meaning of the word “life” is not
fully settled. Article 2 of European Convention on Human Rights says that “everyone’s right to life shall be
protected … ” It is argued that “everyone” connotes a person who comes within the exceptions laid out in Article
2, and thus assumes that such a person is already born. Cases relating to “life” in this topic are connected with
abortion. In such cases “domestic law” is given prominence. In Paton v U.K.,1. the Commission examined the
laws and Constitution of various States including the American Convention on Human Rights 1969 where it was
stated under Article 4(1) that “life” begins from the moment of conception. In Germany, when considering Article
2 above, it was stated that life begins from the 14th day after conception (nidation).2. The meaning of the word
“life” is further complicated by its use in individual States according to whether the issues comes under criminal
or civil law.
In Paton’s case (supra) the Commission stated that there are three options:
(1) “no right to life” recognition of the foetus.

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(2) recognized, but with limitations.
(3) absolute recognition.
The Commission refused the third option on the ground of the foetus interconnection with pregnant woman. If
otherwise, the abortion would be disallowed, even at the expense of seriously damaging the health of the
pregnant woman. Such an interpretation would be “contrary to the object and purpose of the convention”. In
regard to the second opinion, the Commission was of opinion that even if some protection were to be given, it
would be limited to protecting the life and health of the pregnant woman, which must remain paramount.
Because of the sensitivity of the issue, i.e., the different moral, ethical and religious attitudes in various
Contracting States (of the European Convention) the Commission is inclined to give a greater degree of latitude
to particular domestic laws when considering where an application is justified to go before the court.3.
However, the Austrian Constitutional Courts in 1974, refused to recognize “right to life” to unborn life. The court
was confronted with the question as to whether Article 2 of the European Convention for the Protection to
Human Rights and Fundamental Freedom which provides “everyone’s to right to life” shall be protected by law,
is applicable to “unborn” life or not. The court refused to include “unborn life” in its definition of the term
“everyone” as pleaded by Austrian Government, because some States did not recognize a right to life for
human beings yet unborn, and held that the term “everyone” is limited to “born human beings”. It was illogical to
include protection to unborn life in the Convention since it provides for the deprivation of life in certain specified
cases.4.
In Roe v Wade,5. the constitutionality of a State Criminal Abortion Legislation was considered. The Texas
Statute prohibited abortion except by medical advice for the purpose of saving the mother. It was contended
that woman’s right to terminate the pregnancy is absolute and that she is entitled to terminate the pregnancy for
whatever reason she chooses. The court upheld the right to privacy, but at the same time held that the same is
not absolute, and the State can interfere and regulate the freedom for “compelling State Interests”. It was held
that child birth endangers the lives of some women, voluntary abortions “at any time and place” regardless of
medical standards would impinge on a rightful concern of society. The woman’s health is part of that concern as
is the life of foetus after quickening. These concerns justify the State in treating the procedure as a medical
one.
In Webster v Reproductive Health Services et al,6. the court was asked to decide the constitutionality of a
Missouri Statute regulating the performance of abortion. In the Preamble of the Statute, it was provided “that life
of each human being begins at conception” and that “unborn children have protectable interests in life, health
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and well-being” and required that all State laws be interpreted to provide unborn children with the same rights
enjoyed by the persons subject to the Federal Constitution and courts precedents “along with other issues. The
court decided that the Preamble simply expressed a value judgment” without going into its constitutionality. The
provision in Act which prohibited any public employee within the scope of his employment to perform or assist
an abortion not necessary to save the life of mother was held valid.
As per the above decision, the word “personal” within the 14th Amendment means a human being after birth
and not a foetus. It follows that right to life does “not” begin from conception. At the same time, it cannot be
denied that there is a “potentiality of life” in the embryo from the moment of conception, so that the State may
take this into consideration in regulating the mother’s right to abortion. It was observed that in the first three
months of pregnancy, the potentiality of life in the embryo is not viable and abortion at this stage is less risky or
fatal to the mother. Hence the State may refrain from exercising its right of regulation of mother’s right to
abortion, leaving it to the decision of the mother and her physician. After expiry of three months, the foetus then
presumably has the “capability of meaningful life outside the mother’s womb” and this stage is known as
“quickening”, i.e., when the foetus first starts recognizable movement in the uterus. At this State acquires
compelling interest to protect the potential.7.
In England, the Court of Appeal in R v Tait8. quashed the conviction of a burglar on the ground that “threat to
kill a foetus” is not an offence directed against another person. The foetus in uterus was not in the ordinary
sense “another person” distinct from its mother. But under Law of Torts, an unborn child can maintain an action
for recovery of damages, for, an unborn child needs to reach the stage of viability.9. Thus, the unborn child to
whom live birth never comes is held to be a person who can be the subject of an action for damages for his
death. The Law of Succession also, for many purposes, treats a child in the womb equal to a person in
existence. In Bonbrest v Kotz,10. it was held that an unborn person was recognised as a human being.The
learned author11. says: “If the life is supposed to exist from the moment of conception, the right to birth must
also commence from that stage. Article 21 of Indian Constitution may be interpreted to mean that the word
“person” applies to all human beings including the unborn off-springs at every stage of gestation. The State
cannot discriminate against persons who are fetuses by offering them less or no protection than other persons.
Therefore, State is under an obligation under Article 21 not only to protect the life of unborn child from arbitrary
and unjust destruction, but also not to deny it equal protection under Article 14 of Indian Constitution”.
West German Constitutional Court has not accepted the American view in Roe v Wade (supra). Article 2 of
West German Constitution provides:
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(1) Everyone shall have the right to the free development of personality in so far as he does not violate the rights
of others or offend against the constitutional order or moral code.
(2) Everyone shall have the right to life and to inviolability of his person. The liberty of the individual shall be
inviolable. These rights may only be encroached upon pursuant to a law.
Personal autonomy has been recognised for sometime in the U.S.A. as strongly linked with privacy. In Doe v
Bolton,12. it was held that the right to privacy means freedom of choice in the basic decision of one’s life
respecting marriage, divorce, procreation, contraception, education and upbringing of children. It may be said
that bodily privacy connotes an interest not only in preventing physical intrusion by others, but also with the
extent to which the law allows an individual a degree of control over his or her own body. Recognition of the
need to allow individual bodily self-determination has arguably become more prominent in this century. Thus,
abortion and suicide are no longer crimes in U.K. under the Abortion Act, 1967 and the Suicide Act, 1961.
In Abortion Reform Law Case,13. the court laid down the following propositions:
(1) Everyone in Article 2 includes an unborn being.
(2) Human life exists in embryo from the 14th day of conception.
(3) It is the duty of the State to protect and promote the life of the foetus and defend it from unlawful
interference by other person.
(4) The right to development accrues in the foetus from mother’s womb and is not complete even after
birth.
(5) If the foetus was considered only as a part of the maternal organism, termination of pregnancy would
remain entirely in the sphere of private life, not warranting public interferences. But because the foetus
is “an autonomous human being” under protection of the Constitution, termination of pregnancy has a
social dimension which demands public regulation.
(6) The Constitution also protects a woman’s right to free development of her personality, which includes
freedom to decide against parenthood. But this right is not guaranteed without limitations. The right of
others, the constitutional order, the moral code all restrict it.
(7) A compromise which guarantees both protection of the foetus as well as freedom of abortion of the
pregnant woman is impossible because termination of pregnancy always means “destruction of unborn
life”. The legal order cannot, therefore, make a woman’s self-determination, the principle of its
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regulations. On the other hand, protection of the foetus must be given priority to the woman’s right of
self-determination.
(8) The State is to effectively fulfill its duty to “protect” “developing life”. In discharging this duty the State is
to make a reasonable adjustment between unborn’s right to life and woman’s right to her own life and
health. The unborn’s rights to life can lead to burdens for the woman which sharply exceed those of a
normal pregnancy. In such a case, the State may exempt the pregnant woman from punishment for
destroying the foetus where it is necessary to protect the pregnant woman from a threat to her life or a
threat of a serious impact on her health or other cases, where the burden is extraordinary.
(9) The duty of the court is not to put itself in the legislator’s place, but to determine whether the
Legislature has fulfilled its duty to protect the “developing life” and made a reasonable adjustment
between the right of the unborn and the right of the pregnant woman.
Article 40(3)(3) of the Constitution of Eire (inserted in 1983) enjoins the State to reconcile the right to life of an
unborn child with the right to life of the mother. Hence where the abortion was not required to save the life of
the mother, damages or injunction may be available to protect the unborn child.14.
Regarding the law in India, D.D. BASU in his book on Human Rights in Constitutional Law15. has stated thus:
Regard for the sanctity of the embryo from the moment of conception is enjoined by Hindu scriptures. Thus, the
destruction of foetus is condemned as heinous offence equal to “Brahmahatya”. In this condemnation, no distinction
appears to have been made between different stages of gestation. The ‘Gorbhopanishad’ which gives a meticulous
account of the development of the foetus from the moment of conception of the mother, states that from the second
day after entry of the male semen into the female uterus, the semen gets thickened and from the 8th day it takes shape
of a ball which is transformed into a lump after 15 days leading to the creation of the head and the legs after two
months. It follows, that it would be an offence if the embryo is destroyed even at the nascent stage.
Section 315 of the Indian Penal Code acknowledges that the embryo is entitled to legal protection as the
unborn child’s right to life. It says, “whoever, before the birth of any child, does any act with the intention
thereby preventing that child from being born alive or causing it to die after its birth, and does by such act
prevent that child from being born alive or causes it to die after its birth, shall, if such act is not caused in good
faith for the purpose of saving the life of the mother, be punished with imprisonment … ”
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Sections 312 to 316 of the IPC provides for punishment for abortion or for destruction of the unborn child.
Sections 3 to 5 of the Medical Termination of Pregnancy Act, 1971 are more or less an exception to the
provisions of IPC on abortion. But reading these provisions together, it is clear that the pregnant woman has no
unqualified right to destroy the foetus. The right could be exercised only in good faith for the purpose of saving
the life of mother or to save her from grave injury to her physical or mental health and that could be done only
on medical advice. Indian Penal Code enacted in 1860 acknowledges that an embryo is entitled to legal
protection as the unborn child’s right to life is evident from section 315 which says: “Whoever before the birth of
any child does any act with intention of thereby preventing that child from being born alive or causing it to die
after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth,
shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with
imprisonment … ”.
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of 1994)
also provides for the prohibition of sex selections, before or after conceptions and no pre-natal diagnostic
techniques shall be conducted except for the detection of certain abnormalities of the child in the womb. These
provisions also show that India recognizes right to life of the unborn child.
In regard to Law of Succession, section 20 of the Hindu Succession Act has conferred on the unborn child a
right to succeed to the father’s estate who was in mother’s womb when the father died intestate and who was
born alive after such death. In such cases, the law presumes that the unborn child was alive as the date of
death of the father.
If a woman became pregnant on account of rape committed by several persons, she may be permitted to
terminate such unwanted pregnancy because continuance of such pregnancy will cause mental shock and
anguish. Sections 3 and 4 of the Medical Termination of Pregnancy Act make it clear that with the consent of a
major woman who has attained eighteen years of age, in the approved hospital, the unwanted pregnancy
caused by rape can be terminated by a registered medical practitioner on the basis of opinion of two registered
medical practitioners formed in good faith where the length of pregnancy exceeds twelve weeks, but does not
exceed eighteen weeks; if the situation was such that if the pregnancy was not terminated, there would be great
injury to her physical and mental health. The High Court can issue a direction to the hospital, established by the
Government for medical termination of pregnancy.16.
When pregnancy was caused by rape and if rape is alleged by woman who is pregnant, the court shall be
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bound to presume that there would be mental anguish or grave injury in her mental health. The court can direct
that the pregnancy can be terminated with the consent of pregnant woman.17.
As for the future, India has two models before her – that of the U.S.A. and of West Germany as demonstrated
above: (a) The American Supreme Court would strike down a statute which punishes a woman for terminating
her pregnancy during the first three months without obtaining medical advice that it is necessary for protecting
her own life – thus surrendering the State’s concern for the unborn to the mother’s right to self-determination;18.
(b) The West German Court (as was held in Abortion Reform Law case19.) would strike down a statute which
allows a woman to freely terminate her pregnancy during the first three months, without having regard to the
right of the foetus to live.
If India has to choose between the American and West German precedents, her preference should be for the
latter because the moral approach of the bulk of the people of India to this question is still against a permissive
society which the USA has been obliged to acknowledge because of the ever increasing dimensions of cases
of rape, incest, extra-marital intercourse and above all, unwed motherhood of teenagers in schools.20.
Section 99(1) of the Indian Succession Act, 1925 clearly provides that “all words expressive of relationship
apply to a child in the womb who is afterwards born alive”.
[Art 21.3.15] Personal Liberty
“Liberty” is a very comprehensive term and let alone it would include not merely freedom to move about
unrestricted but such liberty of conduct, choice and action as the law gives and protects.21.
“Personal liberty consists in the power of locomotion, of changing situation; or removing one person to whatever
place one’s inclination may direct, without imprisonment or restraint, unless by due cause of law”.22. In the
same book, the author refers to a statement by LEIBER which says “Liberty of social man consists in the
protection of unrestrained action in or high a degree as the same claim of protection of each individual admits
of, or in the most efficient protection of his rights, claims, interests, as a man or citizen or of his humanity
manifested as a social thing”.
What ABRAHAM LINCOLN said of “liberty” is equally true of freedom. “The world has never had a good
definition of it.” The shepherd, he said “drives the wolf from the sheep’s throat, for which the sheep thanks the
shepherd as his liberator, while the wolf denounces him for the same act … ” Plainly the sheep and the wolf are
not agreed upon the definition of liberty. He pointed out that what is freedom for the lion is death for the
lamb.23. In Munn v Illinois,24. it was said that, “by the term ‘liberty’ as used in the provision (Fifth Amendment)
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something more is meant than mere freedom from physical restraint or bonds of a prison”. In Meyer v
Nebraska,25. it was observed: “without doubt, it denotes not merely freedom from bodily restraint, but also the
right of the individual to contract, to engage in any of the common occupation of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free man.”
According to Roe v Wade,26. the expression “liberty” comprises:
(1) First is the autonomous control over the development and expression of one’s intellect interests, tastes and
personality....
(2) Second is the freedom of choice in the basic decisions of one’s life respecting marriage, divorce,
procreation, contraception and the education and upbringing of children …
(3) Third is the freedom of care of one’s health and person, freedom from bodily restraint or compulsion,
freedom to walk, stroll or loaf …
JOHN STUART MILL in his “Essay on Liberty” says that liberty “consists in doing what one desires. But the
liberty of the individual must be thus for limited … .. he must not make himself a nuisance to others”.
In Halsbury’s Laws of England27. it is stated thus:
“The right to personal liberty and immunity from wrongful detention is enshrined in Magna Carta and is
enforceable by the writ of habeas corpus and action for false imprisonment. A person may be arrested by
warrant issued by a justice or in certain circumstances, without a warrant. If a person is arrested without a
warrant, he must be informed of the reason for his arrest and if retained in custody, he must be brought before
a Magistrates’ Court as soon as is practicable. Closely connected with the right to personal liberty is the right to
be protected against unfair or oppressive police methods in the interrogation of suspects.” According to DICEY:
“The right to personal liberty as understood in England means in substance a person’s right not to be subjected
to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.28.
(A) U.S.A.—
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U.S.A.
In the U.S.A., the Supreme Court has taken advantage of the generality of the word “liberty” in expanding the
scope of the “Due Process” clause. Though it has never defined the word, it has often emphasised that it “is not
confined to mere freedom from bodily restraint” and that “liberty under law extends to the full range of conduct
which the individual is free to pursue”.29. Liberty means more than freedom from servitude, and constitutional
guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in
any lawful calling.30.
“Civil Liberty” as commonly used is not a technically precise term, but a loose one denoting the personal rights
and freedom that are or ought to be respected by Government. The phrase is not quite so broad as “liberty”. It
does not apply where there is no government, it does not embrace those areas of private option where the law
can play no part, as where a man freely chooses to be a fool or a gentleman or a knave, nor can the term be
used very meaningfully in connection with a concept as the right of revolution which is by nature a non-legal
privilege. But in its broadest usage, the term is applicable to all these many claims of right that involve an actual
or potential legal nexus between individual and the Government.31.
Civil liberty consists in protecting the right of individual by the united force of the society.32. It is natural liberty
so far restrained by human law as is necessary and expedient for the general advantage of the public: the
power of doing whatever the law permits.33.
Even liberty itself, the greatest of all rights, is not unrestricted licence to act according to one’s own will. It is
only freedom from restraint under conditions essential to the equal enjoyment of the same rights by others.34.
(B) India.—
India
I. By qualifying the word liberty by the word “personal”, the import of the word liberty in Article 21 of our
Constitution is narrowed down35. to the meaning given in English law to the expression “liberty of the person” or
“personal freedom”, i.e., the right not to be punished, imprisoned or coerced except according to the procedure
established by law.36.
It is the antithesis of physical restraint or coercion.37. Narco analysis, polygraph (lie detector test) or brain
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electrical activation profile (BEAP) test which are forcibly subjected on individual, affecting the mental privacy,
which is an aspect of personal liberty, would amount to an unwarranted intrusion into personal liberty. It is
violative of Article 21 because the common feature of these tests is that the test subject’s verbal or
physiological responses are extracted in a manner that he has no conscious control over them. Such
involuntary disclosure of information is cruel, inhuman and degrading treatment to an individual, which is
According to BLACKSTONE,39. the right of personal liberty includes:
the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s inclination may
direct, without imprisonment or restraint, unless by due course of law.
The right to life and liberty so guaranteed under Article 21 is also subject to the rule of proportionality.40. Liberty
is the right of doing an act which the law permits.41. Liberty is confined and controlled by law whether common
law or statute. It is regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in
the good sense of the people and in the system of representative and responsible Government which has been
evolved. If extraordinary powers are given, they are given because of emergency, which is extraordinary and
are limited to the period of emergency. Liberty is itself the gift of the law and may by law be forfeited or
abridged.42.
Eminent jurist H.M. SEERVAI in his book on Constitutional Law of India43. has considered “the correlation of
Article 19 to Articles 20, 21, and 22(1) and (2)” and stated: “ …. Not only gives a clear and coherent account of
the group of Article put under the caption “Right to Freedom” based on well settled principle of constructions,
but the meaning we have given to the “personal liberty” carries out the intention of the framers of the
Constitution and is in conformity with the meaning which the phrase “personal liberty” bears in constitutional
law. It carries out the intention of the framers of our Constitution, because the Drafting Committee added the
word “personal” before the word “liberty” because “otherwise (liberty) might be construed very widely so as to
include the freedom already dealt within Article 13 (now Article 19)”. The word “personal” was meant to exclude
the freedom conferred by Article 19 and although the Drafting Committee did not say so, such limitations had to
be inserted in Article 21, if that Article was not to lead to the absurd result that the freedom denied to non-
citizen by Article 19 were conferred as then by Article 19.” The expression “personal liberty” is used in Article 21
as a “compendious term to include within itself all the varieties of rights which go to make up the personal
liberties of man other than those dealt within the several clauses of Article 19(1). In other words, while Article
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19(1) deals with particular species or attributes of that freedom, “personal liberty” in Article 21 takes in and
comprises the residue.”44.
Liberty of an individual should not be allowed to be eroded, but every individual has an obligation to see that he
does not violate the laws of the land or affect others’ lawful liberty to lose his own. The cry of liberty is not to be
confused with or misunderstood as an unconcerned senile shout for freedom. It may be apt to add here that the
protection of the collective is the bone marrow and this is why liberty in a civilised society cannot be absolute. It
is also the duty of court to see where the individual crosses his “Lakshman Rekha” that is carved out by law is
dealt with appropriately.45. In Ash Mohammed v Shiv Raj Singh,46. the court said that in a democratic society
polity which is wedded to the rule of law an individual is expected to grow within the social restriction sanctioned
by law. The individual liberty is restricted by longer social interest and its deprivation must have due sanction of
law. In an orderly society, an individual is expected to live with dignity having respect for law and also giving
respect to others’ rights. It is a well accepted principle that the concept of liberty is not in the realm of
absolutism, but is a restricted one. The cry of the collective for justice, its desires for peace and harmony and its
necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by
rule of law has to be regulated and such regulations which are the source in law subserve the social balance
and function as a significant instrument for protection of human rights and security of the collective. It is
because fundamentally laws are made for their obedience, so that every member of the society lives peacefully
in a society to achieve his individual as well as social interest. Liberty is a regulated freedom.
It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a
high pedestal which would bring anarchy or disorder in the society. In an organised society, the concept of
liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-
meaning person desires. Personal liberty is the right to act with interference within the limits of the law.
In Maneka Gandhi v UOI,47. it was observed that the expression “personal liberty” in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute the “personal liberty” of man and some of them
have been raised to the status of distinct fundamental rights and were given additional protection under Article
19 of the Constitution. Both the rights of “personal security” and of “personal liberty” recognized by natural law
are embodied under Article 21 of the Constitution.
All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The
importance of these natural rights can be found in the fact that these are fundamental for their proper existence
and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be
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without honour and dignity and it would lose all its significance and meaning and life itself would not be worth
living. That is why “liberty” is called the very quintessence of a civilised existence.
Liberty has many facets and meanings. It may be defined as the affirmation by an individual or group of his or
its own essence. It needs the presence of three factors – (1) harmonious balance of personality, (2) the
absence of restraint upon the exercise of that affirmation, and (3) organisation of opportunities for the exercise
of a continuous initiative. It may be defined as a power of action according to the determination of the will.
Liberty generally means the prevention of restraint and providing for such opportunities, the denial of which
would result in frustration and ultimately disorder. Restraints on man’s liberty are laid down by power used
through absolute discretion which when used in that manner brings an end to “liberty” and freedom is lost. At
the same time, liberty without restraints would mean liberty gained by one and lost by another. So, liberty
means doing of anything one desires, but subject to the desire of others. Court said that it is very difficult to
define the term “liberty”. It has many facets and meanings. The philosophers and moralists have praised
freedom and liberty, but this term is difficult to determine because it does not resist any interpretation.48. In
Siddharam Satlingappa Mhetre v State of Maharashtra the court has extracted the observation of ROSCOE
POUND in his book The Development of Constitutional Guarantee of Liberty wherein it is stated: “Whatever
‘liberty’ may mean today, the liberty as guaranteed by our Bill of Rights, is a reservation to the individual of
certain fundamental reasonable expectations involved in life in civilised society and a freedom from arbitrary
and unreasonable exercise of the power and authority of those who are designed or chosen in a politically
organised society to adjust that society to individuals”.
DICEY in his Treatise on Constitutional Law has said: “Personal liberty as understood in England means in
substance a person’s right not to be subjected to imprisonment, arrest or other physical coercion in any manner
that does not admit of legal justification.49.
It is the negative right of not being subjected to any form of physical restraint or coercion that constitutes the
essence of personal liberty and not mere freedom to move to any part of Indian territory. In ordinary language,
personal liberty means liberty relating to or concerning the person or body of the individual and personal liberty
in this sense is the anti-thesis of physical restraint or coercion.
LORD ALFRED DENNING defined “liberty” thus: “By personal freedom, I mean freedom of every law abiding
citizen to think what he will, to say what he will and to go where he will on his lawful avocation without
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hindrance from any person. It must be matched, of course, with social security by which I mean the place and
good order of the community in which we live”.
Liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein there
is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no
servility of the human mind or enslavement of human body.50.
A woman’s right to make reproductive choices is also a dimension of personal liberty as understood under
Article 21. Reproductive choices can be exercised to procreate as well as to abstain from procreating. The
crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on exercise of reproductive choices such as woman’s
right to refuse participation in sexual activity or alternatively insistence on use of contraceptive method. Women
are also free to choose birth control methods such as undergoing sterilisation procedures. Reproductive rights
include a woman’s entitlement to carry pregnancy to its full term, to give birth and to subsequently raise
children.51.
While considering the importance of right to liberty, the Supreme Court said: “There can be no doubt that
personal liberty is a precious right. So did the Founding Fathers believe, because while their first object was to
give unto the people a Constitution, whereby a Government was established, their second object, equally
important was to protect the people against the Government. That is why, while conferring extensive powers to
suspend the enforcement of fundamental rights or the power to issue ordinances, they assured the people a Bill
of Rights by Pt III of the Constitution, which they regarded as “fundamental”. The imperative necessity to protect
these rights is a lesson taught by all history and all human experience. Our Government tramples upon human
rights which the country had fought hard to preserve. They believed like JEFFERSON that an “elective
despotism” was not the Government we fought for. And, therefore, while arming the Government with large
powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers
were not abused to mutilate the liberties of the people.”52.
Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a
natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a
policy of the State, but an essential requirement of a civilised society. The phrase “personal liberty” is very wide
and includes all possible rights which go to constitute personal liberty, including those which are mentioned in
Article 19.53. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article
21 is the repository of all human rights essential for a person or a citizen. A fruitful and meaningful life pre-
supposes life full of dignity, honour, health and welfare. In the modern “Welfare Philosophy”, it is for the State to
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ensure these essentials of life to all its citizens and if possible, to non-citizens and in every civilised democratic
country, liberty is considered to be the most precious human right of every person.54.
But where individual liberty comes into conflict with an interest of the security of the State or public order, the
liberty of the individual must give way to the larger interest of the nation.55.
The narrow interpretation in A.K. Gopalan v State of Madras,56. which held “personal liberty” as the liberty
relating to or concerning the person or body of the individual and personal liberty within sense in antithesis of
physical restraint or coercion does not hold the field after Maneka Gandhi’s case. In State of Maharashtra v
Prabhakar,57. it was held that Article 21 applies to procedural laws whereas Article 19 deals with substantive
law relating to personal liberty. Personal liberty which is included in Article 21 is wide enough to include some
or all of the freedoms mentioned in Article 19, but they are two distinct fundamental rights. The personal liberty
in Article 21 is the residue of the “personal liberty” after excluding attributes of the liberty under Article 19.
Articles 21 and 22 are self-contained and Article 19 does not control them. The expression “personal liberty”
occurring in Article 21 deals with the right to locomotion, but the right to move throughout the territory of India is
not covered by it in as much as it is specifically provided in Article 19.58. The principle of liberty, equality and
fraternity are not to be treated as separate entities, but in a trinity. They form the union or trinity in the sense
that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from
equality. Equality cannot be divorced from liberty nor can equality and liberty be divorced from fraternity. Liberty
cannot stand alone, but must be paired with a companion virtue; liberty and morality; liberty and law; liberty and
justice; liberty and common good; liberty and responsibility which are concomitant for orderly progress and
social stability.
Liberty is not absolute, but must arm itself within the confines of the law. In other words, there can be no liberty
without social restraint. Liberty as a social conception is a right to be assured to all members of a society.
Unless restraint is enforced and accepted by all members of the society, liberty of some must involve the
oppression of others. Liberty of each citizen is born of and must be subordinated to the liberty of the greater
number, in other words, common happiness as an end of the society. The essence of civil liberty is to keep
alive the freedom of individual subject to the limitation of social control which could be adjusted according to the
needs of the dynamic social evolution.59.
When a citizen is coerced into not attending to his work or prevented from going out due to a “bandh call”, there
is violation of Article 21, in that there is deprivation of personal liberty and threat to life without any procedure
established by law. When a bandh is called, there is no locomotion and there is fear of attack and destruction,
and there is not merely physical prevention but a psychological restriction, which would also be a restriction on
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personal liberty. During the bandh, a patient could be prevented from going to a hospital or meeting his
doctor.60.
A decision or adjudication by a court of law cannot be challenged on the ground that it violates any of the
fundamental rights including that under Article 21. Since what the judicial decision purports to do is to decide
only the controversy between parties brought before the court, the question of violation of fundamental right
does not arise. The only ground of challenging the decision is subsequent events that happen after the final
verdict is pronounced.61.
II. In Kharak Singh v State of U.P.,62. the majority of the Supreme Court has reiterated that the personal liberty
which is safeguarded by Article 21 is the freedom from a tangible physical restraint and did not, therefore,
include freedom from invasion of privacy or protection of a person’s personal sensitiveness.
The majority, accordingly, held that—
(a) Article 21 was violated if, without the authority of law, the Police made “domiciliary visits” to an
individuals’s house, i.e., to knock at his door, enter the house and search it, if necessary, to ascertain
his presence in that house, because such intrusion into a person’s home,63. interfered with the
“personal liberty” of that individual, even though it might not affect his freedom of locomotion (paras 17
and 19).
(b) At the same time, the Court refused to extend the foregoing view to secret surveillance of the
individual’s residence, without involving any knock at the door or entry, on the ground that the “right to
privacy” was not a fundamental right included in Pt III of the Constitution of India (paras 11 and 20). In
the majority judgment by JUSTICE AYYANGAR, the following observation was also made: “It is true
that in Article 21 as contrasted with the 5th and 14th Amendments in the US, the word ‘liberty’ is
qualified by the word “personal” and, therefore, the content is narrow. But the qualifying adjective has
been employed in order to avoid overlapping between those elements or incidences of liberty like
freedom of speech or freedom of movement, etc. already dealt with in Article 19(1) and the liberty
guaranteed by Article 21.
The court said: “We consider that “personal liberty” is used as a compendious term to include
within itself all the varieties of right which go to make up the ‘personal liberties’ of man other than
those dealt with in the several clauses in Article 19(1). In other words, while Article 19(1) deals with
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particular species or attributes of that freedom, “personal liberty” in Article 21 takes in and
comprises the residue.”64.
SUBBA RAO, J., in the minority65. (para 31), however, refused to abide by the Gopalan66. thesis that personal
liberty was the antithesis of merely “physical restraint or coercion”. Even the majority in Kharak Singh’s case67.
implicity rejected this narrow interpretation of Gopalan66 in so far as it came to hold that a domiciliary visit,
involving an intrusion into a man’s home, constituted an invasion of “personal liberty”, even though there was
no “physical restraint or coercion” or interference with his freedom of locomotion. SUBBA RAO, J., went beyond
the majority view and held that even a secret surveillance of a man’s movements interfered with the freedom of
his movement because a man could hardly move “freely” when “all his activities were watched and noted” (para
32). In short, personal liberty, according to SUBBA RAO, J., meant the absence not only of physical restraints
but also of psychological restraints. Since his view seems to have gained ground when the same Police
Regulation came up again in 1975 before a Division Bench of three Judges, it would be useful to reproduce the
crux of his Lordship’s observations:
“The right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free
from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a
fundamental right, but the said right is an essential ingredient of personal liberty.” (para 31)68.
In Govind’s case,69. the three-member Bench came to the following conclusions:
(a) The right to privacy was an essential human right specifically recognised by the European Convention.
(b) It could be assumed that the right of privacy including the freedom not only from domiciliary visits but
also from surveillance, was an emanation from the personal liberty guaranteed by Article 21.
(c) But even so, it was subject to reasonable restrictions which were permissible under Articles 19(2) and
(5). Judged from this standpoint, the restrictions imposed by Regulations 855–56 of the MP Police
Regulations were reasonable restrictions imposed in the interest of apprehending habitual criminals
and suspects who were dangerous to the society.
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Of course, the last proposition evolved in Govind’s case,69 demonstrates the trend of Supreme Court decisions
towards subjecting laws falling under Article 21 to the touchstone of Article 19 as well (a topic which has been
discussed in other contexts). It advances the individual’s cause to the extent that even if psychological police
restraints are imposed under the authority of law, thereby complying with the requirement of Article 21, the
individual would still have an opportunity of having the reasonableness of such restriction tested under Article
19—an opportunity which they never had under the orthodox Gopalan70. view.
In the result, though the majority decision in Kharak Singh68 could not be overturned by a Bench of three
Judges,69 it has come to be fairly conceded by the court that the expression “personal liberty” included “privacy”
involving freedom from psychological restraints, freedoms of the family, motherhood, procreation, child rearing,
matrimonial home and like elements without which the individual could not be assured of his “dignity” as an
individual, as envisaged by the Preamble to our Constitution (paras 22, 24 and 27–28).71. In Selvi v State of
Karnataka,72. it was held that privacy is an aspect of personal liberty. In R. Rajagopal v State of TN,73. it was
held that right to privacy could be described as the right to be let alone and a citizen has the right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among
others. That right to privacy is a part of personal liberty is reiterated in Peoples’ Union for Civil Liberties v
UOI.74.
The importance of privacy has been stated thus: “Privacy is not just one possible means among others to
insure some other value, but that it is necessarily related to ends and relations of the most fundamental sort,
respect, love, friendship and trust. Privacy is not merely a good technique for furthering these fundamental
relations; rather without privacy they are simply inconceivable. They require a context of privacy or the
possibility of privacy for their existence. To make clear the necessity of privacy as a context for respect, love,
friendship and trust is to bring out also why a threat to privacy seems to threaten our very integrity of persons.
To respect love, trust, friendship and full affection for others and to regard ourselves as the objects of love, trust
and affection is at the heart of our notion of ourselves as persons among persons and privacy is the necessary
atmosphere for these attitudes and action, as oxygen is for combustion.”75.
Learned authors EDWIN SHORTS & CLAIRE DE THAN in their book Civil Liberties: Legal Principles of
Individual Freedom76. say that there is no legal protection for privacy as such. Learned authors say: “It is ironic
that the American law of privacy took its root argument from English common law and equitable principle, and
yet English law felt itself unable to do the same. In combination with a written Constitution, argument was that
the common law recognised the right to privacy succeeded in the United States; but English Courts did not
follow the lead. In spite of repeated calls for reforms throughout twentieth century, there is no legal protection
for privacy as such, the protection is given to various other related rights such as copyright, enjoyment of land,
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freedom from harassment and confidentiality. Most of the consultative bodies instructed to consider the
introduction of a tort of invasion of privacy have decided against such a change. Each potential privacy law has
failed and the Government has recently confirmed that there is no plan to introduce a privacy law in future. At
the present time, the law does not recognise any pure right to privacy, although these are in existence certain
piecemeal laws which protect, to some degree, a person’s right not to be interfered with either “physically or by
mental torment”.
III. In a 1992 case,77. it has been assumed that mental torture may constitute a deprivation of personal liberty
under Article 21, but, on the facts, held that no such violation was constituted by the mere fact that a suspect
under the Customs Act was taken from his home to the Customs Office and there interrogated in secret without
legal assistance.77 Narco analysis, polygraph test (lie detector test) and BEAP (brain electrical activation profile
test conducted against the will of a person amounts to violation of mental processes, violates mental privacy
and right against degrading, inhuman and cruel treatment.78.
It is obvious, thus, that we have advanced much ahead of Gopalan in amplifying the meaning of “personal
liberty” to include all liberties of an individual other than those which are already included in Article 19,79. so
that Articles 19 and 21 would now be regarded as complementary to each other.
While expanding the interpretation of Article 21, it was held that all persons are entitled to live in clear
environment. On that basis, the Supreme Court directed that city buses in Delhi convert to single fuel CNG
mode by a particular date, so that this smoke from diesel used by the buses could be reduced.80.
The expression is of the widest amplitude.81.
1. It thus includes—
(a) the right of locomotion, except in so far as it is included in Article 19(l)(d);82.
(b) the right to travel abroad, i.e., to move out of India,83. and to return to India;82
(c) the right to socialise with members of one’s family and friends;84.
(d) the right of a prisoner to a speedy trial;84

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(e) loss of citizenship, which would entail deportation, was assumed to be included in this expression;85.
(f) an order made under section 144, CrPC to shoot anybody violating a curfew order has been held to
violate Article 21, since an order to shoot was ultra vires section 144 of the CrPC;86.
(g) the right of an employee in a disciplinary proceeding,87. or of a detenu before an Advisory Board88. to
take legal aid, where the employer or the Government is represented by a lawyer;
(h) right of appeal from a judgment of conviction affecting liberty of a person keeping in view the expansive
definition of Article 21 as also the international convenants operating in the field is also a fundamental
right and such a right is an absolute one. Right of appeal can neither be interfered with or impaired, nor
can it be subjected to any condition.89.
Smoking in public places was directed to be prohibited on the ground that non-smokers are deprived of their life
since cigarette smoking is causing pollution.90.
Right to education, right to shelter, right to get water, right to dignity and civilised life, are also part of personal
liberty.1.
A project of beautification and cleaning of river area is also part of Article 21.2.
Article 21 protects one’s freedom from fear and threat to life in as much as life under fear and threat of death
will be no life at all.3.
2. But it would not include—
(a) The right to be admitted to a college.4.
(b) The right to own property or not to be deprived of it by laws for compulsory acquisition or imposing land
ceiling.5.
(c) The right of a foreigner to reside and settle in this country.6.
The Government of India has the power to make the lawful arrest or detention of a person to
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prevent his effecting an unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.7.
(d) The right of a commercial firm to remain in unauthorised occupation of a “public premises” in
contravention of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.8.
(e) The right to carry on any business, big or small.9.
(f) Contesting, to an elected officer, is not a fundamental right. Hence, no grievance could be made out on
the ground that the right to liberty and right to privacy of an individual are deprived, if a Legislature
provides for certain disqualification.10.
[Art 21.3.16] Procedure established by law
I. “Procedure” means the manner and form of enforcing the law. Article 21 simply means that you cannot
deprive a man of his personal liberty, unless you follow and act according to the law which provides for the
deprivation of such liberty.11.
The expression, “procedure established by law” in the Constitution is akin to the law declared in McNabb v
US,12. wherein it was held: “ …. the history of liberty has largely been the history of the observance of
procedural safeguards”. Similar view was expressed in Shaughnessy v US,13. where it was held: “. …
procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive restrictions
can be endured if they are fairly and impartially applied”. In Ex parte Milligan,14. it was declared: “ … .it is the
birth right of every American citizen when charged with crime to be tried and punished according to law. The
power of punishment is alone through the means which the laws have provided for that purpose, and if they are
ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or
how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the
protection of this law of human rights are secured; withdraw the protection and they are at the mercy of wicked
rulers or the clamour use of an excited people. If there was law to justify military trial, it is not our province to
interfere, if there was not, it is our duty to declare the nullity of the whole proceeding”, it was a case where a
person was tried by a military tribunal, for treason, when regular civil courts are available for trial of such cases.
Any law interfering with personal liberty of a person must satisfy the triple test;
(i) It must prescribe a procedure.

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(ii) The procedure must withstand the test of one or more of the fundamental rights conferred under Article 19
which may be applicable in a given situation.
(iii) It must also be liable to tested with reference to Article 14.
The term “liberty” which is subject to reasonable restrictions needs to be examined with reference to other
constitutional rights. Article 21 is the foundation of the constitutional scheme. The procedure established by law
for deprivation of rights conferred by this article must be fair, just and reasonable. The rules of justice and fair
play require that State action should neither be unjust nor unfair, lest it attract the vice of unreasonableness,
thereby vitiating the law which prescribes that procedure and consequently, the action taken thereunder. Any
action taken by a public authority which is entrusted with statutory power has, therefore, to be tested by the
application of two standards – (1) the action must be within the scope of the authority conferred by law, and (2)
it must be reasonable. If any action, within the scope of the authority conferred by law is found to be
unreasonable, it means that the procedure established under which the action is taken is itself unreasonable.
The law itself has to be reasonable and furthermore, action under that law has to be in accordance with the law
so established. Non-observance of either of this can vitiate the action, but if the former is invalid, the latter
cannot withstand.15. In Maneka Gandhi v UOI,16. the court said that 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 and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary,
fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be
satisfied. In M.H. Hoskot v State of Maharashtra,17. the court said: “Procedures established by law are words of
deep meaning for all lovers of liberty and judicial sentinels”. In Selvi v State of Karnataka,18. the court held that
narco analysis, polygraph test (lie detector test) and Brain Electrical Activation Profile (BEAP) test are not
permissible even in case of larger and compelling public interest since it goes against the principle of self-
incrimination, right to privacy and unwarranted intrusion into personal liberty. Evidence collected on the basis of
the test cannot be admitted in evidence and is violative of the right of accused to a fair trial. Hence evidence so
obtained is not on the basis of procedure established by law. In that case, court said that constitutional values
have to be infused in all branches of law including procedural areas such as law of evidence.
As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizes interference
with personal liberty. It must also be right and just and fair and not arbitrary, fanciful or oppressive. If the
procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the
meaning of Article 21.19. The procedure prescribed by law for the deprivation of the right conferred by Article 21
must be fair, just and reasonable.20.
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Unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed for
depriving a person of his fundamental right must conform to the norms of justice and fair play. Procedure which
is unjust or unfair in the circumstances of a case attracts the vice of unreasonableness thereby vitiating the law
which prescribed that procedure and consequently action taken under it. If a law is found to direct the doing of
an act which is forbidden by Constitution or to compel the performance of an act by the adoption of a procedure
which is impermissible under the Constitution, it would have to be struck down.21.
Rule of law and due process are closely linked with human rights protection and such right could be protected
effectively when a citizen has recourse to courts of law.22.
The expression “procedure established by law” which means that procedure by which a person is deprived of
his life or liberty, must be just, fair and reasonable, has no application in regard to law providing for expulsion of
foreigners from India since neither life nor liberty of such person is deprived in the process.23.
Our Constitution does not guarantee the right to any particular procedure for the deprivation of life or personal
liberty besides those contained in Article 22. The Legislature is left free to lay down any procedure within the
ambit of the legislative power conferred by Entry 2 of List III (“criminal procedure”) subject, of course, to the
limitations included in Articles 14, 19, 20 and 22.
II. According to Gopalan,24. the courts shall not be competent to question the constitutionality of any penal law
enacted by a competent Legislature on the ground that the restriction imposed thereby is arbitrary, or
unreasonable. But this view has been superseded by subsequent decisions, and it is now established that in
order to be valid, the procedure prescribed must not be arbitrary, unfair or unreasonable.25.
By “law” or by “procedures” means validly enacted law and procedure. There are many facets of Article 21. A
permission given to the State by Article 21 to deprive a person of his liberty according to procedure established
by law is expressly controlled by Article 22 in case of both primitive and preventive detention.26. No law could
be made which results in depriving the court of bare legitimate jurisdiction conferred by procedure established
by law. Providing at least one right of appeal would negate the due process of law in the matter of dispensation
of criminal justice providing a right to appeal but totally disarming the court for granting interim relief in the form
of suspension of sentence would be unjust, unfair and violative of Article 21, when no mechanism is provided
for early disposal of appeal. It was held that the provision in the Narcotic Drugs and Psychotropic Substances
Act in so far as it ousts jurisdiction of court to suspend the sentence awarded to a convict under this Act is
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unconstitutional.27. The procedure established by law for deprivation of right conferred by Article 21 must be
fair, just and reasonable. Unreasonableness vitiates law and procedure. The procedure for depriving a person
of his fundamental right must conform to the norms of justice and fair play.28. If a judgment debtor is bona fide
unable to pay off his debt, an order for his detention would be violative of Article 21 as well as the spirit of
Article 11 of the International Covenant on Civil and Political Rights.29. In Jolly George v Bank of Cochin the
judgment debtors had failed to repay the debts and consequently their properties were attached and in addition
a warrant for arrest and detention in civil prison was also issued. Supreme Court ruled that the procedure of
putting a person in prison to recover debts violates Article 21. But the above case was distinguished in Ram
Narayan Agarwal v State of U.P.,30. wherein it was held that the principle could not be applied regarding
amounts due to State which is sought to be recovered by arrest and detention under the Revenue Recovery
Act. It was further observed that the validity of section 51 and Order XXI Rule 37 was not considered in that
case.
While considering the constitutional validity of the Special Courts Bill, 1978, the Supreme Court observed that
the procedure must be just and fair and not arbitrary, fanciful, or oppressive, otherwise, it will be no procedure
at all and the requirement of articles would not be satisfied.31.
After the decision in Maneka Gandhi v UOI,32. it is established that procedure contemplated under Article 21
has to be reasonable, fair and just. Fair trial obviously would mean a trial before an impartial judge, a fair
procedure and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against
the accused, the witnesses or the cause which is being tried is eliminated. If the witnesses get threatened or
are forced to give false evidence, that also would not result in fair trial. A failure to hear material witnesses is
certainly a denial of fair trial.33.
In Selvi J. Jayalalitha v State of Karnataka,34. the court said: “Fair trial is the main object of criminal procedure
and such fairness should not be hampered or threatened in any manner. Fair trial entails the interest of the
accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to
life and personal liberty and the accused must get a free, fair, just and reasonable trial on the charge imputed in
a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole
and becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public
confidence in the administration of justice and such a duty is to vindicate and uphold the majesty of law and
courts cannot turn a blind eye to vexation or oppressive conduct that occurs in relation to criminal proceedings.
Denial of fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a
trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial
is to mete out justice and to convict the guilty and to protect the innocent, the trial should be a search for the
truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and
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punish the guilty. Justice should not only be done, but should be seen to be done. Therefore, free and fair trial
is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right,
but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 also”.35.
A fair hearing under Article 6(1) of European Convention on Human Rights contemplates that in the interests of
justice, every person has the right to a fair hearing including the right to (1) be present; (2) have balanced
procedure (“equality of arms”); (3) an impartial and independent tribunal; (4) access to court; (5) be heard within
a reasonable time; (6) permitted to examine and cross-examine witnesses. The word “equality of arms” imports
the proposition that for a fair trial to exist, one party must not be put at such an advantage that the “scales of
justice” are tilted in his favour e.g., the prosecution being allowed to present evidence in the absence of
defendant or legal counsel.36. In other words, there must exist parity or at least a level playing field. It means
that each party must be afforded a reasonable opportunity to present his case – including his evidence – under
conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.37. Fair trial also
contemplates that a person must be brought before a tribunal within a reasonable time. The explanation for
introducing “reasonableness” is that the person should not have to wait for a longer period than necessary
before commencement of the hearing, so as not to suffer the stress and apprehension and public humiliation
which is often associated with court proceedings. Article 6 is designed to avoid the situation of defendants
remaining too long in a state of uncertainty about their fate. Its aim is to protect them against excessive
procedural delays, especially in criminal matters. The “reasonable time” issue also relates to the period
between lodging an appeal and the decision in appeal. On the question of reasonable time, the court will
consider the following factors – (1) the complexity of the factual or legal issues raised in the case; (2) the
conduct of the applicant; (3) the conduct of the competent authorities; and (4) what was at stake for the
applicant. In Zimmerman and Steiner v Switzerland,38. the court held that there was violation of Article 6 since
the case was straightforward and uncomplicated, and no fault lay with the applicants, indeed they wrote to
voice their concerns about the lack of progress of the appeals and the court also found total inactivity and
stagnation on behalf of the Federal Court. The argument that the reason for delay was due to unusual increase
in the workload was not accepted. Impartial tribunal is another guarantee under Article 6. The defendant must
not be allowed to suffer the danger or bias of a tribunal such that it prejudices a fair trial and that includes the
conduct, organisation and composition of the court itself. The court may be made up of judges who have acted
for the prosecution at the investigation stage and that may not be impartial. In De Cubber v Belgium,39. the
investigating judge and trial judge were the same and court found that there was a real danger that the accused
might suspect that the judge had already formed an opinion as to his guilt and therefore constitute a form of
“judge in his own cause” and hence the article was violated.40.
The procedure contemplated by Article 21 is that the procedure must be “right, just and fair” and not arbitrary,
fanciful or oppressive. In order that the procedure is right, just and fair, it should conform to the principle of
natural justice, i.e., fair play in action.41. In the same case, it was further observed that the procedure
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envisaged in Article 21 means the manner and method of discovering the truth. Though the State is free to
regulate the procedure for investigation a crime to collect evidence and place the offender for trial in
accordance with its own perceptions of policy, yet in its so doing if it offends some fundamental principle of fair
justice rooted in the tradition and conscience of people, it would be classified or characterized or ranked as
unjust and unfair procedure. Built in procedural safeguards assure a feeling of fairness. In another case, it was
observed that a criminal investigation is open to challenge on the ground of violation of Article 21 if the
investigation is not conducted with due observance of procedure.42. Regarding dispossession or eviction of
unauthorized occupants of Government land, the Government cannot take law into their hands and forcibly
evict the occupants. The Government must follow due procedure prescribed by law.43.
Recently the Supreme Court had occasion to consider the right to fair trial of an accused in Manu Sharma v
State of Delhi.44. Court said that in Indian criminal jurisprudence, the accused is placed in a somewhat
advantageous position than under different jurisprudence in some of the countries of the world. The criminal
justice administrative system in India places human rights and dignity for human life on a much higher pedestal.
An accused is presumed to be innocent till proved to be guilty. The alleged accused is entitled to fairness and
true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. The
investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of
law. These are the fundamental canons of our criminal jurisprudence and are in conformity with the
constitutional mandate contained in Article 21 of the Constitution.
A person is entitled to be tried according to the law in force at the time of commission of offence. A person
could not be punished for the same offence twice and most significantly cannot be compelled to be a witness
against himself and he cannot be deprived of his personal liberty except according to the procedure established
by law. The law in relation to investigation of offences and rights of an accused has developed with the passage
of time. On the one hand, power is vested in the investigating officer to conduct investigation freely and
transparently. Even the courts do not normally have the right to interfere with the investigation. It exclusively
falls in the domain of the investigating agency. In exceptional cases, the High Courts have monitored the
investigation but again within a very limited scope. There is a duty cast upon the prosecutor to ensure that the
rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that
a guilty person does not go scot-free while an innocent person is not punished. Even in the might of the State,
the right of an accused cannot be undermined, he must be tried in consonance with the provision of the
constitutional mandate. The cumulative effect of the constitutional philosophy in that both the court and
investigating agency should operate in their own independent fields while adhering to the basic rule of law. It is
pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of
defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry
by the court. The court said that the investigation must be fair and effective, must proceed on proper direction in
consonance with the ingredients of the offence and not in a haphazard manner. Court said that an accused is
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presumed to be innocent and such presumption is a legal presumption and should not be destroyed at the very
threshold through the process of media trial especially when investigation is pending. In that event, it will be
opposed to the very concept of basic rule of law and violative of Article 21.
Reporting by media in subjudice matters must be subjected to checks and balances so as not to interfere with
the administration of justice. Every effort should be made by print and electronic media to ensure that the
distinction between trial by media and informative media should always be maintained. Trial by media should
be avoided particularly at a stage when the suspect is entitled to constitutional protection. Invasion of his rights
is bound to be held impermissible.
Procedure established by law implies an impartial investigation. Every citizen has a right to get his or her
complaint properly investigated. Legal framework of investigation provided under the law cannot be made
selectively available only to some persons and denied to others.45. On “Right to life” and “personal liberty” vis-
à-vis investigation, the court said that the said right cannot be denied without following the procedure
prescribed by law. A tainted investigation definitely leads to miscarriage of criminal justice. It deprives a man of
his fundamental right under Article 21. An investigation cannot be interfered with or influenced even by courts.
Investigating officers are thus guardians of innocent citizens.46.
Recording of evidence by way of video-conferencing is an advancement in Science and Technology which

permits one to see, hear and talk with someone far away, with the same facility, as if the person is personally
present. So long as the accused and his counsel are present where evidence by video-conferencing is
recorded, the same fully complies with section 273 of the Criminal Procedure Code and such evidence would
as per “procedure established by law”.47.
III. But whether the procedure prescribed by the Legislature is “just, fair and reasonable” would depend upon
the circumstances of each case.48.
Article 21 is the repository of human values, which prescribes fair procedure and forbids arbitrariness,
barbarities, punitive or processual.49. Putting of leading questions by the prosecutor to the witness and getting
the answer which was intended (to prove that the person charged in guilty of the offence) is violation of the
guarantee of fair trial.50. The said decision was distinguished in Manu Sharma v State (NCT of Delhi)51. by
holding that where the finding of guilt is not on the basis of answers elicited to the leading questions, the trial
cannot be invalidated. Court said that the principle laid down in Varkey Joseph case52. has to be assessed on
the facts of each case and not as a general principle. It is not as if every leading question would vitiate the trial.
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IV. “Procedure established by law” in Article 21 means the law prescribed by Parliament at any given point of
time. Parliament has the power to change the procedure by enacting a law by amending it and when the
procedure is so changed, it becomes the “procedure established by law”.53. It follows that the power of a High
Court to punish for contempt of itself, according to the Letters Patent, is a power to be exercised “according to
procedure established by law”.54.
Though the State is free to regulate the procedure for investigation of a crime, to collect evidence and place the
offender for trial in accordance with the perception of policy, yet in its so doing if it offends some fundamental
principle of fair justice rooted in the tradition and conscience of people, it would be classified or characterized or
ranked as unjust and unfair procedure. Appearance of injustice is denial of justice. Where evidence has been
obtained in violation of statutory provision, the prosecution should not be allowed to take advantage of the
same, when that conduct has caused prejudice to the accused. When evidence is collected by making a search
in violation of section 50 of the NDPS Act, that evidence has to be excluded.55. Likewise the procedure
prescribed by law for depriving a person of his right to life must conform to the norms of justice and fair play. If a
police officer transgresses the circumscribed limits and improperly and illegally exercises his investigative
powers in breach of statutory provision causing serious prejudice to the personal liberty and also property of
citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to
consider the nature and extent of such breach and pass appropriate orders as may be called for without leaving
the citizen to the mercy of police echelons since human dignity is a dear value of our Constitution. It needs no
emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and
unlimited powers exercisable upto unfathomable cosmos. Any recognition of such a power will tantamount to
recognition of Divine powers which no authority on earth can enjoy.56. “Procedure, which is unjust or unfair in
the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes
that procedure and consequently, the action taken under it …. The substance of the law cannot be divorced
from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure
prescribed by it...”57. The procedure prescribed must be pragmatic and realistic to meet the given fact
situation.58.
“Procedure” means “fair and reasonable procedures” which comports with civilized norms like natural justice
rooted firmly in community consciousness—not primitive processional barbarity nor legislated normative
mockery. Generally speaking, and subject to just exceptions, at least a single right of appeal on facts, where
criminal conviction in fraught with long loss of liberty, is basic to civilized jurisprudence.59. A procedure which
attempts to take away the power of judicial review is invalid. A provision which takes away the power of
appellate court to suspend the sentence and then make the right of appeal illusory is not valid.60.
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Right to cross-examine the witness is a right of the accused to prove his innocence. Where the counsel for the
accused neither cross-examined two material witnesses nor reserved his right to cross-examine them at a
subsequent stage due to mistake of the counsel, the Supreme Court held that the witnesses must be recalled to
face cross-examination, to arrive at a just conclusion and to prevent miscarriage of justice, though the court
observed that to recall after a long time will cause prejudice to the prosecution case. A possible prejudice to
prosecution cannot justify denial of fair opportunity to accused to defend himself since grant of fairest
opportunity to the accused to prove his innocence is the object of every fair trial.61.
Right to have a fair trial in terms of the Juvenile Justice Act would include procedural safeguards since it is a
fundamental right of the juvenile.62.
A fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is
governed by rule of law. Denial of fair trial is crucifixion of human rights. It is ingrained in the concept of due
process of law. While emphasising the principle of fair trial and practice of the same in the course of trial, it is
obligatory on the part of the courts to see whether in an individual case or category of cases, because of the
non-compliance with certain provisions, reversion of judgment of conviction is inevitable or it is pending on
arriving at an indubitable conclusion that substantial injustice has in fact occurred. Decidedly, there has to be a
fair trial, and miscarriage of justice under no circumstances should cause prejudice to the accused. Once
prejudice is caused to the accused during trial, it occasions failure of justice. But the court also said that every
procedural lapse or every interdict that has been acceded to and not objected to at the appropriate stage would
not get the trial dented or make it unfair. Treating every procedural lapse to be unfair would amount to an
undesirable state of pink of perfection in procedure. An absolute apple-pic order in carrying out the adjective of
law, would only sound and fury signifying nothing.63.
Fair procedure includes free legal assistance at State cost, which is a fundamental right of a person accused of
an offence which may involve jeopardy to life or personal liberty.64. The above right though extends to all
criminal cases to which Article 21 is attracted, may not be provided by the State e.g., economic offences
involving prostitution, child abuse or the like.65.
It was further declared that legal assistance must be effective for a meaningful defense. Assigning the work to
an inexperienced lawyer will not discharge the obligation of the State.66. Being a fundamental right, it is the
duty of the court to inform the accused about his eligibility to get a defense counsel at the expense of the State,
where the State fails to inform the accused about his right and the accused is unrepresented, his conviction will
be set aside.67.
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At the commencement of trial, the Magistrate has a constitutional duty to provide an accused with a lawyer
even if he does not ask for one and remains silent, unless the accused voluntarily, in clear and unambiguous
terms, makes an informal decision to defend himself personally without the assistance of a lawyer.68. In that
case, the court said that an accused would need a lawyer when the charge-sheet is submitted and the
Magistrate applies his mind to the charge-sheet with a view to determine the future course of proceedings. The
accused needs a lawyer at the stage of framing of charges against him and of course needs a lawyer to defend
him in trial. The Magistrate has a compulsory obligation to advise the accused regarding legal consequences of
making confession under section 164 CrPC. It is the duty and obligation of the Magistrate at this stage to make
the accused fully aware of the said right and to make him aware that if he has no means to engage a lawyer, a
lawyer could be provided at State expense. Access to lawyers is imperative due to indigence and illiteracy of
majority of our citizens. Such right (especially at trial and during trial) cannot be taken away or whittled down
simply to deal with one terrorist. The scope of Legal Services Authorities Act was also discussed in Mohd.
Ajmal Amir Kasab v State of Maharashtra. The court also said that if legal aid is not given at the trial stage,
such failure always vitiates the trial unless the accused voluntarily in clear and unambiguous terms makes an
informed decision to defend himself personally without assistance of a lawyer. But at pre-trial stage, such failure
may not vitiate the trial and would depend on facts and circumstances of the case. In the case of a foreign
national, Supreme Court set aside the conviction of an accused who was not provided free legal aid and retrial
was ordered with direction to lower court to provide legal assistance.69.
The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for, an accused is presumed to
be innocent until proved to be otherwise in a fairly conducted trial. The right would include that he shall be
defended by a competent counsel. The provision of an amicus curiae for an accused in case the accused is
unable to engage an advocate to conduct his defence is to ensure the goal of fair trial which is a guarantee
provided in our Constitution. The right to be represented by a lawyer must not be an empty formality. It must not
be sham or an eyewash. The appointment of an amicus curiae for the defence of an accused person must be in
true letter and spirit with due regard to the effective opportunity of hearing that is to be afforded to every
accused person before being condemned. The due process of law incorporated in our constitutional system
demands that a person should not only be given an opportunity of being heard before being condemned, but
also such opportunity should be fair, just and reasonable.70. But in the appeal, it is not obligatory on the part of
the appellate court to appoint an amicus curiae to argue on behalf of the accused. If the case is decided on
merits in the absence of appellant, the higher court can remedy the situation.71.
Article 6(3)(c) of European Convention says: “Everyone charged with criminal offence has the right to defend
himself in person or through legal assistance of his own choosing if he has no sufficient means to pay for legal
assistance, to be given it free when the interests of justice so require. Clause (b) gives a right to have adequate
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time and facilities for the preparation of his defence”. The above two clauses may often be invoked together:
Clause (a) in respect of the assignment of a lawyer and Cl. (b) in respect of time allowed for such assignment. It
is not enough that a lawyer should be assigned; he or she should be appointed in good time in order to prepare
the defence and familiarise herself or himself with the case.72.
Under the European Convention, merely a contracting State appointing legal assistance to an accused is not
enough. It must be such that it is of “practical and effective benefit”.73. If the domestic court finds that the
appointed counsel is not conducting the defence adequately or worse, negligently and they are aware of this,
then they are under an obligation under Article 6(3)(c) to rectify this situation.74.
The 14th Amendment to American Constitution has made it obligatory to provide defense counsel to all indigent
accused.75. On appointment of defense counsel, sufficient time must also be given to the counsel to prepare
the case.
Article 39-A incorporated by 42nd Amendment to the Constitution in 1976 read along with Article 21 makes it
obligatory on the part of the State to provide a defense counsel at the State’s expenses. Section 304 of
Criminal Procedure Code is also based on these lines.
[Art. 21.3.17] Grounds for Challenging Constitutionality of Law
(A) 1. It is a valid law if it is enacted by a competent Legislature and if it does not violate any of the other
fundamental rights declared by the Constitution, e.g., Article 1476. or Article 2277. or Article 19.78. Hence,
notwithstanding Article 21, it is open to challenge the constitutionality of a law which deprives a person of his
life or personal liberty on the ground—
(a) that it has not been enacted by a competent Legislature;79.
(b) that the law suffers from the vice of excessive delegation;80.
(c) that it constitutes a colourable exercise of the legislative power;80
(d) that if the law is a subordinate legislation, it is ultra vires or if it is an order, that it is mala fide;80
(e) that it contravenes any of the fundamental rights other than Article 21,81. e.g., Article 1482. or 1983.
or;84.
(f) that it is vague;85.
(g) that it does not offer to the prisoner a right to legal assistance;86.
(h) that it is unfair or unreasonable;87. (see post)

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(i) that it violates natural justice.88.
2. There is a violation of Article 21 if, after a person has been acquitted after trial, he is kept in prison without
lawful justification (e.g., on a false plea of insanity); such further imprisonment violates Article 21, and the court
(under Articles 32 or 226) may direct the State to pay him compensation.89.
(B) On the other hand, there is no violation of Article 21.
(a) Merely because section 497 of the Indian Penal Code does not provide for any opportunity of being heard to
the wife of the complainant who is alleged to have committed adultery, there would be no violation of Article 21
because she would have that opportunity at the trial, even though the Act is silent.90.
[Art. 21.3.18] Established by law
1. By the use of these words, our Constitution accepts the English principle of supremacy of the law, in
preference to the American doctrine of judicial review of legislation so far as personal liberty is concerned.
Liberty, according to this view, as we have seen91. is a “liberty confined and controlled by law”. “Law” in this
expression means State-made or enacted law and not the general principles of natural justice.92. Procedure
established by law thus means procedure prescribed by the Legislature:93.
“Art. 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no
provision for judicial review, on the ground of reasonableness or otherwise of such laws....94.
2. It is to be noted that the clause originally stood in the Draft Constitution as follows (Clause 15):
No person shall be deprived of his life or liberty without due Process of law.
The Drafting Committee introduced two changes in the clause95.—(i) They qualified the word “liberty” by the
word “personal” in order to preclude a wide interpretation of the word as in the U.S.A., so as to include the
freedoms which had already been dealt with in Article 13 (corresponding to Article 19 of the Constitution); (ii)
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They also substituted the words “due process of law” by the words “procedure established by law”, following the
Japanese Constitution (Art. XXXI; ante), because they were more “specific”.
MUNRO in his Constitution of United States96. observed that due process of law is a phrase which means fair
play. All legal proceedings which are in furtherance of public good and which preserve the principle of liberty
and justice are held to be in accordance with the requirements as to due process of law. LORD DENNING’S
preface to The Due Process of Law97. traces due process of law. According to LORD DENNING, “So by due
process I mean the measure authorised by the law so as to keep the stream of justice pure: to see that trials
and inquiries are fairly conducted, the arrests and searches are properly made, that lawful remedies are readily
available and that unnecessary delays are eliminated”.
In Constitutional Law of India98. under the Chapter “Protection” written by JUSTICE V.S. DESHPANDE, the
reasons for substituting the words “according to procedure established by law” in the place of “according to due
process of law” is stated thus: “ … It could have possibly embodied the doctrine of due process made by the
14th Amendment of the American Constitution. SIR B.N. RAU, the then Constitutional Adviser to the
Constituent Assembly advised by MR. JUSTICE FRANKFURTERS of the U.S. Supreme Court against adopting
due process in the Indian Constitution. For the original intention of the makers of the American Constitution
according to FRANKFURTERS, was to use due process as a procedural safeguard only, but the Supreme
Court enlarged it into a substantive safeguard also. That made the judicial review, according to
FRANKFURTERS, undemocratic; because the court could strike down the policies of Government even by
taking the stand that they are substantively apposed to the provision of the Constitution. JUSTICE
FRANKFURTERS after an initial period of liberalism inherited from his professorship became a conservative as
to the scope of judicial review. He became the principal advocate of judicial restraint in respect of question
governed by legislative policies and would rather restrict judicial review to procedural grounds. SIR B.N. RAO
also had a background of being a distinguished civil servant before he became a High Court Judge. He was
easily persuaded to FRANKFURTERS’ views and advised the constituent assembly to substitute the
expression “according to procedure established by law” in the place of the expression “according to due
process of law”. The effect was intended to be profound.
In the article “Skinning a Cat” by JUSTICE B.N. KRISHNA1. while considering “Judicial Legislation and
Separation of Powers” has stated thus:
“‘Substantive due process’ and Article 21.

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The Supreme Court early in its history, in a series of judgments beginning from A.K. Gopalan, V.G. Row, held
that the discredited US concept of “substantive due process” could have no role in the interpretation of Article
21 because it essentially involved substituting a Judge’s notion of “reasonableness” with that of the
Legislature’s. However, from Maneka Gandhi onwards, the Supreme Court introduced into Article 21 the
concept of “substantive due process”, or in other words, a standard that requires executive and legislative
action to be “reasonable” or “fair” — nebulous terms that are totally at the discretion of an activist Judge to use
as he pleases. Indeed, as we saw in the examples of the “New Deal” cases and the Slavery judgment in the
US, “substantive due process” is a concept with a blackened history. With this in mind, the Drafting Committee
of the Constitution of India was not in favour of using the expression “due process” in the text of Article 21 for
they were familiar with its misuse in the US context. Accordingly, the Drafting Committee while debating the
Draft Constitution of India decided that “due process of law” be substituted by “procedure established by law”
similar to Article 31 of the Japanese Constitution of 1946. What the framers of the Constitution consciously
avoided, judicial activism has brought in by the back door.”
Article 31 of the Japanese Constitution 1946 provides that “No person shall be deprived of life or liberty, nor
shall any other criminal penalty be imposed, except according to ‘procedure established by law’.”
The earlier verdict of the Japanese Supreme Court was that the only import of this constitutional guarantee was
that the Executive had no power to arbitrarily deprive a person of his life or liberty without sanction of law.2. In
this sense, any procedure authorised by enacted law would be a procedure established by law. It is on this
interpretation that the court had justified death penalty in 1948.3.
There are several problems with the use of “substantive due process” in the interpretation of Article 21. The first
is the legitimacy of creating fundamental rights through judicial interpretation. With the power of “substantive
due process” behind them, the courts have constantly forged the forbidden fields by creating newer rights by
treating them as flowing from the “right to life” in Article 21 of the Constitution. Article 21 simply reads:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Article 21 has verily been treated as the cornucopia from which all such newly created rights flow out. Such
judicial legislation is only possible by committing violence to the plain words of the article, which, as evident, is
only worded in the negative. Founding new rights on Article 21 is, to say the least, debatable. The entire
Constitution, in particular Pt III, has been designed to provide a framework for regulation of human society in an
orderly manner by providing certain specifically enumerated fundamental rights. The argument in favour of
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judicial legislation of Article 21 is that “new fundamental rights” are intricately connected with the right to life and
without these “new fundamental rights” life would itself become meaningless. This argument, however, has a
serious flaw. In fact, if these “new fundamental rights are premised on their intricate connection with the right to
life, then the whole of pt III would be redundant, by the same token, as all rights guaranteed therein by specific
enumeration would also be similarly connected. In other words, if the judicial legislation argument were correct,
the entire scheme of Pt III could have been telescoped into only one provision, namely, Article 21.”
Over the question whether the expression “due process of law” should be restored in place of the words
“procedure established by law”, there was a sharp difference of opinion in the Assembly even amongst the
members of the Drafting Committee. On the one side was the view of SRI MUNSHI, in favour of “due
process”:4.
… the essence of democracy is that a balance must be struck between individual liberty on the one hand and social
control on the other. We must not forget that the majority in a legislature is more anxious to establish social control
than to serve individual liberty… the amendment would enable the courts to examine not only the procedural part… but
also substantive law. When a law had been passed which entitled government to take away the personal liberty of an
individual, the court will consider whether the law which has been passed is such as is required by the exigencies of
the case, and, therefore, … the balance will be struck between individual liberty and social control.4
The stalwart on the other side was SRI ALLADI KRISHNASWAMI who said:5.
Three gentlemen or four gentlemen, sitting as a court of law, and stating what exactly is due process according to them
in any particular case, after listening to long discourses and arguments… may appeal to certain democrats more than
the expressed wishes of the legislature… This clause may serve as a great handicap to all social legislation, for the
ultimate relationship between employer and labour, for the protection of children, for the protection of women… One
thing also will have to be taken into account, viz., that the security or the State is far from being so secure as we are
imagining at present.
Dr. Ambedkar merely summed up the two views and left it to the House “to decide in any way it likes”.4
The House adopted the clause as drafted by the Drafting Committee, rejecting “due process”. The result, as
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stated by Dr. Ambedkar, at a subsequent stage,6. was that Article 21 gave “a carte blanche to make and
provide for the arrest of any person under any circumstances as Parliament may think fit.” Article 22 was
introduced with a view to imposing some limitations upon the Legislature.
In Gopalan’s case,7. KANIA, C.J., took note of the above changes in the article at the drafting stage and held
that the American doctrine of “Due Process” could not be imported into the article because the words “Due
Process” were deliberately omitted from the article. Thus said the Chief Justice:
Normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean
procedure prescribed by the law of the State. If the Indian Constitution wanted to preserve to every person the
protection given by the due process clause of the American Constitution there was nothing to prevent the Assembly
from adopting the phrase, or if they wanted to limit. The same to procedure only, to adopt that expression with only the
word ‘procedural’ prefixed to ‘law’. However, the correct question is what is the right given by Art. 21? The only right is
that no person shall be deprived of his life or liberty except according to procedure established by law. One may like
that right to cover a larger area, but to give such a right is not the function of the court; it is the function of the
Constitution. To read the word ‘law’ as meaning rules of natural justice will land one in difficulties because the rules of
natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying
down a vague standard. This is particularly so when in omitting to adopt “due process of law” it was considered that the
expression “procedure established by law” made the standard specific. It cannot be specific except by reading the
expression as meaning procedure prescribed by the legislature.
The only right given by Art. 21 is that no person shall be deprived of his life or liberty except according to ‘procedure
established by law’. By adopting that phrase, the Constitution gave the Legislature the final word to determine law....
Our protection against legislative tyranny, if any, lies, in the ultimate analysis, in a free and intelligent public opinion
which must eventually assert itself.... It is not for the court to question the wisdom and policy of the ‘Constitution’ which
the people have given unto themselves. It is only in express constitutional provisions limiting legislative power and
controlling the temporary will of a majority by permanent and paramount law settled by the deliberate wisdom of the
nation that one can find a safe and solid ground for the authority of courts of justice to declare void any legislative
enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great
and too indefinite either for its own, security or the protection of private rights.8.
In the later case of Krishna v State of Madras,9. MAHAJAN, J. explained it more clearly:
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It is open to Parliament to change the procedure by enacting a law and that procedure becomes the ‘procedure
established by law’ within the meaning of that expression in Art. 21 of the Constitution.10.
The provision in Japanese Constitution (which was referred to in Gopalan’s case, to hold that American due
process has no application) was later on interpreted holding that “a procedure would not be established by law”
unless such procedure is in consonance with “due process” or natural justice, that is, unless it provides for
giving notice and a chance to the accused to defend himself before imposing any penalty upon him including
confiscation of property.11. In Organisation Control Ordinance case,12. the majority of the Japanese Supreme
Court held that though Article 31 does not use the expression “due process”, the expression “procedure
established by law” was adopted under the influence of the due process clause of the 5th Amendment of the
U.S. Constitution and the court would invalidate any law which violated due process as in the U.S.A. e.g.,
where it compelled a suspect under pain of heavy penalty, to appear before a criminal investigatory body. The
“due process” content was more pronounced in the concurring majority judgment in Nakamura case.13. It was
held therein: “I consider that the guarantee of procedure established by law found in Article 31 of the
Constitution should be interpreted as meaning not merely nominal establishment of procedure by law satisfies
the requirements of this article, but that even though established by some law, that law does not avoid violating
this article, if the content contravenes the fundamental principles of Constitution in modern democratic States;
the guarantee of this article covers not only procedural provision, but substantive provision establishing the
content of the right and Article 31 should be interpreted as meaning not only to provide for criminal penalties,
but also cover by the words ‘no person shall be deprived … or liberty, cases in which individual rights or
property are infringed upon by the power of the State’.”14.
But after the decision in Maneka Gandhi v UOI,15. the position is changed. It was held, “There can be no doubt
that in view of the decision in Cooper v UOI,16. the minority view in Gopalan’s case must be regarded as
correct and the majority view must be held to have been “overruled”. It was held, “Article 21 does not exclude
Article 19 and that even if there is a law prescribing procedure for depriving a person of “personal liberty” and
there is consequently no infringement of the fundamental right conferred by Article 21, such law in so far as it
abridges, or takes away any fundamental right under Article 19 would have to meet the challenge of the Article”.
In Gopalan’s case, the minority view of JUSTICE FAZL ALI was that the very word “procedure” meant certain
definite rules of proceeding and not something which is a mere pretence for procedure. The word “established”
again suggests that certain fundamental principles of justice which inhere in every civilised system of law. It
cannot therefore exclude the universally accepted rule of natural justice that no man could be condemned
without a hearing by an impartial tribunal. The minority concluded that notwithstanding the omission of the
expression “due process” in Article 21 in our Constitution, it must be held to guarantee the four major
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ingredients of American due process i.e., (1) notice, (2) opportunity to be heard, (3) an impartial tribunal, and
(4) an orderly course of procedure.
In Maneka Gandhi’s case,17. it was further held (after overruling the majority view in Gopalan’s case) that
“Article 21 does not exclude Article 19 and even if there is a law prescribing procedure for depriving a person of
personal liberty and there is consequently no infringement of the fundamental right conferred by Article 21, in so
far as it abridges or takes away any fundamental right under Article 19, it would have to meet the challenge of
that article”. The net result is that once it is held that a penal law coming under Article 21 also directly infringed
any fundamental right guaranteed by Article 19, it must, in order to be upheld, also satisfy the test of
“reaosnableness”18. of the restriction imposed by law as well as the requirements of natural justice which were
implicit in, and the very quintessence of “the test of reaosnableness”.19. A logical conclusion would be that any
law or order which affects a person’s fundamental right without hearing would be null and void.20. It was further
held in Sunil Batra v Delhi Administration,21. that “True our Constitution has no “Due Process” Clause or 13th
Amendment (of the American Constitution), but in this branch of law, after Cooper,22. and Maneka Gandhi,23.
the consequences is the same. For what is punitatively outrageous, scandalizingly unusual or cruel …., is
unarguably, unreasonable and arbitrary and is shot down by Articles 14 and 19, and if inflicted with procedural
unfairness, falls foul of Article 21.”24. According to DURGA DAS BASU in his book in Human Rights in
Constitutional Law,25. “the court now comes with the open declaration that though the makers of the
Constitution have deliberately omitted the American Due Process Clause, the Indian Supreme Court has
restored it with all its ramifications, through the process of ‘dubious interpretation’.”
Article 21 is no longer confined to invalidating arbitrary action, (as was held in Gopalan’s case), but was
extended to invalidable laws which prescribed unjust, unfair or unreasonable procedure. In this connection, it is
noteworthy to mention that it was only after nearly two years of decision in Maneka Gandhi case26. that the
European Court came to hold in Winterwarp v Netherlands27. that the expression “procedure prescribed by law”
in Article 5(1) of European Convention means that it must be a fair and proper procedure and not arbitrary.
According to D.D. BASU, the decision in Maneka Gandhi case “thus introduced American judicial review in full
swing”.28.
Right to life and liberty cannot be deprived without following the procedure prescribed by law. A tainted
investigation definitely leads to miscarriage of criminal justice. It deprives a man of his guaranteed right to life
and liberty.29.
In one case, the trial court passed a light sentence on the ground that the accused pleaded guilty. On appeal by
the State, the High Court enhanced the punishment without notices to the accused. When the matter was taken
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before the Supreme Court by the accused, it was held, it would be clearly violative of Article 21 of the
Constitution to “induce” or “lead” an accused to plead guilty under a promise or assurance that he would be let
off lightly and then in appeal or revision to enhance the sentence … .. it would not be reasonable, fair or just to
act on the plea of guilty for the purpose of enhancing the sentence.30.
The European Convention on Human Rights uses a number of variants e.g., “prescribed by law”, “as provided
by law”, “established by law”, in accordance with law and the European Court of Human Rights has held that
the phrases, “prescribed by law” and “in accordance with law” must be given an identical interpretation in order
to ensure that Articles 8 and 10 (privacy/freedom of expression) can be read as a coherent whole.31.
[Art. 21.3.19] Meaning of Law
1. Even though in Gopalan’s case,32. “law” in Article 21 was interpreted to mean “enacted law”, later cases
have understood that interpretation to refer to positive as distinguished from “natural law”, and is not intended to
restrict the word to statutes or laws made by the Legislature. It would, therefore, include anything having the
authority of law, e.g., 220
(i) Rules made by the Legislature under Articles 118(1) and 208(1), and the privileges of each House
under Articles 105(3) and 194(3), including the power of a House to punish for contempt.33.
(ii) The power of a High Court to punish for contempt of itself under Article 215.34. Under these powers,
therefore, the High Court can adopt any procedure for punishment of contempt, provided, only the
procedure is fair and the contemnor is given a fair and reasonable opportunity of defending himself.35.
(iii) Any order passed by the Supreme Court under any provision of the Constitution, e.g., Articles 136 and
142.36.
(iv) Provisions of the Constitution itself.37.
(v) Inherent powers of the High Court,38. preserved by the CrPC or CPC.
(vi) Intra vires subordinate legislation.39.
(vii) An Ordinance made by the President or a Governor.40.
In A.K. Roy,41. the petitioners argued that Article 21 does not cover ‘ordinance’ because it is not ‘law’ as it is
made by the Executive and not by the Legislature. It was further argued that the underlying object of Article 21
is to wholly deny to the Executive the power to deprive a person of his life or liberty. Therefore, ordinance
making power, which is the Executive power, cannot be used to deprive a person of his liberty. The Executive
cannot resort to the power to make ordinances so as to remove the restraints imposed upon by Article 21.
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Using an ordinance for the purpose will liberate it from the discipline of laws made by a democratic Legislature.
Articles 14, 19 & 21 will be reduced to a dead letter if the Executive is permitted to take away life and liberty of
the people by an ordinance. While rejecting the contention, court said: “The Constitution makes no distinction in
principle between a law made by the Legislature and an ordinance issued by the President. Both, equally, are
products of the exercise of legislative power and, therefore, both are equally subject to the limitation which the
Constitution has placed upon that power”.
But see the expression “law” means law made by the Legislature in accordance with its ordinary legislative
procedure. The expression “law” does not include within itself ordinance, order, bye-law, rule, regulation,
notification, custom or usage having the force of law nor the Amendment of the Constitution as prescribed in
Article 368.42.
Criminal Procedure Code is “law” for the purposes of Article 21.43.
Law of a State means that one consisting of those rules of conduct which are enforced by the duly constituted
courts of the State.44.
While considering the distinction between “Government of laws” and “Government of men”, it was observed:
“when we consider the nature and the theory of our institutions of Government, the principles upon which they
are supposed to rest, and review the history of their development we are constrained to conclude that they do
not mean to have room for the plan action of purely personal and arbitrary power. Sovereignty itself is, of
course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are
delegated to the agencies of Government sovereignty itself remains with the people, by whom and for whom all
“Government exists and acts”. And law is the definition and limitation of power. It is indeed quite true, that these
must always be lodged somewhere, and in some person or body, the authority of frail decision; and in many
cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal
of the public judgment, exercised either with pressure of opinion or by means of the suffrage. But the
fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are
secured by those maxims of constitutional law, which are the monuments showing the victorious progress of
the race in securing to men the blessings of civilization under the reign of just and equal laws, so that in the
famous language of the Massachusetts Bill of Rights, the Government of the Commonwealth may be a
Government of laws and not of men. For the very idea that one may be compelled to hold his life, or the means
of living or any material right essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails on being the essence of slavery itself.”45.
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The rules made by the Supreme Court under Article 145 are comprised within the term “law” under Article 21.
Likewise, rules made by the High Court under Article 225 falls within the term “law”.46.
In State of Nagaland v Ratan Singh,47. rules made for the governance of tribal areas of Nagaland were held to
be “law”. It was contended that the rules were violative of Article 21, because rules said that not the Criminal
Procedure Code, but its “spirit” was to govern the administration of justice. Rejecting the argument, it was held
that the rules were made with a view to simplicity as the people in the backward tracts could not be expected to
make themselves aware of the technicalities of a complex code. The idea was that in the administration of
criminal justice, technical rules would not prevail over the substance of the matter and defence be
effectivelyunhampered by the technicalities of complex laws.
2. But such law may not necessarily be a law for the punishment of crimes. Thus, an arrest or detention under
section 13 of the Bombay Land Revenue Act. 1876,48. or under section 48 of the Madras Revenue Recovery
Act, 186449. for the recovery of Government dues50. or statutory Service Rules,51. is a deprivation in
accordance with the “procedure established by law”.
3. Such law must be a valid law 49 and consistent with other provisions of the Constitution.52.
4. Where there is no constitutional bar to retrospective legislation, the procedure established by law may be
changed retrospectively.53.
On the other hand, “law” would not include—
1. Mere executive or departmental instructions54. which have no statutory basis,55. e.g., the U.P. Police
Regulations,56. but would include an Ordinance;57. intra vires Rules or Regulations made in exercise
of statutory power;58....
A right to dig bore wells to draw underground water can be restricted or regulated only by an Act of
Legislature. It cannot be prohibited or restricted by mere execution or departmental restriction.59.
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V. Subject to the foregoing conditions there is nothing unconstitutional in a death sentence (see post),because
it is authorised by the CrPC, a duly enacted law made by Parliament60. and section 354(3) of the Code offers
the guideline as to when this extreme penalty may be awarded.61. In Jagmohan Singh’s case,62. the court said:
“Deprivation of life is constitutionally permissible if that is done according to procedure established by law”. In
that case, reference was made to a decision of the American Supreme Court, especially to the Eighth
Amendment which forbade “cruel and unusual punishment” which was distinguished by our Supreme Court on
the ground that similar provision is not available in our Constitution and also took note of the various procedural
safeguards provided in our law.
In Bachan Singh’s case,63. even though constitutional validity of section 302 of IPC was upheld, the decision
did not enumerate the type of cases in which death penalty could be awarded instead of life imprisonment. In
Machchi Singh v State of Punjab,64. the court observed that death penalty could be awarded in “rarest of rare
cases”, taking into consideration when the crime is viewed from the platform of the motive for or the manner of
commission of crime or the anti-social or abhorrent nature of crime, etc.65.
Section 303 of IPC provided for mandatory death sentence on a person who commits murder while serving a
sentence of life imprisonment. Referring to the decisions that had expanded the scope of Article 21, it was held
that section 303 of IPC violated the equality guaranteed under Article 14 as well as right guaranteed under
Article 21. A standardised death sentence fails to take into account the facts and circumstances of each and
every case and deprives the courts of their jurisdiction not to impose death sentence in appropriate cases
depending on mitigating circumstances. Consequently, all murder cases will now fall only under section 302
IPC and there shall be no mandatory sentence of death for murder.66.
On the other hand,—
5. If a law has been validly enacted, it cannot be challenged on the ground that it applies the spirit of the CrPC,
as distinguished from its technical provisions, to a backward area.67.
[Art 21.3.20] Whether a law made under Article 21 is subject to other fundamental rights included in Part III
There are certain observations in Gopalan’s case,68. which may indicate that the only condition for the validity
of a law of criminal procedure, coming under Article 21, is that it must be enacted by a competent Legislature.
Thus, DAS, J. observed:
...any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative
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authority under Art. 246 and in conformity with the requirements of Art. 22 does not take away or abridge any right
conferred by Art. 21...69.
This observation would suggest that a law, coming under Article 21, made by a competent Legislature is not
controlled by any other article in Pt III save Article 22. FAZAL ALI, J. simply said that the law, under Article 21,
must be a “valid law”,70. and so did IMAM, J. in the later case of Collector of Malabar v Ibrahim.71.
So understood, the decision in Gopalan’s case 68 would throw a blanket cover over laws seeking to deprive an
individual of his most cherished right, namely, personal liberty; and whatever procedure was laid down by an
intra vires enactment would be a valid procedure under the Constitution.
But MUKHERJEA, J.68 was cautious enough to see the dangers in such an unguarded statement. He, of all the
judges, observed:
…such law must be a valid law which the Legislature is competent to enact within the limits of the powers assigned to it
and which does not transgress any of the fundamental rights that the Constitution lays down. 68
But even MUKHERJEA, J. was not prepared to hold that the reasonableness of a law coming under Article 21
could be questioned with reference to anything in Article 19.
Later decisions have demonstrated that a law under Article 21 must conform to the requirements of other
articles in Pt III, such as Articles 14 or 20, but as regards Article 19 the position is not so clear, though the
Supreme Court has drifted away from the Gopalan68 mooring:
I. Thus, as to Article 14, the Court has held that though a person accused of an offence has no fundamental
right to trial by a particular procedure, he is entitled to object to a procedural law on the ground of
“discrimination” or “violation of any other fundamental right”.72. All persons similarly situated are entitled to the
same procedural rights for relief and for defence, and if a statute provides for a substantially different
procedure, depriving him of rights enjoyed by persons accused of the same offence, the law is liable to be
struck down.73.
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II. As to Article 20, the need for a law of criminal procedure to comply with the limitations contained in Article 20
was pointed out by MUKHERJEA, J.74.
III. The need for compliance with Article 22 was acknowledged by all the Judges in Gopalan’s case,74 and
reiterated in subsequent cases.75.
IV. But as regards Article 19,—
(A) The proposition asserted in Gopalan’s case 74 and reiterated in some subsequent cases76. was that a law
which deprives a person of his personal liberty comes exclusively under Articles 21–22 and that the
reasonableness of such law cannot be questioned under any clause of Article 19. The reason given is that the
rights guaranteed by Article 19(1) are capable of being enjoyed only so long as a person remains free. As soon
as he is deprived of his liberty as a result of detention, punitive or preventive, by a valid law passed under
Articles 2177. or 22,78. he can no longer complain of any infraction of any of the rights conferred by Article
19(1).
Thus, in Ram Singh v State of Delhi, 78 the Supreme Court observed:
Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in Art. 19(1),
and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as
distinct from fundamental rights and made separate provisions in Art. 19 and Arts. 21 and 22 as to the limitations and
conditions subject to which alone they could be taken away or abridged... The interpretation of the Articles and their
correlation was elaborately dealt with by the full court in Gopalan’s case 74... It was decided by a majority of 5 to 1 that
a law which authorises deprivation of personal liberty did not fall within the purview of Art. 19 and its validity was not to
be judged by the criteria indicated in trial Article but depended on its compliance with the requirements of Arts. 21-
22...78
According to this view, therefore, once it is found that a statute enacted under Article 21 is within the
competence of the Legislature in question, our courts would be powerless to question the propriety of the
legislation on the ground that it seeks to “unduly” restrict personal liberty. In the result, notwithstanding the
importation of the doctrine of judicial review in Article 19 of our Constitution, the entire body of criminal laws
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would stand outside the reach of judicial review on the ground of “reasonableness” in the same way as in
England.
Gopalan on the wane
(B) But in the subsequent Cooper’s case,79. it has been observed that the proposition that Articles 21–22 stand
as a self-contained code is neither correct nor is it correct to say that Article 19 on the one hand and Articles
21–22 on the other, constitute two water-tight compartments. This view, though not expressly overruling
Gopalan’s case 74 has been followed in a number of cases. Logically, it has been assumed in some cases80.
that the reasonableness of a penal law can be tested with reference to Article 19.81. In Bank Nationalisation
case,82. Article 19(1)(f) was applied to a law enacted under Article 31(2). This case was the precursor of the
trend to link Articles 19, 21 and 22. After Cooper’s case, it was legitimately argued that if Article 19(1)(f) was
linked with Article 31(2), then there was no reason why Article 19 could not be linked with Articles 21 & 22. The
Supreme Court recognised the force of this logic when it declared in Sambhu Nath Sarkar v State of WB83. that
the approach of the court in Bank Nationalisation case was held as the major premise of the majority in
Gopalan’s case84. to be incorrect.
Nevertheless, the reasonableness of a penal law coming under Article 21 can be examined with reference to
Article 19, only if the expression “move freely throughout the territory of India” in Article 19(l)(d) comprises the
“personal liberty” which is sought to be safeguarded by Article 21. The majority, in Gopalan’s case, laid stress
on the words “throughout the territory of India” in Article 19(1)(d) and thus interpreted Article 19(l)(d) only from
the territorial aspect of the freedom of movement from one part of India to another, so that it could not include
the freedom of the person from incarceration save by the authority of law. It was FAZL ALI, J., in the minority in
Gopalan’s case,85. who held that Article 19(l)(d) and Articles 21–22 overlap with each other; that when a person
is deprived of his “personal liberty”; his freedom of movement from one part of India to another is also
necessarily taken away.
But so long as the majority view in Gopalan’s case is not expressly overruled, (not overruled in Cooper’s case
82) it is difficult to prefer the interpretation given by FAZL ALI, J. in the minority,86. that Article 19(l)(d) can be
attracted to strike down a penal law on the ground that it constitutes an unreasonable restriction upon the right
guaranteed by Article 19(l)(d). Even in those cases where the applicability of Article 19(l)(d) has been assumed,
the Court has saved the impugned law on the merits, so that no provision of the Penal Code has so far been
struck down on this ground. In Patnaik’s case87. it has been said that conviction puts an end to the freedom of
movement of the prisoner, but his other freedoms under Article 19(1) may not necessarily be lost. In R.C.
Cooper v UOI88. it was held by the majority that “in our judgment the assumption (A.K. Gopalan’s case) that
certain articles in the Constitution exclusively deal with specific matters and in determining whether there is
infringement of the individual’s guaranteed right, the object and the form of the State action alone need be
considered and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be
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accepted as correct”. Apparently, building on this statement, the Constitution Bench observed in Haradhan
Saha v State of West Bengal89. as follows: “We may proceed on the assumption that the Act (Maintenance of
Internal Security Act 1971) which is for preventive detention may be tested with regard to the reasonableness to
Article 19”.
It is true that in State of Bihar v Misra,90. the court struck down the second part of section 144(6) of the Criminal
Procedure Code, 1898, as constituting an unreasonable restriction upon the freedom of movement guaranteed
by Article 19(1)(d), and the court also observed that “no person can be deprived of his liberty without being
afforded an opportunity to be heard in defence”, but there was no discussion as to the applicability of Article 21
or of the majority decision in Gopalan’s case, according to which, since an order under section 144 of the CrPC
could not imprison or kill91. anybody, Article 21 could not be invoked and, if Article 21 were applicable, its
requirement had been satisfied because the Code had been enacted by a competent Legislature and the rules
of natural justice could not be imported to test the reasonableness of such a law. The observation in Misra’s
case92. should be read in this light.93.
The judicial climate regarding the applicability of Article 19(l)(d) to laws coming under Article 21 is, thus, still
uncertain though as regards a law of preventive detention, which obviously restricts freedom of movement, it is
now more clear than in the days of Gopalan.94. [See under Article 22, post].
So far there has been no direct answer as yet to the questions posed by the Author in earlier pages of this
Article of this Commentary as follows:
Firstly, the requirement of a procedural reasonableness with respect to a criminal law is not a conceptual
absurdity. If the reasonableness of a taxing law, coming under Article 265 can be questioned on the ground that
it takes a property without a notice or hearing, in contravention of Article 19(1)(f), it is not absurd to urge that a
law which prescribes a penal procedure for recovery of Government dues is an unreasonable restriction upon
the right conferred by Article 19(1)(f), in that it gives the defaulter no opportunity of being heard, before he is
arrested, as in Collector of Malabar v Ibrahim.95.
What led the court to hold that the common law giving inherent power to the High Court to punish for contempt
is a “law” within the meaning of Article 21 only if a reasonable procedure is followed (p. 4793, ante)?96.
Secondly, the reasoning in Gopalan’s case 94 was that Article 19 cannot be invoked to test the reasonableness
of a law coming under Article 21, simply because if a person’s liberty is taken away by a law it is not possible
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for him to exercise any of the rights conferred by Article 19(1). But the same comment was made as regards
the right of property with respect to the similar provision in Article 31(1). In Collector of Malabar’s case,95 the
court observed:
If the property itself is lawfully taken under Art. 31, the right to hold or dispose of it perishes with it and Art. 19(1)(f)
cannot be invoked.
But this view as regards Article 31 has been overturned in Kochunni v State of Madras,97. holding that where
the State seeks to take away a man’s property by a law made under Article 31(1), he may contend that the law
is procedurally or substantively unreasonable and hence inconsistent with Article 19. The reason is that the
“law” under
Article 31(1) must be a “valid law”, and the conditions of the validity of a law are two-fold,—(a) legislative vires
or competence; (b) non-contravention of any of the Fundamental Rights guaranteed by Pt III. One wonders why
the same conclusion cannot be made as regards a “law” depriving a person of his personal liberty. This fallacy
in the Gopalan1. argument is that because no question of the exercise by a person of his fundamental rights
under Article 19(l) can possibly arise after his personal liberty has been taken away, therefore, Article 19 cannot
be applied to test the validity of a law coming under Article 21. With respect, it is putting the cart before the
horse. The court is not going to test the validity of the penal law after assuming that the person’s liberty has
been validly taken away by the law; the court merely seeks to discharge its duty of examining whether the law
which aims at taking away the man’s liberty is valid, being inconsistent with the standard of reasonableness laid
down in Article 19.
In Kochunni’s case2. SUBBA RAO, J. realised that after demolishing the Gopalan1 theory with respect to Article
31, it was difficult to maintain it with respect to Article 21. It was clearly observed:
On the basis of the said theories, this court, with FAZL ALI, J., dissenting, rejected the plea that a law under Art. 21
shall not infringe Art. 19(1). Had the question been res integra, some of us would have been inclined to agree with the
dissenting view expressed by FAZL ALI, J., but we are bound by this Judgment, 1
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Is it then simple inertia to overrule Gopalan1 that prevented SUBBA RAO, J. from introducing the
“reasonableness” standard into Article 19?
Thirdly, it cannot be overlooked that Gopalan1 postulated that when a person is deprived of his personal liberty,
he loses all his other fundamental rights and as has already been pointed out, broken down and it has come to
be acknowledged that even a prisoner is entitled to exercise his other fundamental rights3. other than that of
locomotion, subject, of course, to legislative regulation consistent with his imprisonment.
Hence, even though the court may not be willing to change its interpretation of the scope of Article 19(1)(d) as
given in Gopalan,1 there are other sub-clauses in Article 19(1) which may be affected by a penal law under
Article 21. I have already shown its impact on sub-cl. (f), where the penal process relates to a default in paying
Government dues. Similarly, sub-cl. (g) may be affected if a law seeks to introduce penal sanction for carrying
on a business without licence, and so on.
One reason in support of Gopalan1 was reiterated by SUBBA RAO, J. in Kochunni’s case 2 namely, that there
was no analogy between Articles 31(1) and 21, inasmuch as Articles 21–22 formed one self-contained code
with respect to personal liberty. But if we look into the text of the Constitution itself, we find nothing to support
any suchtheory. Even the drafting devices adopted by the makers of the Constitution do not suggest anything
like this. There are sub-headings like “right to equality”, “right against exploitation”, to group together provisions
of the same nature. There is no such sub-heading to separate Articles 21–22 from Article 19; on the contrary,
Articles 31–31B are separated by the sub-heading “Right to Property”.
In Kharak Singh v State of U.P.,4. it was observed by the majority that the term “personal liberty” does not
include the rights mentioned in Article 19. But in the minority view expressed by SUBBA RAO, J.it was held
that, “The State must satisfy that both the fundamental rights are not infringed by showing that there is a law
and that it does not amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution.
The view expressed by the minority was later accepted by court in many cases”.5. In Khudiram Das v State of
W.B.,6. it was observed, “It is not open to anyone now to contend that a law of preventive detention which falls
under Article 22, does not have to meet the requirement of Article 14 or Article 19”.7.
V. The final blow to Gopalan’s8. self-abnegation (without overruling it) has been given by Maneka Gandhi’s
case,9. on two grounds (without entering into the question of relationship between Articles 19 and 22):
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(a) A procedure which was “arbitrary, oppressive or fanciful” was no procedure at all.
(b) A procedure which was unreasonable could not be said to be in conformity with Article 14, because the
concept of reasonableness permeated that Article in to.10.
It was held therein that fundamental rights embodied in Pt III of the Constitution are not to be viewed as distinct
and mutually exclusive. On the other hand, each of them has different dimension and merely because the limits
of interference with freedom are satisfied, the law is not freed from the necessity to meet the challenge of the
other guaranteed freedom. Therefore, the law affecting personal liberty under Article 21 will also have to satisfy
the tests of Articles 19 and 14. A nexus has been established between these three articles. JUSTICE KRISHNA
IYER said that no article in the Constitution pertaining to fundamental rights is an island in itself. Just as a man
is not dissectible into separate limbs, cardinal rights is an organic Constitution have a synthesis. It was held
that, “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to
constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental
rights and gives additional protection under Article 19. In Kesavanandha Bharati v State of Kerala,11. JUSTICE
BHAGAVATI referred to the decision in Haradhan Saha v State of WB;12. Shambhunath Sarkar v State of
WB13. and R.C. Cooper v UOI14. to show that even though a law prescribing a procedure for depriving a
person of “personal liberty” may not infringe Article 21 it will have to stand the challenge of Article 19 in so far
as it abridges or affects any of the fundamental rights guaranteed by Article 19. Learned Judge also pointed out
that the Supreme Court applied Article 14 to test the validity of a law which affected personal liberty by
prescribing special procedure for the trial of specified offences. In State of WB v Anwar Ali Sarkar,15. while the
law was struck down, in Kathi Raning Rawat v The State of Saurashtra,16. the law was upheld. In both cases, it
was held that the procedure established must not be violative of the equality clause.
Earlier in Gopalan’s case, the court held that Article 19 applied only when a law was passed directly in respect
of a matter falling under it and not when a law not directly in respect of a right under Article 19, though it
abridged such a right. The court had emphasised in Gopalan that the question was to consider the “directness”
of legislation and not what would be result of the law on a right under Article 19. Therefore, even though
preventive detention deprived a person of several rights under Article 19, the validity thereof could not be
adjudged under Article 19. But in Bennett Coleman & Co v UOI,17. the court rejected the argument that Article
19(1)(a) could not apply to a law affecting freedom of speech, but not enacted directly with respect to Article
19(1)(a). Court declared that if a law affected freedom of speech its reasonableness became assessable with
reference to Article 19(2) even though it was not enacted directly to control the freedom of speech. In State of
West Bengal v Ashok Dey,18. it was held that the West Bengal law of preventive detention is valid with
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reference to Article 19(1)(d) because in the disturbed law and order situation in the State, the law was enacted
in the interest of general public.
In Siddharam Satlingappa Mhetre v State of Maharashtra,19. the court after taking into consideration earlier
decision, said that the phrase “personal liberty” is very wide and includes all possible rights which go to
constitute personal liberty “including those which are mentioned in Article 19”. In the earlier portion of the
judgment court said: “In the wider sense it includes not only immunity from arrest and detention, but also
freedom of speech, association, etc. The juristic conception of “personal liberty” when used in wider sense,
would mean consisting of freedom of movement and locomotion”. Court also followed the decision in Kartar
Singh v State of Punjab20. wherein it was held that the term “personal liberty” as used in the Article 21 is a
compendious term to include within itself all varieties of rights which go to make up the “personal liberty” of man
other than those dealt within clauses of Article 19(1). While Article 19(1) deals with particular species or
attributes of that freedom “personal liberty” in Article 21 takes on and comprises the residue. While prohibiting
handcuffing of an under-trial prisoner, after referring to relevant provisions of Punjab Jail Manual, the court said
that routine handcuffing is violative of Articles 14, 19 and 21.21. Court further said: “It is implicit in Articles 14
and 19 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious, despotic and
demoralising to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face.
The minimum freedom of movement which even a detained is entitled to under Article 19 cannot be cut down
by application of handcuffs or other hoops”.
VI. Once the test of reasonableness is imported, the principles of natural justice would follow and demand that
the person concerned must have a reasonable opportunity of presenting his case before he is affected by the
penal law.22.
In Maneka Gandhi’s case,22 the court observed that the requirement of compliance with natural justice was
implicit in Article 21 and that if any penal law (e.g., the Passports Act) did not lay down the requirement of
hearing before affecting him, that requirement would be implied by the court, so that the procedure prescribed
by law would be a reasonable and not arbitrary procedure.
It is difficult to hold that the substance of the doctrine of “due process” has yet not been judicially infused into
the conservative text of Article 21.
In Sunil Batra v Delhi Administration,23. it was held, “True our Constitution has no Due Process Clause or the
8th Amendment (of the American Constitution); but, in this branch of law, after Cooper,24. and Maneka
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Gandhi,22 the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel, …
is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19, if inflicted with procedural
unfairness, falls foul of Article 21”. The above decision was followed in Mithu v State of Punjab,25. while
considering the constitutional validity of section 303 of Indian Penal Code. In Khudiram Das v State of W.B.,26.
the court said: “It is not open to anyone now to contend that the law of preventive detention which falls under
Article 22, does not have to meet the requirements of Article 14 or Article 19”.
P.L. Lakhanpal v UOI27. was a case of preventive detention under Defence of India Rules during emergency
when the normal safeguards provided by Article 22 were not available. There was however a provision for
review of detention cases every six months. Court ruled that although the making of initial detention order was
an exercise of administrative power, the review was quasi-judicial function, and therefore the detenu should be
given a right to make representation at that stage. Failure to give such a right vitiated the detention of the
petitioner. Such a judicial review meant that while lack of natural justice in the law would not make it invalid,
nevertheless, the court could still impose natural justice by interpretative process. If a law did not lay down a
satisfactory procedure, the court could bring in natural justice and assess the validity of administrative action
infringing personal liberty on that basis. This did tone down somewhat the rigorous statutory approach to Article
21 as depicted in Gopalan’s case (supra).28.
In District Registrar & Collector v Canara Bank,29. it was held that “personal liberty” in Article 21 is of widest
amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them
have been raised to the status of distinct fundamental rights and given “additional protection” under Article 19
and any law interfering with personal liberty of a person must satisfy a triple test:
(1) it must prescribe a procedure,
(2) the procedure must withstand the test of one or more of the fundamental rights conferred under Article
19 which may be applicable in a given situation,
(3) it must also be liable to be tested with reference to Article 14.
As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing
interference with personal liberty and the right to privacy must also be right and just and fair and not arbitrary,
fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14, it would be no
procedure at all within the meaning of Article 21. (The decision in Maneka Gandhi’s case was followed.) Eve-
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teasing is violative of Article 21 since it affects woman’s dignity. At the same time, it also offends Articles 14 and
15 since it is discrimination against womanhood. Court gave various directions to prevent such incidents.30.
In Ramlila Maidan Incident,31. the court said that under Article 21, the primary task of State is to provide
security to all citizens without violating human dignity. Privacy and dignity of human life have always been
considered as fundamental human rights of every human being like any other key value such as freedom of
association and freedom of speech. Every act which offends or impairs human dignity tantamounts to
deprivation pro tanto of his right to live and the State action must be in accordance with reason, fair and
procedure established by law which stands the test of other fundamental rights. In that case, the court also said
that there is a direct and not merely implied responsibility upon the Government to function openly and in public
interest. The right to information itself emerges from the right to freedom of speech and expression. Unlike an
individual, the State owes a multi-dimensional responsibility. It has to ensure security of the State as well as
social and public order. It has to give utmost regard to the freedom of speech and expression which a citizen or
group of citizens may assert. The State has also a duty to provide security and protection to the persons who
wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech
and expression.
VII. Further extension takes place when it is held that a procedure would be lacking in reasonableness where it
is “unfair”,32. even though no principle of natural justice has been involved. The Special Courts Bill, 1978, as
originally drafted, was held to be lacking in fairness33. because of the following reasons:
(i) There was no provision for transfer of cases from a Special Court, on any ground.
(ii) It was to be presided over by a retired High Court judge whose appointment could be terminated at the
will of the government.
(iii) In the selection of such a judge, the Chief Justice of India was to be “consulted”, but his concurrence
was not required. The result was that the accused would be tried by a judge nominated by the
government at whose pleasure his services rested, so that he would be lacking in independence.34.
VIII. As a result of such extension, step by step, it is now fairly settled that—
(a) Even though a person under imprisonment or detention loses his freedom of movement, he does not lose
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any of the other freedoms guaranteed by Article 19(1), in so far as they may be exercised35. from within prison
bars.36. The Supreme Court has emphasised that a prisoner, whether a convict, under-trial or detenu does not
cease to be a human being and even while lodged in jail, he enjoys all his fundamental rights including the right
guaranteed by the Constitution. Even when a person is convicted and deprived of his liberty in accordance with
the procedure established by law, the prisoner still retains the residue of his constitutional rights.37. Articles 14,
19 and 21 are available to prisoners as well as free man. Prison walls do not keep out fundamental rights.38. It
is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can
be drawn between the prisoner and the Constitution. Prisoners are entitled to all constitutional rights though
their liberty has been constitutionally curtailed.39.
The Universal Declaration of Human Rights professed that no one shall be subjected to torture, cruel, inhuman,
degrading treatment or punishment. The legal resources of prisoner’s right strengthen the declaration and
guarantee in Article 10 of the Covenant. The definition of Human Rights under section 2(d) of Protection of
Human Rights Act 1993 (PoHRA) expressly includes the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution of India or embodied in the International Covenant as Civil and
Political Rights adopted by the General Assembly of UN in 1966. The PoHRA was enacted to provide for better
protection of human rights and for matters connected therewith or incidental thereto. Constitution of a National
Human Rights Commission and State Human Rights Commission in the States is for this purpose. Section 12
of PoHRA enables the Commission to inquire suo moto or on a petition presented to it by a victim or any person
on his behalf into a complaint of violation of human rights or abatement thereof or negligence in the prevention
of such violation by a public servant. It is significant that another function of the Commission specifically
mentioned in section 12 is to visit any jail or any other institution where persons are detained or lodged for
purposes of treatment, reformation or protection, to study the living conditions of the inmates and make
recommendation thereof. In this manner, prisoners’ rights have statutory recognition as human rights and
provision is made for their better protection and supervision by an autonomous body of high status. Thus, by
these provisions alone, prisoners’ rights are recognised as enforceable human rights. Article 21 of the
Constitution of India guarantees right to life with dignity for every individual. In a catena of decision of the
Supreme Court of India, prisoners’ rights have been read into the guarantee under Article 21. The Supreme
Court has also held in Vishaka v State of Rajasthan40. that the provisions in international instruments and
norms can be read into justiciable fundamental rights for filling gaps, if any, or enlarging the scope thereof as a
canon of statutory construction unless there be any inconsistency between them. It is obvious that the wide
meaning given to “right to life” and “personal liberty” guaranteed by Article 21 is to include therein “life with
dignity”, i.e., every aspect of human dignity unless inconsistent with the need for incarceration, makes it also a
prisoner’s right to which he is entitled to under Article 21. Human dignity is the quintessence of human rights
and this is the express constitutional guarantee in India under Article 21.41.
Learned author, JUSTICE VERMA has also extracted from the speech of WINSTON CHURCHILL as Home
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Secretary in the House of Commons. It says: “The mood and temper of the public in regard to the treatment of
crime and criminals is one of the most unfailing tests of the civilization of any country. A calm dispassionate
recognition of the rights of the accused and even of the convicted criminals against the State; a constant heart-
searching of all charged with the deed of punishment tireless efforts towards the discovery of regenerative
processes; unfailing faith that there is treasure, if you can find it in the heart of every man. These are the
symbols which in the treatment of crime and criminals make and measure the stored-up strength of a nation
and are sign and proof of the living virtue in it”.
The court has frowned upon the practice of keeping prisoners condemned to death sentence in solitary
confinement. Apart from Article 21, the court also held it invalid under Article 20(2).42.
Since a person’s life and liberty can be deprived only according to procedure established by law, it follows, that
those who will call upon to deprive other persons of their personal liberty in the discharge of what they conceive
to be their duty, must strictly and scrupulously observe and follow the rules of the law. If the aforesaid principle
is not observed, the court would set the prisoner at liberty. Such a principle would apply in the case of punitive
as well as preventive detention.43.
(b) If, therefore, a penal law imposes a direct restriction upon the freedom of expression44. or freedom of
business,45. the reasonableness of the restrictions imposed by such penal law would be open to question by
the court.45
(c) It would be an unreasonable restriction within the purview of Article 19—
(i) If a citizen’s passport is impounded for an indefinite periodof time.45
(ii) If the punishment is too cruel or torture some in the present-day social background.46.
Torture is an affront to the human dignity. No prisoner can be tortured or be subjected to custodial
violence.47. In American Constitution, there is a specific guarantee in the 8th Amendment against
“cruel and unusual punishment”, and the same immunity has been drawn from the Due Process
Clause as well.48.
Our Supreme Court has held that “bar fetters make a serious inroad on the limited personal liberty
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which a prisoner is left with”. Such punishment can be imposed only to secure the safe custody of
the prisoner taking into consideration the character, antecedent and propensities of prisoner.
These are the only relevant considerations to determine whether there need be put such fetters on
a prisoner. The determination of the necessity to put a prisoner in bar fetters has to be made after
application of mind to the special and peculiar characteristics of each individual prisoner. The
nature and length of sentence or the magnitude of crime committed by the prisoner are not
relevant for the purpose of determining the question. Court further said: “We cannot be oblivious to
the fact that the treatment of a human being which offends human dignity, imposes avoidable
torture and reduces the man to the level of a beast would certainly be arbitrary and can be
questioned under Article 14”.49. JUSTICE KRISHNA IYER in the same case said: “I hold that bar
fetters are a barbarity generally and like whipping must vanish. We hold that solitary confinement,
cellular segregation and marginally modified edition of the same process are inhuman and
irrational”.
Even an unusual delay in disposing of a mercy petition to the President or Governor under Article
72 or Article 161 of the Constitution has been brought within the fold of cruel punishment because
the mental worry and agony that is caused by the intervening period of suspense is an additional
penalty and above the death penalty already awarded.50. It was further held in Jumman’s case
(supra), following the earlier decision in Sher Singh v State of Punjab,51. and Triveniben’s case
that before deciding whether there was undue delay, the court will have to consider who is
responsible for the delay. If the convict is responsible for the delay, the principle may not apply.
Delay caused by circumstance beyond the control, of death convict mandates commutation of
death sentence. Articles 14, 19 and 21 of the Constitution supplement one another, and the right to
commutation on the death penalty due to undue and inordinate delay in disposing of mercy petition
is a substantive right of the convict and not merely a procedure established by law. Undue delay in
execution of death sentence will entitle the condemned prisoner to seek relief under Article 32 of
the Constitution. In such cases, the Supreme Court will only examine the circumstances
surrounding the delay that has occurred and those that have ensued after the sentence was finally
confirmed by judicial process. The Supreme Court in such a writ petition cannot reopen the
conclusion already reached by Supreme Court while confirming death sentence; but may consider
the question of inordinate delay for such confirmation to decide whether the execution of death
sentence should be carried out or should be altered into imprisonment for life. Court cannot excuse
the agonising delay caused to the convict only on the basis of the gravity of the crime. If there is
unexplained and inordinate delay in execution of death sentence due to pendency of mercy
petition or the executive as well as the constitutional authorities have failed to take note of or
consider the relevant aspects, Supreme Court is well within its powers under Article 32 to hear the
grievance of the convict and commute the death sentence into life imprisonment on this ground
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alone, however, only after satisfying itself that the delay was not caused at the instance of the
accused himself. To this extent, jurisprudence has developed in the light of the mandate given in
our Constitution as well as various Universal Declaration of Human Rights and directions issued by
United Nations.52.
In V. Sridharan Alias Murugan v UOI,53. the Supreme Court said for commutation of death
sentence to life imprisonment for life, evidence of suffering of death convict during incarceration is
not a pre-requisite for the relief sought in the petition. Regardless and independent of the suffering
it causes, such delay makes the process of execution of death sentence unfair, unreasonable,
arbitrary and capricious and thereby violates procedural due process guaranteed by Article 21 and
dehumanisng effect can be presumed in such cases. Furthermore, the continuous imprisonment
occasioned by inordinate delay in disposal of mercy petition is beyond the sentence accorded by
the court and to that extent is extra-legal and excessive.
A complaint against degrading and inhuman treatment or punishment will be entertained under
these circumstances, inter alia, on the level of severity which the complainant has suffered.
Inhuman treatment covers such acts as intentionally inflicting severe mental or physical suffering or
if the treatment inflicted humiliates the person before others or drives him to act against his own
will or conscience.54. In Tomasi v France,55. the applicant had been charged and remained in
detention for more than five years before eventual acquittal. He complained to the Commission
that while in custody, he had been beaten by police on a number of occasions which resulted in
not only physical and mental pain, but he suffered “fear, anguish and inferiority capable of
humiliating him and breaking his physical and moral resistance”. Medical reports indicated that
injuries could only have been sustained during specified forty hour interrogation while in detention.
The Commission was of opinion that although the injuries themselves were “relatively slight”, the
assault in combination with the detention element (depriving the person of his freedom) led to a
state of inferiority and, therefore, constitutes both inhuman and degrading treatment.
Even though the constitutionality of death penalty or hanging by the rope has been upheld,56.
execution by public hanging has been invalidated, because it constitutes a “barbaric” penalty
lurking back to earlier centuries, which would be a disgrace to any modern “civilized society”.57.
What might not have been regarded as degrading or inhuman in days bygone may be revolting to
the new “sensitiveness” which emerge as “civilization advances”. The impact and influence of the
awareness of such “sensitiveness” on the decision of the law’s validity is an inseparable
constituent of the judicial function.58. It was held that what would be regarded as a cruel or
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degrading punishment must be considered applying “contemporary standards” and the standard to
be applied in the “evolving” standards of decency that marks the progress of maturing society.56
Article 3 of the European Convention for the Protection of Human Rights guarantees that no one
shall be subjected to torture or to inhuman or degrading treatment or punishment.
The three forms of treatment mentioned in Article 3 above seem to represent three different levels
of seriousness. Thus torture, unlike degrading treatment, has been quite narrowly defined to
include “deliberate inhuman treatment causing very serious and cruel suffering”.59. Clearly,
treatment which could not come within this restricted definition could still fall within one of the other
two heads especially the broad head – “degrading treatment”. Degrading treatment will not,
however, inevitably include all forms of physical punishment although it will include certain forms of
corporal punishment including caning. (In Warnwick v UK, as per European Commission of Human
Rights Report dated 15 June 1986, the Commission considered that the corporal punishment in
schools amounts to degrading punishment). But at the same time it does not amount to torture or
in human treatment. In Costello-Roberts v UK60. where a seven year old school boy was given
three smacks with a slipper on his fully clothed bottom, the Commission in examining the above
case, found that such mild chastisement which caused no injury did not reach the harshness
required for being termed as a violation of Article 3. But a different view was taken in Y v UK61.
that corporal punishment which could be said to be of a “normal” type may be distinguished, from
degrading corporal punishment.62.
In Noel v AG,63. the court had occasion to consider (minority view) how far delay in execution of
death sentence is inhuman or degrading punishment. It was observed therein: “It is of course true
that a period of anguish and suffering is an inevitable consequence of sentence of death. But a
prolonged trial beyond the time necessary for appeal and consideration of reprieve is not proper.
Prolonged delay when it arises from the factor outside the control of the condemned man can
render the decision to carry out the sentence of death an “inhuman and degrading punishment”. It
is of course for the applicant who seeks for constitutional protection to show that the delay which
was in ordinate, arose from no act of his and was likely to cause such acute suffering that the
infliction of death penalty would be inhuman in the circumstances which had arisen or degrading”.
In Ireland v UK,64. it was held that “ill-treatment must attain a minimum level of severity … The
assessment of this minimum... depends on all the circumstances of the case, such as duration of
the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health
of the victim etc.” The Article intentionally distinguishes between “torture and inhuman and
degrading treatment”; the first of these being considered the most detrimental and serious.
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“Torture” may be defined as “deliberate inhuman treatment or punishment causing very serious
and cruel suffering”. It is the level of intensity and cruelty which will determine whether or not the
treatment amounted to torture. In Aydui v Turkey,65. wherein it was held that rape constituted a
torture and referred to the act as “especially grave and abhorrent”. Apart from physical injuries,
consideration must be given to the mental problems which accompany such horrific experiences.
Inhuman punishment generally involves some form of legally authorized assault on the victim, but
whether or not the particular violence will constitute a breech of Article 3 may be a question of
degree. In Tyrer v UK,66. a boy of 15 was sentenced to receive three strokes of the birch for an
offence committed by him. He had to wait for six weeks before the sentence was carried out. He
had to bend over a table with his buttocks naked to receive his punishment from strangers. The
issue was not of torture nor it amounted to severity to constitute inhuman punishment. The
question was whether the punishment was “degrading” and violative of Article 3. It was held that in
order to be “degrading”, the humiliation or debasement involved must attain a particular level of
severity … It depends in all the circumstances of the case, and in particular on the nature and
context of the punishment itself and the “manner and method of execution”. It was held that a
factor which the court will not take into account is its deterrent effect; that is not considered as
defence to a violation within Article 3. The court said that legal inflicting of corporal punishment by
those in authority constituted an attack on a person’s “dignity and physical integrity”, which Article
3 sought to protect. Added to this, the psychological problems for the long wait of six weeks, all
contributed to the conclusion that the “element of humiliation attained the level inherent in the
notion of degrading punishment”.67.
In Campbell and Cozan v U.K.,68. the court did not rule out the possibility of threat done, without
the punishment being carried out constituted “degrading” within Article 3.
In Soering v U.K.,69. it was held that “inhuman treatment covers such acts as intentionally
conflicting severe mental or physical suffering or if the treatment inflicted humiliates the person
before others or drives him to act against his own will or conscience”. What may distinguish this
form of treatment from actual severe punishment is that here the psychological damage is more
likely to result, i.e., humiliation, demoralization, a person’s self-respect and free will may have been
sapped due to the degrading treatment carried out.70.
While imposing punishment, the effect of the punishment must not be grossly disproportionate to
what would have been appropriate. In assessing whether the sentence is grossly disproportionate
the court may consider the gravity of offence, the personal characteristics of the offender and the
particular circumstances of the case in order to determine what range of sentences would have
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been appropriate to punish, rehabilitate, or defer the particular offender or to protect the public
from him. When a law provides for a minimum punishment without taking into consideration the
above facts, and goes against the fundamental rights and freedoms, the said provisions constitutes
cruel and unusual punishment.71.
Any punishment imposed must be proportionate to the charge and the same is guaranteed under
Article 21.72. The deprivation of the employees right to pension and gratuity must be in accordance
with law. The measure of deprivation must correlate to or be commensurate with the gravity of the
grave misconduct or irregularity as it offends the right to assistance at the evening of a person’s life
assured under Article 21 of the Constitution.73.
The court in Francis Coralie Mullui v The Administrator, Union Territory of Delhi,74. made it clear
that any form of torture or cruel, inhuman or degrading treatment is offensive to human dignity and
constitute an inroad into the right to live and be prohibited under Article 21. Use of “third degree”
method by police is violative of Article 21.75. In Sunil Batra v Delhi Administration,76. it was
observed “infliction” may take many protean forms, apart from physical assault. Pushing the
prisoner into solitary cell, denial of necessary amenity, and more dreadful some times, transfer to a
distant prison where visits or society of friends or relatives may be snapped, allotment of degrading
labour, assigning him to a desperate or tough gang and this like, may be punitive in effect. Every
such infliction is an infraction of liberty or life in the wider sense and cannot be sustained unless
Article 21 is satisfied.
Immunity of a convict or under-trial prisoner from inhuman treatment means that the legal or
judicial system of the country cannot deprive a man, however wicked he may be, of his status as a
human being and reduce him to the state of an object or chattel.
Torture and ill-treatment of women suspects was condemned in Sheela Barse v State of
Maharashtra.77.
In D.K. Basu v State of W.B.,78. it was held that “torture” of human beings essentially is an
instrument to impose the will of the “strong” over the “weak” by suffering. The word “torture” has
become synonymous with the darker side of human civilization.
Article 1 of the Convention against Torture, (i.e., The Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1976) which was ratified by India on 14 October
1997 defines the expression “Torture” thus: “For the purpose of this convention the term “torture”
means any act by which severe pain or suffering whether physical or mental, or intentionally
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inflicted on a person for such purpose as obtaining from him or third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having
committed or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity. It does
not include pain or suffering arising only from inherent or incidental to lawful sanction”.
Article 5 of the Universal Declaration says: “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”. Similar is the provision in Article 7 of the
International Convention and Article 3 of the European Convention of Human Rights. The Bill of
Rights 1688 declares that cruel and unusual punishment shall not be inflicted. Though Bill of
Rights or any other similar charter cannot be invoked in the UK to nullify any act of Parliament
which is contrary to its provision, there is little doubt that it is regarded as a part of the law of the
land and the court would so “interpret” a statute as to be consistent with the declaration made in
the Bill of Rights and would also nullify any non-statutory executive order which violates any of the
declarations contained in it.79.
That the punishment should not be inhuman or degrading is not specifically mentioned in the 8th
Amendment to US Constitution, but the Supreme Court has interpreted “cruel and unusual
punishment to be a punishment which is inhuman or degrading to the dignity of a human being”.80.
The Court said that this clause was taken directly from the English Bill of Rights 1688. The concept
of inhuman and degrading punishment was beyond the comprehension of the 17th century leaders
of the Golden Revolution. Hence the majority in Trop’s case81. had to observe that determination
as to whether a punishment is offending against human dignity is to be judged by “civilised
standards of decency which are evolving with the progress of maturing society”. In Furman v
Georgia,82. court formulated several tests for determining whether a punishment “comports with
human dignity – (a) A punishment must not be so “severe” as to be degrading to the dignity of
human beings; (b) The State does not respect human dignity when, without reason it inflicts upon
some people a severe punishment that it does not inflict upon others; in other words, it arbitrarily
inflicts a severe punishment; (c) If the severe punishment is unacceptable to “contemporary
society”, it indicates that it does not comport with human dignity; (d) The infliction of a severe
punishment cannot comport with human dignity where it is unnecessary or excessive i.e., when it is
nothing more than the pointless infliction of suffering or when it is disproportionate to the crime
committed or it serves no more penal purposes than a less severe penalty.
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Another cruel and humiliating mode of punishment is “whipping” which existed in a country like UK
till 1948. It has been abolished in India by the Abolition of Whipping Act 1955.83.
See also section 330 of the Indian Penal Code, sections 176, 357 of the Criminal Procedure Code
and sections 24 to 30 of the Indian Evidence Act for this above purpose.84.
(d) Even apart from Article 19, the requirement of “fairness” is inherent in Article 21, which is akin to the concept
of “reasonableness”.85.
IX. Such “fairness” would be impaired—
(i) If a debtor is put to prison for non-payment of his civil debts, in the absence of wilful default in spite of having
sufficient means to pay86. or some other element of bad faith beyond mere indifference.86
But in cases where public dues are to be collected some amount of coercion is necessary to make a
recalcitrant defaulter who has means to pay or who has fraudulently secreted his assets to screen them from
being proceeded with against to pay up the dues. It was held that in the contemporary Indian conditions, the
process of arrest and detention of judgment-debtor or defaulter to enforce payment of the amount due from him
is not altogether unreasonable. It cannot be held to be unconstitutional if there are sufficient safeguards which
make the process conform to reasonable standards.87.
(ii) If the procedural law does not provide for speedy trial (see post) of the accused,88. or does not provide for
his pre-trial release on bail on his personal bond, where he is indigent and there is no substantial risk of his
absconding.89.
In Babu Singh v State of U.P.,90. it was held that personal liberty of an accused or a convict is fundamental of
suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the
life of that human rights and deprivation of freedom can only be for the welfare of the society.
Deprivation of personal liberty without ensuring “speedy trial” would not be in consonance with the right
guaranteed under Article 21. It was held that some amount of deprivation of personal liberty cannot be avoided,
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but if the period of deprivation pending trial becomes unduly long, fairness ensured by Article 21 would receive
a jolt. Right to speedy trial forms part of right to life guaranteed under Article 21. Accused has a right to fair and
expeditious trial. When a court passes an order of stay effecting indefinite suspension of trial, it would be
manifestly unjust and unfair. An accused cannot be subjected to tyranny of legal process which may go on
endlessly for no fault of the accused himself.91. At the same time, court cannot fix a time-limit for trial of
offences since it is neither advisable nor practicable. Certain offences which by their very nature e.g.,
conspiracy cases, cases of misappropriation, embezzlement, fraud, forgery, sedition, acquisition of
disproportionate assets by public servants, cases of corruption against high public officials take longer time for
investigation and trial. The workload in each count, district, region and State-wise and the strike by the
members of the Bar which interfere with the work schedules are all factors which have to be considered. In the
very nature of things, it is difficult to draw a time-limit beyond which a criminal proceeding will not be allowed to
proceedand if it is a minor offence, not an economic offence and the delay is too long not caused by the
accused, different consideration may arise, but each case must be left to be decided on its own facts and the
right to speedy trial does not become illusory when a time-limit is not fixed.92.
If the accused have suffered imprisonment which is half of the maximum punishment provided for the offence,
any further deprivation of personal liberty would be a violation of Article 21. Court gave direction as to how this
bail application have to be considered by TADA and NDPS Act prisoner.93. Stringent provisions for grant of bail
can be justified looking at the nature of crime as the presumption that the trial of theaccused would take place
without undue delay. No one can justify gross delay in disposal of cases where individual prisoners remain in
jail, giving rise to possible situation that may justify invocation of Article 21.94. Section 32A of NDPS Act
prohibits that the sentence of a person shall not be suspended or remitted or commuted. It was held that the
same was not violation of Article 14 or 21 as the offences enumerated under this Act squarely falls into
separate and special class.95. In the case of detainees under POTA, it was held that the stringent conditions for
bail imposed under section 49 of the Act is not unreasonable. It was held that usually the overt and covert acts
of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked
with anti-national elements both inside and outside the country and hence an expanded period of detention is
required to complete the investigation and a long period for solving the case is quite justifiable. In such cases,
the investigating agency may require the custody of the person for a longer period.1.
Regarding the grant of anticipatory bail, it was held that there is no fundamental right to get anticipatory bail,
since it is only a statutory right, and it is not an integral part of Article 21. It was held that section 438 of Criminal
Procedure Code is a new provision incorporated with new code creating a new right and if the new right is
taken away under this provision of any Special Act namely, TADA, or NDPS Act or under any Economic
Offences Act, the same cannot be said to be violating of Article 21.2. Not granting anticipatory bail does not
amount to denial of rights conferred upon a citizen or person under Article 21 of the Constitution.3. In Jai
Prakash Singh v State of Bihar the court said that anticipatory bail can be granted only in exceptional
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circumstances where the court is prima facie of the view that the applicant has falsely been roped in the crime
and will not misuse his liberty.4.
(iii) If an under-trial prisoner is kept in jail for a period longer than the maximum term of imprisonment which
could have been awarded on his conviction.5.
Free legal aid
(iv) In the U.S.A., the specific guarantee in the 6th Amendment that is all criminal prosecution, the accused has
a right to assistance of counsel for his or her defence has also been deduced from the omnibus Due Process
Clause as an ingredient of fair trial, because a layman “may be put to trial without a proper charge and
convicted upon incompetent evidence”.6. In Johnson v Zerbst,7. the court said that the Sixth Amendment has
provided a specific guarantee of counsel and it applied to all federal cases. But in Betts v Brady,8. the court
refused to recognise any constitutional guarantee. It was held that the Fourteenth Amendment does not
incorporate the 6th Amendment. But the decision was overruled in Gideon v Wainwright.9. Court has also
declared that 6th Amendment right necessarily includes “the guarantee of the effective assistance of
counsel”.10. In United States v Cronic the court said that right to counsel entails the right to effective counsel
which springs from the assumption that competent advocacy is essential to the truth finding process of the
adversary system. Where an attorney’s representation of a defendant has been so deficient as to undermine
the “meaningful adversarial testing” of facts and presentation of argument in a criminal trial, “the reliability of the
trial process” has been jeopardized as has been the prospect that justice has been done. In Strickland v
Washington,11. the court spelt out the test for identifying the circumstances in which the effective assistance of
counsel has been denied. It was explained: “A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two components – (1) The defendant
must show that counsel’s performance was deficient. This requires showing that counsel made errors so
serious that the counsel was not functioning as the “counsel” guaranteed for the defendant by the Sixth
Amendment; (2) the defendant must show that deficient performance prejudiced the defence. This requires
showing that the counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the result unreliable”.
The Sixth Amendment does not require that a counsel be appointed to assist a defendant who prefers to go
alone. The accused has a right to proceed without counsel if he intelligently and voluntarily chooses to do so
and the Government may not force a lawyer upon him. In such cases, the defendant cannot be heard to say at
a later stage that the trial was unfair.12. If the defendant has profited from violation of federal drug laws or
engaged in racketeering, he may not be able to mount a defence staffed by high priced legal talent. Federal
laws provide for the freezing and subsequent forfeiture upon conviction of all properties so acquired. In US v
Monsanto13. and Caplin & Drysdale v US,14. the court held that there is no denial of Sixth Amendment right to
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counsel or the Fifth Amendment right to due process, if the defendant is thereby deprived of sufficient
opportunity to retain the attorney of his choice.
Right to counsel is also available at pre-trial stage. In Escobedo v Illinois,15. the court announced that right to
counsel would become applicable at the beginning of custodial interrogation or whenever the “investigation is
no longer a general inquiry into an unsolved crime, but has begun to focus on a particular suspect”.
(a). If the accused is not offered free legal aid, where he is too poor to engage lawyer,16. provided the lawyer
engaged by the State is not objected to by the accused,16 he need not apply for it. A trial held without offering
legal aid to an indigent accused at State cost will be vitiated and conviction will be set aside.17. The trial will
also be vitiated when the counsel for the accused is not given sufficient time and facility for preparing the
defence.18.
(b). This right is an essential ingredient of the fair and just procedure guaranteed by Article 21 and imposes a
corresponding obligation upon the State to provide free legal service to a poor accused, which cannot be
avoided by pleading financial or administrative inability.19. The right to fair trial is to be enjoyed by the guilty as
well as the innocent, for, an accused is presumed to be innocent until proved to be otherwise in a fairly
conducted trial. This right would include the right to be defended by a competent counsel. The provision of an
amicus curiae for an accused in case the accused is unable to engage an advocate to conduct his defence is to
ensure the goal of fair trial which is a guarantee provided in the Constitution. The right to be represented by a
lawyer must not be an empty formality. It must not be sham or an eyewash. The appointment of an amicus
curiae for the defence of an accused person must be in true letter and spirit with due regard to the effective
opportunity of hearing that is to be afforded to every accused person before being condemned. The due
process of law incorporated in our constitutional system demands that a person should not only be given an
opportunity of being heard before being condemned, but such opportunity also should be fair, just and
reasonable.20. A procedure which does not make available legal services to an accused person who is too poor
to afford a lawyer and who would, therefore, have to go through the trial without legal assistance cannot
possibly be regarded as “reasonable, just and fair”.21. Article 39A lays stress upon legal justice. The directive
requires the State to provide free legal aid to deserving people, so that justice is not denied to anyone merely
because of economic disability and Article 21 has been interpreted in the light of Article 39A.22.
In Ranjan Dwivedi v UOI,23. the question was whether fixing Rs 24/- only to a lawyer for his appearance as
amicus curiae was sufficient for getting proper legal aid. It was argued that no senior lawyer will appear to
defend an accused on such fees. It was contended that as a matter of processual fair play the State should
provide him a lawyer on the basis of equal opportunity. Court accepted the argument and enhanced the legal
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fee to Rs 500/- to a senior lawyer and Rs 350/- to a junior lawyer per day. In that case, court also observed that
in cases involving offences such as economic offences, or offences against law prohibiting prostitutes or child
abuse and the like where social justice may require, that free legal service need not be provided by the
State.24.
In Mohd. Ajmal Amir Kasab v State of Maharashtra,25. the court said that right to consult and be defended by a
legal practitioner is “not” to be construed as sanctioning or permitting the presence of a lawyer during police
interrogation. According to our system of law, the role of lawyer is mainly focused on court proceedings. The
accused would need a lawyer to resist remand to police or judicial custody and for grant of bail; to clearly
explain to him the legal consequences in case he intended to make a confessional statement in terms of
section 164 CrPC; to represent him when the court examines the charge-sheet submitted by the police and
decides upon the future course of proceedings and at the stage of the framing of charges and beyond that, of
course, for the trial. The right to access to a lawyer (based on the decision of American Supreme Court in
Miranda v Arizona26. where the legal assistance and presence of lawyer when the accused chooses to remain
silent and during police interrogation) is not applicable in India. Court said that the protection to the accused
against self-incrimination guaranteed by the Constitution is very strongly built into Indian statutory framework
and there is absolutely no reason to draw any help from the Miranda principles.
But it is not obligatory on the part of the appellate court in all circumstances to engage an amicus curiae in a
criminal appeal to argue on behalf of the accused. In such cases, the court may decide the case on merits, but
cannot dismiss the appeal for non-prosecution.27.
(c). This constitutional obligation of the State arises not only when the trial commences but even where the
accused is for the first time produced before the Magistrate [Article 22(l)].28.
(d). It follows that the Magistrate or Sessions Judge before whom the accused appears, isunder an obligation to
inform the accused that if he is unable to engage a lawyer on account of indigence, he is entitled to obtain free
legal services at the cost of the State (para 6).28 [See also Article 39-A]
(v) If the sentence passed on a plea of guilty by the accused is enhanced in appeal or revision, without giving
him a fresh opportunity to defend himself against the charge.29.
(vi) If the prisoner, whether under-trial or convicted, has been subjected to any physical or mental torture which
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is not warranted by the punishment awarded by a court of law,30. or in excess of the requirements of discipline
or order in the prison,31. or which constitutes “human degradation”.32.
(vii) Where the law (e.g., section 303 IPC) provides for a compulsory death sentence in every case of murder
committed by a life convict (as a class).33.
X. On the other hand, inits quest for fairness or reasonableness, the court would not—
(a) Question the “penal policy” behind a law, e.g., the provision for absolute liability with a statutory
minimum sentence of imprisonment for the commission of anti-social offences, such as food
adulteration—irrespective of the gravity or otherwise of the offence in a particular case,34. or the
provision for a maximum sentence, empowering the court to reduce it in particular cases, on proper
grounds.34
Nor can the provision for a minimum sentence of 14 years’ imprisonment for a murderer be held to
be arbitrary or unreasonable.35.
(b) Interfere with Prison Rules which classify ordinary and dangerous prisoners and those under sentence
of death.36.
(c) Interfere with obstruction of movement along the highway by the Police, in the interest of public order,
provided such obstruction is reasonable.37.
(d) A provision for summary dismissal of an appeal in a criminal case would not necessarily be unfair, if
certain safeguards against arbitrary action are observed.38.
(e) The provision for death penalty under section 302, IPC does not constitute a cruel or unreasonable
punishment; nor can it be said to be unreasonable, having regard to the provisions in section 354(3) of
the CrPC, 1973; for appeal, remission etc. against the sentence,39. and also because it is restricted to
cases of serious offences committed under exceptional circumstances where any other penalty would
be inadequate.39 It does not violate Articles 14, 19 or 21 of the Constitution,39 so also section 354(5)
CrPC, providing for hanging by the rope.40. In Bachan Singh’s case, the court went to the extent of
holding that penal laws which define offences and prescribe punishment for the commission of offence
do not attract Article 19(1) as these are not having a direct impact on the rights conferred under Article
19(1), since there is no right under Article 19(1) to commit murder. A law is hit by Article 19(1) if the
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direct and inevitable consequence of such law is to take away or abridge any of the freedoms
guaranteed by Article 19(1). Deprivation of freedom consequent upon an order of conviction and
sentence is not a direct and inevitable consequence of the penal law, but is merely incidental to the
order of conviction and sentence which may or may not come into play i.e., which may or may not be
passed. In pith and substance, penal laws do not attract Article 19(1) as these laws do not deal with
the subject matter of Article 19(1). The provision of death penalty as an alternative punishment for
murder is also not violative of Article 21. This article clearly brings out the implication that the founding
fathers recognised the right of the State to deprive a person’s life or personal liberty only in accordance
with fair, just and reasonable procedure established by valid law. The procedure provided in Criminal
Procedure Code for imposing capital punishment for murder cannot be said to be unfair, unreasonable
or unjust. The court, however, emphasised that death penalty is an exception rather than the rule and it
ought to be imposed only in the “gravest of cases of extreme culpability” or in the “rarest of rare” cases
when the alternative option is unquestionably foreclosed. In that case, JUSTICE BHAGAWATI
expressed his dissenting opinion. Learned Judge held section 302 and section 354(3) of CrPC as
being violative of Articles 14 and 21, because these provisions confer an unguided and standardless
discretion on the court whether to liquidate an accused or let him live, and vesting of such discretion
renders death penalty arbitrary or freakish.
A legislation (Arms Act, 1959) which provides for mandatory death sentence which also does not
provide for judicial review is not valid under Article 13 and also because of the guarantee under
Articles 14 and 21 of the Constitution. Any law depriving the judiciary power of exercising its
discretion of not awarding death sentence and shutting its eyes to mitigating circumstances is
unconscionable.41.
XI. It is striking, that, notwithstanding the foregoing onslaughts on Gopalan,42. a 1980-Constitution Bench in
Bachan Singh v State of Punjab [supra (paras 41–42, 58, 59 and 61)] has, instead of overruling Gopalan42
affirmed the majority view as to the applicability of Article 19(l) to laws falling under Article 21.43.
[Art 21.3.21] Investigation proceeding
1. Investigation into anoffence is a procedure established by law, e.g., the CrPC, and the power to
investigate is conferred by the law upon the Police or a specified statutory authority.44.
2. The court cannot interfere with the investigation proceeding, so long as no provision of the law or the
Constitution is violated.
3. The court can interfere—

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(a) Where the investigation or the ensuing prosecution has been initiated on extraneous
considerations or for some purpose other than the detection and punishment of a crime.45. Right to
life and personal liberty cannot be deprived without following the procedure prescribed by law. A
tainted investigation definitely leads to miscarriage of justice. It deprives a man of his fundamental
right guaranteed under Article 21. An investigation cannot be interfered with or influenced by court.
In this way, the investigating agencies are guardians of liberty of innocent persons.46. What is
meant by fair and proper investigation? Court held that it has twin purposes – (1) the investigation
must be unbiased, honest, just and in accordance with law; (2) the entire emphasis on a fair
investigation has to be to bring out the truth of the case before the court of competent jurisdiction.
Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for
the court of law to interfere with the investigation, much less quash the same or to transfer to
another agency. Bringing out the truth by fair and investigative means in accordance with law
would essentially repel the basis of an unfair tainted investigation or cases of false implication. It is
inevitable for a court of law to pass a specific order as to the fate of the investigation which in its
opinion is unfair and in violation of settled principles of investigative canons.47.
(b) Mala fides or bias of the investigation officer.48.
In such a case, the aggrieved person may move the High Court under Article 226 to obtain
a writ of mandamus to restrain the investigating officer from misusing his legal powers.49.
(c) Instead of quashing the investigation proceeding, the High Court has residuary power to give
appropriate directions to the Police when the requirements of the law are not being complied with
and the investigation was not being done properly and with promptitude.50. The Magistrate or the
High Court may direct the Police to complete the investigation within a reasonable time (para 45).48
4. On the other hand—
(a) The Magistrate cannot direct the Police to submit a charge-sheet or compel the Police to form a
particular opinion on investigation and to submit a report according to such opinion.51.
(b) The court cannot look into evidence in support of the allegations against the accused, at this
stage.52.
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But at the same time, the Supreme Court issued guidelines regarding procedural aspects to be followed in the
event of arrest and detention of a person.53. Direction was also given to States and Union Territories to file
affidavit of compliance and when not satisfied with the steps taken, further direction was also given.54.
In many cases, the Supreme Court has directed that investigation be conducted by efficient and impartial
agencies when it is prima facie proved that there is improper investigation by State police and highly placed
police officials are involved. In such cases, in order to do complete justice, direction for investigation by
independent and specialised agency like CBI can be granted.55.
[Art 21.3.22] Right to speedy trial (A) U.S.A.—
U.S.A.
In the U.S.A., it has been held that apart from the specific guarantee in the 6th Amendment,56. the guarantee of
Due Process requires that the trial of the accused, who is presumed to be innocent, should be as speedy as the
circumstances permit.57. Otherwise, the trial cannot be said to be “fair”.57
…that the trial be ‘speedy’; and here also the injunction is addressed to the justice and sound judgment of the court. In
this country, where officers are specially appointed or elected to represent the people in these prosecutions, their
position gives them an immense power for oppression, which is to be feared they do not always sufficiently appreciate
and wield with due regard to the rights and protection of the accused. When a person charged with crime is willing to
proceed at once to trial, no delay on the part of the prosecution is reasonable, expect only that which is necessary to
secure the attendance of witnesses. Very much, however, must be left to the judgment of the prosecuting officer, in
these cases; and the court would not compel to proceed to trial at the first term after indictment or information filed, if
the officer who represents it should state, under the responsibility of his official oath, that he was not and could not be
ready at that time. But further delay would not generally be allowed without a more specific showing of the causes
which prevent the State proceeding to trial, including the names of witnesses, the steps taken to procure them and the
facts expected to be proved by them, in order that the court might judge of the reasonableness of the application and
also that the prisoner might, if he saw fit to take that course, secure an immediate trial by admitting that the witness, if
present, would swear to the facts which the prosecution have claimed could be proved by them.58.
(B) India.—
India
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In a number of cases, the Indian Supreme Court has established the proposition59. that the right to a speedy
trial is a Fundamental Right implicit in Article 21,59 because no procedure can be fair unless it ensures a speedy
determination of the guilt of the accused.59
There is a qualitative difference between fair trial and speedy trial. Both are integral parts of Article 21. Unlike
the accused’s right to fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in
defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances.
Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of each case.
Mere lapse of several years since the commencement of prosecution by itself may not justify the
discontinuation of prosecution or dismissal of indictment. The factors concerning the accused’s right to speedy
trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of people in judicial
system. Speedy trial secures the right of accused, but it does not preclude the right of the public justice. The
nature and gravity of the crime, persons involved, social impact and social needs must be weighed along with
the right of the accused to speedy trial and if the balance tilts in favour of the former, the long delay in
conclusion of criminal trial should not operate against the continuation of the prosecution and if the right of the
accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour,
the prosecution may be brought to an end.60.
Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial
of justice.61.
The purpose of speedy trial may be stated thus: “ … In a criminal trial, it is in the society’s interest that the trial
concludes early and if the accused is guilty, he is duly punished. If on the other hand, the accused be not guilty,
an early conclusion of the trial is necessary to reduce for him to ordeal of the trial and vindicate his honour as
soon as possible. Speedy criminal trial is, therefore, necessary in the interest of both the accused and the
society. Delay frustrates this objective and is detrimental to the interest of everyone. Delay is the enemy of
justice. The object of punishing the guilty at the earliest also has a chastening effect as the others like minded
and has a preventive element to improve the crime graph. Delay in the trial frustrates this object even when the
prosecution is justified because of the waning interest of not merely the society, but also of the witnesses with
the passage of time which ultimately dilutes the prosecution evidence and facilitates the acquittal of the guilty. It
is not unofficial that the usual delay in conclusion of the trial reduces the fear and subconsciously provokes
crime because of the fair chance of avoiding punishment.”62.
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In this context, our Supreme Court after some controversy, accepted the further American corollary that, in the
absence of any statutory provision to that effect, speedy trial did not require that the trial must be completed
within any specified period of time.63.
It was held that it is neither advisable nor practicable to fix any time limit for trial of offences and any such rule is
bound to be qualified one.64. In A.R. Antulay v R.S. Nayak,65. the Supreme Court gave certain guidelines
expending the right to speedy trial. It was held wherever there was inordinate delay or where the proceedings
were pending for too long and any further proceeding were deemed to be oppressive and unwarranted, they
were put to end by making appropriate order. It was observed that right to speedy trial following from Article 21
encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, remission or re-trial.
Speedy trial has been recognised as an inherent and implicit aspect in the spectrum of Article 21 of the
Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is the
sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of
criminal justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to
remain a mere formality. Speedy trial cannot be regarded as an exclusive right of the accused. The delay in
conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of a
victim. One cannot afford to treat the victim as an alien or a total stranger to the criminal trial.66.
The Supreme Court in Antulay’s case (supra) formulated the following guidelines for this speedy trial of cases:
(1) The concerns underlying the right to speedy trial from the point of view of the accused are:
(a) The period of remand and pre-conviction detention should be as short as possible. In other words, the
accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly
prolonged investigation, inquiry or trial should be minimal; and
(c) Undue delay may well result in impairment of the ability of the accused to defend himself whether on
account of death, disappearance or non-availability of witnesses or otherwise. In every case, where the
right to speedy trial is alleged to have been infringed, the first question to be put and answered is —
who is responsible for the delay? Proceedings taken by either party in delaying tactics nor can the time
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taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous
proceeding or proceedings taken merely for delaying the day of reckoning cannot be treated as
proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of
stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often
these stays obtained on ex parte representation.
The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on
the court and the prosecution an obligation to proceed with the trial with a reasonable dispatch.
The guarantee serves a three fold purpose – (1) it protects the accused against oppressive pre-trial
imprisonment; (2) it relieves the accused of the anxiety and public suspicion due to unresolved
criminal charges; and (3) it protects against the risk that evidence will be lost or memories dimmed
by the passage of time; thus impairing the ability of the accused to defend himself or herself.67.
(2) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one
must have regard to all the attendant circumstances, including nature of offence, number of accused and
witnesses, the workload of the court concerned, prevailing local conditions and so on—what is called, the
systemic delays. It is true that is the obligation of the State to ensure a speedy trial and State includes judiciary
as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
(3) Each and every delay would not necessarily prejudice the accused. Some delays may indeed work to his
advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context,
the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to
become a persecution. But the prosecution becoming persecution again depends upon the facts of a given
case.
(4) We cannot recognize or give effect to, what is called the “demand” rule. An accused cannot try himself, he is
tried by the court at the behest of the prosecution. Hence, an accused’s plea of denial of speedy trial cannot be
defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such
a demand and yet was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a
speedy trial cannot be put against the accused.
(5) Ultimately, the court has to balance and weigh the several relevant factors “balancing test” or “balancing
process” and determine in each case whether the Right to Speedy has been denied in a given case.
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(6) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has
been infringed, the charges or the conviction, as the case may be, shall be quashed. But this is not the only
course open. The nature of the offence and other circumstances in a given case may be such that quashing of
proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other
appropriate order, including an order to conclude the trial within a fixed time, where the trial is not concluded or
reducing the sentence where the trial has concluded, as may be deemed just and equitable in the
circumstances of the case.
(7) It is neither advisable nor practicable to fix any time limit for trial of offences. Any such rule is bound to be
qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the
shoulders of the prosecution. In every case of complaint of denial of right to Speedy Trial, it is primarily for the
prosecution to justify and explain the delay. At the same time, it is duty of the court to weigh all the
circumstances of a given case before pronouncing upon the complaint.
(8) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed
to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings
except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed
of on a priority basis.
In common cases, A Registered Society v UOI,68. and Raj Deo Sharma v State of Bihar,69. the Supreme Court
prescribed time limit for conclusion of trial which was held not good law in P. Ramachandra Rao v State of
Karnataka.70. It was held that prescribing period of limitation at the end of which the trial court would be obliged
to terminate the proceedings and necessarily acquit or discharge the accused and further making such direction
applicable to all cases in the present and for the future amounts to legislation which cannot be done by judicial
directives and within the area of the judicial law-making power available to constitutional courts, however
liberally Articles 32, 21, 141 and 142 of the Constitution are interpreted. Court at the same time gave
importance to section 309 of Code of Criminal Procedure to effectuate the right to speedy trial. The decision in
Raj Deo Sharma v State of Bihar,71. was later explained and further classification given in Raj Deo Sharma (II)
v State of Bihar.72. Speedy trial as such is not mentioned as a specific fundamental right in the Constitution.
The CrPC does not guarantee specifically any right to speedy trial. Nor is there any provision prescribing the
maximum period for which a magistrate can keep an under-trial in jail without trial. Nevertheless, the Supreme
Court has recognised the same to be implicit in the spectrum of Article 21 and has derived the right of an
accused to a speedy trial under Article 21. It is well settled that the right to speedy trial in all criminal
prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the
actual proceedings in court, but also includes within its sweep the proceedings relating to police investigation as
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well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular
category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has
to perform a balancing act taking into consideration all attendant circumstances and determine in each case
whether the right to speedy trial has been denied in a given case. Quick justice is now regarded as sine qua
non of Article 21. Inordinate delay may be taken as presumptive proof of prejudice.73. The procedure
prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some
amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial
becomes unduly long, fairness assured by Article 21 would receive a jolt.74.
In State v Narayan Waman Nerukar,75. the Court while emphasizing the importance and necessity for a speedy
trial gave importance to the provision of sections 309, 311 and 258 of Code of Criminal Procedure and held that
while considering the question of delay, the court has a duty to see whether the prolongation was on account of
any delaying tactics adopted by the accused and other relevant aspects which contributed to this delay.
Number of witnesses examined, volume of documents likely to be exhibited, nature and complexity of the
offence which is under investigation or adjudication are some of the relevant factors. It was held that there can
be no empirical formula of universal application in such matters. Each case has to be judged in its own
background and special features, if any. No generalization is possible and should be done.
It was declared that offences relating to corruption stand on a different footing. It was observed that the CrPC
provided periods for completing investigation in regard to offences punishable with sentences up to
imprisonment not exceeding three years. Provision have been incorporated in Chapter 36 of the Code imposing
a legal bar on the court to take cognizance of such offences after the lapse of the period of limitation fixed in
respect of different categories of offences, the punishment of which does not exceed the aforesaid limit. When
offence is punishable with imprisonment of severe and charge levelled in corruption, proceedings cannot be
quashed merely on the ground of delay.76. Where the accused himself is responsible for the delay, the same
cannot be taken advantage by him to have the prosecution dropped.77. In cases where the investigating
agency suspected a conspiracy to wage war and the investigation involved is of complex problems of sensitive
and political nature, and where the investigating agency has to tread warily and with circumspection, delay
cannot be a ground to quash the proceedings.78. Inordinate long delay for conclusion of trial, and when the
prosecution has no effective explanation for this delay, can be considered as a presumptive proof of prejudice
caused to the accused.79.
In A.R. Antulay v R.S. Nayak,80. the court said that there is a right to speedy trial, though no time-limit can be
prescribed. It is an obligation of the State as well as the complainant, as the case may be, to proceed with the
case with reasonable promptitude. Regarding the right to speedy trial, court laid down the following propositions
as guidelines, without seeking to be exhaustive as “it is difficult to foresee all situations”. (1) Fair, just and
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reasonable procedure implicit in Article 21 creates a right in favour of the accused to be tried speedily. Right to
speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the
societal interest also does not make it any the less right of the accused. It is the interest of all concerned that
guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy
trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal,
revision and re-trial. (3) The concern underlying the right to speedy trial from the point of the accused are: (a)
the period of remand and pre-conviction detention should be as short as possible. In other words, the accused
should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the wrong,
anxiety, expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation,
enquiry or trial should be minimal, and (c) undue delay may result in impairment of the ability of the accused to
defend himself whether on account of death, disappearance or non-availability of witnesses or otherwise.
No time-limit can be fixed for trial of any offence. Merely because no time-limit could be fixed, the right to
speedy trial does not become illusory.81.
In regard to long delay to pronounce judgment after the arguments were concluded, it was held that such delay
shakes the confidence of the people in the judicial system and affects the rights of parties under Article 21.
Court laid much emphasis on section 353(1) of the Code of Criminal Procedure. Necessary direction was given
by Supreme Court as to procedure to be adopted when judgment is not pronounced within a reasonable
time.82.
Lawyer’s boycott or strike is not a ground for adjournment especially when the accused is in jail. In such cases,
the court should look into matter itself and interfere if necessary on merits.83. A call by the Bar Council for
ceasing work and to compel an advocate to cease work for some period would affect the right under Article 21
as the same would affect the livelihood of the advocates.84.
The American Supreme Court has held85. that in determining whether any delay has resulted in a denial of
speedy trial, the court should weigh the following factors:86.
(a) Length of the delay;
(b) Reasons for the delay;
(c) Assertion of the guarantee by the accused;

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(d) Prejudice to the defendant.87.
The court would not, thus, quash the proceedings where the delay has been caused by the conduct of the
accused himself;88. or where the seriousness of the offence which undermines the economy of the nation calls
for a prolonged investigation.89. While holding that it is not open to a court to prescribe time-limit for disposal of
a case and direct that after termination of the period, if fixed, if the case does not get over, the accused shall be
acquitted or discharged. But the court can exercise powers under sections 309, 311 and 253 of CrPC to
effectuate the right of an accused to speedy trial. In an appropriate case, in exercise of jurisdiction under
section 482 of CrPC, the High Court can undoubtedly quash the proceedings,90. court held: “Where the court
has come to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the
conviction, as the case may be, can be quashed unless the court feels that having regard to the nature of
offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice”. The
court further observed that the power possessed by the High Court under section 482 CrPC is undoubtedly very
wide, but it has to be exercised in appropriate cases “ex debito justitiae” to do real and substantial justice for the
administration of which alone the courts exist.
Quantum of delay
There is no fixed standard as to the quantum of delay which would induce the court to discharge the accused
on the ground of denial of the right to speedy trial. It would depend upon the circumstances of each case,91.
read in the light of the principles mentioned above.
A. Cases where the court has interfered on the ground of denial of speedy trial:
(a) (i) The court quashed an F.I.R. on the ground that there was six years’ delay in registering the case
from the date of accrual of the cause of action.92.
The court upheld the quashing of a F.I.R. where it related to corrupt practices alleged to have been
committed by a Government servant during 1978–82, but the F.I.R. was filed in April, 1988, after
he had been allowed to retire on his superannuation; and sanction for his prosecution was given
only in September, 1988.93.
(ii) In the case of a juvenile offender, the prosecution was quashed by the Supreme Court on the ground
of violation of the “Fundamental Right” of speedy trial where the offence being a minor one, the trial
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together with the investigation, was not complete within nine months of lodging of the complaint or the
F.I.R.94.
(iii) In another case, the Court condemned the keeping of two young boys as under-trial prisoners for some
12 or 13 years owing to delay in the trial before the Sessions Court, without any fault of the
accused.95.
(b) Even where an acquittal is held to have been unjustified, the court may set aside an order for retrial,
where the nature of the offence being a minor one, five years have passed since the order of
acquittal.1.
(c) Where the convict cannot exercise his right of appeal owing to late supply of copy of judgment, there is
a violation of Article 21 by the State and further imprisonment may be unjustifiable.2.
B. Cases where the court has refused to interfere on the ground ofdelay:
(a) Mere delay in the investigation would not be a ground for quashing the proceedings where the crime
alleged is a serious and complicated one, such as a conspiracy to wage war against the State.3.
(b) Delay in the trial will not vitiate the trial where the accused himself was responsible for a part of the
delay and he was not prejudiced in the preparation of his defence by reason of the delay.4.
C. Aninordinately long period of delay is itself a prejudice to the accused and entitles him to be discharged, in
the absence of satisfactory explanation for the delay.5.
Merely because there is long delay in disposal of criminal trial, the proceedings cannot be said to be vitiated. In
the case of Ranjan Dwivedi v CBI,6. more than 37 years had elapsed after the charge was framed. Long delay,
though may give presumptive prejudice to the accused, that alone cannot be a ground to hold that the
proceedings are vitiated. Court said that only deliberate delay by prosecution would vitiate the right to speedy
trial and not delay which is caused unintentionally or due to unavoidable factors or due to administrative factors
over which prosecution has no control.7. Court said that delay not being attributable to prosecution, judicial
officers or failure of system (administrative or judicial system) cannot be said to prejudice the right to
reasonably expeditious trial. Simply because there is delay and family members have suffered, presumptive
prejudice cannot be assumed without considering other factors. A trial cannot be terminated merely on the
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ground of delay without considering reasons thereof.8. In Mansukh Lal Vithal Das Chauhan v State of Gujarat,9.
a Government servant was prosecuted on charges of corruption. The prosecution started in 1985 on the basis
of events which occurred in 1983. The Supreme Court in an appeal filed by the accused, found that the
sanction for prosecution was not valid and at the same time prohibited the State from initiating fresh
proceedings even after a proper sanction is obtained. Court said: “Normally when the sanction order is held to
be bad, the case is remitted back to the authority for reconsideration of the matter and pass fresh order of
sanction in accordance with law. But in the instant case, the incident is of1983 and, therefore, after a lapse of
fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated
from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for
an indefinite long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life,
philosophises early end to criminal proceedings through a speedy trial.”10.
In another case there was an absence of any progress in the trial during 20 years since the framing of a charge
under section 7 of the Essential Commodities Act.11.
But where the delay is due to the nature of the allegations, the court may not quash the proceedings but only
give directions for expediting the trial.12.
Where provision of statute (NDPS Act) restricts the right to get bail, speedy trial becomes more important.
Though some amount of deprivation of personal liberty cannot be avoided in such cases, if the period of
deprivation pending trial becomes unduly long, fairness assured by Article 21 would be undermined to an
unacceptable extent. In cases where the accused person has suffered imprisonment, which is half the
maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of
Article 21. In such cases, the accused can be released on bail.13.
1. The “fundamental right” to speedy trial has been extended to investigation of offences against child
offenders.14. Where a co-accused has obtained stay of trial which has caused delay in disposal of the criminal
case, that cannot be a ground to grant bail to another accused on the ground that his right to speedy trial is
breached.15.
High Court cannot invoke its inherent powers to stay investigation, registration of FIR and trial in criminal cases
especially in cases involving murder, rape, kidnapping and dacoity and thus prevent the right of speedy trial. It
amounts to tyranny by judicial process.16.
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2. The procedural fairness required by Article 21, including the right to a “speedy trial” has to be observed at
every stage till the last breath of the accused, and would, therefore, extend to the disposal of mercy petitions
under Article 72.17.
[See, further, Delay in execution of death sentence: post].
3. Once it is held that speedy trial is a Fundamental Right, it becomes a constitutional obligation of the Supreme
Court to give appropriate directions to enforce this right of the accused,18. e.g., to direct a Magistrate to
consider (even suo motu, if necessary) whether any under trial prisoner, who has been in jail for more than 12
months after his commitment to the Court of Session, because the trial has not been completed.18
A statutory provision (under UP Gangsters Act, 1986) mandating that trial of any offence under the special
legislation by Special Court shall have precedence and shall be concluded in preference to trial in other courts
which shall accordingly remain in abeyance does not deny the right of the accused for speedy trial. It was held
that relevant statutory provision was incorporated, so that the accused does not face trial in two cases
simultaneously and a case before the Special Court does not linger owing to clash of dates in trial. As the trial
under the Special Act would be in progress, the accused would have the fullest opportunity to defend himself
and there cannot be any denial of fair trial. Court said that the concept of speedy and fair trial is neither
smothered nor scuttled when the trial in other courts is kept in abeyance. Court also said that Article 14 is also
not violated.19.
Right to speedy trial being a fundamental right, State has a duty to provide adequate number of judges and
infrastructure for their functioning. Financial crunch cannot be a ground for disowning the constitutional duty.20.
The right to speedy trial also applies to proceedings for child’s custody. It is in the interest of the minor child.21.
4. Where a trial has been pending for an inordinately long period without justification, the proceeding may be
quashed not only by an application under Articles 32 or 226 but also under section 482 of the CrPC, 1973.22.
5. Instead of quashing the prosecution, the court may grant bail where the trial is not likely to be concluded
early, and there is no substantial risk of the accused’s absconding, if granted bail.23.
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Where the accused was continuing in jail for more that seven years due to trial courts insensitivity to take swift
action by adopting appropriate trial procedures, direction was given to release the accused on bail.24. In Akhtari
Bi v State of M.P.,25. it was held that when an appeal is filed against conviction and the appeal could not be
disposed of for more than five years and the accused is in jail, he may be released on bail.26.
An undertrial prisoner is entitled to the presumption of innocence and to the protection against any
unreasonable restriction on his liberty under Article 21.27. When a Magistrate finds that the trial of an accused
in the court of sessions has not started long after committal (under jail custody) he should suo moto consider
whether the accused should be released on bail.28. In that case, the court also deprecated the practice or
discarded the traditional view of granting bail only on monetary surety. It was observed that where the accused
has roots in the community and there is no likelihood of his absconding, the court may release him on personal
bond.
Even in the case of ordinary bail, which is governed by sections 436 and 437 of CrPC, the new perspective is
that since refusal of bail affects the fundamental rights of the accused under Article 2129. bail should not be
refused except where it is necessary to prevent the accused from fleeing away from justice and excessive bail
should not be required from a poor man.
Where the Supreme Court found that the conduct of the accused was such that he did not deserve bail, as he
deliberately used dilatory tactics for delaying trial, court directed that no court was to entertain any further bail
application by appellant/accused.30. In Rajesh Ranjan Yadav v CBI the court observed that the fact that the
accused is a four time MP is an irrelevant factor. Court directed that the trial court should ensure that defence
witnesses be examined on a day to day basis and the judgment was also to be pronounced without delay.
In cases of undertrials charged with the commission of an offence or offences, the court is generally called
upon to decide whether to release him on bail or to commit him to jail. The decision has to be made, mainly in
non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the
background of the accused, the possibility of his jumping bail, the impact that his release on bail may make on
the prosecution witnesses, its impact on society and the possibility of retribution etc.31.
Article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedom
provides: Everyone arrested or detained in accordance with the provision of para 1(c) of the Article shall be
brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be
“entitled to trial within a reasonable time” or to release pending trial. Release may be conditional by guarantees
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to appear for trial. The convention does not fix a definite time for a detention period. Instead the words
“reasonable time” are used to convey the permissible duration period. In determining whether the detention
period has exceeded a “reasonable time” the court will examine the reasons given by the national authorities to
justify the continued detention. If the reasons are not relevant and efficient and the accused is not released,
then there is violation of Article 5(3). In Neumeister v Austria,32. it was stated that “until conviction the accused
must be presumed innocent and the purpose of the provision under consideration is essentially to require his
provisional release once his continuing detention ceases to be reasonable”. But in certain circumstances the
presumption of innocence may somewhat be disregarded, if there is likelihood that if released prior to trial, the
suspect would, for instance, commit further offences. In Scott v Spain,33. where the court said that continued
detention can only be justified if there are “specific indication” of a “genuine requirement of public interest”
which outweighs the rule of respect for individual liberty. Article 5(3) confers a right to be brought promptly
before the judicial authorities; in other words, not to be held for long periods without a hearing. It covers both
arrest and detention and detainees held on remand. There will be some allowable delay in both the situations;
the question is therefore what is meant by the expression “promptly”. Its meaning was considered in Brogan v
UK34. in relation to an arrest and detention arising by virtue of special powers under section 12 of the
Prevention of Terrorism (Temporary Provision) Act, 1984. The applicants complained of the length of time they
had been held in detention without being produced before the Judge, on the basis that it could not be termed as
“prompt”. The court took into account the need for special measures to combat terrorism; such measures had to
be balanced against individual rights. In that case, the court found that detention for four days and six hours
was too long.35.
To determine whether the State excluded the “reasonableness” requirement by not releasing the suspect, the
court will have to consider the following factors:
(1) The complexity of the case, i.e., has the investigation taken an unusual amount of time due to complicated
issues involved. As immediate admission of guilt, followed by a delay before coming to trial may be taken into
account to show that the investigation was not conducted with all due diligence—a delay of more than four
years was not “reasonable time”,36. but in cases of detection of fraud, if more time is taken, the detention is
valid.
(2) The risk of collusion etc., where there is possibility of those involved conniving together to interfere with the
investigation.
(3) The risk of the suspect fleeing the country; does the suspect have strong family connections, a home,
business which prevent him from absconding. In such cases, release may be refused where there is a danger
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of the suspect absconding to another country. In Neumeister v Austria (No, 1),37. the applicant was arrested
and detained on remand in tax fraud charges. He was released and re-arrested and was imprisoned for nearly
two months on the ground that there was an apprehension that he might abscond. His request for release was
rejected. By the time his case was taken up for trial he had already spent nearly 2½ years in jail. The applicant
complained that he was not brought to trial within a reasonable time, nor was he released on bail. One of the
reasons given by the Government was the apprehension that the applicant may flee to Finland and also due to
further incriminating evidence discovered against him in the meanwhile. However, other factors were also taken
into account e.g., his family ties, his home, his occupation, etc. all go to decide whether there was a real danger
of his absconding; added to that was the time spent on remand which would eventually go towards his prison
sentence as the time served, if subsequently convicted. Court found his prolonged detention to be a breach of
Article 5(3).
(4) The risk of the suspect re-offending. Here the court will take into account such factors as his previous record
and character, and whether he is already on bail for another offence.38.
In Moti Ram v State of M.P.,39. it was declared that “bearing in mind the need for liberal interpretation in areas
of special justice, individual freedom and indigents’ rights … bail covers both-release as one’s own bond, with
or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on
variables.” It was held that it is not within the power of the court to reject a surety because he or his estate is
situated in a different district or State. There was no law prescribing the geographical discrimination implicit in
asking for sureties from the court district.
The relevant criteria for the grant or refusal of bail in the case of a person who has either been convicted and
has appealed or one whose conviction has been set aside, but leave has been granted by the Supreme Court
to appeal was considered by the Supreme Court in Gudikanti Narasimhulu v Public Prosecutor, High Court of
A.P.40. When the crime charged (of which the conviction has been sustained) is of higher magnitude and the
punishment of it assigned by law is of extreme severity, the court may reasonably presume, some evidences
warranting that no amount of bail would secure the presence of the convict at the stage of judgment should he
be enlarged. The nature of the charge is the vital factor and the nature of the evidence also is pertinent. The
punishment to which the party may be liable, if convicted or conviction is confirmed also bears on the issue.
Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the
benignant jurisdiction of the court to be freed for the time being. The antecedents of the person who is applying
for bail, whether he has a bad record particularly a record to suggest that he is likely to commit serious offences
while on bail, are all relevant.
[Art 21.3.23] The present position: Interplay of Articles 14, 19 and 21
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1. The trend in the Supreme Court is that when constitutionality of a statute is challenged as arbitrary or
unreasonable, the court has to test its validity on the anvil of Articles 14, 19 and 21, read together.41. In A.R.
Antulay v R.S. Nayak,42. the court said: Once Gopalan v State of Madras43. was overruled in R.C. Cooper v
UOI44. and its principle extended to Article 21 in Maneka Gandhi v UOI,45. Article 21 got unshackled from the
restrictive meaning placed upon it in Gopalan’s case. It came to acquire a force and vitality hitherto unimagined.
A burst of creative decisions of this court on the heels of Maneka Gandhi gave a new meaning to the article and
expanded its content and connotation. Since Maneka Gandhi’s case, Supreme Court has again and again
underlined that the themes of Articles 14, 19 and 21 are not mutually exclusive, but they sustain, strengthen
and nourish each other.46.
The present position of expression “personal liberty” in Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and some of them have been raised to the
status of distinct Fundamental Rights and given additional protection under Article 19. Right to personal liberty
also means the life free from encroachments unsustainable in law. Any law interfering with personal liberty of a
person must satisfy the triple test – (1) it must prescribe a procedure; (2) the procedure must withstand the test
of one or more of the Fundamental Rights conferred by Article 19 which may be applicable in a given situation;
and (3) it must be liable to be tested with reference to Article 14.47.
2. In the case of public employment, another provision to be considered in this context is Article 16(l).41
[Art 21.3.24] Capital Punishment, constitutionality of
Before going into the constitutionality of Death Penalty, the following factors are necessary to be considered:
In his book, WILLIAM A. SCHABAS on The Abolition of the Death Penalty in International Law,48. in the
introductory part has given a vivid picture about the existence of death penalty from very early times and the
present trend how the society treats the same, i.e., necessity of its continuance and abolition. Relevant portions
of the introductory part read thus:
“The death penalty has existed since antiquity. Anthropologists even claim that the drawings at Valladolid by
prehistoric cave dwellers show an execution. The death penalty may well have had its origins in human
sacrifices. In positive law, capital punishment can be traced back as early as 1750 BC, in the lex talionis of the
CODE OF HAMMURABI.”49. The Bible set death as the punishment of such crimes as magic, violation of the
Sabbath, blasphemy, adultery, homosexuality, relations with animals, incest and rape.50. Yet the Jewish Courts
developed procedural safeguards for its employment. According to the TALMUD, one rabbi called “destructive”
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a Sanhedrin who imposed the death sentence once in seven years. Another said “once in seventy years”, and
two others said they would never impose a death sentence.51.
During the Middle Ages, the death penalty was characterized by particular brutality.52. Its legitimacy was
defended by many of the great thinkers of the Renaissance and the Reformation. GROTIUS considered the
issue at some length, finding it to be justified with reference to the Bible and other examples of Christian mores
and in fact used the acceptance of capital punishment to justify the legality of warfare.53. Both THOMAS
HOBBES and JOHN LOCKE admitted that the death penalty was justifiable.54.
The international experts who assembled in the aftermath of the Second World War with the mission of
enumerating fundamental rights and freedoms included in their lists a “right to life”. As obvious as the right’s
importance appeared, its content was far from evident. Central to the preoccupation of these drafters was the
issue of the death penalty. The post-war context had sensitized them to the terrible abuses of the death penalty
prior to and during the armed conflict. Furthermore, they were conscious of giving effect to an abolitionist
movement that had been gaining support, albeit with sporadic reversals, for the past two centuries. At the same
time, the death penalty was almost universally applied, and even many of the most steadfast opponents of
capital punishment were tempted to make exceptions in the cases of war criminals and collaborators. This was
the dialectic that confronted those who first proclaimed, in international law, a “right to life”.
The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December
1948, declared the right to life in absolute fashion, any limitations being only implicit.55. The same approach
was taken in the American Declaration on the Rights and Duties of Man, adopted on 4 May 1948.56. In several
subsequent international human rights instruments, notably the International Covenant on Civil and Political
Rights,57. the European Convention on Human Rights58. and the American Convention on Human Rights,59.
the death penalty is mentioned as a carefully worded exception to the right to life. In other words, from a
normative standpoint, the right to life protects the individual against the death penalty unless otherwise provided
as an implicit or express exception. The right to life in international law also ensures that the death penalty
cannot be imposed without rigorous procedural safeguards, or against certain protected categories of persons,
such as juveniles, pregnant women and the elderly.
There are some rather obvious exceptions to the right to life, indeed so obvious that there is really no need to
make explicit mention of them in the international norms. An individual has the right to self-defence, including
the right to take another’s life where his own life is threatened by that person. In recognizing a defence of self-
defence in its criminal legislation, the State breaches the right to life of the attacker. It is an exception that all
but the most suicidal would quarrel with, and one that can also be justified in the name of the right to life, for it
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protects the right to life of the victim. The international law of armed conflict protects enemy combatants from
criminal charges if captured, providing they bear arms, wear uniforms and meet the other requirements of the
third Geneva Convention60. and the Protocol Additional I.61. Yet such protection, by tolerating the “accidental”
killing of civilians caught in the armed conflict, violates the right to life of these innocent victims. Here too, the
exception to the right to life is an implicit one.
The European Convention on Human Rights is the only instrument to attempt an exhaustive list of exceptions to
the right to life. Careful analysis shows that it is not in fact a thorough one. The self-defence exception is
mentioned but not that of wartime. The United Nations and the Inter American systems chose to avoid such an
approach, and instead declared simply that life could not be taken “arbitrarily”, leaving the scope of such
exceptions to the interpreter. But all three instruments list separately what is the most striking exception to the
interpreter. But all three instruments list separately what is the most striking exception to the right to life, the
death penalty. Even the European Convention sets the death penalty apart from the other exceptions, dealing
with it in a distinct paragraph. This is because, while the other exceptions are logical and self-evident, there is
something contradictory and incompatible about recognizing a right to life and at the same time permitting
capital punishment. The drafters of the various instruments, intuitively, knew this.
This “right to life” has been described at various times as “the supreme right”,62. one of the most important
right,63. the most fundamental of all rights,64. the primordial right,65. the foundation and cornerstone of all the
other rights,66. LE DROIT SUPREME, LA CONDITION NECESSAIRE A L’EXERCICE DE TOUS LES
AUTRES, LE NOYAUIRREDUCTIBLE DES DROITS DE I’HOMME67. the prerequisite for all other rights,68.
and a right which is “basic to all human rights”.69. Basic as it appears, it is at the same time intangible in scope,
and vexingly difficult to define with precision. The French scholar FREDERIC SUDRE describes it as an
“uncertain” right.70. Perhaps more than any other, it is a right whose content is continuously evolving, in step
with the hegemony of ever more progressive attitudes to capital punishment, nuclear arms, abortion and
euthanasia, to mention only a few of the many issues that interpreters of the right to life have addressed.
There are two contending schools on the interpretation of the “right to life”. The more restrictive school, one of
narrow construction, would limit its scope of those issues considered by the drafters of the Universal
Declaration of Human Rights, the International Convention on Civil and Political Rights and the European
Convention on Human Rights.71. The narrow view confines the protection offered by the right to life to such
matters as capital punishment, abortion, disappearances, non-judicial executions and other forms of intentional
or reckless life-taking by the State.
The broader view of the right to life is considerably more recent and attempts have been made to introduce an
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economic and social content, a “right to live”, as it is sometimes called.72. According to this approach, the right
to life includes a right to food, to medical care and to a healthy environment. This is the outlook that has been
adopted by the Human Rights Committee in the interpretation of Article 6 of the International Covenant on Civil
and Political Rights73. and is shared by some of the States Parties.
However, both schools agree that the issue of the death penalty is at the core of the right to life, and this is
confirmed by a historical approach to the definition of the right. The early international instruments, notably the
Universal Declaration of Human Rights, drew heavily from the National Declaration of Fundamental Rights that
was inspired by the Magna Carta, the United States Bill of Rights, and the French Declaration des droits de
L’homme et du citoyen. There was nothing absolute about these early statements of the right to life; it was a
right to protection of one’s life from arbitrary deprival by the State, in reality more of a licence to the State to
execute, providing that procedural guarantees were observed. The earliest recognition of this protection is
Magna Carta, whose Chapter 26 provides:
No freedman shall be taken or imprisoned, or be disseised of his freehold, or libraries, or free customs, or be outlawed,
or exiled, or any otherwise destroyed, nor will we pass upon him, nor condemn him, but by the lawful judgment of his
peers, or by the law of the land.74.
Declarations of the right to life appear in a number of pre-revolutionary American documents, authorized by
Puritans who had fled religious per section in England. For example, the Massachusetts Body of Liberties,
dated 10 December 1641, proclaims:
No mans life shall be taken away … Unlesse it be by bertue or equitie of some expresse law of the country narrating
the same, established by a generall cort and sufficiently published….75.
A much more recent instrument, the African Charter of the Rights and Welfare of the Child, provides that the
death penalty shall not be pronounced for crimes committed by children below the age of eighteen, and that a
death sentence shall not be imposed on expectant mothers or mothers of infants and young children.76. Like
the African Charter on Human and People’s Rights, the Charter of Rights and Welfare of the Child is to be
construed with reference to international human rights law, and specifically the Convention on the Rights of the
Child and the Universal Declaration of Human Rights.77.
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The Islamic system of protection of human rights is the least developed of the regional systems. It has no
convention as such, although in 1981 the Islamic Council adopted a Universal Islamic Declaration of Rights,
which states:
(a) Human life is sacred and inviolable and every effort shall be made to protect it. In particular, no one shall be
exposed to injury or death, except under the authority of the law.78.
The final phrase appears to permit capital punishment and is in any case consistent with the practice of all
Islamic States. In international fora such as the United Nations, the Islamic nations have been among the most
aggressive advocates of the death penalty, defending its use in the name of obedience to Islamic law and the
structures of the Sharia.79. The Islamic Conference has prepared a document on human rights and Islam,
whose Article 2 guarantees the right to life to “every human being”, and adds:
ilappartient aux individus, societes et Etats de proteger ce droit contre toute violation eventuelle, et il est interdit de
mettre fin a une viequelconque, sauflorsquecela est en accord avec la chari’a.80.
The Islamic system of human rights, still very rudimentary in comparison with the other regional systems, does
not even contemplate abolition of the death penalty.
The Arab Charter of Human Rights, adopted on 15 September 1994, proclaims the right to life in the same
manner as the other international instruments. However, three distinct provisions, Articles 10, 11 and 12
recognize the legitimacy of the death penalty in the case of “serious violations of general law”, prohibit the
death penalty for political crimes, and exclude capital punishment for crimes committed under the age of
eighteen and for both pregnant women and nursing mothers, for a period of up to two years following
childbirth.81. In international fora such as the United Nations, Arab (and more generally, Islamic) nations have
been among the most aggressive advocates of the retention of death penalty, defending its use in the name of
obedience to Islamic Law and the structures of the Sharia.82. However, human rights organizations have begun
to mobilize around the issue, and there is now at least a voice arguing that Islam, like all other religions and
ideologies, must evolve towards the suppression of capital punishment, (pp. 17–18).
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Taken as a whole, this review of international norms on the death penalty shows an inexorable progress
towards abolition. In the early stages, abolition was only partial. Certain categories of individuals, such as
juveniles, pregnant women and the elderly, were excluded from capital punishment, and its use was confined to
an ever shrinking list of serious crimes. By the 1980s, the abolitionist movement in international law has gained
sufficient momentum that treaties proclaiming abolition of the death penalty could be drafted and that treaties
proclaiming abolition of the death penalty could be drafted and opened for signature, ratification and accession.
Nearly fifty States have now bound themselves to one or another of the protocols on abolition of the death
penalty, and several others have signed the treaties or announced that they are contemplating ratification.
Given the enormous and rapid progress in the development of international norms respecting the death penalty
since the end of the Second World War, the general acceptance of abolition and its elevation to a customary
norm of international law, perhaps even a norm of jus cogens, may be envisaged in the not too distant future.
(pp. 19–20).
In the concluding portion of the book, the learned author has also considered the safeguards and the
applicability of death penalty to more serious crimes and how far the death penalty has been abolished in
respect of certain categories of persons. The portion read thus:
“Conventional international law has also sought to limit the scope ratione materiae of the death penalty, with
such expressions as “the most serious crimes”. The problem is not with the existence of a norm but rather with
the varying definitions that States provide for it, it being universally accepted that the death penalty should not
be used for petty offences. The periodic reports to the Human Rights Committee show that many States
consider this term to encompass political offences and economic crimes, although this view is not shared by the
Committee. Islamic Law even recognizes the death penalty for such crimes as adultery. The “safeguards”
adopted by the Economic and Social Council state that the scope of such crimes “should not go beyond
intentional crimes, with lethal or other extremely grave consequences” [Safeguards’ Article 1]. While it can be
affirmed that customary international law prohibits the death penalty for the crime of listening to a prohibited
radio broadcast”,83. neither State practice nor opinion juris are sufficiently consistent to contend that it also
excludes non-violent crimes or that it is limited to intentional crimes with lethal or comparable consequences.
Several categories of persons have been excluded from the scope of the death penalty by conventional norms.
The prohibition on the execution of pregnant women or of young mothers is recognized in virtually all of the
international instruments, [Civil Rights Covenant, Articles 6 and 5; American Convention, Articles 4 and 5;
Protocol Additional I to the 1949 Geneva Convention and Relating to the Protection of Victims of International
Armed Conflicts, Articles 76 and 3; Protocol Additional II to the 1949 Geneva Convention and Relating to the
Protection of Victims of Non-International Armed Conflicts Articles 6 and 4] and, as the reports to the Secretary-
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General and the Human Rights Committee attest, this is also consistent with State practice. After birth, the
length of any moratorium varies in different States and is some times no more than forty-day confinement
period.84. Considerable attention was devoted to this problem at the 1977 Diplomatic Conference on the
Additional Protocols. In practice, the execution of pregnant women or mothers of young children is very rare in
peacetime85. although it may be increasingly common during war, especially as women play a more active role
as combatants.
The American Convention is the only international treaty to prohibit execution of persons over seventy. The
concept provoked virtually no discussion or debate during the drafting of the Convention. The question did not
even arise in the preparation of other international instruments, such as the Civil Rights Covenant or the
Additional Protocols to the Geneva Conventions. Although proposed for inclusion in the “safeguards”, it was cut
from the final draft, only to be added four years later in an Economic and Social Council Resolution. [ESC Res.
1989’64]. It is hard to find the requisite elements of customs with respect to execution of the elderly.
The same is not the case, however, for the prohibition of execution of persons for crimes committed while under
eighteen years of age. State practice with a few lingering exceptions, is consistent with such a ban.86. Amnesty
International reports that only seven States, Barbados, Iraq, Iran, Nigeria, Pakistan, Bangladesh and the USA,
executed juveniles during the 1980s.87. But all of these States, with the exception of the United States, have
now ratified the Convention on the Rights of the Child without any reservation to its provision prohibiting such
executions.88. The norm has been recognized without protest during the adoption of several other international
human rights or humanitarian instruments.89. The Human Rights Committee has stated that the prohibition of
execution of children constitutes a customary norm, although it has not precisely specified the cut-off age.90. In
declaring that the United States reservation to Article 6$5 of the Covenant was not compatible with the object
and purpose of the instrument. It may have implicitly recognized that execution for crimes committed under the
age of eighteen was contrary to a customary norm.91.
The issue of whether the prohibition of juvenile executions is a customary norm has been litigated before the
Inter-American Commission on Human Rights, which concluded that there was such a norm prohibiting
execution of children but that a specific age such as eighteen could not be determined as a cut-off exposure to
the death penalty.92. The Commission’s reasoning on this point is unclear and it seemed more impressed by a
different finding, namely that the United States had protested the emergence of such a norm. But the United
States did not protest Article 68$4 of the Fourth Geneva Convention or Article 6$5 of the International Covenant
during the drafting of those instruments, at which it was present. The International Court of Justice has held that
objection to formation of a customary norm must be made “consistently and uninterruptedly”.93. An equivocal
challenge to the provision during the drafting of the American Convention was later withdrawn by the
representative of the United States. If a State does not protest the formation of a norm in a timely fashion, a
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subsequent objection is insufficient. A genuinely persistent objector may legitimately argue that the customary
norm, even if it exists, is not opposable to it,94. although this rule does not apply if the norm is one of jus
cogens.95.
There is clear evidence that the prohibition of executions for crimes committed while under eighteen is
becoming a customary norm of human rights law, although there is as yet no judicial or quasi-judicial authority
to support such a conclusion. Theodor Meron has warned about a ‘tendency to ignore, for the most part, the
availability of evidence of State practice (scant as it may have been and to assume that noble humanitarian
principles that deserve recognition as the positive law of the international community have in fact been
recognized as such by States. The “ought” merges with the “is”, the lex ferenda with the lex lata.96. In any case,
virtually all States, including the United States which has signed the Convention on the Rights of the Child
without reservation, are now bound by conventional obligations to this effect. The debate about whether it is
also a customary obligation is largely academic.
The Economic and Social Council “Safeguards” added the insane to the list of those who cannot be executed.
Insane persons do not normally stand trial, but it is well documented that individuals who are fit to stand trial
and properly convicted sometimes become insane before sentence is carried out. The addition of this category
to the “Safeguard” was not challenged, and it is consistent with State practice, no State having indicated in any
of the reports filed with the United Nations that it will execute the insane. It is, therefore, a norm of customary
law that the insane may not be executed.1. Unlike age or pregnancy, however, it is not always an easy matter
to establish whether a person is insane, or not (pp. 303–06).2.
Whatever arguments Criminology may offer for awarding radical punishment for hardened3. criminals, a case
for its abolition or, at least, narrowing down its scope has been advanced in almost all democratic countries,
with the development of the concept of the dignity of man since the Universal Declaration of Human Rights,4.
followed by other international Charters which have since elaborated this basic theme.
In the present context, we are not concerned with its political or sociological aspect, but the constitutional
validity or otherwise of capital punishment, on the basis of the existing written Constitutions of the U.S.A. and in
India, in particular, where the question has been brought before the Courts during the last decade.
(A) U.S.A.—
U.S.A.
Even though there has been a current opinion, judicial and non-judicial, for some years, that capital punishment
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was out of tune with the modern age of human rights, until 1972, the advocates for its abolition could not secure
a majority of the Supreme Court in their favour. When the Constitution of the United States was framed, the
fathers of the Constitution found nothing cruel in death penalty which was assumed to be in existence by the
5th and 14th Amendments to the Constitution and this view was sustained by American Supreme Court in
Lousiana v Resweber.5. But, even in the 1958 case, it was acknowledged that the concept underlying the
Eighth Amendment is nothing less than “the dignity of man”. By 1972, the public opinion against death penalty
became so vociferous that the Supreme Court began to act upon the assumption that the concept underlying
the 8th Amendment was not static, but must respond to the “evolving standards of decency that mark the
progress of a maturing society”.6.
(a) Prior to 1972, the traditional view was that death penalty, which had been in vogue from pre-
independence days, was nothing “cruel or unusual” within the mischief of the Eighth Amendment to the
Constitution.7.
(b) But in the 1972 case of Furman v Georgia,8. the Supreme Court, by a majority of 5 : 4, (even the
majority Judges delivered separate opinions with different reasonings) held capital punishment as
unconstitutional under the Eighth (cruel and unusual punishment) and the Fourteenth (due process)
Amendments, in the facts of the case on the grounds—
(i) That though death penalty might not be considered cruel and unusual in 1791, when the Eighth
Amendment had been adopted, the changing perceptions of succeeding generations’ have made
the contrary view justifiable.
(ii) That death penalty offends against the “due process” concept as it is “excessive”, “unnecessary”,
“offensive to human dignity” and abhorrent to currently existing moral values.
(c) It is to be carefully noted, however, that the question whether death penalty, in the abstract, was totally
impermissible under the Constitution, in any case, was not before the Court in Furman’s case,9. and
that the question before the Court was whether the imposition and execution of death sentence in the
cases before the Supreme Court should be reversed on the ground of unconstitutionality of the North
Carolina Law under which the sentence had been imposed. The consensus of the court on this
question was in the affirmative, and the cases were remanded for imposition of some other sentence,
after quashing the death sentence.
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On point of law, the decision of the court was that a law which prescribes a sentence of death for certain
specified offences (such as murder or rape), and leaves it entirely to the discretion of the court or the Jury to
select persons convicted of the same offence for awarding death penalty or some other alternative penalty,
without offering any guide for the exercise of such discretion, offended against the “cruel punishment” and “due
process” clauses of the Constitution. D.D. BASU in his book Comparative Constitutional Law10. says: But in a
vital matter like this, it was difficult to get unanimity or even an agreed majority as was evidenced by Furman v
Georgia.9 Though this case was regarded in foreign countries, such as India, to be an authority for abolition of
capital punishment, it did not in fact, go so far. Of the narrow majority of 5 : 4, only two Judges (BRENNAN
AND MARSHALL) absolutely condemned death penalty as a “cruel and unusual punishment” in contravention
of 8th Amendment and the rest of the majority merely held that the impugned statutes before the court were
unconstitutional because of the circumstances therein e.g., that they left discretion to the jury whether or not to
impose this penalty in the particular case before them without laying down any standards for the guidance of
the jury and left a scope for discriminatory application.
The subsequent history of death penalty decision before the American Supreme Court has introduced much
uncertainty because of the divided opinion in Furman’s case11. which left some loopholes which the States
sought to plug by new legislation (because a large section of the public reacted against its total abolition) and
the court went on introducing exceptions12. upon any absolute condemnation of death penalty as
unconstitutional.
Learned author D.D. BASU further says: It is difficult to estimate the present position because decisions on this
subject are to be found almost every year, but an attempt to read the decision so far available would lead to the
following propositions – (a) Death penalty as such is not unconstitutional, but may be so if it is inflicted in an
arbitrary and capricious manner;13. (b) If the statute lays down standards which would ensure that death
penalty could not be awarded “arbitrarily or capriciously” and death penalty per se could not be struck down as
unconstitutional14. if it was prescribed for heinous crimes such as murder ; (c) On the contrary, even in cases of
murder, if the sentence provided by law is mandatory, death penalty without any scope considering mitigating
and aggravating circumstances, it would be unconstitutional;15. (d) In the case of offences other than murder,
where no life is taken, such as rape, provision of death penalty has been considered to be per se cruel;16. (e)
The net result is that so far as the U.S. is concerned, it has not condemned death penalty as unconstitutional
per se, but it may be held to be so where the circumstances laid down in the statute leave scope for its misuse
or death penalty is grossly disproportionate to the particular offence in question.
While Furman17. has been followed in subsequent cases with regrouping of Judges on particular points, the
result of all these decisions, read together, shows that:
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(i) In the U.S.A., capital punishment, as such, has not so far been absolutely condemned as
impermissible under the Constitution, and a law providing for it may be upheld as constitutionally valid,
under proper safeguards.18.
In Gregg v Georgia,19. it was held that death penalty is a constitutionally permissible punishment,
at least for carefully defined categories of murder. It was further observed that 8th Amendment
requires that the sentencing authority be provided with carefully controlled discretion; a bifurcated
trial was seen as ideal procedure. Mandatory death penalty statutes were regarded
unconstitutional.20.
While upholding the constitutionality of capital punishment, the court has also imposed a long list of
substantial and procedural requirements that impede the imposition of death penalty. They include
prohibition of death penalty for rape of an adult woman,21. for ordinary murder,22. prohibition of the
death penalty for any person under the age of 16 at the time of crime,23. prohibition of death
penalty for any person found to be mentally retarded,24. a requirement that the accused receive a
judicial evaluation of his claim of insanity before sentence can be executed,25. a requirement that
the court is empowered to take into account all mitigating circumstances.26.
(ii) Such safeguards, for instance, are—
(a) The death penalty should be confined by the law to the most serious offences, specifying their
gravity.27.
(b) There should be a separate hearing for awarding the sentence.28.
(c) At such hearing, the Jury should be required by the law to answer the following questions in the
affirmative before awarding the extreme penalty of death to an accused:
1. Whether the offence was committed deliberately;
2. Whether there is a probability that the accused would commit criminal acts of violence that
would constitute a continuing threat to society;
3. If the conduct of the accused in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased.28
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(d) There should be a provision for prompt judicial review of the Jury’s decision.28
On the other hand, a law providing for capital punishment shall be unconstitutional if—
(i) It provides for a mandatory sentence of capital punishment where the accused is found to have
committed the offence specified in the statute, without leaving any discretion to the jury to
award, a lesser sentence, having regard to the particular circumstances of the case before the
Court;29. or
(ii) The law omits to require the jury to consider the character or record of the individual offender,
apart from the circumstances in which the particular offence was committed,—including not
only aggravating but also mitigating, circumstances.30.
Privy Council has dealt with this question in a case under the Southern Rhodesia Constitution Order. Because
of section 70(1), the Privy Council held that it had no jurisdiction to question the constitutionality of existing law,
which inter alia provided for death penalty. Nevertheless, Privy Council made certain observations which would
show that the question whether death penalty as such was “inhuman or degrading” was a matter to be
determined by Legislature as a question of legislative policy and not for the courts to determine.31.
In England, even though in the Bill of Rights 1688, there was a clause condemning illegal and cruel
punishment, capital punishment as such was not considered as a cruel punishment until 1965 when Britain
passed a temporary Act – The Murder (Abolition of Death Penalty) Act, 1965 – circumscribing the scope of
death penalty to cases of high treason. This Act was made permanent in 1969, by resolution of both Houses.
Hence, murder is no longer punishable by death in U.K.
(B) India.—
India
I. The question of constitutionality of capital punishment authorised by section 302 of the Indian Penal Code
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was directly dealt with by the Supreme Court in the case of Jagmohan v State of U.P.,32. where a unanimous
Bench rejected the contentions of the convicted person, on all grounds:
Article 14
A. Article 14 : It was contended on behalf of the appellant that the law was discriminatory inasmuch as death
sentence was an alternative to life imprisonment for the offence of murder, and the law did not provide
standards or any machinery for the determination of factors and circumstances which might guide judges in the
imposition of death penalty instead of imprisonment for life, as a result of which two persons guilty of murder on
similar facts are liable to be treated differently—one forfeiting his life and the other suffering merely
imprisonment. The Legislature, not having offered any standard or guide to discretion of the judges, in this
respect, was said to have abdicated its function of legislation. This contention was turned down by the court on
the grounds that—
(a) it is not humanly possible to enumerate, in a statute, all the aggravating or mitigating circumstances
which might guide the choice as between two alternative penalties;
(b) this task can only be performed by the Court which hears the evidence and determines the facts in
each particular case;
(c) this discretion of the court cannot be said to be arbitrary, but is governed by recognised judicial
principles and is liable to be corrected in superior courts.33. In Maneka Gandhi v UOI,34. the Supreme
Court held that the procedure by which life and personal liberty can be taken away must not only be by
a procedure established by law, but also must be reasonable. It held that the concept of
reasonableness must be projected in the procedure contemplated by Article 21 having regard to the
impact of Article 14 on Article 21. 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 omnipotence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be “right, just and fair” and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of
Article 21 would not be satisfied. In Bachan Singh v State of Punjab,35. the court, after an elaborate
analysis, held that the procedure involving imposition and execution of death sentence is not
unreasonable and is not ultra vires.
It is to be noted in this context that as similar argument was made in the U.S.A. against vesting the discretion in
the Jury whether to award death penalty or life imprisonment in capital cases. But the Supreme Court, by a
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majority of 6 : 3, has rejected this contention in McGautha v California,36. holding that it was not humanly
possible to enumerate all the aggravating and mitigating circumstances in a Code and that:
the infinite variety of cases and facts of each case would make general standards either meaningless ‘boiler plate’ or a
statement of the obvious that no jury would need.37.
In the Furman case,38. DOUGLAS, J., alone of the majority of five Judges, relied on the risk of discrimination,
which, according to him was implicit in the guarantee against cruel and unusual punishment under the Eighth
Amendment thus:
…the death penalty inflicted on one defendant is ‘unusual if it discriminates against him by reason of his race, religion,
wealth, social position, or class, or if it is imposed under a procedure, that gives room for the play of such prejudices....
it is ‘cruel and unusual’ to apply the death penalty—or any other penalty—selectively to minorities whose numbers are
few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not
countenance general application of the same penalty across the boards.39.
At the same time, as has just been pointed out, in subsequent cases,40. the American Supreme Court has
come to hold that though it may not be possible to frame general standards to meet all situations that may call
for the exercise of judicial discretion indifferent cases, it is possible to laydown certain mininal conditions
andsafeguards to prevent the exercise of the discretion being arbitrary or discretionary. Since our Supreme
Court, in Jagmohan’s case,41. had no opportunity to notice the reasoning acted upon in these later American
decisions,40 it would be legitimate to think that the last word on this topic has not yet been pronounced by our
Supreme Court.
Article 19
B. Article 19: As regards Article 19, the grounds of rejection of the appellant’s contention by the Supreme Court
were twofold, namely,—(i) that the “right to live” was not guaranteed by Article 19; (ii) that even if it were so
included, “capital punishment”, as such, was not unreasonable.
Both the assumptions rested on the proposition that Article 19 could not be imported in the realm covered by
Article 21, which authorised the competent Legislature to take away a man’s life by enacting a law. But, as we
have seen, the permissibility of importing Article 19 to test the reasonableness of a law covered by Article 21
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has been assumed in very many subsequent decisions. The only question which remains to be answered is
whether the “right to move” in Article 19(1)(d) could be held to include a guarantee of the right to live, subject to
reasonable restrictions imposed by the Legislature, under clause (5). It is clear that none but living person can
exercise the right to move. Hence, Article 19(l)(d) assumes that the man is “alive.” The right to live is thus
implicit in Article 19(l)(d). The fault of Gopalan42. was that it supposed that Articles 19 and 21 were water-tight
compartments, so that if the right to live came under Article 21, it could not possibly be brought under Article 19.
This supposition, however, has been demolished as unsound in Cooper’s case43. (see p. 4817 ante) which has
been followed ever since. Hence, once the Supreme Court, in some subsequent case, reviews the question of
capital punishment, it may proceed on the basis that Articles 19(1)(d) and 21 are complementary to each other
and that there may be particular circumstances in which a law imposing capital punishment may be held to
have imposed an unreasonable restriction within the purview of Article 19(5). Here also, the last word is not yet
said.
II. The view taken in Jagmohan’s case44. has been reiterated in a number of subsequent decisions of the
Supreme Court, so that a death sentence, as such, remains constitutionally valid,45. subject of course, to other
constitutional limits.46. In Bachan Singh v State of Punjab,47. the Supreme Court asserted that penal laws
which define offences and prescribe punishment for the commission of offence do not attract Article 19(1) as
these are not laws having a direct impact on the rights conferred by Article 19(1). A law is hit by Article 19(1) if
the direct and inevitable consequence of such law is to take away or abridge any of the freedoms guaranteed
by Article 19(1). If the impact of the law or any of the rights under Article 19(1) is merely incidental, indirect,
remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19
will not be available for judging its validity. Court said that no right conferred by Article 19(1) confers a right or
freedom to commit murder. Deprivation of freedom consequent upon an order of court of conviction and
sentence is not a direct and inevitable consequence of the penal law, but is merely incidental to the order of
conviction and sentence which may or may not come into play i.e., which may or may not be passed. In pith
and substance, penal laws do not attract Article 19(1) as these laws do not deal with the subject matter of
Article 19(1). Therefore, section 302 IPC does not have to stand the test of Article 19(1). The court further held
that even if section 302 were to satisfy the test of reasonableness and public interest, the State has to
discharge that burden. Court said that the procedure provided in CrPC for imposing capital punishment for
murder cannot be said to be unfair, unreasonable and unjust. But the court said that death penalty is an
exception and it can be imposed only in rarest of rare cases.
JUSTICE BHAGAVATI in his dissenting judgment said that under Article 19, the onus to prove reasonableness
of any restriction on the guaranteed right is on the State which is also to show that the restriction falls within the
permitted category, which according to the learned Judge, the State has failed to prove. A sentence which is
disproportionate to the offence is arbitrary and irrational under Articles 14, 19 and 21. On death sentence, the
learned Judge said that it is totally arbitrary and unreasonable. Section 302 and section 354(3) IPC were held
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as violative of Articles 21 and 14, because these provisions confer an unguided and standardless discretion on
the court whether to liquidate an accused or let him live and vesting of such discretion in the court renders the
death penalty arbitrary or freakish.
In Machchi Singh v State of Punjab,48. the Supreme Court emphasised that death penalty need not be inflicted
“except” in the gravest cases of extreme culpability and life imprisonment is the rule and death sentence is an
exception. Death sentence could be imposed when the court is satisfied that life imprisonment is altogether
inadequate punishment having regard to the relevant circumstances of crime and only provided that the option
to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant circumstances, and imposing death sentence must be only
in “rarest of rare cases”. The judges must ask themselves two questions for deciding whether a murder case
falls in the category of “rarest of rare cases” – (1) Whether there is something uncommon about the crime which
renders a life imprisonment sentence inadequate and calls for death sentence; (2) whether the circumstances
of the crime are such that there is no alternative but to impose the death sentence even after according
maximum weightage to the mitigating circumstances which speak in favour of the accused. The judge must
draw a balance sheet of aggravating and mitigating circumstances.49.
The decision in Bachan Singh (supra) is followed in K. Govinda Pillai v Govt. of India;50. Dasan v State of
Kerala;51. Sashi Nayar v UOI.52.
The court must be alive to the legislative changes introduced in 1973 through section 354(3) of CrPC. Death
sentence being an exception to general rule should be awarded in the “rarest of rare cases” for special reasons
to be recorded after balancing the aggravating and mitigating circumstances, in the facts and circumstances of
a given case. The number of persons murdered is a consideration, but that is not the only consideration for
imposing death penalty unless the case falls in the category of “rarest of rare case”. The court must keep in
mind the nature of crime, the brutality with which it was executed, the antecedents of the criminal, the weapon
used. But it is neither possible nor desirable to catalogue all such factors and they depend upon the particular
case.53.
Recently, the Supreme Court has held that before awarding death sentence, three tests are applicable – (a)
crime test; (b) criminal test; and (c) “rarest of rare case” test. Court said that aggravating circumstances are not
exhaustive so also mitigating circumstances. The tests that have to be applied while awarding death sentence
are crime test, criminal test and rarest of rare case test, and not the balancing test. To award death sentence,
the crime test has to be fully satisfied i.e., 100% and criminal test 0%, that is, no mitigating circumstance
favouring the accused. If there is any circumstance favouring the accused like lack of intention to commit the
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crime, possibility of reformation, young age of the accused, accused not being a menace to the society, no
previous criminal record, etc., the criminal test may favour the accused to avoid capital punishment. Even if
both tests are satisfied, that is the aggravating circumstance to the fullest extent and no mitigating circumstance
favouring the accused, rarest of rare cast test will have to be applied. The rarest of rare case test depends upon
the perception of the society, i.e., “socio-centric” and not “Judge-centric”, that is, whether the society will
approve the awarding of death sentence to certain types of crimes or not. While applying the rarest of rare case
test, the court has to look into a variety of factors like society’s abhorrence, extreme indignation, and antipathy
to certain types of crimes like sexual assault, and murder of intellectually challenged minor girls, suffering from
physical disability, old and infirm women with these disabilities, etc. Examples are only illustrative and
exhaustive. The court awards death sentence since situation demands so, due to constitutional compulsion
reflected by the will of the people and not the will of the Judges.54.
In Rajendra Prasad v State of U.P.,55. while upholding the constitutionality of death penalty it was held that as
death penalty finally deprives the accused of his right to life and other fundamental rights, the validity of such
punishment can be tested with reference to Articles 14, 19 and 21. Article 21 guarantees fair procedure, Article
19 is based on reasonableness; and Article 14 is an assurance of non-arbitrary and civilized punitive treatment.
Article 14 ensures that principled sentences of death, not arbitrary or indignant capital penalty shall be imposed.
Article 14 bars unusual cruelty which spells arbitrariness. Only for murder, a life term would be appropriate save
when special reasons exist for imposing death penalty. Death sentence should be imposed only if otherwise
public interest, social defence and public order would be smashed irretrievably. “Special reasons” necessary for
imposing death penalty must relate, not to the crime, as such, “but to the criminal”. The crime may be shocking
and yet the criminal may not deserve death penalty. The extreme penalty can be invoked only in extreme
situations.
It must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all
and the requirement of Article 21 would not be satisfied. After an elaborate analysis, the Supreme Court held
that the procedure involving imposition and execution of death sentence is not unreasonable and is not ultra
vires.56.
Machhi Singh v State of Punjab,57. mentions the reasons why the community as a whole does not endorse the
humanistic approach reflected in death sentence-in-no case doctrine.
(1) When a member of the community violates the “reverence for life” principle on which the very humanistic
edifice is constructed, by killing another member, the society may not feel itself bound by the shackles of the
doctrines.
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(2) When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the
murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer
has to be killed, the community may well withdraw the protection by sanctioning death penalty. The very
existence of the rule of law and the fear of, brought to book operates as a deterrent to those who have no
scruples in killing others if it suits their ends. But the community may sanction death penalty in the rarest of rare
cases where its collective conscience is shocked.
It was held that in “rarest of rare cases” when collective conscience of the community is so shocked, that it will
expect the holders of the judicial power to inflict death penalty “irrespective of their personal opinion as regards
the desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may
entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely cruel, brutal, grotesque, diabolical, revolting or distardly
manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness e.g., murder
by a hired mission for money or reward or cold-blooded murder for gains of a person vis-à-vis whom
the murderer is in a dominating position or in a position of trust; or murder is committed in the course of
betrayal of motherland.
(3) When murder of a member of scheduled caste or minority community etc., is committed not for
personal reason, but in circumstances which arouse social wrath; or in cases of “bride burning” or
dowry deaths or where murder is committed in order to remarry for the sake of extracting dowry once
again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance, multiple murders, say of all or almost all the
members of a family or a large number of persons of a particular caste, community or locality are
committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old, or infirm person or a
person vis-à-vis whom the murderer is in a dominating position or a public figure, loved and respected
by the community.
After formulating the broad outlines, it was observed that the judges must ask themselves two questions for
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deciding whether the murder case falls under the category of “rarest of rare cases?” (a) Whether there is
something uncommon about the crime which renders life imprisonment sentence inadequate and calls for a
death sentence? (b) Whether the circumstances of the crime are such that there is no alternative but to impose
the death sentence even after according maximum weightage to the mitigating circumstances which speak in
favour of the offender?58. The very idea of attacking and overpowering a sovereign democratic institution by
using powerful arms and explosives and imperiling the safety of a multitude of people’s representatives,
constitutional functionaries and officials of the Government of India and engaging in a combat with the security
sources is a terrorist act of the gravest severity and is a classic example of “rarest of rare cases” where death
penalty is to be imposed.59.
As to the principle underlying the Penal Code, and particularly the sentence of death as a punishment for
murder, LORD MACAULAY, the author of The Code wrote thus:
“This Code should not be a mere digest of existing usage and regulation, but should comprise all the reforms
which the Commission may think desirable. It should be framed on two great principles—the principle of
suppressing crime with the smallest possible amount of suffering and the principle of ascertaining truth at the
smallest possible cost of time and money.”60.
Section 303 IPC which provided mandatory death sentence of murderer while undergoing life imprisonment
was declared void in Mithu v UOI.61. It was held that though murderers can be classified into two classes,
namely, those who commit murders while undergoing a sentence of life imprisonment and those who commit
murder simplicitor, the differentia distinguishing the two classes of murder being “undergoing a sentence of
imprisonment”. But the differentia is not reasonably related to the object of the law namely appropriate
punishment for murder. There is no reasonable ground for denying to a person who commits murder while
serving a sentence of life imprisonment for forgery or counterfeiting coins, the right to urge mitigating
circumstances which would reduce the punishment for murder to a sentence of life imprisonment and not a
sentence of death as provided by section 302 in the case of a person who commits a murder simplicitor. Again
section 303 IPC deprives section 235 of CrPC of its effect.
It regards life-convicts to be a dangerous class without any scientific basis and thus violates Article 14 and
similarly by completely cutting out judicial discretion it becomes a law which is not just, fair and reasonable
within the meaning of Article 21 read with Article 14. According to eminent jurist FALI S. NARIMAN, “Although
section 303 of the Indian Penal Code could not be challenged on the accepted tests of invalid discrimination
(the traditional classification tests) yet, it was struck down and declared void by a Bench of five justices as
violating the Equality Clause, simply because it was arbitrary beyond the bounds of reason (as four of the
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justice said) and because it “excluded all judicial discretion” (as the fifth justice added). Sometimes, hard cases
also make “good law”!62.
III. The sentence in every criminal case, when confirmed by the Supreme Court, becomes final and is not,
normally, open for review or reconsideration.63.
Since, however, it has been settled that the procedure for depriving a person of his life or liberty, under Article
21, must be fair and reasonable till the last moment of his life, it has been established that even after a death
sentence has become final, supervening circumstances taking place between its confirmation and execution,
such as undue delay in execution of the sentence, may render its execution unfair,—in which the Supreme
Court would commute it to a sentence of life imprisonment.63
[Art 21.3.25] Delay in Execution of Death Sentence: Effect of
There has been some difference of opinion in the Supreme Court, leading to the decision of the Constitution
Bench,64. on the questions involved, but the following propositions appear to have been established:
(i) “Procedure established by law” in Article 21 means a procedure which is just, fair and reasonable.
Hence, any circumstance which renders the sentence harsh unjust or unfair, offends Article 21.65.
(ii) An undue long delay in the execution of the sentence of death after its confirmation (sections 413–15,
CrPC), for which the accused himself is not responsible, renders the sentence of death harsh and
unjust as it causes additional torture and inhuman treatment.66. It, therefore, violates Article 21 of the
Constitution and the accused may approach the Supreme Court for relief under Article 32.67.
(iii) What is “undue delay” will depend upon all the circumstances of each case and no fixed period of
delay can be laid down as to render the sentence of death inexecutable.67
(iv) When the prisoner complains of undue delay in its execution as vitiating the sentence of death, under
Article 32, the Supreme Court shall have no jurisdiction to reopen the conclusions reached by the court
which finally maintained the sentence of death.67 The only question which the Supreme Court shall
have to examine in the proceeding under Article 32, is to examine the circumstances ensuing after the
death sentence was finally maintained by the judicial process and to determine whether the delay in
execution of the death sentence was “undue delay” and that the accused himself was not responsible
for it.68.
When the court is called upon to vacate a death sentence on the ground of delay caused in
executing that sentence must find why the delay was caused and who is responsible for it. It is
relevant to consider whether the delay in the execution of death sentence is attributable to the
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proceedings which have the effect of defeating the end of justice. Moreover, the nature of the
offence, the diverse circumstances attendant upon it, its impact on the contemporary society and
the question whether the motivation and pattern of the crime are such as are likely to lead to its
repetition, if death sentence is vacated for the reason that its execution is delayed. The substitution
of the death sentence by a sentence of life imprisonment cannot follow by the application of any
time limit formula (two years delay was held as a ground for substitution in T.V. Vatheeswaran’s
case (supra) was overruled to that extent) as a matter of quoderat demonstrandum.69.
Inordinate delay in execution of death sentence due to delay in disposal of mercy petition in
violation of Article 21.70. Delay in execution was expressed as “the brooding horror of hanging”.71.
In the United States, this question was considered with reference to 8th and 14th Amendment
which provides for a right against cruel and unusual punishment.72. The question also came before
the Privy Council with reference to section 17 of the Constitution of Jamaica which provides that no
person shall be subjected to torture or to inhuman or degrading punishment or other treatment. In
Riley v A.G. of Jamaica,73. in the dissenting opinion, it was observed:
…That the jurisprudence of the civilized world, much of which is derived from common law
principles and prohibition against cruel and unusual punishment in the English Bill of Rights, has
recognized and acknowledged that prolonged delay in executing a sentence of death can make the
punishment when it comes inhuman and degrading … Sentence of death is one thing. Sentence of
death followed by lengthy imprisonment prior to execution is another”…“It is, of course, true, that a
period of anguish and suffering is an inevitable consequence of sentence of death. But a
prolongation is not. And it is no answer to say that the man will struggle to stay alive. In truth, it is
this ineradicable human desire which makes prolongation inhuman and degrading. The anguish of
alternating hope and despair, the agony of uncertainty, the consequence of such suffering on the
mental, emotional and physical integrity and health of the individual are vividly described with
evidence to the effect of the delay…
The dissenting judgment in Riley’s case, was later approved by Privy Council in Pratt v A.G. of
Jamaica.74. It was observed: “There is an instinctive revulsion against the prospect of hanging a
man after he has been held under sentence of death for many years. What given rise to this
instinctive revulsion? The answer can only be our humanity. We regard as an inhuman act to keep
a man facing the agony of execution over a long extended period of time. But before their
Lordships condemn the act of execution as inhuman or degrading punishment or other treatment
within the meaning of section 17(1) there are a number of factors that have to be balanced in
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weighing the delay. If delay is due entirely to the fault of the accused such as an escape from
custody or frivolous and time wasting resort to legal procedures which amount to an abuse of
process the accused cannot be allowed to take advantage of that delay, for to do so, would be to
permit the accused to use illegitimate means to escape the punishment inflicted upon him in the
interest of protecting the society against crime.
In their Lordship’s view a State that wishes to retain capital punishment must accept the
responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a
reasonable time for appeal and consideration of reprieve. It is part of the human condition that a
condemned man will take every opportunity to save his life through use of the appellate procedure.
If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of
years, the fault is to be attributed to the appellate system that permits such delay and not to the
prisoner who takes advantage of it. Appellate procedure that echo down the years are not
compatible with capital punishment. The death row phenomenon must not become established as
a part of our jurisprudence.
Finally it was observed, “If capital punishment is to be retained, it must be carried out with all
possible expeditions.”
Delay in disposal of mercy petition violates the requirement of fair, just and reasonable procedure.
Regardless and independent of the suffering it causes, delay makes the process of execution of
death sentence unfair, unreasonable, arbitrary and capricious and thereby violates procedural due
process guaranteed under Article 21 of the Constitution, and the dehumanising effect is presumed
in such cases. Incarceration, in addition to the reasonable time necessary for adjudication of mercy
petition and preparation for execution, flouts the due process guaranteed to the convict under
Article 21 which every prisoner has till his last breath. The argument that the petitioners are under
a legal obligation to produce evidence of their sufferings and harm caused to them on account of
prolonged delay is unknown to Indian law and international judgments. Such a pre-requisite will
render the fundamental rights guaranteed under Pt III of the Constitution beyond the reach of
death-row convicts and will make them nugatory and inaccessible for all intent and purposes.
There is no obligation on the convict to demonstrate specific ill effects of suffering and agony on
his mind and body as a pre-requisite for commutation of sentence of death on the ground of undue
delay in disposal of mercy petition. Exorbitant delay in disposal of mercy petition renders the
process of execution of death sentence arbitrary, whimsical and capricious. Such imprisonment,
occasioned by inordinate delay in disposing of mercy petition, is beyond the sentence accorded by
the court and to that extent is extra-legal and excessive.75.
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In Triveniben v State of Gujarat,76. court said: “Undue delay in execution of the sentence of death
will entitle the condemned person to approach Supreme Court under Article 32, but the court will
only examine the nature of delay caused and circumstances that ensued after the sentence was
finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusion
reached by the court while finally maintaining the sentence of death. This court, however, may
consider the question of inordinate delay in the light of all circumstances of the case to decide
whether the execution of sentence should be carried out or should be altered into imprisonment for
life. No fixed period of delay could be held to make a sentence of death inexecutable. … ”.
Following the above decision, the Supreme Court recently held in Shatrughan Chauhan v UOI,77.
thus: “Keeping a convict in suspense while consideration of his mercy petition by the President for
many years is certainly an agony for him/her. It creates adverse physical conditions and
psychological stresses on the convict under sentence of death. In disputably, this court, while
considering the rejection of the clemency petition by the President under Article 32 read with
Article 21 of the Constitution, cannot excuse the agonising delay caused to the convict only on the
basis of the gravity of the crime”. Court further held: “If there is undue, unexplained and inordinate
delay in execution due to pendency of mercy petition or the executive as well as the constitutional
authorities have failed to take note of or consider relevant aspects, this court is well within its
powers under Article 32 to hear the grievance of the convict and commute the death sentence into
life imprisonment “on this ground alone” however, only after satisfying that the delay was not
caused at the instance of accused himself”.
The procedure prescribed by law, which deprives a person of his life and liberty must be just, fair
and reasonable and such procedure mandates humane conditions of detention, preventive or
punitive. In this line, although the petitioners were sentenced to death based on procedure
established by law, the inexplicable delay on the part of executive is inexcusable. Since it is well
established that Article 21 of the Constitution does not end with the pronouncement of sentence,
but extends to the stage of execution of sentence of death, it has a dehumanising effect on the
accused. Delay caused by circumstances beyond the prisoner’s control mandates commutation of
death sentence. Sentence of death is one thing, and sentence of death followed by lengthy
imprisonment prior to execution is another. Court said, relying on the decision in T.V.
Vatheeswaran v State of Tamil Nadu,78. that Articles 14, 19 and 21 supplement one another and
the right which was spelt out from the Constitution is a substantive right of the accused.
Court, after following the decision in Bachan Singh v State of Punjab,79. said that sentence of
death can only be imposed in the rarest of rare cases meaning thereby that all death sentences
imposed are impliedly the most heinous and barbaric and rarest of this kind. The legal effect of this
extraordinary depravity of the offence exhausts itself when the person is sentenced to death for the
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offence committed. Law does not prescribe an additional imprisonment in addition of death for any
such exceptional depravity involved in the offence. The earlier decision of court in Devendra Pal
Singh Bhullar v State (NCT of Delhi),80.which held that when the accused are convicted under
TADA, there is no question of showing any sympathy or considering supervening circumstances in
commuting death sentence was held to have been wrongly decided to that extent.
In Furman’s case,81. it was recognized that the prospect of pending execution enacts a frightful toll
during the inevitable long wait between the imposition of sentence and the actual infliction of death.
In another case, it was observed that “delay in execution has the cruel and dehumanizing and
degrading effect”.82.
(v) If the Supreme Court finds the delay to be undue in the foregoing sense, the court would quash the
sentence of death and substitute forit the sentence of imprisonment of life to that accused.83.
[Art 21.3.26] Fundamental Rights of a Prisoner
1. As has been stated earlier, it is now established that even where a person is convicted and imprisoned under
sentence of court, he does not lose all the fundamental rights belonging to all persons under the Constitution,
excepting those which cannot possibly be enjoyed owing to the fact of incarceration, such as the right to move
freely [Article 19(l)(d)] or the right to practice a profession [Article 19(l)(g)].84. Hence, a prisoner can claim to
exercise the following fundamental rights:
(a) The right to acquire, hold and dispose of property85. [Article 19(l)(f) having been repealed, this right the
prisoner shall have to claim under the ordinary law]. A convict is entitled to the right of any other
workman and hence entitled to wages for his work.86.
(b) The freedom of expression,87. reading and writing88. except in so far as it is circumscribed by the fact
of imprisonment.87
(c) The right under Article 21, not to be deprived of his life or personal liberty except “according to
procedure established by law”.89. A prisoner, whether a convict, under trial or detenu continues to
enjoy all the fundamental rights including the right to life guaranteed to him under the Constitution.90.
2. This means that any prison regulation or restriction or punishment which is sought to be imposed in addition
to88 those resulting from the sentence of court, must still be tested by the procedural safeguards under Article
21,91. which involve “fairness” and “natural justice”.92.
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Several International Conventions, guidelines and rules exist to ensure humane treatment to the prisoners. In
its General Comment on Article 10 of ICCPR, the Human Rights Committee held that it supplements Article 7
on torture. For all persons deprived of their liberty, the prohibition of treatment contrary to Article 7 (on
prohibition of torture, etc.) is supplemented by the positive requirement of Article 10(1) of the Covenant that
they shall be treated with humanity and with respect for the inherent dignity of the human person. Detention of
persons in prisons is a part of administration of justice. The subject of human rights and administration of
justice, therefore, deals with the protection of persons in prisons. Standard Minimum Rules for the Treatment of
Prisoners; Code of Conduct for Law Enforcement officials; Standard Minimum Rules for Administration of
Juvenile Justice; Convention Against Torture, etc. of the United Nations are all international instruments dealing
with protection of persons in prisons as a part of the human rights in the administration of justice. Even without
any express domestic legislation to make them part of the domestic law, these provisions dealing with the
human rights of prisoners, by virtue of the judgment in Vishaka v State of Rajasthan,93. have all become a part
of constitutional guarantee under Article 21”.94. Learned author further says: “Standard Minimum Rules for the
Treatment of Prisoners, as the title indicates, are the minimum conditions which are expected as suitable by the
United Nations. These rules require that different categories of prisoners shall be kept separate; their
accommodation shall meet all requirements of health, etc. Every prisoner is to be provided separate and
sufficient clean bedding and food of adequate nutritional value, special care of women prisoners would be
taken, prisoners shall be allowed contact with outside world and the prison administration would comprise of
suitable professionals sensitive to the needs of prisoners. These are the stated minimum conditions which must
invariably be satisfied. The rights of the prisoners emanate from these duties of the detaining authority”.
Thus,
(i) If the prisoner is subjected to mental torture, psychic pressure or physical infliction beyond the
legitimate limits of lawful imprisonment, the prison authorities shall have to justify their action by
producing legal sanction or be liable for the excess.95.
In Dilip Kumar Basu v State of W.B.,96. Supreme Court expressed its deep anguish at the
occurrence of custodial deaths. The rights of prisoners on the one hand the duties of the police on
the other was emphasized and following direction was given:
(a) The police personnel carrying out the arrest and handling the interrogation of the arrestee should
bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be recorded
in a register.
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(b) Immediately on arrest of arrestee, police officer shall prepare a memo of arrest which shall be
attested by at least one witness who shall be either a member of the family of the arrestee or a
respectable person of the locality, which shall be countersigned by the arrestee and shall contain
the time and date of arrest.
(c) Unless the attesting witness of the arrest memo is a friend or relative of the arrestee, immediately
after arrest one relative or friend or other person known to him or having interest in his welfare
should be informed of the arrest.
(d) Within 8 to 12 hours of the arrest, the time, place of arrest and the venue of custody of an arrestee
must be notified by the police where the next friend or relative of the arrestee lives outside the
district or town through the Legal Aid Organization for the district and the police station of the area
concerned telegraphically.
(e) As soon as a person is arrested, he must be made aware of his right to have someone informed of
his arrest.
(f) An entry must be recorded in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of the
arrest and the particulars of the police officials in whose custody the arrestee is.
(g) The arrestee should, where he so requests, be examined at the time of his arrest major or minor
injury, if any, present, on his/her body, must be recorded at that time. The “Inspection Memo” must
be signed both by the arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.
(h) The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor or the panel or approved doctors appointed by Director
of Health Services of the concerned State or Union Territory should prepare such a panel for all
the places of the State.
(i) Copies of all the documents including the memo of arrest, referred to above, should be sent to the
Magistrate for his record.
(j) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
(k) A police control room should be provided at all districts and State headquarters, where information
causing the arrest within 12 hours of effecting the arrest and at the police central room it should be
displayed on a conspicuous notice board.
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Failure to comply with the above requirements shall part from rendering disciplinary action, also liable
for contempt of court, which may be filed in any High Court of the country having territorial jurisdiction
over the matter.1.
In Kartar Singh v State of Punjab,2. it was held that in case of police brutality and atrocities committed
in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total
negation of the constitutional guarantees and human decency, the Supreme Court is committed to
uphold human rights even as a part of longstanding heritage and as enshrined in our constitutional law.
It is observed that the Constitution as well as Statutory Procedural Law and Law of Evidence condemn
the conduct of any official in extorting a confession or information under compulsion by using any third
degree methods. If it is shown to the court that a confession has been extorted by illegal means such
as inducement, threat or promise as contemplated under section 24 of the Evidence Act, the
confession thus obtained from an accused person would become irrelevant and cannot be used in a
criminal proceeding as against the maker. The court further directed that it will be within its jurisdiction
to award exemplary compensation to the victims at the hands of the police officials.
In the concurrent judgment, it was held interrogation exposes the suspect to the risk of abuse of his
person or dignity as well as distortion or manipulation of his self-incrimination in the crime. No one will
be subjected to physical violence of the person as well as the torture and infringement thereof
undermines the peoples’ faith in the efficacy of criminal justice system.3.
In State of M.P. v Shyamsunder Trivedi,4. it was held that in case of custody death or police torture,
general ocular or other direct evidence will not be available and hence insistence upon establishment of
proof beyond every reasonable doubt is improper. In such cases, court must adopt a realistic rather
than narrow technical approach.5.
In regard to protective custody in jail of women not accused of any offence but who were either victims
of the offence or needed for giving evidence on the plea of lack of welfare homes, Supreme Court
directed to release all such women and children in protective custody and to be kept in welfare
homes.6.
In his book, The New Universe of Human Rights by former Chief Justice of India, J.S. VERMA “in
regard to human rights in prisons”, the learned judge has stated thus: “Special care of women as prison
inmates is essential for the protection of their human rights. There is need for custodial safety and
gender justice. Women are approximately 3%, of the prison population in India. The need is for
separate jails for woman which is also emphasized by the Standard Minimum Rules for Treatment of
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Prisoners. The Mulla Committee Report (1980–83) observed that the small number of women in prisons
is, quite likely, responsible for their needs being neglected. Special care is needed of the women’s
health and preservation of their dignity. Article 51A(e) of the Constitution of India prescribes for every
citizen the fundamental duty to denounce practices derogatory to the dignity of women. In the case of a
woman, she is not to be viewed merely as an individual person but as the pivot of a family whose
protection is a matter of social concern. The provisions of Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW) must also be borne in mind.”
Some extracts from the Report of National Expert Committee on Women Prisoners (1986–87) chaired
by JUSTICE KRISHNA IYER are:
Now, our Report contemplates one fundamental postulate, viz., that women have a special claim to
compassion, defence of dignity and human rights and protection of her sensitive needs and personal integrity.
The State must secure for her this dimension of social justice while she is in peril or under the process of
being custodialised in a manner detrimental to her womanliness …
The thrust of the case made out in the Report is that a radical experiment in the processes and
personnel must be organized, not from the top of the pyramid only but from the base as well, involving
a wide variety of social, professional and official pillars to support the national directorate and
substructures.
The grammar of custodial justice, in its affirmative version, must impact on institutional functionalism. A
run-down of the current vices and shortfall is the first step before suggesting appropriate remedies. We
have clear evidence that at present women are warehoused, as it were, in a welter or divergent
institutions largely controlled and virtually directed from top to bottom by the masculine sex. In mental
hospitals, women are rightless. In rescue homes her very entry brands her professional prostitute.
Again, she is a discriminated gender further victimized even if she is the victim of crime. There are
many shades and dimensions to her discriminatory kismet.
All over the world a newer jurisprudence is evolving day by day, particularly with the help of judicial
decision, whereby prisoners are not to be equated with animals, but as human beings. The personal
liberty of a citizen is guaranteed under the scheme of Articles 20, 21 and 22 of the Constitution of India.
However, a person may be deprived of his liberty only according to procedure established by law. It
follows, therefore, that those who call upon to deprive other persons of their personal liberty in the
discharge of what they conceived to be their duty, must strictly and scrupulously observe and follow the
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rule of law.7. If the above principle is not observed, the court would set the prisoner at liberty.8. Such a
principle would apply to both punitive as well as preventive detention.9.
State of Andhra Pradesh v Chella Ramakrishna Reddy,10. held that the right to life is one of the basic
human rights. It is a guarantee to every person by Article 21 of the Constitution and not even the State
has authority to violate the right. It is further held that on being convicted on trying and deprived of the
liberty in accordance with the procedure established by the law, the prisoner still retains the residue of
the constitutional right.
The court went on to hold that the basic human rights cannot be defeated by pleading the hold and
archaic defence by immunity in respect of sovereign acts which has been rejected several times by
court. The court relied on the following decision for the said purpose.11.
All prisoners have got a right to be informed of the grounds of arrest. Article 22 of the Constitution and
Article 9 of Universal Declaration of Human Rights guarantees the same.12.
Every undertrial has got a right to be defended and to consult. Articles 22(1) and 39A of the
Constitution provide for the same and the said right extends to all hearings inside prison on parole
matters also.13. The court has further held that provision of speedy justice is an obligation of State, for,
otherwise the operation of legal system would not promote justice.14. Supreme Court directed for the
release of under-trial prisoners under NDPS Act, except those charged under sections 31 and 31-A
languishing in jails in the State of Maharashtra for a period exceeding half of the punishment under that
Act and also laid down terms and conditions therefore.15. The right of a prisoner to have a speedy trial
shall encompass all stages of trial, and would be applicable even at the stage of investigation, enquiry,
trial, appeal, revision and retrial.16.
Undertrial prisoners have got a right to get them medically examined, similar to the right under section
54 CrPC.17. They have got a right not to be given a cruel or inhuman treatment. This would provide
them a right not to be beaten whereby injuries are caused.18. They have got a right of fair treatment
and basic dignity. This would include all measures of security, remand, parole, premature release,
condition of prisonalization as well as transfer and prison visiting system.19. Classification of prisoners
is a very important subject and provides rights to prisoners to be classified accordingly.20.
(ii) An arrested person or under-trial prisoner should not be subjected to handcuffing21. in the absence of
justifying circumstances, e.g., where there is a reasonable apprehension of the prisoner fleeing
justice.22. If the Police escorting the accused to or from court want to handcuff, the Police must report
the extraordinary circumstances and seek the directions of the court.23. It was held hand-cuffing is
against all norms of decency and in utter violations of Article 21.24.
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(iii) In short, a prisoner remains a human being notwithstanding his imprisonment and would be entitled to
those minimum human rights such as recreation, freedom from extremes of heat and cold, freedom
from indignities like compulsory nudity or other vulgarities over and above those restrictions which the
Prison administration are entitled to impose for maintaining internal order, discipline, prevention of
escape and the like, which follow from the sentence of imprisonment.25. He is entitled to constitutional
protection against human degradation, so long as life lasts.26. All under-trials have got a right not to be
given cruel or inhuman treatment. This would provide them a right not to be beaten whereby injuries
are caused.27. Ill-treatment complained must have attained a minimum level of severity having regard,
inter alia, to its duration, its physical or mental effect, whether its object was to humiliate or debase the
person concerned and whether it adversely affected his or her personality in a manner incompatible
under Article 3 of the Convention.28.
(iv) It follows that in case of anunusually delayed execution of a death sentence, the accused is in proper
cases, entitled to a substitution of imprisonment of life instead of death29. (see below).
All under-trials have got the basic right to communicate which includes the fundamental freedom of
speech and expression. A detenu is entitled to send his book (manuscript) out of jail for its
publication and no restriction can be imposed on such a right.30. Quotations from Mao-Tse-Tung
were banned when sought to be published. The ban was held unconstitutional and
unsustainable.31. Such a right would include right to communicate with relatives and friends.32. A
condemned prisoner is entitled to get his autobiography published.33.
(v) Imprisonment would be unlawful the moment its lawful justification is withdrawn, e.g., after the convict
is acquitted at the trial,34. or after an insane prisoner is declared sane.35.
When an under-trial is kept in jail without any trial for a longer time, court has held that he should
be released forthwith. Likewise, in cases where even charges were not framed against the under-
trials and long period had elapsed for no fault of the prisoners, courts have directed the release of
such persons forthwith.36. If an under-trial has been kept in jail for a longer period than the
maximum term of imprisonment which could have been awarded on his conviction, release is
ordered by court.37.
(d) The right against discrimination under Article 14. Hence, if one convict is given concessions from prison
duties and obligations which are denied to another, the latter may complain of the violation of Article 14.38.
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Similarly, the convict may complain of breach of Article 14 if he is subjected to forced labour without
remuneration in rendering mental work of a private nature.39.
A lunatic under-trial prisoner languished in jail for more than thirty years due to the inaction of the authorities. In
R.D. Upadhyay v State of A.P.,40. Supreme Court directed interim compensation be given by the concerned
State Government by way of donation to Missionaries of Charities (Brother) and the accountability be fixed.
Money compensation was awarded by the court to express court’s condemnation of the tortious act committed
by the State. It was held that the State cannot renew the physical frame that has been battered and shattered
due to the callous attitude of others.
A person, merely because he is lodged in a prison, does not cease to be a “person”. He has, therefore, as
much right to be dealt with in accordance with law as any other person and to have his right enforced by judicial
review. The availability of judicial review as a means of questioning the legality of action taken under the prison
law has been recognized as a beneficial and necessary jurisdiction which cannot be circumscribed by
consideration of policy or expediency in relation to prison administration.41. All prisoners have a human right to
have a trial for the offence they are charged against. Universal Declaration of Human Rights, 1948, and our
Constitution generally propound four protections to every under-trial – (a) An under-trial prisoner shall be
presumed to be innocent and it would be for the prosecution to prove the charge against the under-trial on the
basis of convincing and cogent evidence to bring home the charge without any reasonable doubt and suspicion;
(b) All under-trials and prisoners are protected against ex post facto operation of any criminal law for which they
have been charged. Consequently, it goes without saying that all criminal laws should have prospective
operation. (See Article 20 and Article 7 of European Convention of Human Rights); (c) All under-trials and
prisoners as well as accused are to be protected in the sense that there should be one punishment for one
offence. Due process and according to law, the trial must only be open trial, but it should be fair. The clause
has been interpreted that trial must be in a manner so as to be just, fair and reasonable.42.
In R v Secretary of State for the Home Department — ex parte Leech,43. while considering the power of the
prison authorities which permit the reading and stopping of confidential letters between the prisoner and a
solicitor, it was held that “some screening of correspondence passing between the prisoner and solicitor is
permissible” though such intrusion should be to the minimum necessary to ensure that the correspondence is in
truth bona fide legal correspondence.
Article 8(1) of European Convention of Human Rights guarantees, everyone has the right to respect for his
private and family life and his correspondence. In Campbell v U.K.,44. the correspondence between a life
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convict and his solicitor was tampered by prison authorities which was challenged as violation of Article 8(1).
The court considered whether it was necessary in a democratic society, i.e., corresponded to a pressing social
need and that it was proportionate to the legitimate aim pursued. (i.e., whether the correspondence contain
material which was detrimental to prison order). The court said that letters between solicitor and client are
generally privileged, but could be opened but not read, where there are reasonable grounds to suspect that
some illicit object or substance was enclosed. The letter may be read in circumstances where “the authorities
have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger
prison security or the safety of others or are otherwise criminal nature”.45.
In all civilised countries governed by rule of law, all criminal trials have to be public trials, where public and
press have complete access. Public access is essential if trial adjudication is to achieve the objective of
maintaining public confidence in administration of justice. Publicity is the authentic hallmark of judicial
functioning distinct from administrative functioning. Open trial serves an important prophylactic purpose,
providing an outlet for community concern, hostility and emotion. Public trial restores the balance in cases when
a shocking crime occurs in society. People have an inherent distrust for secret trials. One of the demands of
democratic society is that public should know what goes on in court while being told by the press or what
happens there, to the end that the public may judge whether the Indian system of criminal justice is fair and
right. Criminal trial is a public event. What transpires is a public property. Open trial is a universal rule and must
be scrupulously adhered to except under exceptional and extraordinary circumstances. The right to public trial
has also been recognised under section 327 CrPC.46. In that case, court justified the order of High Court where
trial was directed to be held in jail premises due to peculiar circumstances. Court said that consideration of
public peace and tranquility, maintenance of law and order situation, safety and security of the accused and the
witnesses may make the holding of a trial inside the jail premises justified.
American Supreme Court has said that the guarantee of public trial (6th Amendment) is a safeguard against
any attempt to employ the courts as instruments of persecution. It has also been deduced from the guarantee
of Due Process.47. The requirements of public trial are satisfied if – (a) members of the public and (b) of the
press have an opportunity to attend the trial and to report what they have observed. The right of the accused to
a public trial does not, however, confer upon the Press any special privilege which does not belong to other
members of public.48. Any undue publicity of the trial is likely to prejudice the minds of witnesses and the jury
and is likely to impair a fair trial and the right of the accused to a verdict based solely upon the evidence and the
relevant law.49. The court would, therefore, quash a conviction when the trial atmosphere has been utterly
corrupted by press coverage.50.
In U.K., the right of the accused to a public trial has been derived from natural justice, namely, that publicity is
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the very soul of justice “except in cases which would justify in camera proceedings e.g., proceeding relating to
wards, lunacy, discovery and invention” where publicity will defeat ends of justice.51.
In India, section 327 of CrPC provides for open trial. Merely because a trial is held in a jail, it does not
automatically become a trial which is not open to public. Reasonable restriction to regulate the entry of general
public does not mean that it ceases to be a public and open trial.52. Holding trial in jail is not unconstitutional.53.
[Art 21.3.27] Contravention of Article 21 by a Judicial Order
1. The vexed question whether a fundamental right can be violated by a judicial decision or order came up
before a 7-Judge Bench in Antulay’s54. case.55. By a majority of 4 to 3, the Supreme Court appears to have
laid down the following provisions,—departing from the orthodox view:
(a) A court cannot confer a jurisdiction on itself which was not provided by the Constitution or statutory law
[paras 38 and 40].56.
(b) A judicial order made without jurisdiction is a nullity [para 81].56
(c) The jurisdiction of a court can be created (enlarged or divested) only by the Legislature and not by the
court itself [para 41].56
(d) No court can divest a person of his right of appeal or revision established by law [para 41].56
(e) Where a court assumes jurisdiction which it does not possess or divests a person of his constitutional
or statutory right (even though in exercise of its power of interpretation), it acts contrary to the
“procedure established by law”, and there is a violation of Article 21 [para 43].56
(f) A decision which violates the basic principles of natural justice, e.g., an order passed behind the back
of a party, is contrary to the procedure established by law, and, therefore, violative of Article 21 of the
Constitution [paras 61–62 and 80].56
(g) A judicial order which violates a fundamental right or the principles of natural justice, is a nullity [para
57], and, where there is no superior court to set it aside, it should be rectified by the court which
passed that order, in the exercise of its inherent jurisdiction [paras 81–83].57.
(h) Where a person’s reputation is likely to be affected by a judicial order, he must be heard before any
order is passed. Right to reputation is part of life. Hence the person is entitled to have an “opportunity”
of being heard which is also part of life. If the principle of natural justice is violated, the remarks against
the person in liable to be expunged.58.
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2. A crucial instance, where the requirement of fairness implicit in Article 21 would stand in the way of a court to
exercise its legal powers, has been offered by the Supreme Court in Thippeswamy’s case.59.
Where by reason of plea bargaining the accused pleaded guilty and was convicted and sentenced by Magistrate acting
upon his plea of guilty, the enhancement of sentence by the appellate or revisional court in appeal or revision by acting
on plea of guilty would not be reasonable, fair and just. It would be clearly violative of Art. 21 of the Constitution to
induce or lead an accursed to plead guilty under a promise or assurance that he would be let off lightly and then in
appeal or revision, to enhance the sentence. The court of appeal or revision should, in such a case, set aside the
conviction and sentence of the accused and remand the case to the trial court so that the accused if he so wishes,
defend himself against the charge and if he is found guilty, proper sentence can be passed against him.
In State of UP v Nasruddin60. and in State of UP v Chandrika,61. the Supreme Court said that the concept of
plea bargaining is against public policy under criminal justice system nor can the accused bargain with the court
that as he is pleading guilty, sentence be reduced. Plea bargaining is seen as an alternative method to deal
with the staggering arrears of criminal cases and the concept of plea bargaining is incorporated in the Criminal
Law Amendment Act, 2005 which received the assent of the President in January 2006.
[Art 21.3.28] Court’s right to interfere when a person is deprived of liberty otherwise than according to
procedure established by law
1. Article 21 says that a person may be deprived of his liberty only according to procedure established by law.
2. It follows, therefore, that those who feel called upon to deprive other persons of their personal liberty in the
discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of
the law.62. And the Court, in a proceeding for habeas corpus, will set the prisoner at liberty whenever this has
not been done.63.
3. This principle has its application both in the case of punitive as well as preventive detention.64. Thus,
(A) Punitive detention
1. In habeas corpus proceedings, the legality or otherwise of the detention is to be determined by the
court with reference to the time of the return and not that of institution of the proceedings.The analogy
of civil proceedings in which rights of parties have originally to be ascertained as on the date of
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institution of proceedings cannot be invoked in regard to proceedings in the nature of habeas corpus
where the court is concerned solely with the question whether the applicant is lawfully detained or not.
Therefore, if at any time before the court directs the release of detenu, a valid order directing his
detention is produced, the court cannot direct his release, merely on the ground that at some prior
stage there was no valid cause for detention. In such a case, the question is not whether the later order
violates the earlier detention, but whether in the face of the latter valid order, the court can direct the
release of the petitioner.65. The above view was reiterated in B. Ramachandra Rao v State of
Orissa,66. wherein it was held that the legality of the detention must be considered on the date of
hearing. But in A.K. Gopalan v Govt of India,67. a view was expressed that “it is well settled that in
dealing with the petition for habeas corpus, the court is to see whether the detention as the date on
which the application is made to the court is legal, if nothing more has intervened between the date of
application and the date of hearing.” In Talib Hussain v State of J&K,68. it was observed that the
legality has to be considered on the date of hearing. All the above decisions were considered in
KanuSanyal v District Magistrate,69. it was held that the legality should be determined with reference to
the date of return which is more inconsonance with the law and practice in England and may be taken
as having received the largest measure of approval in India. It was also held that this legality as on the
date of hearing also cannot be discarded as incorrect, because on enquiry whether the detention is
legal or not as on the date of hearing is quite relevant for the simple reason that if as that date the
detention is legal, the court cannot order release of the person detained by issuing a writ of habeas
corpus. Where a court adjourns a proceeding under section 344 of the Criminal Procedure Code
(1898) without making an order of remand to custody as required by that section, and there is no such
order on the date of the return, the accused are entitled to be released on an application for habeas
corpus.70.
2. Under Rule 41 of the Punjab Communist Detenus Rules, 1950, the Jail Superintendent was
empowered to punish a detenu for “jail offences”; if, however, he was satisfied that the offence was
such that it was not adequately punishable by him, he might forward it to the court of a Magistrate.
Held, that where the Jail Superintendent had himself punished a detenu under this rule, he had no
authority to refer the case again to a Magistrate, and any prosecution insuch circumstances would be
contrary to “the procedure established by law” and, accordingly, invalid.71.
3. Where a convict or under-trial prisoner is treated with cruelty72. in violation of the Prisons Act or the
Regulations made thereunder;73. or contrary to all norms of decency.74.
In an early American case, Coffin v Reichard,75. court said: “The Government has the absolute
right to hold prisoners for offences against it, but it has also the correlative duty to protect them
against assault or injury from any quarter while so held. A prisoner is entitled to the writ of habeas
corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully
entitled even in confinement, the deprivation of which serves to make his imprisonment more
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burdensome than the law allows or curtails his liberty to a greater extent than the law permits.” In
Sunil Batra v Delhi Admn.,76. court ruled that fundamental rights do not flee the person as he
enters the prison although they may suffer shrinkage necessitated by incarceration. Where
injustice verging on inhumanity emerges from hacking human right guaranteed in Pt III and the
victim beseeches the court to intervene and relieve, the court will be a functional futility as a
constitutional instrument if its guns do not go into action until the wrong is righted.
4. Where an under-trial prisoner was kept in custody, long beyond the period prescribed by section
167(2), CrPC 1973, the court released him, on a personal bond.77. Court said that after the “dynamic”
interpretation of Article 21 in Maneka Gandhi v UOI,78. there is little doubt that any procedure which
kept large number of people behind bars without trial so long cannot possibly be regarded as
“reasonably just and fair” so as to be in conformity with Article 21. It is necessary that the law enacted
by the Legislature and as administered by the courts must radically change its approach to pre-trial
detention and ensure “reasonable, just and fair procedure” which have creative connotation after
Maneka Gandhi’s case (supra).79.
In case of inordinate delay in framing charges, the High Court would quash the prosecution as an
abuse of process of court.80. Under the unwritten Constitution of England, it has been held that
where there is delay in launching the prosecution, since the alleged date of commission of the
offence is so prolonged as to render the delayed prosecution to be an abuse of process of court,
the High Court may stop proceeding by issuing a writ of prohibition.81.
5. Sentence cannot be enhanced in appeal or revision against conviction on plea of guilty; the proper
course should be to quash the conviction and remand the case to trial court so that accused might
have an opportunity of defending himself.82.
6. Contravention of the requirements of Article 22(2), e.g., failure to produce the arrested person before a
magistrate.83.
(B) Preventive detention
1. Similarly, in the case of preventive detention, if the detention is not in strict conformity84. with the law
authorising detention, the detenu is entitled to be released.85. And such procedure must also be fair
and reasonable, otherwise it will be violative of Article 21.86. In this case, the right of a detenu to
consult a legal adviser of his choice has been drawn from Article 21, even though that is excluded
under Article 22(5).87.
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Thus, the violation of the following provisions, inter alia,of the Maintenance of Internal Security Act
(which was the successor to the Preventive Detention Act, 1950) was held to invalidate the
detention—
(i) Where the order of detention is jointly signed by several officers, in contravention of section 3,88.
or it is not clear which officer was “satisfied” as to the grounds of detention.88
(ii) Where the State Government fails to report to the Central Government within 7 days of the order,
(when made by itself) or the date of its approval, as required by section 3(4).89.
2. Where the requirements of Article 22 have not been strictly followed, e.g.,
(i) Where the documents or materials relied upon in the order of detention was not supplied to the
defence together with the “grounds”.90.
In a number of cases, the proposition that all material documents relied on by the detaining authority to
pass the order of detention have to be communicated to the detenu has been reiterated.91.
3. Where there has been a failure to comply with the requirements of the relevant statute, further
detention offends Article 21 and the detainee is entitled to be set free.92.
The courts would look with disfavour upon vague grounds of detention because such grounds fail
to convey to the detenu the precise activity on account of which he is being detained. The detenu
is thus prevented from making an effective representation which he might possibly have made, if
he had been apprised of the objectionable activity which led to his detention. In such cases, the
detention order will have to be quashed and the detenu will be set at liberty forthwith.93.
Where the grounds on which order of detention was passed had no probative value and were
extraneous to scope, purpose and object of National Security Act, such detention will be invalid
and the detenu will be set at liberty.1. It was held therein that when there is difficulty in procuring
evidence to sustain conviction in criminal case, that cannot be a ground to pass a preventive
detention order. Where recourse to criminal proceedings would be sufficient to deal with alleged
prejudicial activities, then recourse to preventive detention law is illegal.2.
When preventive detention order is passed on subjective satisfaction, there must be some material
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based on which such satisfaction is entered, but mere likelihood cannot be the basis of such
satisfaction, and hence personal liberty cannot be curtailed on such speculation. In such cases, the
detenu will be set at liberty.3.
Gravity of offence alleged to have been committed, has no relevance to pass preventive detention
order and curtail personal liberty.4.
It is a constitutional requirement that an arrested person be produced before a judicial magistrate

within twenty four hours of his arrest and such requirement is mandatory failing which the arrested
person will be released.5.
[Art 21.3.29] Protective relief
1. A person whose liberty has been threatened by the State or its agents need not wait to bring a Petition
for habeas corpus after he has actually been arrested or detained.6. Pre-violation protection is different
from post-violation of restoration of right. It was held in that case that protection of right is different from
restoration of right. Conferring the right to life and liberty imposes a corresponding duty on the rest of
the society including the State, to observe that right, that is to say not to act or do anything which would
amount to infringement of that right, except in accordance with procedure established by law. When
such right of a person is threatened to be violated, or its violation is imminent and the affected person
resorts to Article 226, the court can protect observance of his right by restraining those who threatened
to violate it.
It is open to him to apply to the court under Article 226 (or 327.) for a writ of mandamus or an order
in the nature thereof, giving sufficient particulars of actions as would imminently lead to a violation
of his right to life or liberty.
It follows that a person against whom an order of preventive detention has been made, but he has
not yet been arrested and is still free, may move the court asking for an order restraining the
relevant authority from taking any steps for depriving him of his personal liberty, challenging the
order of detention (paras 13 and 30)6 on grounds such as that—
(a) It has been passed by an incompetent person; or
(b) It is mala fide; or
(c) It is contrary to the procedure prescribed for passing such order; or

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(d) It is otherwise a nullity, e.g., having been passed against a wrong person (paras 14–15).8. Such
person need not surrender to the authority in order to apply for habeas corpus (para 15).8
2. On the same principle, where self-incriminating statements have been obtained from a person, in
violation of Article 20(3), and he can show that a prosecution is being sought to be made or continued
on the basis of such statements, he can obtain an order of mandamus or injunction in the nature
thereof, to restrain the State from using such statements against him in such prosecution.9. The
prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those
who are accused of a criminal offence is the cornerstone of our democratic society. Conducting a fair
trial is both for the benefit of the society as well as for the accused and cannot be abandoned. While
considering the aspect of fair trial, the nature of evidence obtained and nature of safeguards violated
are both relevant factors. Court cannot allow admission of evidence against an accused where the
court is satisfied that the evidence has been obtained by a conduct of which the prosecution ought not
to take advantage particularly when that conduct causes prejudice to the accused. Evidence so
obtained must be excluded.10.
3. The decision in Kiran Pasha’s case 8 has been reviewed by a three Judge Bench11. and it is now to be
read subject to the following limitations:
(a) Where an order of preventive detention has been issued and the validity of such order is
challenged on any of the grounds specified above, the court may restrain the execution of that
order, in appropriate cases. But normally the scope of judicial review arises only after the order of
detention is executed. It was held that though the court have necessary power to interpret pre-
execution stage the same will be used only sparingly viz., where the courts are prima facie
satisfied: (1) that the impugned order is not passed under the Act under which it is purported to
have been used; (2) that it is sought to be executed against a wrong person; (3) that it is passed
for a wrong purpose; (4) that it is passed as vague, extraneous and irrelevant grounds; or (5) that
the authority which passed it had no authority to do so. It was further held that the refusal of court
to use their extraordinary powers of judicial review to interfere with the detention orders prior to
their execution on any other ground does not amount to abandonment of the said power or to their
denial to the proposed detenu, but prevents their abuse and the perversion of the law in
question.12. The challenge to preventive detention at pre-execution on the above grounds is not
exhaustive. If a person against whom a preventive detention order is passed comes to court at pre-
execution stage and satisfies the court that the order is clearly illegal, there is no reason why the
court should stay its hands and compel him to go to jail though he is bound to be released
subsequently, because of the illegality of the order. If a person is sent to jail, then even if he is
subsequently released, his reputation may be irreparably tarnished. Liberty of a person is a
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precious fundamental right under Article 21 and should not be lightly transgressed.13. Though a
detention order was passed in 2002, it was not executed till 2008 and in the interval, there was no
circumstance to show that the person has indulged in illegal activity, the court said that there is no
necessity to detain him. But the court said that the Government has power to pass detention order,
if the person again revives his illegal activities.14. If the preventive detention order has become
infructuous, there is no question of granting liberty to pass fresh order of preventive detention. The
order of High Court was held unsustainable.15. But a pre-execution order could be interfered with if
it is passed “for a wrong purpose” and will not come within the exception mentioned above.16.
Where liberty is given to challenge detention “after” its execution, the detention order cannot be
challenged unless and until it is executed. Merely because the order was stayed by various interim
orders, detenu could not be permitted to challenge detention until its execution.17.
(b) But the court has no such power to interfere with an order of detention on any other ground, unless
the detenu submits to that order.
(c) The court has no general power to interfere, on the ground of an apprehension of detention even
before an order of detention has been issued at all.18.
[Art 21.3.30] Award of Compensation
The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty,
protection of which is guaranteed under the Constitution, is a claim based on strict liability and it is in addition to
the claim available in private law for damages by tortious acts of public servant. Award of compensation for
established infringement of the indefeasible rights guaranteed under Article 21, is a remedy available in public
law since the purpose of public law is not only to civilize public power but also to assure the citizens that they
live under legal system wherein rights and interests shall be protected and preserved. Grant of compensation in
the proceedings under Articles 32 and 226 of the Constitution of India for the established violation of the
fundamental rights guaranteed under Article 21, is an exercise of the courts under public law jurisdiction for
penalizing wrong-doers and fixing liability for public wrong on the State which fails to discharge its public duty to
protect the fundamental rights of the citizens.
The old doctrine of relegating the aggrieved party to the remedies available in civil law limits the role of courts
as the protector and custodian of the indefeasible rights of the citizens. Mere punishment of the offender cannot
give much solace to the family of the victim, especially when civil action for damages is a long drawn and
cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the
indefeasible right to life of the citizen is useful and at times perhaps the only effective remedy to apply balm to
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the wounds of the family members of the deceased victim, who may have been the bread winner of the
family.19.
Where the death of a military officer while in service was under mysterious circumstances and no enquiry was
made, and even if made, its result was kept secret, the Supreme Court found that the whole case was handled
with culpable negligence and cynical indifference. The wife of the deceased was held entitled to suitable
compensation as well as Special Family Pension and children allowance under relevant rule from the date of
death of her husband. The defence of sovereign immunity was held inapplicable and alien to the concept of
guarantee of fundamental rights. There is no question of defence being available for constitutional remedy.20.
In Nilabati Behera v State of Orissa21. it was held thus:
“The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot
be told that for the established violation of the fundamental right to life, he cannot get any relief under the public
law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the
prerogative wits and the courts have, therefore, to evolve “new tools” to give relief in public law by moulding it
according to the situation with a view to preserve and protect the Rule of Law.While concluding his first Hamlyn
Lecture in 1949 under the title Freedom under the Law, LORD DENNING in his own style warned:
No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure
that they will sometimes do things which they ought not to do; and will not do things that they ought to do. But, if and
when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom
is efficient, our procedure preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the
winning of coal, so also the procedure of mandamus, certiorari and actions, on the case are not suitable for the winning
of freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and
actions for negligence … This is not the task of Parliament … the courts must do this. Of all the great tasks that lie
ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare State; but abused
they lead to a totalitarian State. None such must ever be allowed in this country.
It is further observed thus:
The precious right guaranteed by Art. 21 of the Constitution of India cannot be denied to convicts, under trials or other
prisoner in custody, except according to procedure established by law. There is a great responsibility on the police or
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prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very
nature of things circumscribed by the very fact of his confinement and, therefore, his interest in the limited liberty left to
him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrong doer is
accountable and the State is responsible if, the person in custody of the police is deprived of his life except according
to the procedure established by law.”
It is observed in this case that, the defence of sovereign immunity being inapplicable, and alien to the concept
guarantee of fundamental rights, there can be no question of such a defence being available in a constitutional
remedy. It is the principle which justifies award of monetary compensation for contravention of fundamental
rights guaranteed by the Constitution, and that is only a practicable mode of redressal available for the
contravention made by the State or its servants in the purported exercise of their powers and enforcement of
fundamental rights is claimed by resorting to the remedy in public law under the Constitution by recourse to
Articles 32 and 226 of the Constitution.
In the concurrent opinion JUSTICE A.S. ANAND (as His Lordship then was) observed:
The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary
compensation, as exemplary damages, in proceedings under Art. 32 by this court or under Art. 226 by the High Courts,
for established infringement of the indefeasible right guaranteed under Art. 21 of the Constitution is a remedy available
in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the
citizen.
His Lordship further observed: “the payment of compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the private law but in the broader sense of providing
relief by an order of making “monetary amends” under the public law for the wrong done due to breach of public
duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of “exemplary
damages” awarded against the wrong doer for the breach of its public law duty and is independent of the rights
available to the aggrieved party to claim compensation under the private law in an action based on tort, through
a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”22.
It was held that money award can be calculated only to make good financial loss. It is not an award for the
sufferings already undergone which are incapable of calculation in terms of money. Money compensation may
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be awarded so that something tangible may be procured to replace something of the like nature which has
been destroyed or lost. Money award cannot, however, renew a physical frame that has been battered and
shattered due to callous attitude of others. All that the court can do in such cases is to award such sums of
money which may appear to be giving of some reasonable compensation, assessed with moderation to express
court’s displeasure or condemnation of the tortious act committed by the State.23.
The same principle in awarding compensation has been reiterated in various cases.24.
Awarding of compensation in public law can be made only after proper enquiry. Such compensation can be
awarded against the State or its officers.25. Where a constable was killed accidentally by fellow constable and
the authorities did not intimate the death to parents of deceased but sent a photograph of a wrong person, the
court found that the dependants of the deceased are entitled to compensation for the agony and loss of their
son.26. Once the entitlement to compensation is proved, a writ court cannot re-examine that question.27.
It is in the matter of enforcement of Fundamental Rights that the court has the right to award damages to
compensate the loss caused to a person on account of violation of his fundamental rights.28.
In Bhajan Kaur v Delhi Administration,29. the Delhi High Court determining the scope and width of Article 21 of
the Constitution and held thus:
“Personal liberty is fundamental to the functioning of our democracy. The lofty purpose of Article 21 of the
Constitution would be defeated, if the State does not take adequate measures for securing compliance with the
same. The State has to control and curb the mala fide propensities of those who threaten life and liberty of
others. It must shape the society so that the life and liberty of an individual is safe and is given supreme
importance and value. It is for the State to ensure that persons live and behave like and are treated as human
beings. Article 21 of the Constitution is a great land mark of human liberty and it should serve its purpose of
ensuring the human dignity, human survival and human development. The State must strive to give a new
vision and peaceful future to its people where they can co-operate, co-ordinate and co-exist with each other so
that full protection of Article 21 of the Constitution is ensured and realized. Article 21 is not a mere platitude or
dead letter lying dormant, decomposed, dissipated and inert. It is rather a pulsating reality throbbing with life
and spirit of liberty and it must be made to reach out to every individual within the country. It is the duty and
obligation of the State to enforce law and order and to maintain public order so that the fruits of democracy can
be enjoyed by all sections of the society irrespective of their religion, caste, creed, colour, region and language.
Article 21 of the Constitution is an instrument and a device to attain the goal of freedom of an individual from
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deprivation and oppression and its violation cannot and must not be tolerated or condoned. Preamble to the
Constitution clearly indicates that justice, liberty and equality must be secured to all citizens. Besides, it
mandates the State to promote fraternity among the people ensuring the dignity of the individual and the unity
and integrity of the nation. Article 38 of the Constitution also requires the State to promote welfare of the people
by securing and protecting, as effectively as it may, a social order in which justice—social, economic and
political, shall inform all institutions of the national life. These are the goals set by the Constitution, and the
Article 21 and other fundamental rights are the means by which those goals are to be attained. Therefore, it
becomes the responsibility and avowed duty of the State to adopt means and methods in order to realize the
cherished aims … The conduct of any person or groups of persons has to be controlled by the State for the
lofty purpose enshrined in Article 21 of the Constitution … ”
In the State of M.P. v Shyam Sunder Trivedi,30. the Supreme Court disagreed with the practice of insisting of
proof beyond a reasonable doubt in cases where compensation is claimed for death or torture while in police
custody. It was held that there cannot be any direct evidences in such cases and court should not ignore the
ground realities, the fact situations and the peculiar circumstances of the case. Too much insistence on the
doctrine of proof beyond reasonable doubt in ultimate analysis makes the society suffer and the criminal gets
encouraged. The court observed the torture in police custody which of late are on the increase, receive
encouragement by this type of unrealistic approach of the court. The court took note of the fact that death in
police custody is perhaps one of the worst kind of crime in a civilized society. In that case the court directed the
police officials to pay fine which is to be paid as compensation to the legal heirs of the victim.
In the case of gang rape by railway employees on a Bangladeshi woman, damage was awarded treating the
writ petition filed by an advocate as a PIL. The contention that the aggrieved person should have moved the
civil court and not a writ petition was rejected by the Supreme Court wherein it was observed: “ … the
contention that the victim should have approached the Civil Court for damages and the matter should not have
been considered in a petition under Article 226 of the Constitution cannot be accepted. Where public
functionaries are involved and the matter relates to the violation of the fundamental rights or enforcement of
public duties, the remedy would still be available under the public law notwithstanding the fact that a suit could
be filed for damages under private law. In the instant case, it is not a matter of violation of an ordinary right of a
person, but the violation of fundamental right which involved Mrs. Haneeffa Khatoon who was a victim of rape.
The court in Bodhisattwa v Ms. Subdra Chakroborthy31. has held “rape” as an offence which is violative of
fundamental right of a person guaranteed under the Constitution.32. In Rudal Shah v State of Bihar,33. the
Supreme Court awarded compensation in a writ petition for habeas corpus for breach of his right to personal
liberty guaranteed under Article 21 as he was kept in jail for fourteen years after his acquittal by a criminal
court. Court said that fact situation revealed a sordid and disturbing state of affairs for which the responsibility
lay squarely on the administration. The court felt that not awarding damages in the case would be doing merely
lips service to the Fundamental Right to liberty which the State Government has so grossly violated”.
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Merely because a person is convicted and imprisoned under sentence of court, he does not lose all the
fundamental rights belonging to any person including the right under Article 21 which deals with deprivation of
life or personal liberty except according to procedure established by law.
Supreme Court also declared that exercise of powers in awarding monetary compensation should not ordinarily
be exercised when there is a serious dispute on facts while invoking powers under Article 32 or 226. When the
infringement is shown on the face of it there is no bar in granting the relief. It is further declared, this remedy in
public law has to be more readily available when invoked by the have-nots, who are not possessed of the
wherewithal for enforcement of the rights in private law, even though its exercise is to be tempered by judicial
restraint to avoid circumvention of private law remedies more appropriately. A person can seek remedial
assistance under Article 32 of the Constitution when his fundamental right has been violated. “It is in the matter
of enforcement of fundamental right that the court has the right to award damages to compensate the loss
caused to a person on account of violation of his fundamental right”.34. In Consumer Education & Research
Centre v UOI,35. court said: “It is, therefore, settled law that in public law for compensation is a remedy
available under Article 32 for the enforcement and protection of fundamental and human rights. The defence of
sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights”.
In the following categories of cases, the Supreme Court has granted damages: (1) Where the petitioner has
suffered personal injuries at the hands of Government servants by their tortuous acts.36. Compensation is also
awarded in cases of fake encounter cases.37.
In matters involving infringement or deprivation of fundamental rights, abuse of process, harassment, etc., court
has ample power to award adequate compensation to an aggrieved person not only to remedy the wrong done
to him, but also to serve as a deterrent for wrong doers. Power of the Supreme Court under Article 32 and that
of High Court under Article 226 is well established.38. Compensation in public law remedy need not be merely
palliative, it can be monetary amount for wrong done or by way of exemplary damages, albeit excluding any
amount recoverable in civil action for tortuous liability. But compensation must be determined keeping in view
the wrong done, but at the same time it has to be based on realistic assessment. Exemplary damages also can
be awarded to have a deterrent effect.39.
Police atrocities is another ground where public law damages are awarded.40. Atrocities include custodial
death.41. Compensation is also awarded in case of medical negligence.42.
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In cases of environmental pollution also, compensation is awarded.43. In M.C. Mehta v Kamal Nath,44.
Supreme Court observed that pollution is a civil wrong against the community as a whole which amounts to
infringement of Article 21 of the Constitution and hence court has power under Article 32 to award
compensation to the victims of pollution in a writ petition under Article 21 against the persons causing pollution.
In such cases, damages may fall under following heads:- (a) damages for restoration of the environment and
ecology; (b) damages for those who may have suffered loss on account of the act of pollution; (c) exemplary
damages so that other people are deterred from causing environmental pollution in any manner. In this case,
exemplary damages of Rs 10 lakhs was awarded.
In Nilabati Behra v State of Orissa,45. court observed that public law proceedings serve a different purpose
other than private law proceedings. The purpose of former is not only to civilise public power, but also assure
the citizens that they live under a legal system wherein their rights and interest shall be protected and
preserved. On the other hand, civil action for damages is a long drawn and a cumbersome judicial process. The
award of compensation in the public law jurisdiction is without prejudice to any other action which is lawfully
available to the victim or the heirs of the deceased victim. The relief to redress the wrong for the established
invasion of the fundamental right of the citizen under public law jurisdiction is thus in addition to the traditional
remedies and not in derogation of them. The claim in public law for compensation for unconstitutional
deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution
is a claim based on strict liability and is in addition to the claim in private law for damages for tortuous acts of
public servants.
Where large numbers of people become victims of accident which was the consequence of negligence or
breach of duty or violating a statutory duty, the practice is to award uniform amount, leaving it to persons
concerned to seek additional compensation, by filing civil suits in appropriate court.46.
The court also took note of the fact that law in this regard is in the process of development and the process
necessitates developing separate public law procedures as also public law principles. It may be necessary to
identify the situations to which separate proceedings and principles apply and the courts have to act firmly but
with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused
as a disguised substitute for civil action in private law.”47.
At the initial stage the court must lean a little in favour of the victims on account of the adverse situation in
which they stand placed, but the court must find something to lean on. When there is no evidence to suggest
that the petitioner’s case was worthy of belief, no relief could be granted.48. Recently the House of Lords while
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considering the breach of Convention Rights held that there is no general rule that under the Human Right Act,
1998, that an individual has a right to recover compensation whenever a public authority has infringed the
Convection Rights. It was observed that the focus of the convention is the protection of Human Rights and not
the award of compensation. The power to award compensation for breaches of Convention Rights raises
difficult questions both about principle of liability and issues of quantum.49.
Article 5(5) of European Convention of Human Rights provides “Everyone who has been a victim of arrest or
detention in contravention of the provision of this article shall have an enforceable right to compensation”.
Where the arrest and detention is unlawful under natural law and there is no domestic entitlement to damages
under the Convention, the victim still have a rightful claim for damages under Article 5(5)50. or under the “just
satisfaction” of Article 50. Compensation is not limited to arrest or detention itself, but extends to procedural or
other guarantee matters which the detainee should have been benefited under Article 5(2) to (4).
The monetary compensation cannot be released when the State has to act to suppress separatist and terrorist
activities where they have to be fought politically or to be dealt with by force which is a matter of policy for the
Government to determine and the court may not be an appropriate forum to determine such cases. But under
the guise of suppression of separatist or terrorist movement, the State cannot take away the life and liberty of
persons. “Administrative liquidation” is certainly not a course open to them.51.
The right under Article 21 is not limited to citizens but it is available to all persons. Hence a claim for
compensation was upheld by Supreme Court in a case where a Bangladesh woman was raped by railway
employees in Yatri Nivas at Howrah Station.52.
If the State officials unlawfully detain a person who is not a lunatic in a mental hospital, it would be a violation of
Article 21 and the State is liable to pay damages to the person aggrieved.53. The doctrine of sovereign
immunity of the State would be subject to constitutional mandate and assault or battery when committed by
State, it would be violative of Article 21.54. When the expression “life” and “personal liberty” means a right to
live with human dignity, it would necessarily include a right to compensation for unlawful arrest, torture and
custodial violence.55.
Under Article 5(5) of the European Convention of Human Rights, and Article 9(5) of International Covenant on
Civil and Political Rights 1996, everyone who has been the victim of arrest or detention in contravention of the
provision of this Article shall have an enforceable right to compensation.
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Under the said Article only the victim can recover compensation and the damages are restricted where there
has been an unlawful arrest or detention. Where the arrest and detention is unlawful under national law, and
there is no domestic entitlement to damages, under the Convention, the victim still has a rightful claim to
damages.56.
Any claim under Article 5 must be as a result of a violation under Article 5(1)-(4) of the Convention. The victim
may have to show that he has suffered atleast some damage or injury whether it be financial, physical or
mental. Compensation is not limited to arrest or detention itself but extends to procedural or other guarantee
matters which the detainee should have benefited from under Articles 5(2)-(4).57.
The House of Lords has held that exemplary damages may be awarded where there has been a tort involving
“oppressive, arbitrary or unconstitutional action by the servant of the Government”.58. Servants of the
Government to be interpreted broadly to cover all those acting in the service of the State, including police and
local authorities,59. and is not confined simply to those employed by Central Government. The categories are
disjunctive, so exemplary damages may be awards for unconstitutional action that is not arbitrary or
oppressive.60.
1. in a number of cases, the Supreme Court has held that where there has been a flagrant violation of
Article 21, the Supreme Court (Article 32)61. or a High Court (Article 226)62. has the power to award
compensation, in an application for habeas corpus63. or even in a public interest Petition64. under
Article 32, payable by the State to the victim or his heirs or dependants.65.
2. Such compensation has been awarded in cases, inter alia,of—
(a) Death or injury caused by Police atrocities, such as unlawful assault,66. or unjustifiable firing on an
innocent mob;67. or death in police custody.68. Supreme Court has also pointed out that besides
the police, there are several other governmental authorities having power to detain persons and
interrogate them in connection with the investigation of certain types of offences. Some of these
agencies are Directorate of Enforcement (FERA), Directorate of Revenue Intelligence, Central
Reserve Police, Intelligence Bureau, CBI, etc. There are instances of torture and death in custody
of these authorities as well.69.
(b) Continuance of imprisonment for a long period after acquittal at a trial, without any legal
justification.70.
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(c) Preventing a Member of the Legislature from attending its session, by detaining him high-handedly
and maliciously.71.
(d) Compensation was awarded for hand-cuffing an under-trial prisoner and taken through the streets,
being violative of Article 21.72.
(e) Wrongfully arresting a person on the basis of alleged recovery of arms and ammunitions and
manipulating records to that effect by the police, compensation was awarded.73.
(f) Abduction and elimination of seven persons by police party misusing the official position to wreak
private vengeance is illegal. Compensation was awarded.74.
Where criminals were authorized to supervise the prisoners, the court sought an
explanation from the authority and basis for such authorization.75.
(g) Compensation was awarded in cases where an undertrial lunatic prisoner was languishing in jail
for more than 30 years without any treatment.76.
(h) Because of negligence of jail authorities in taking timely preventive action, which caused the death
of an under trial prisoner, compensation was awarded.77.
(i) Loss of life due to dereliction of duty by Government servants, compensation is awarded. In the
case of rape, robbery and murder in running trains, the guard and motorman refusing to stop train
in spite of the alarm chain was pulled. The court held that the railways, has failed to take
reasonable care as was expected from a common carrier.78.
(j) For exploiting child labour, was held liable under the strict liability rule.79.
(k) In the case of negligence of Government officials, the State is vicariously liable and it cannot claim
any immunity.80.
Where the accused was denied the right to speedy trial i.e., where there was inaction on
the part of State to produce and examine witnesses for more than five years, the State
was held liable for damages, since the case affected the dignity and reputation of the
accused, who was ultimately acquitted.81.
For custodial torture, a person whether he is a convict, under-trial or detenu, he is entitled

to compensation. Right under Article 21 cannot be kept in abeyance for them. Where a
person was humiliated and harassed while in police custody (in this case self-humiliation
words were written on the placard and he was asked to hold it and photographs were
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taken which were circulated amongst general public and also used in revenue
proceedings), court said that torture need not be physical alone, it can be mental or
psychological torture calculated to create to submit to police demands. Compensation of
five lakhs was awarded, though the persons had to wait for nineteen years for getting
relief.82.
(l) A six year child due to falling in “uncovered sewerage tank”. Court directed the State Government
to pay compensation granting liberty to the Government to take proceedings to claim the said
amount from any other authority which may be responsible for keeping the sewerage tank open.83.
Where failure to provide protective gear and equipment, in spite of directions issued by court
resulted in causing death of sewage workers in manhole due to lack of protective gear, court
directed the public authority to pay compensation. Supreme Court even enhanced the
compensation payable to the families of deceased.84.
(m) A public functionary if he acts maliciously or oppressively and the exercise of power results in
harassment and agony, then it is not exercise of power, but its abuse. No law gives protection in
such cases. Compensation or damages may arise even the officer discharges his duty honestly
and bona fide. But when it arises due to arbitrary or capricious behaviour, then it losses its
individual character and assumes social significance. Award of compensation for harassment by
public authority not only compensates individual, satisfies him personally, but helps in curing social
evil.85.
(n) After filing habeas corpus petition, the detenu was released, but the petition does not become
infractious. The petition can be proceeded to determine whether the petitioner was entitled to
compensation as a public law remedy under Article 21.86. For wrongful detention, compensation
can be awarded.87.
(o) In the case of riot, the State is not necessarily liable in every case where there is loss of life or
damage to the property during rioting. Where, however, it is established that the Officers of the
State ordained with duty of maintaining law and order have failed to protect the life and property of
person and such failure amounts to dereliction of duty, the State bound to compensate the victim.
Such law can be enforced by public law remedy or common law remedy. Where necessary facts to
establish culpable negligence on the part of the official are available, the High Court under Article
226 can issue appropriate directions.88.
3. A pertinent question has been raised in a Calcutta case89. as to whether compensation would be
payable where the delay in the completion of a trial is caused by a court or courts, instead of by the
Police or the Prosecution.
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Of course, the majority in Naresh’s case90. held that a fundamental right can never be held to have
been violated by the Judiciary. But this Author ventures to answer the question posed in the
affirmative, contrary to the majority opinion in Naresh case,90 for the following reasons:
(a) So far as the accused is concerned, it is immaterial whether he is made to suffer by the Executive
or the Judiciary. In both cases, the State should be liable to compensate the citizen in a democratic
State, for administration of justice is an essential function of the State and the Judiciary is an
essential limb thereof.
(b) As has been held in hoary American decisions,91. a State can act only through any of its three
organs—Executive, Legislative and Judicial and the Bill of Rights was intended to control State
action through all of them. Article 12 of the Indian Constitution is an inclusive definition and it would
defeat its object if the Judiciary is left out.
(c) As has been pointed out by the Supreme Court in the Antulay case92. a court may be conceived of
violating the mandate of Article 21 of the Constitution in various ways. In Antulay’s case, it was
held that a decision of the Supreme Court could be set aside under Article 32, if it was contrary to
fundamental rights or was violative of the principle of natural justice.
(d) So long as the majority in Naresh case93. stands, it may not be possible to challenge a judicial
decision in a collateral proceeding on the ground of violating a fundamental right but the payment
of compensation by the State stands on a different ground, quit apart from that Naresh’s case.93 In
Hussain v State of Kerala,94. a person was convicted and was in jail for more than five years, the
Supreme Court set aside the conviction and held that the conviction was without sanction of law
and the person was deprived of his personal liberty. The court permitted him to resort to other
remedies for the purpose of getting compensation.
Recently, the Supreme Court has found fault with the State for not taking timely steps, for,
if timely action had been taken to produce and examine witnesses before the trial court
and expeditious trial had been conducted, the case would have ended in acquittal early,
without the petitioner having to languish in jail for more than five years. State was held
liable for damages and was directed to pay Rs. Two lakhs as damages.95.
[Art 21.3.31] Construction of Penal Statutes

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Though the strict rule that penal statutes ought to be strictly construed has been to a great extent relaxed in
modern times owing to the predominance of the rule that all statutes should be construed fairly so as to
effectuate the intention of the
Legislature,1. there is still a strong desire on the part of the courts to protect the life and liberty of a citizen by
the application of the old doctrine at least in normal times, though in times of emergency different
considerations would prevail.
(A) Usual practise.—
Usual practise
In normal times the court would still act on the presumption against interference with the liberty of the subject.2.
The corollaries following from this presumption are—
(i) Where a criminal offence is created, it should be created in clear language. Clear language is needed to
create a crime. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its
prohibitions are not clearly defined.3. If the language is ambiguous, it ought to be construed in such a way as to
restrict the ambit of the offence which the section creates.4. When a clause or expression in a penal statute is
capable of being interpreted either infavour of or against the accused, the former interpretation ought to prevail
and the benefit of ambiguity ought to be given to the accused.5. The rule exhibits a preference for the liberty of
the subject and in a case of ambiguity enables the court to resolve the doubt in favour of the subject and
against the legislation which has failed to express itself clearly.6. So, when a statute dealing with criminal
offence impinging upon the liberty of citizen, a loophole is found, it is not for the judges to cure it, for, it is
dangerous to derogate from the principle that a citizen has a right to claim that howsoever much his conduct
may seem to deserve punishment, he shall not be convicted unless the conduct falls within the definition of
crime of which he is charged.7. It is not for the court to stretch the meaning of expression used by the
Legislature in order to carry out the intention of the Legislature.8.
While construing a penal statute, it is to be strictly construed. But in case of any doubt, it should be resolved in
favour of subject.9. Recently, court held that unless all ingredients of a penal provision are satisfied, a person
cannot be punished; otherwise, there will be violation of Articles 20(1) and 21 of the Constitution.10. In the
words of Lord Porter “A man should not be put in peril on an ambiguity”.11. The rule exhibits a preference for
the liberty of the subject and a case of ambiguity enables the court to resolve the doubt in favour of the subject
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and against the Legislature, which has failed to express itself clearly.12. A man should not be jailed on an
ambiguity.13.
The output of statutory laws in modern times has steadily increased and every conceivable aspect of human
activity is being fast brought within statutory control. This has led to the widening of the area of offences which
are not only defined by Acts of the Legislature, but are also supplemented by rules, regulations and statutory
orders. The existence of the rule of strict constriction in its “true and sober sense” as now understood, can be
justified so that the present day growth of criminal laws, “will not become traps for honest, unlearned (in the
law) and unwary men”.14. Where it was observed that law must be expressed with such clarity and certainty as
to give reasonably precise and adequate guidance to those who want to be law abiding.15.
FREIDMAN in Law on Changing Society,16. after stating there is no justification for throwing out the strict
constriction principle, lock, stock and barrel is so far as it serves the reasonable protection of citizens from
arbitrary punishment, has formulated some guiding principles. (1) It is beyond the province of courts to create
basically new offences. These are properly the provinces of Legislature. (2) Where a court is faced with
conflicting interpretation of the language of a statute, either of which is compatible with reasonable census of
constriction it must balance the legislative purpose of the statute, in the light of the object matter and the politics
at State, with the principle that a person should not be convicted of an offence which he can reasonably regard
as a non-criminal action. But undue emphasis on either the liberty of the individual or security and order in
society to which the Act is directed is not required for that impede harmony and hamper public good as well as
disturb social weal and peace. This keep the weal balanced must be the prime duty of the judiciary.17. So
interpreting and applying penal statute, it has to be borne in mind that respect for human rights of the accused
is not the only value at stake. “The purpose of the criminal law is to permit everyone to go about daily lives
without fear of harm to person or property. And it is in the interest of everyone that serious crime should be
effectively investigated and prosecuted. There must be fairness on all sides.18. Though the general rule is that
penal statutes are to be strictly construed, provision relating to human behaviour intended to control offences
relating to society as a whole, should not be given so narrow a meaning as to defeat the purpose of the Act. In
such cases, provisions should be read in conjunction with other provisions of the Act and it should be so
construed as to avoid absurd results and further the object and cause of the enactment.19.
In India, in construing a Notification under the Essential Supplies (Temporary Powers) Act, BOSE, J. observed:
In a penal statute, it is our duty to interpret words of ambiguous meaning in a broad and liberal sense so that they will
not become traps for honest, unlearned (in the law) and unwary men. If there is honest and substantial compliance with
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anarray of puzzling directions, that should be enough even if on some hypercritical view of the law other ingenious
meanings can be devised.20.
(ii) Where there are two possible interpretations one of which would mitigate the penalty and the other
aggravate it, the former should prevail.21. If two possible and reasonable constructions can be put upon a penal
provision, the court must lean towards that construction which exempts the subject from penalty rather than the
one which imposes penalty. If there is reasonable interpretation which would avoid penalty in any particular
case, the court should adopt that construction and if there are two reasonable constructions, we must give the
more lenient one.22.
(iii) The court will not supply even an obvious omission if to do so would render an accused person liable to
conviction.23. “Where an enactment may entail penal consequences no violence must be done to its language
in order to bring people within it but care must be taken that no one is brought within it who is not within its
express language.”24.
(iv) When the Legislature has given power to the Executive to take any action it thinks fit but limits the right to
take action only for a definite purpose, it will be the duty of the court to scrutinise whether the power has been
exercised for that definite purpose and to construe the restriction on liberty as narrowly as possible and limit it
within the words used by the Legislature.25. The dissenting judgment of Lord Shaw in R. v Halliday,26. explains
the classical principles relating to this point:
The appellant has been interned, without a trial, because he is of hostile origin or associations. Parliament never said
in words one of those things. If Parliament had really meant to sanction internment without trial for the cause assigned,
it could have said so without the slightest difficulty and not left a point which is so fundamental to be reached by
inference...26
(v) Any provision of a law encroaching upon liberty of the subject, which seeks to oust the jurisdiction of the
courts will be strictly construed.27. Ouster of jurisdiction of the courts would not be inferred in the absence of
express words to that effect in the statute.28. Should the statute be equally susceptible of two meanings, one
leading to an invasion of the liberty of the subject, and the other not, the latter should be preferred on the
ground of the presumed intention of the Legislature not to interfere with it.29.
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Where, however, the words used by the Legislature are clear and unambiguous, the court has no right to
interfere by reading into the statute what is not there, so long as the powers conferred by the Legislature are
used for the purposes for which they were meant.30.
The application of the rule does not permit the court in restraining comprehensive language by the Legislature,
the wide meaning of which is in accord with the object of the statute. It was observed: “No doubt all penal
statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is
within the plain meaning of the words used and must not strain the words or any notion that there has been a
slip; that there has been a “casus omisus”; that the thing is so clearly within the mischief that it must have been
included if thought of. On the other hand, the person charged has a right to say that the thing charged although
within the words, is not within the spirit of the enactment. But where the thing is brought within the words, and
within the spirit, there a penal enactment is to be construed, like any other instrument, according to fair
commonsense meaning of the language used and the court is not to find or make any doubt or ambiguity in the
language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same
language in any other enactment.31. The above principle has been approved by our Supreme Court in various
cases, where it was observed that when the Legislature used comprehensive terminology—to achieve the said
purpose, it would be appropriate not to limit the context by constriction when particularly the spirit of the statute
is in accord with the words used there.32.
The Supreme Court has also depricated a narrow and pedantic constriction of penal statutes where the effect
will be to enable the accused to escape as in the case of Food Adulteration Act.33. Strident laws enacted for
dealing with and punishing offences against married women have to be stringently implemented.34.
(vi) Strict compliance with the formalities laid down by the statute will be required by the courts.35.
(vii) A penal statute would not be interpreted to have retrospective effect, unless such effect is given by the
statute by express words or by necessary implication.
The presumption is so strong that LORD REID, in the House of Lords,36. made the rhetoric observation;
... it is hardly credible that... Parliament would pass retrospective criminal legislation.
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Penal statutes which create offences or which have the effect of increasing penalties for existing offences will
only be prospective in view of the constitutional mandate under Article 20. Even otherwise, they are to be
construed prospective because “manifestly shocks ones’ sense of justice that an act, legal at the time of doing it
should be made unlawful by some new enactment. See also Article 11(2) of the Declaration of Human Rights of
the United Nations and Article 7 of the European Convention for the Protection of Human Rights and
Fundamental Freedom.
(viii) Though international conventions or treaties do not form part of the municipal law unless given effect to by
an Act of Parliament,37. the court should, if possible, adopt such interpretation of a statute as is ‘consistent with
the latter, when the rights and liberties of the individual are affected.38. A trend in this direction, to refer to
International Charters is noticeable in number of decisions of the Supreme Court of India as well.39.
See also, Apparel Export Promotion Council v A.K. Chopra,40. wherein it was observed, “ … the core principle
embodied in the international conventions and instruments and as far as possible, give effect to the principle
contained in those international instruments. The courts are under an obligation to give due regard to
international conventions and norms for construing domestic laws, more so, when there is no inconsistency
between them and there is a void in domestic law.”41. Article 51(c) of our Constitution lays down as one of the
directive principles of State policy that State shall endeavour to foster respect for International Law and treaty
obligation in the dealings of organised people with one another. This directive though not enforceable by court
can be kept in view in interpreting other parts of the Constitution and statutes made under it which are capable
of more than one meaning.42. Article 13 of Universal Declaration of Human Rights which declares that
everyone has a right to freedom of opinion and expression “regardless of frontiers” was referred to in holding
that right to freedom of speech and expression guaranteed under Article 19(1)(a) is not restricted to the territory
of India.43. Article 11 of International Covenant on Civil and Political Rights which provides that no one shall be
imprisoned merely on the ground of inability to fulfil a contractual obligation has generally influenced the court in
giving a limited meaning of section 51 and order 21 rule 37 of Code of Civil Procedure.44.
In Vishaka v State of Rajasthan,45. the Supreme Court held that in interpreting domestic law or for filling up
gaps therein, reliance can be placed on international conventions as a canon of construction to enlarge the
scope of fundamental rights where there is no inconsistency with domestic law. This is how International
Human Law is becoming part of domestic law in India even without express legislation to incorporate it therein.
The provisions contained in International Covenants of Civil and Political Rights (ICCPR) and Convention
Against Torture can be safely read into the constitutional guarantee in India by virtue of the decision in
Vishaka’s case (supra) which requires reading into domestic law and all provisions of international instruments
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not inconsistent with domestic law which have the effect of enlarging the fundamental rights guaranteed under
the Constitution. Right to clean environment is a right under Article 21. The doctrine of “polluter pays” principle
is based on the principle of strict liability in torts. It has applied precautionary principle and is defined to mean
that environmental measures adopted by the Government and statutory authorities must anticipate, prevent and
attack the causes of environmental degradation. The above principle has been applied in India not only as an
international concept, but also as national law included in Article 21 and environmental laws. This has been
possible even without express legislation in certain areas on the principle laid down in Vishaka’s case. The
principle is that international conventions and norms not inconsistent with the domestic law can be read into the
enforceable rights to expand their meaning and scope and fill gaps as a canon of statutory interpretation.46.
(B) In emergencies.—
In times of emergency
In England, it is established that the individual cannot have any liberty safeguarded by the State when the
existence of the State itself is in danger, e.g., by a war. In the case of Liversidge v Anderson,47. the bedrock of
modern emergency decisions, the House of Lords observed:
The fact that the nation is at war is no justification for any relaxation of the vigilance of the courts in seeing that the law
is duly observed, especially inmatters so fundamental as the liberty of the subject. However, in a time of emergency,
when the life of the whole nation is at stake, it may well be that a regulation for the defence of the realm may quite
properly have a meaning which, because of its drastic invasion of the liberty of the subject, the courts would be slow to
attribute to a peacetime measure. The purpose of the regulation is to ensure public safety, and it is right to interpret
emergency legislation as to promote, rather than defeat, its efficacy for the defence of the realm. This is in accordance
with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war
time.47
Hence, their Lordships held that to such a regulation there was no scope for the application of any presumption
that the liberty of the subject must not depend on the unchallengeable opinion of the Secretary of State and that
the regulation was to be construed “without any general presumption as to its meaning except the universal
presumption, applicable to Orders in Council and other like instruments, that if there is a reasonable doubt as to
the meaning of the words used, we should prefer a construction which will carry into effect the plain intention of
those responsible for the Order in Council rather than one which will defeat that intention”.48. In an earlier
case,49. GREER, J. had said:
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Under circumstances such as these the notion that there is any effective presumption that Parliament did not intend to
interfere with the liberty or property of the subject becomes so thin as to be described as the shade of a shadow, and
disappears altogether when we find in the statute express words which show that the Legislature expressly authorised
particular regulation which would of necessity restrict the liberty of the subject and his freedom to enjoy his normal
rights over his real and personal property.49
The decision Liversidge v Andersan (supra) was not followed in A.G. v Reynolds,50. wherein it was held that
provision of “subjective satisfaction” in any law which likely to affect personal liberty “must be interpreted in
conformity with constitutional guarantee” and satisfaction must be on reasonable grounds and that it was
reasonably justified for dealing with the situation.
Similarly, in upholding the validity of Regulations made under the Defence of the Realm Act, 1914, authorising
the Home Secretary to intern persons without trial “for securing public safety and the defence of the realm”, the
majority of the House of Lords had observed:51.
It is beyond dispute that Parliament has the power to authorise the making of such a regulation. The only question is
whether on a true construction of the Act it has done so. It may be necessary in a time of great public danger to entrust
great powers to His Majesty in Council, and that Parliament may do so feeling certain that such powers will be
reasonably exercised. It was urged that if the Legislature had intended to interfere with personal liberty it would have
provided, as on Previousoccasions of national danger, for suspension of the rights of the subject as to a writ of habeas
corpus. The answer is simple. The Legislature has selected another way of achieving the same purpose...52.
LORD MAUGHAM, in Liversidge v Anderson,53. put it more explicitly:
The suggested rule (that legislation encroaching upon the liberty of the subject should be construed in favour of the
subject) has no relevance in dealing with an executive measure by way of preventing a public danger when the safety
of the State is involved.54.
In the same strain said LORD MACMILLAN:

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However precious the personal liberty of the subject may be, there is something for which it may well be, to some
extent, sacrificed by legal enactment, namely, national success in war or escape from national plunder or
enslavement.53
Though the lone voice of Lord Shaw (in the minority) in R. v Halliday,55. has thus been drowned by
overwhelming opinion to the contrary, it is still remembered by lovers of liberty in all lands, contending for a
strict construction of emergency statutes and a rigorous application of the doctrine of ultra vires to subordinate
legislation promulgated by the Executive in exercise of powers conferred by such statutes:
The form in modern times of using the Privy Council as the executive channel for statutory power is measured, and
must be measured strictly by the ambit of the legislative pronouncement. The author of the power is Parliament; the
wielder of it is the Government. Whether the Government has exceeded its statutory mandate is a question of ultra or
intra vires... In so far as the mandate has been exceeded there lurk the elements of a transition to arbitrary government
and therein of grave constitutional and public danger. Theincreasing rush of legislative efforts and the convenience of
the executive of a refuge to the device of orders in council would increase the danger tenfold were the judiciary to
approach any such action of the Government in a spirit of compliance rather than of independent scrutiny.
In A.D.M. v Shukla,56. the majority of our Supreme Court was obviously influenced by the majority view in R. v
Halliday55 and Liversidge v Anderson, 54 ininterpreting the Emergency provisions of the Constitution itself.
But later decisions57. of the House of Lords and the Privy Council have upheld the minority view in R. v
Halliday55 and Liversidge v Anderson53 as preferable.
Article 15 of European Convention on Human Rights enables the contracting State’s right to derogate from the
rights guaranteed. It says (1) In terms of war or other public emergency threatening the life of the nation, any
High Contracting Party may take measures derogating from its obligation under this Convention to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law; (2) No derogation from Article 2, except in respect of deaths resulting
from lawful acts of war or from Articles 3, 4 (para (1)) and 7 shall be made under this provision; (3) Any High
Contracting Party availing itself of the right of derogation shall keep the Secretary General of the Council of
Europe fully informed of the measure which it has taken and the reasons thereof. It shall also inform the
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Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of
the Convention are again fully executed.
The above article deals with circumstances where contracting parties may be permitted to derogate from its
normal responsibilities owed under the Convention, because of some exceptional crisis prevailing in that
country. Four conditions are required to be satisfied when the Contracting States derogate: (1) It must be in
time of war or other public emergency threatening the life of the nation; (2) The action taken by the State did not
exceed those strictly required by the exigencies of the situation; (3) Those actions were not at a variance to
existing obligation under international law; and (4) If the State has declared its derogation that derogation
should end when the emergency situation itself has subsided.
There is no absolute right to derogate from all the articles under the Convention; no derogation is permitted
under Articles 2, 3 and 4(1) and 7. Although each contracting State has a certain degree of flexibility (the
margin of appreciation principle) whether or not to invoke Article 15(1), it is ultimately for the court to decide
whether the requirements of (1) to (4) have been discharged in the particular circumstances. (Article 2 deals
with right to life, Article 3 deals with ill-treatment and Article 4(1) deals with right to freedom, slavery or
servitude). In Lawless v Ireland (No. 3),58. a person was detained for some five months without trial on
suspicion of being a member of a proscribed organisation, namely, IRA. When the detention was challenged,
the court said “while interpreting other public emergency threatening the life of the nation” refers to exceptional
situation of crisis or which affects the whole population and constitutes a threat to the organised life of the
community of which the State is composed.59.
[Art 21.3.32] Scope for Control of the Executive (A) U.S.A.—
U.S.A.
(i) The principal means of judicial control over executive action affecting an individual’s life, liberty or property is
the constitutional requirement of “due process”, which has already been explained (see post).
(ii) Whether inside or outside the constitutional sphere of the “Due Process” clause, the doctrine of ultra vires
(see Article 14, Pt 1 of the commentary for detailed discussion) is a potent means of protecting the individual
against arbitrary action of the Executive under colour of statutory authority. Thus, if the procedure60. adopted
by the Executive is not authorised by the statute or statutory instrument under which the act ispurported to have
been done, or the conditions61. imposed by the statute are not fulfilled, the act will be pronounced invalid.61
(iii) As explained elsewhere [see under Article 52, post], according to the Supreme Court,61 the Executive has
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no inherent or residuary power under the Constitution. The court will annul any executive action affecting an
individual if the Executive cannot point out either constitutional or legislative authority for such action.
(B) India.—
India
I. Though the courts would be powerless under our Constitution to nullify a legislative act affecting the life or
liberty of the individual in the exercise of any power of judicial review as in the United States on the ground of
“due process” it will be the duty of our courts, (as in England) to guard that “no member of the executive can
interfere with the liberty or property.... except on the condition that he can support the legality of hisaction”,62.
that is to say, to see that the action of the Executive is in conformity with “the procedure established by law” and
to nullify such action as is not in conformity with that procedure.63. In Eshugbayi (Eleko) v Govt of Nigeria,64.
the court was considering the practice of filing application for habeas corpus before and after Judicature Act,
1873–75. Earlier an application for habeas could be filed to each of the Courts of Queen’s Bench, Common
Pleas, Exchequer and Chancery. After the Judicature Acts, 1873–75 had amalgamated these courts into one
High Court, there was dicta in the House of Lords and the Privy Council to the effect that Parliament could not
have intended impliedly to restrict the right of the subject in the vital matter of personal liberty and that there
was right to apply not only to each Division of the High Court, but each High Court Judge individually.65. A
series of decisions showed that two differently constituted Queen’s Bench Divisional Courts as well as
Chancery Division were all parts of the same High Court for this as for other purposes and, therefore, a
decision of any one Division was a decision of the whole Court.
The Administration of Justice Act, 1960 (section 14) now provides that no second or civil application may be
made on some grounds whether to the same or any other judge or court unless fresh evidence is adduced and
no such application may be made in any case to the Lord Chancellor.66.
The Supreme Court compared the Judiciary to a “watching tower above all the big structures of the other limbs
of the State”, from which it keeps a watch like a sentinel as the functions of the other limbs of the State as to
whether they are working in accordance with the law and the Constitution, the Constitution being supreme”.67.
In Romesh Thappar v State of Madras,68. it was declared that, “this court is thus constituted the protecter and
guarantor of the Fundamental Rights and it cannot consistently, with the responsibility so laid upon it, refuse to
entertain application seeking protection against infringement of such rights.” In Daryo v State of U.P.,69. it was
held: “The fundamental rights are intended not only to protect individual’s right, but they are based on high
public policy. Liberty of the individual and the protection of the fundamental rights are the very essence of the
democratic way of life adopted by the Constitution, and it is the privilege and duty of the court to uphold those
rights. The court would naturally refuse to circumscribe them or curtail them except as provided by the
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Constitution itself.”70. In Sunil Batra v Delhi Administration,71. it was held that the courts have a continuing
responsibility to ensure that the constitutional purpose of deprivation is not defeated by the prison
administration, whether inside or outside prison. A person shall not be deprived of his fundamental rights except
by methods which are right, just, and fair. In Prem Chand Garg v Excise Commissioner, UP,72. it was observed:
“The fundamental right to move the court can, therefore, be appropriately described as the cornerstone of the
democratic edifice raised by the Constitution. That is why it is natural that this court shouldin the words of
Patanjali Sastri, J., regard itself “as the protector and guarantor of fundamental rights and shall declare that it
cannot, consistent with the responsibility laid upon it, refuse to entertain application seeking protection against
infringement of such rights”.73. In discharging the duties assigned to it, this court has to play the role of “sentinel
on the qui vive” and it must always regard it as its solemn duty to protect the said fundamental rights”.
A detention will be illegal for the following reasons also:
(1) If there is no law prescribing detention, there cannot be detention—if detained, the same would be
violative of Article 21.
(2) The law prescribing detention must be a valid law. A law to be valid has not only to meet the demand
of Article 22, but also Articles 14 and 19.74.
(3) Interpretation of detention laws must be very strict and there is no scope for misconception or
misconstructions.75.
(4) The State has to satisfy that the detention is in full conformity with the mandatory provisions of the Act
and is also in accordance with the constitutional safeguards.76. See also Pebam Ningol Mikoi Devi v
State of Manipur.77.
(5) If the order of detention is made mala fide or in exercise there ismala fide misuse of power.78.
(6) If the detention order is passed due to total non-application of mind.79. In Rushikesh Tanaji Bhoite v
State of Maharashtra,80. the Supreme Court, after holding that detention order is invalid due to total
non-application of mind (since relevant material was not placed before the detaining authority), passed
an order directing release of detenu forthwith and said that the release is ordered by a summary order
and not a reasoned order, for, that will delay the release.81. Non-consideration of bail order passed by
court by the detaining authority amounts to non-application of mind and hence the detenu is entitled to
be released forthwith.82.
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In the case of unreasonable delay, the detenu will be released forthwith and if the High Court has not
considered that question, the matter will not be sent back to High Court since that will further delay the decision
as to release of detenu, whose liberty is affected.83. In that case, writ petition was filed before an order was
passed on the representation and hence it was contended that writ petition was premature. The contention was
rejected on the ground that technical pleas should not be allowed to be taken when liberty of citizen is at
stake.84.
II. Thus, though our Constitution does not guarantee the right to any particular procedure,85. the Supreme
Court has, in fact, interfered in many cases86. with orders depriving persons of their liberty on the ground that
the procedure laid down by the law which authorised such deprivation had not been strictly followed:
“Before a person is deprived of his life or personal liberty the procedure established by law must be strictly followed
and must not be departed from to the disadvantage of the person affected.87.
“Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to
be their duty, must strictly and scrupulously observe the forms and rules of the law.”88.
III. So, it is the duty of the court to see:—
(1) That the Executive exercises its powers within the four corners of the statute which seeks to deprive
the individual of his liberty, so that it may be said that the order complained against is one under
thestatute by virtue of which the power is sought to be exercised.89.
In that case it was further held that court will interfere where any of the grounds upon which the
order is made is invalid or irrelevant.
A detention becomes unlawful when the procedure prescribed by law which authorises the
detention has not been followed. In such cases, the court applies the strict standard, not only by
interpreting the terms of this statute, but also by enacting strict compliance with the requirement so
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interpreted in fact. “It is a general rule which has always been acted upon by the courts in England
that if any person procures the imprisonment of another he must care to do so by steps all of which
are entirely regular and if he fails to follow every step in the process with extreme regularity, the
court will not allow the imprisonment to continue.”90.
(2) That the power has been exercised or the order made by an officer or authority who has been duly
empowered by or under the statute.91. Where the law under which the order of detention has been
made is by a subordinate legislation, which is ultra vires or is otherwise invalid i.e., owing excessive
delegation.92. Which it was held that if the order is passed by a delegate, is ex facie, outside the
authority delegated to him, the same is illegal.
(3) That every formality,1. required by the legislation is complied with before the subject is deprived of his
liberty, as well as the conditions subsequent, if any.2. But when the condition precedent for the
exercise of the power is the judgment or opinion or subjective satisfaction of the person upon whom
the power is conferred, the court cannot interfere with that judgment or opinion or inquire into the
propriety of the grounds for forming such opinion,3. unless the person or authority exercises the power
in bad faith in for a collateral purpose.4. But an inference of bad faith may be made where it is shown
that there were no grounds on which the authority could be satisfied as to the existence of the facts
which was a condition precedent to his exercise of the statutory power.5. The satisfaction of the
detaining authority is not a subjective one based on detaining authority’s emotion, beliefs or prejudices.
There must be real likelihood of the person being able to indulge in such activities, the inference of
such likelihood being drawn from objective data.6. Where the State and its officers grossly abused
legal power and justification for detention shows that the intention to detain was based on facts not in
existence is clearly an abuse of power and mala fide.7. Where ordinary law of land (Penal Code and
other penal statutes) is sufficient to deal with the situation, recourse to preventive detention would be
illegal.8. Where in the absence of any material, and after seizing detenu’s passport, the detaining
authority orders preventive detention, the same is liable to be quashed. The reason that the detenu
was intercepted twice by intelligence agencies on earlier occasions is irrelevant to order preventive
detention.9.
A detention order is liable to be quashed on the ground that the act in question related to law and
order and public order, that there was no relevant material on which detention order was passed,
that there were mala fides; that the order was not passed by competent authority; that the
condition precedent for the exercise of power did not exist; that the subjective satisfaction was
irrational; that there was non-application of mind that the grounds are vague, indefinite, irrelevant,
extraneous, non-existent or stale; that there was delay in passing the detention order or delay in
executing it or delay in deciding the representation of the detenu; that the order was not approved
by Government; that there was failure to refer the case to Advisory Board or that reference was
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belated.10. It was also held in Rekha v State of Tamil Nadu (supra),that if a person is liable to be
tried or is actually being tried for a criminal offence, but the ordinary criminal law (IPC or other
penal statute) will not be able to deal with the situation, “then and only then” can preventive
detention law be resorted to.11. Merely because a person could not be prosecuted under Criminal
law, it is not a ground to pass an order of preventive detention.12.
(4) That the order is in conformity with the provisions of the statute under which it is made.13. Where the
authority which gave the order was not properly constituted or its order is otherwise without
jurisdiction.14.
(5) That the statutory power has been exercised honestly15. and not in fraud, of the statute,15 or mala
fide;or, in other words, that the power conferred by the statute has not been utilised for some indirect
purpose not connected with the objects of the statute or the mischief it seeks to remedy.16. Even
though the statute is valid, the court will interfere, where the order violates any provision of the
Constitution.17. The court has always acted to restrain misuse of statutory power and more rigidly
when improper motives underline it. Exercise of power for colourable purpose has similarly held to be
sufficient reason to strike down the action.18.
A detention order may be quashed on the ground of colourable exercise of power if there is no
material for the subjective satisfaction on its basis.19.
A considerable delay, say two or three months, between the date of passing the detention order
and the date of arrest of the person concerned thereunder has been held to throw doubt on the
genuineness of the subjective satisfaction of the detaining authority. If the authority fails to furnish
a reasonable explanation for the delay, the subjective satisfaction will be taken as colourable
exercise of power and not genuine.20.
But recently the Supreme Court has held that there could be two reasons which may lead to a
situation by which preventive detention order passed by competent authorities under various
enactments could remain unexecuted – (1) the absconding of the proposed detainee from the
process of law; and (2) the apathy of the authorities responsible for the implementation of the
preventive detention order. Court said that those who evaded the process of law shall not be heard
by court to say that their fundamental rights are in jeopardy. The challenge to detention orders on
the line of nexus theory is impermissible. Permitting such an argument would amount to enabling
the law breaker to take advantage of his own conduct which is contrary to law.21.
Page 260 of 467
As LORD READING said—
... If it was clear that an act was done by the executive with the intention of misusing those powers, this court would
have jurisdiction to deal with that matter.22.
[As to the meaning of mala fides, see ‘what constitutes want of ‘good faith’’].
In any of the foregoing cases, the court will set the prisoner free, by issuing the writ of habeas corpus, under
Article 226 or 32 (as the case may be).
IV. The jurisdiction of the courts to question the validity of the Executive order on any of the above grounds
cannot be barred by the statute itself.23.
V. At the same time, in exercising this power of scrutiny, the court cannot tress pass upon the province which
the Legislature has marked out as belonging to the Executive. Nor can it take upon itself the duty of considering
questions of policy which are essentially for the executive and not for a judicial tribunal.24. There are certain
cases in which when the execution authority states in the order that it has reasonable grounds to believe a
certain fact which gives its power to restrict the personal liberty of a certain person in a given case, the court
has to accept its statement as conclusive and cannot go behind it and examine whether as a matter of fact
there are reasonable grounds for believing the requisite facts exist. In such cases, the order of detention or
other order restrictive of personal liberty cannot be questioned by court, as the ground that the grounds does
not exist.25. Satisfaction of the detaining authority is subjective and not objective and hence not justiciable.
The subjective satisfaction of a detaining authority to detain a person or not is not open to objective assessment
of court. A court is not a proper forum to scrutinise the merits of the administrative decision to detain a person.
The court cannot substitute its own satisfaction for that of the authority concerned and decide whether the
satisfaction was reasonable or proper or whether in the circumstances of the matter, the person concerned
should have been detained or not. It was pointed out, “when power is given to an authority to act on certain
facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either
irrational or unreasonable, in the sense that no person instructed in law could have reasonably taken that view,
then the order is not bad and court cannot substitute its decision or opinion in place of the decision of the
Page 261 of 467
authority concerned on the necessity of passing the order.26. When grounds of detention are precise, pertinent,
proximate and relevant, subjective satisfaction formed on that basis by detaining authority about detenu acting
in a manner prejudicial to maintenance of public order and necessity of preventively detaining him is not open
to court’s interference.27. The validity of the detention can be challenged on the ground of mala fide or that the
ground supplied are irrelevant or vague.28.
[Art 21.3.33] Onus where imprisonment or detention is challenged
1. Where a person who has been deprived of his liberty challenges the detention by a petition for habeas
corpus; it is for the authority who has detained him to show that the person has been detained in exercise of a
valid legal power.
It is for the State to justify the impugned law by showing that the restriction is reasonable (under Article 19) or
that the procedure is not arbitrary, but is just, fair and reasonable under Article 21.29. Under Article 21, the
burden is never as the petitioner to prove that the procedure prescribed by law which deprives him or his life or
personal liberty is unjust, unfair or unreasonable.30. In matters of personal liberty, the standard of proof needs
to be high to justify an order of preventive detention.31. In Deena’s case (supra), the Supreme Court
emphasized that the weakness of the petitioner’s case, cannot establish the case of the Government, for in
matters involving freedom under Article 19, or the right to life and liberty under Article 21, the burden of proof
lies on the Government to prove that the action is constitutional. In Bachan Singh v State of Punjab,32. it was
observed that in cases coming under Article 21, if it appears that a person is being deprived of his life or liberty,
the burden rests on the State to establish the constituent validity of such law or action.33.
In R. v Secretary of State for the Home Department,34. it was held that the initial burden was on the applicant,
but this was transferred to the detaining authority as the applicant has shown that there is a prima facie case
that the liberty was being interfered with. The burden of proof would be over the detaining authority to justify his
detention.
Once that is shown, it is for the detenu to show that the power has been exercised mala fide or improperly.35.
In a proceeding for habeas corpus, where the Petitioner alleges that he has been deprived of his liberty without
the authority of law, and the court issues a Rule nisi, on being prima facie satisfied on this point, the onus is on
the State to show that his liberty has been taken away in accordance with the procedure established by law;36.
and in a case of preventive detention, also that the safeguards provided in Article 22 have not been
transgressed.36
Page 262 of 467
2. The proper person to file counter-affidavit is the person who passed the order of detention or, if for some
good reason, he is not available, a responsible officer who personally dealt with the case or put it before the
Minister for orders.37. An affidavit from an officer who has at no time personally dealt with the matter and thus
has no personal knowledge of the detenu’s case, but depends only on paper knowledge is improper.38.
[Art 21.3.34] What constitutes want of “good faith”
“Bad faith” in the present context has been interpreted to mean “malice in law”, i.e., inflicting a wrong or injury
upon another person in contravention of the law, even though it may be without any malicious intention.39.
Good faith is obviously wanting where there is a “fraud on the statute”, i.e., a misuse of the statute for a
collateral purpose other than that for which it was intended,—or, in other words, a “colourable use” of the
statute.40. In G. Sadanandan v State of Kerala,41. court held that preventive detention was actuated with mala
fides. In that case, the petitioner, a kerosene dealer, was detained under the Defence of India Rules with a view
to prevent him from acting in a manner prejudicial to the maintenance of supplies and services of essential
commodities. The petitioner alleged that his detention was unjustified as the moving spirit behind the detention
was Deputy Supt. of Police (Civil Supplies) and that he has made false reports against the petitioner so that he
could be eliminated as a wholesale dealer in kerosene and the relatives of the concerned officer might benefit
by obtaining the distributorship for kerosene. After considering the materials on record, court declared that the
order of detention was “clearly and plainly” mala fide.
Court said that the affidavit of Home Secretary was vague and ambiguous and it was not clear as to which
authority on behalf of Government in fact examined the case against petitioner and what was the nature of
material placed before the authority for passing the detention order. In Debu v State of WB,42. Supreme Court
quashed the order of detention made on the ground that the detenu having indulged in one solitary act of
wages breaking. The court ruled that detaining authority’s satisfaction in the case was no satisfaction at all or
was in any event colourable and it could not form the basis for making the order. Whenever the court has felt
that power of detention is being used as substitute for criminal prosecution, it has condemned the order of
preventive detention by using the idiom “colourable exercise of power” by the Executive.43. The personal liberty
of an individual is the most precious and prized right under the Constitution in Pt III. The State has been
granted power to curb such rights under criminal laws as also under laws of preventive detention, which,
therefore, are required to be exercised with due caution as well as upon a proper appreciation of facts as to
whether such acts are in any way prejudicial to the interest and the security of State and its citizens or seek to
disturb public law and order warranting the issuance of a preventive detention order. An individual incident of an
offence under the Penal Code, however, “heinous” is insufficient to pass a detention order. Court said that
detaining authority has rather acted “casually” and detention order was quashed.44.
(a) When the condition precedent required by the statute is objective, the existence or not of the objective
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condition or facts and circumstances can be tested by the courts, viz., whether the circumstances which called
for the issue of the order existed in fact.45.
(b) But where the condition is subjective, viz., the state of the mind of the authority issuing the order, “he is
alone to decide in the forum of his own conscience whether he has a reasonable cause of belief, and he
cannot, if hehas acted in good faith, be called on to disclose to anyone but himself that these circumstances
constituted a reasonable cause and belief”;46. in other words, the existence of the circumstances which called
for the order cannot be questioned by the courts in this latter (subjective) case,47. and the only question left to
the court is whether the authority exercised the power in good faith. The court cannot undertake an
investigation as to the sufficiency of the materials on which such satisfaction was grounded.47
In a case of subjective satisfaction, the sufficiency of the grounds which gave rise to the satisfaction of the
authority is not a matter for determination of the court, for, one person may be, though another may not be,
satisfied on the same grounds.48. Thus, orders of detention under a law of preventive detention are passed on
information and materials which may not be strictly admissible as evidence under the Evidence Act in a court,
but which the law, taking into consideration the needs and exigencies of the administration, has allowed to be
considered sufficient for the subjective decision of the Government. It is not for the court to sit in the place of
the Government and try to determine if it would have come to the same conclusion as the Government.49. The
making of a detention order should rest upon the Executive as they alone are entrusted with the duty of
maintaining public peace. The court can examine the grounds disclosed by the Executive only for two
purposes—(a) to see if the grounds are relevant to the object which the legislation has in view; (b) to see
whether the action of the Executive has been mala fide.49 A detention order should not be based on a ground
which is irrelevant or extraneous to or falls outside the scope and object of the law of preventive detention. The
grounds on which a detention order has been made must have some rational connection with and be relevant
and germane to the objects to prevent which the order in question has been made. A detention order based on
no material, but on mere speculation is not valid.50. Although the subjective satisfaction of the detaining
authority is not open to objective assessment, nevertheless satisfaction based on irrelevant ground is vitiated.
Subjective satisfaction on extraneous material is vitiated.51. To order preventive detention, some material basis
is required, mere likelihood or speculation cannot form the basis of curtailment of liberty.52. Gravity of offence is
irrelevant to pass a preventive detention order.53. Where detention order is passed on the materials which have
no probative value and were extraneous to scope, and no relevant material was placed before detaining
authority to order detention, such an order is illegal.54. It was held in that case that the court is entitled to
scrutinise the materials relied upon by the authority in coming to its conclusion to determine if there is an
objective basis for subjective satisfaction. The decision whether the grounds in order of detention are sufficient
or not to order detention is not within the ambit of court’s discretion, but is a matter of subjective satisfaction of
the authority concerned. However, even one non-existent, misconceived or irrelevant ground or reason is
enough to invalidate the order of detention.
Page 264 of 467
Where a written Constitution guarantees Fundamental Rights, the validity of every law made by the Legislature
must be tested as the touchstone of that guarantee. Hence unless the Constitution itself provides any
exception, expression denoting “subjective satisfaction” in any law must be interpreted in conformity with the
constitutional guarantee of the fundamental right which is likely to be affected by such law.55. It was observed,
“that though the word” satisfied in prima facie unrestricted, it has to be construed in conformity with the
Constitution of Sh. Christopher, which guaranteed that “no person shall be deprived of his personal liberty save
as may be authorized by law”. Taking note of section 14 of the said Constitution, it was held that the satisfaction
must be on reasonable grounds, and reasonably justified for dealing with the situation”.
Where the authority is empowered to make an order upon a subjective condition, i.e., a particular state of his
mind, e.g., “on being satisfied” or “having reasonable grounds for believing” that certain facts exist,—once an
order asserting that state of mind and belief has been proved in a valid form, by production of a duly
authenticated order, the onus is on the person challenging the bona fides of the order to disprove the existence
of that state of mind. The onus is obviously more difficult than that of disproving an objective fact. Mere
evidence of the applicant that he does not know that there are any reasons for the authority’s belief, or denial
that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the authority
to explain and justify the assertion of his order.56.
The mere fact that the detenu challenges the factum or the bona fides of the order or the fact that the officers of
Government must naturally be in possession of information on the subject cannot... make it incumbent on the
Government to adduce evidence in support of the order.57.
In a normal case, the recital of the existence of the subjective condition in the order will place a difficult burden
on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is
not accurate.58. Nevertheless, the detenu would succeed in proving want of bona fides if he can show that his
case had never been placed before the authority so that he never had any opportunity of exercising his mind
with respect to it,58 as to whether the detention of the person is or is not justified under the Act under which the
authority purports to act;59. e.g., where the authority merely acts on the report of the police, and simply signs a
cyclostyled form or mechanically signs grounds prepared by some clerk in his office;60. or refers to particulars
which are so incorrect as to show that the authority did not apply his mind at all.61.
The order or the recital as to “satisfaction” can be challenged on the following grounds:
Page 265 of 467
(1) that the order is mala fide and there is abuse of power.62. The same may be proved by showing that the
authority who issued the order did not apply his mind.63.
In Vijay Narain Singh v State of Bihar,64. court said: “Preventive detention is not beyond judicial scrutiny. While
adequacy or sufficiency may not be a ground of challenge, relevancy and proximate are certainly grounds of
challenge.
An order of detention is invalid if the detaining authority makes an order without applying his mind to relevant
consideration. Non-consideration of any relevant material which could have influenced the mind of the detaining
authority one way or the other on the question whether or not to make the order of detention order, would vitiate
the subjective satisfaction, rendering the order as illegal.65.
A detention order will stand vitiated if the order passed is based on non-existent grounds and it amounts to
abuse of power.66. The failure of the detaining authority to consider the possibility of launching a criminal
prosecution may in the circumstances of a case lead to the conclusion that the detaining authority had applied
his mind to the vital question whether it was necessary to make an order of detention was issued in a
mechanical manner without keeping present to its mind the question whether it was necessary to make such an
order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy
the court that the question too was borne in mind before the order of detention was made.67. On the date of
passing detention order, customs authorities had only issued notice calling for details in respect of import of
certain consignments and investigation was going on and no final order was passed. On the basis of notice, an
order of detention was passed. Court said that the detaining authority has come to the conclusion on the basis
of incomplete material either pending or inconclusive and the same cannot be the basis of detention. Premature
stage of inquiry and inconclusive investigation cannot be a valid ground for clamping detention order under
COFEPOSA Act. The detention order was held invalid due to non-application of mind.68. A person was taken to
custody under NDPS Act. Under the said Act, power to grant bail is very much restricted and if the person in
custody is to be detained under preventive detention also, the detaining authority has to consider whether the
person is likely to be enlarged on bail in view of stringent condition. Court said that the detaining authority has
also to consider the distinction between “likelihood of his moving an application for bail” and “likelihood to be
released on bail”.69. It was held therein that failure to consider the above while passing an order of detention
will be invalid due to non-application of mind.
(2) that the authority was actuated with improper motives.70.

Page 266 of 467
(3) that there has been no satisfaction at all or that it was founded on no materials at all or wholly irrelevant or
extraneous considerations.71. If any material or vital fact which would influence the mind of the detaining
authority one way or other was not placed before or was not considered by the detaining authority for the
subjective satisfaction, the same would vitiate the satisfaction and the exercise of power will not be proper or
fair. In the same way consideration of extraneous material will also vitiate the consideration and satisfaction.72.
Satisfactions should be based on relevant material, though the satisfaction is subjective, yet even the subjective
satisfaction must be based upon some pertinent material. The question is not of sufficiency, but of the very
existence of the relevant material.73.
A mere error in description of the name of the detenu or of his father does not necessarily show this.74. Further,
an affidavit of the authority that he was satisfied from a perusal of the materials before him, is often sufficient to
repel the allegation that he did not apply his mind.75. Thus, in a case where the ground supplied to a detenu
patently referred to an event which had taken place subsequent to the order of detention, the court
nevertheless held that the allegation of mala fides was negatived by the affidavit of the District Magistrate.76.
But when the Government action runs counter to good faith, not supported by any reason and law, it cannot but
be described as mala fide. Equity, good conscience and justice require the judicial power to be used to set
aside such action.77.
The detenu may also succeed if, of course, he proves personal malice or spite of the authority issuing the
order,78. or that the order was made for purposes other than those mentioned in the order.79.
Mala fide use of power makes the order illegal and invalid. It is the obligation of the State to prove that the
application of the detention order was necessary against the defence and said order has been applied strictly in
accordance with the safeguards and the procedure.80. It is open to the defence to establish if he can, that the
order was made mala fide and in abuse of powers and the order of detention may be proved to have been
made by the authorities concerned mala fide exercise of their power, though the burden of proof to prove lack
of good faith is on the defence. There can be no better proof of mala fide as the part of the Executive than use
of the extraordinary provisions contained in the Act for the purposes of which this ordinary law is quite
sufficient.81. An order is mala fide, when there is malice in law, although there is no malice in fact. Malice in law
can be inferred when an order is made contrary to the objects and purposes of the Act. If a person is in
detention or is an under trial and his conviction is unlikely, but his conduct comes within the mischief of the Act,
then the authority is entitled to take a rational view of the matter. If the decision is taken bona fide and there are
grounds for detention, there is no question of mala fides.82.
Page 267 of 467
On the other hand, when a large number of persons were in detention under the Bengal Criminal Law
Amendment Act, 1930, but the validity of that Act having been challenged Parliament passed the Preventive
Detention Act, 1950, and fresh orders of detention were madeunder the latter Act, it could not be contended
that merely because the fresh orders were made simultaneously in a large number of cases, the authorities
could not have applied their minds to each individual case. There was no bad faith in this respect because the
minds of the authorities had already been made up as to the expediency of detention when the original order
under the Bengal Criminal Law Amendment Act had been made.83.
The detaining authority should be bona fide satisfied about the prejudicial activities of the detenu. Absence of
bona fide in this context does not mean proof of malice for an order to be mala fide, although the officer is
innocent. The important point is that the satisfaction of the public functionary, though subjective, must be real
and rational, not colourable, fanciful, mechanical or unrelated to the objects enumerated in Preventive
Detention Act.84. In Shearer v Shields,85. it was observed: “Between malice in fact and malice in law, there is a
broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury
upon another person in contravention of the law is not allowed to say that he did so with an innocent mind since
he is taken to know the law, and must act within the law. He may, therefore, be guilty of malice in law, although
so far as the state of my mind is concerned, he acts ignorantly and in that sense innocently”.86.
Failure to furnish a counter-affidavit of the magistrate concerned is an impropriety which may not be fatal in
many cases, but when the subjective satisfaction is challenged on the ground of mala fides, extraneous
consideration, colourable exercise of powers or abdication of function in favour of subordinates, this lapse may
assume the shape of serious infirmity leading the court to hold the detention invalid.87.
Even where the authority has applied his mind but has acted upon considerations wholly irrelevant to and
outside the scope of the law under which he purports to act, the result is the same.88. Further, it should be
noted that, apart from any question of mala fides, if the grounds on which the order has been made have no
connection with the order, or have no connection with the circumstances or classes of cases under which the
order could be made under the statute, the order would be bad for noncompliance with Article 22(5), post.89.
Again, even inthe case of a subjective condition, there must be a recital that the authority concerned has been
satisfied that the facts calling for the order exist. Without such a recital, the order is not under the statute.90. It is
obligatory on the part of the State to place before the court all the relevant facts relating to impugned detention
truly, clearly and with utmost fairness. Full disclosure must be made without any reservation. It is incumbent on
Page 268 of 467
the officer concerned swearing the counter-affidavit to take good care to satisfy himself that what he states on
oath is absolutely true according to record.91. Care and clarity are particularly important when the court is
concerned with the question of personal freedom.92. But, in the absence of allegation of mala fides, an affidavit
filed by a responsible officer who has dealt with the file was held sufficient.93.
[See further, under Article 22, post].

[Art 21.3.35] Proclamation of Emergency and Articles 21–22
Article 352 (post) empowers the President to make a Proclamation of Emergency whenever he is satisfied that
the security of India or any part thereof has been threatened by external aggression or internal disturbance.
Article 359(1) of the Constitution (as it stood before the amendment of 1978) empowered the President to
suspend the right to move any court for the enforcement of such of the fundamental rights as may be
mentioned in his Order, for the period during which a Proclamation of Emergency is in operation.
The foregoing powers have been exercised by the President on three occasions so far:
I. The first Proclamation of Emergency under Article 352 was made by the President on 26 October 1962, in
view of the Chinese aggression in the NEFA. (Simlutaneously, an Ordinance was promulgated, namely, the
Defence of India Ordinance, which was later replaced by the Defence of India Act, 1962).
It was also provided by a Presidential Order, issued under Article 359, that a person arrested or imprisoned
under the Defence of India Act would not be entitled to move any court for the enforcement of any of his
Fundamental Rights under Articles 14, 19 or 21.
The result of the foregoing Order under Article 359 was that if any person, including a citizen, was arrested or
sentenced under the Defence of India Ordinance, 1962, he would not be entitled to move the Supreme Court, a
High Court or any court on the ground that his fundamental rights under Articles 14, 21 or 22 had been
infringed. This Order thus affected not only aliens but citizens of India as well. But the suspension of the right
would affect a citizen only if he had contravened a rule or an order issued under section 5 of the Defence of
India Ordinance, 1962. The Defence of India Ordinance, 1962, was subsequently replaced by the Defence of
India Act, 1962, with certain additions and alterations.
But though Articles 21 and 22 of the Constitution could not be invoked1. by a person against whom action under
the Defence of India Act or the Rules or Orders made thereunder the Supreme Court held that relief under
Page 269 of 467
Article 32 or 226 of the Constitution on other grounds, was not barred e.g., on the ground that the order issued
against the Petitioner was ultra vires,2. or mala fide.3.
It was held that if mala fide is alleged, the detenu cannot be precluded from sustaining his plea as the ground of
bar created by the Presidential Order under Article 359(1). Mala fide exercise of power means that statutory
power is exercised for the purpose foreign to those for which it is in law enacted. In other words, the power
conferred by the statute has been utilized for some indirect purpose not connected with the object of the statute
or the mischief it seeks to remedy.
An order can be mala fide, although the officer is innocent. The important point is that the satisfaction of the
public-functionary although subjective, must be real and rational, not colourable, fanciful, mechanical or
unrelated to the objects enumerated in the Act.4.
Even though there is no corrupt motive or bargain is imputed, legal mala fides can be imputed when the
authority has taken into account acts or materials which it should not have taken into account (even in cases
the same is taken into account bona fide and with of intention that it is a relevant factor) in deciding whether or
not to exercise the power or the manner or extent to which it should be exercised, the exercise of power would
be bad.5.
This Proclamation of Emergency of 1962 was revoked by an Order made by the President on 10 January 1968.
II. The second Proclamation of Emergency under Article 352 was made by the President on 3 December 1971,
when Pakistan launched into an undeclared war against India. This was followed by the Defence of India Act,
1971.
A Presidential Order under Article 359 was promulgated on 25 December 1974, in view of certain High Court
decisions releasing some detenus under the Maintenance of Internal Security Act, 1971, for smuggling
operations. This Presidential Order suspended the right of any such detenu to move any court for the
enforcement of his fundamental rights under Articles 14, 21 and 22, for a period of 6 months or during the
continuance of the Proclamation of Emergency of 1971, whichever expired earlier.
Though there was a ceasefire on the capitulation of Pakistan in Bangladesh in December, 1972, followed by the
Simla agreement between India and Pakistan, the Proclamation of 1971 was continued, presumably owing to
Page 270 of 467
the persistence of the hostile attitude of Pakistan. It was thus in operation when the third Proclamation of 25
June 1975, was made.
III. While the two preceding Proclamations under Article 352 were made on the ground of external aggression,
the third Proclamation of Emergency under Article 352 was made on 25 June 1975, on the ground of “internal
disturbance”. It is striking that this third declaration was made while the second Proclamation of 1971 was still
subsisting, and all the extraordinary powers following from a Proclamation under Article 352, under Pt XVIII of
the Constitution, were already available from the second Proclamation.
Articles 21, 22, were suspended by an Order under Article 359 of 27 June 1975. This suspension was to remain
in operation during the continuance of either of the Proclamations of Emergency made on 12 March 1971 and
25 June 1975. The Proclamation of 25 June 1975 (internal aggression) was revoked on 21 March 1977 and the
Proclamation of 12 March 1971 (external aggression) was revoked on 27 March 1977.
[Art 21.3.36] Effect of suspension of Article 21 under Article 359
As has been stated above, prior to 1976, the Supreme Court had held6. that notwithstanding the suspension of
Article 21, it was still open to a person imprisoned or detained to challenge such order on any ground outside
Article 21, e.g., that the order was ultra vires (i.e., without any authority of law or in excess of such authority) or
mala fide or based on extraneous considerations.
But after the third Proclamation of Emergency of June, 1975,—overruling the above view,6 and reversing the
decision of 7 High Courts (Allahabad, Bombay, Delhi, Karnataka, M.P., Punjab and Rajasthan), a majority of
the Supreme Court (RAY, C.J., BEG, CHANDRACHUD AND BHAGWATI, JJ. KHANNA, J. dissenting) held7.
that after the adoption of the Constitution, the sole repository of the right to life and personal liberty was
contained in Article 21, so that when Article 21 remained suspended, any order of imprisonment or detention
could not be challenged on the ground that it was without any authority of law or in excess of it, or that it was
vitiated by mala fides or was based on extraneous considerations or that it was against the common law
principle of Rule of Law, which, according to the majority, had no existence apart from Article 21. It was held
that when an individual has been imprisoned or detained, he loses his locus standi to regain his liberty on any
ground and the Supreme Court or the High Court also loses its jurisdiction to grant relief for the purpose on the
ground such as mala fides or ultra vires exercise of statutory power or abuse of such power on extraneous
consideration for to follow such pleas would be to enforce Article 21 itself, the enforcement of which has been
suspended under Article 359(1). According to eminent jurist H.M. SEERVAI “the judgment in habeas corpus
case (i.e. A.D.M. v Shukla) is the most glaring instance in which the Supreme Court of India has suffered most
severely “from a self-inflicted wound”.8. It followed that while Article 21 remained suspended, there would be no
right to a writ of habeas corpus even though Article 32 or 226 had not been suspended. According to this
Page 271 of 467
decision,9. to allow any such proceeding when Article 21 remained suspended, was to defeat the purposes of
Article 359. In this connection, it is better to extract some portions of the dissenting judgment of JUSTICE
KHANNA in the ADM v Shukla (supra). Learned Judge said: “I am unable to subscribe to the view that when a
right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy
against deprivation of a person’s life or liberty by the State, even though such deprivation is without authority of
law or even in flagrant violation of the provision of law. The right not to be deprived of one’s life or liberty without
authority of law was not the creation of the Constitution. Such right existed before the Constitution came into
force. The fact that the framers of the Constitution made an aspect of such right a part of fundamental right did
not have the effect of exterminating the independent identity of such right and of making Article 21 to be the
sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of his
life or personal liberty should prescribe a procedure for such deprivation or such law should be valid law not
violative of fundamental rights guaranteed by Pt III of the Constitution.
Recognition as fundamental right of one aspect of pre-Constitutional right cannot have the effect of making
things less favourable so far as sanctity of life and personal liberty is concerned compared to the position if an
aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental
rights accruing from Article 359. (para 158) … the area covered by the right existing since before the
Constitution is wider than the area covered by the fundamental rights and the fundamental rights deal with only
an aspect of such pre-existing right.
The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely
from the basic assumption in every civilised society governed by the rule of law of the sanctity of life and liberty;
it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or
liberty without authority of law. (para 160). Hence the legal position is that at the time when Constitution came
into force no one could be deprived of his life or liberty without authority of law. (para 162) Constitutional
recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of
habeas corpus under section 491 CrPC. Although the remedy of habeas corpus is no more available under the
new Code of Criminal Procedure, the same remedy is now available under Article 226 of the Constitution. (para
163) Reliance was placed on the decision in Makhan Singh v State of Punjab10. wherein it was observed that
the “remedy under an earlier statutory provision would not get obliterated because of the identical remedy by a
constitutional provision and that these two can co-exist without losing their independent identity.” (para 159). In
another portion of the same judgment, learned judge said: “Before any public authority can deprive a person of
his life or personal liberty, two requirements are to be satisfied – (a) Power must be conferred by law upon such
authority to deprive a person of his life or liberty; and (b) Law must also prescribe the procedure for the exercise
of such power.Suspension of the right to move any court for the enforcement of the right under Article 21 can at
best impinge upon the second requirement; it cannot affect the first requirement which is a cardinal principle of
rule of law. I am conscious of the fact that though Article 21 refers to procedure established by law, there are
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observations in Gopalan’s case11. that the Article would also cover substantive law for affording protection to
life and liberty. What Article 21 lays down is that no person shall be deprived of his life or personal liberty
necessarily pre-supposes that the substantive power of depriving a person of his life or personal liberty has
been vested in an authority and that such power exists. Without existence of such substantive power, no
question can arise about the procedure for the exercise of that power. It has been, therefore, held that though
there is no reference to substantive power in Article 21, the said article would cover both the existence of the
substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise
of that power. The question with which we are concerned is as to what is the effect of the suspension of the
right to move a court for the enforcement of the right contained in Article 21. The effect, it may possibly be
argued, is that consequent upon such suspension a person is deprived of his life or personal liberty under a law
not satisfying the second requirement indicated above, he cannot seek judicial redress on that score. Would it,
however, follow from the suspension of such right that no judicial remedy would be available if a person is
deprived by an authority of his life or personal liberty even though such an authority has not been vested with
the substantive power of deprivation of life and personal liberty. The answer to this question, in my opinion,
should be plainly in the negative. The suspension to move the court for the enforcement of the right contained
in Article 21 cannot have the effect of debarring an aggrieved person from approaching the court with the
complaint regarding deprivation of life or personal liberty by an authority on the score that no power has
become vested in the authority to deprive a person of his life or liberty. The presupposition of the existence of
substantive power to deprive a person of his life or personal liberty in Article 21 even though that article
mentions of procedure, would not necessarily point to the conclusion that in the event of suspension of the right
to move any court for the enforcement of Article 21, the suspension would also dispense with the necessity of
the existence of substantive power. The co-existence of substantive power and procedure established by law
for depriving a person of his life and liberty which is implicit in Article 21 would not lead to the result that even if
there is suspension of the right regarding procedure, suspension would also operate upon the necessity of
substantive power. What is true of a proposition need not be true of the converse of that proposition. The
suspension of the right to move any court for the enforcement of the right contained in Article 21 may have the
effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive
a person of his life or personal liberty; it can in no sense have the effect of permitting an authority to deprive a
person of his life or personal liberty without the existence of substantive power. The close bond which is there
between the existence of substantive power or depriving a person of his life or liberty and procedure for the
exercise of the power if the right contained in Article 21 were in operation, would not necessarily hold good, if
that right were suspended because of the removal of compulsion about the prescription of procedure for the
exercise of the substantive power would not do away with the compulsion regarding the existence of that
power. (para 189)
The President can, in exercise of powers conferred by Article 359(1), suspend when the Proclamation of
Emergency is in operation, the right to move any court for the enforcement of such fundamental right as may be
mentioned in the order. On the plain language of Article 359(1), the President has no power to suspend the
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right to move any court for the enforcement of rights which are not fundamental rights conferred by Pt III of the
Constitution. Rights created by statutes are not fundamental rights conferred by Pt III of the Constitution and as
such enforcement of such statutory rights cannot be suspended under Article 359(1). Likewise, Article 359(1)
does not deal with obligations and liabilities which flow from statutory provisions, and it would follow that an
order under Article 359(1) cannot affect the obligations and liabilities arising out of statutory provisions. Nor can
a Presidential Order under Article 359(1) nullify or suspend the operation of any statute enacted by a competent
Legislature. Any redress sought from a court of law on the score of breach of statutory provision would be
outside the purview of Article 359(1) and the Presidential Order made thereunder. The Presidential Order
cannot put the detenu in a worse position than that in which he would be if Article 21 was repealed. It cannot be
disputed that if Article 21 were repealed, a detenu would not be barred from obtaining relief under a statute in
case there is violation of statutory provision. Likewise, in the event of repeal of Article 21, a detenu can rightly
claim in a court of law that he cannot be deprived of his life or personal liberty without authority of law. Article
359(1) ousts the jurisdiction of the court only in respect of matters specified therein during the period of
emergency. So far as matters not mentioned in Article 359(1) and the Presidential Order thereunder are
concerned, the jurisdiction of court is not ousted”. (para 191).
The majority also pointed out that while the Order under Article 359, issued in 1962 was a conditional order,
and limited only to cases of deprivation of liberty under the Defence of India Rules, there was no such condition
attached to the Order under Article 359 issued on 27 June 1975,12. hence, while pleas other than those
founded on Article 21 read with the Defence of India Rules, survived under the former Order, the suspension of
Article 21 was complete under the third Order under Article 359 issued in June 1975, so that a person detained
during the subsistence of that order could not recover his liberty under any ground.
[Art 21.3.37] Amendment of 1978: Article 21 can no longer be suspended by an Order under Article 359(1)
“The most redeeming feature of 44th Amendment was ensuring that fundamental rights were not restricted or
taken away by a transient majority in Parliament. Right to property was made an ordinary right, Article 352 was
amended, so that it was not used for personal and partisan ends. Articles 20 and 21 was declared inviolate
even in times of emergency and that the basic features of the Constitution were not to be tampered with under
the guise of constitutional amendment.”13.
1. As a result of the widespread protest from the jurists and publicists against the undemocratic view taken by
the majority in A.D.M. v Shukla,14. Art, 359(1) has been amended by the Constitution (44th Amendment) Act,
1978, removing Articles 20–21 from the scope of Article 359(l).15.
2. In the result, even during the operation of a Proclamation of Emergency, the individual’s right to move the
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Supreme Court or a High Court to challenge either a law or an executive order on the ground of contravention
of the rights guaranteed by Articles 20 and 21 [Clause (1)], shall survive.
The words “except Articles 20–21” have been inserted by the 44th Amendment 1978, with the object of saving
the country from the drastic consequence of a proclamation of emergency followed by an order under Article
359, has resulted in the interpretation of the latter provision of the Supreme Court decision.16.
This supersedes the view taken in A.D.M. v Shukla, that when Article 21 is suspended by an Order under
Article 359, the person imprisoned or detained loses his locus standi to regain his liberty on any ground.17.
3. After the 1978 amendment, any order under Article 359 which seeks to bar the enforcement of the rights
under Articles 20–21, even indirectly, shall be invalid, and the right to habeas corpus shall remain unimpaired
by the issue of an order under Article 359.18.
[Art 21.3.38] Additional Guarantees to Safeguard Life and Liberty, under other Constitutions
European Convention on Human Rights provides that: “In the determination of his Civil Rights and obligation or
of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law … ” While ECHR does not explicitly lay down a right to
access to the courts, it is settled that such right is inherent in the right to a fair and public hearing provided by
the Article 6(1) of the Convention. It is also held that the right of access is not absolute and a limitation of that
right is valid provided—(a) the restriction pursues a legitimate aim; (b) there is a reasonable proportionality
between means employed and the aim sought to be achieved; (c) the restriction is not such as to impair the
very essence of the right.19. Condition requiring the appellant to deposit security for cost,20. or courts order
dispensing with oral hearing when parties are allowed to make written submission on issues of fact and law
were sufficiently detailed or dismissal of a civil appeal without hearing when such hearing was provided by the
court below, Axen v Germany,21. was held not unconstitutional.
It would be profitable, in this connection, to refer to certain other guarantees to safeguard personal liberty which
exist under other Constitutions but are absent in ours. Thus,—
Trial by “ordinary Courts”: U.S.A.
(i) There is, under our Constitution, no guarantee of any right to trial in the ordinary courts of law or the right of
access to the ordinary Courts, as exists in some Constitutions.22. In the U.S.A., though there is no specific
prohibition against the creation of special tribunals, the right of the individual is safeguarded by the guarantee of
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the right to jury trial [Article III, section 2(3); Amendments V and VI] and the interpretation of due process as
including “an indefeasible right of access to the ordinary court”.23.
In Griffin v Illinois,24. the petitioner who was convicted of a criminal charge, wanted to file an appeal for which
he wanted a stenographic copy without payment, since he was too poor to pay the same. Under the State law,
free copy will be provided to the poor free of cost to file appeal if any constitutional question arises. When the
copy was denied, on the ground no constitutional right was denied, he moved the American Supreme Court. It
was held that surely no one would contend that either a State or Federal Government could constitutionally
provide that the defendant unable to pay costs in advance should be denied the right to plead not guilty or to
defend themselves in court. Such a law would make the constitutional promise of a fair trial a worthless thing.
Notice, the right to be heard and the right to counsel would under such circumstances become a meanless
promise to the poor and the Equal Protection Clause of the 14th Amendment would be violated. It was held that
in the criminal trial a State can no more discriminate on account of poverty, than on account of religion, race, or
colour. Plainly, the ability to pay costs in advance bears no rational relationship of the guilt or innocence and
could not be used as an excuse to deprive him of a fair trial.
The same principle was applied by the Supreme Court in Premchand Garg v Excise Commissioner,25. where
the rule framed by the Supreme Court for furnishing security for invoking jurisdiction under Article 32 was
striked down as invalid.
Nor is there under our Constitution any direction upon the Legislature as to the circumstances under which it
may create special courts, as is contained in Article 38(3)(1) of the Constitution of Eire, 1937, which says:
Eire
Special Courts may be established by law for the trial of offences in cases where it may be determined in accordance
with such law that the ordinary courts are inadequate to secure the effective administration of justice and the
preservation of public peace and order.
So, the Legislatures, under our Constitution, shall be free not only to create special criminal courts for the trial
of particular offences, notwithstanding the existence of the ordinary courts, but also to empower the Executive
to decide what offences or classes of offences or classes of cases shall be triable by the special courts created
by the Legislature.26.
Trial by jury: U.S.A.
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(ii) It has just been pointed out that in the U.S.A., the right to trial by a Jury in all cases of crimes tried in a
federal court, is guaranteed by Article III, section 2(3) of the Constitution, amplified by the 5th and the 6th
Amendments, though, of course, it has been held that the right may be waived by the accused.27. It has also
been held to be an ingredient of the 14th Amendment in the case of “serious” offences, as regards trial in State
Courts.28.
India
But under our Constitution, there is no corresponding constitutional guarantee of any right to trial by Jury so that
it can be taken away by ordinary legislation, as has already been demonstrated.
(a) The old Code of Criminal Procedure, 1898 (section 269) prescribed Jury trial in the cases of certain
more serious offences, known as “Sessions” cases, but there was no limitation upon the power of the
State to dispense with such trial in the case of such offences or of some of them, provided only the
Legislature had any reasonable basis for such discrimination, having regard to the object of the
legislation.29.
(b) The new CrPC of 1973 has abolished Jury trial altogether, so that no accused in India has any right to
be tried by jury in any class of offences.30. The right to be “tried by peers” which was assured by the
Magna Carta, in England, thus, no longer exists in India.
Trial in public: U.S.A.
(iii) Another analogous right guaranteed by the Constitution of the United States (6th Amendment) is the right to
a “Public trial”, in all criminal prosecutions. This safeguard is provided in order to prevent “Star Chamber
practice”.31. The purpose of a public trial is for the public to see that the defendant receives a square deal, and
that the presence of the public may remind both witnesses, jurors and even the court of their responsibilities.32.
“The requirement of a public trial is for the benefit of the accused, that the public may see that he is fairly dealt
by and not unjustly condemned, and the presence of interested spectators may keep his tiers keenly alive to a
sense of their responsibility and to the importance of their functions; and the requirement is fairly met of, without
partiality or favoritism, a reasonable proportion of the public is suffered to be present, notwithstanding those
persons whose presence could be of no services to the accused, and who would only be drawn either by a
prurient curiosity, are excluded altogether.33. In Richmond Newspapers Inc v Virginia,34. it was held that
without the freedom to attend trials, which people have exercised for centuries, importance of speech and
expression and of the press could be eviscerated.35.
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India
The Constitution of India does not guarantee any such right and the Legislature is free to enact that the trial of
any particular classes of cases shall be heard in camera. The concept of right to open trial under Article 21 is
based on the American decisions where the concept of open trial has developed in due course of time whereas
so far as India is concerned here, even before the Constitution our criminal practice always contemplated a trial
which is open to public. The procedure established by law within the meaning Article 21 is the procedure
established by law as was on the day in which the Constitution was adopted. The procedure established by law
even before the Constitution was enacted as provided under section 352 of the old CrPC which corresponds to
section 327 of the new code.
Though public trial or trial in open court is the rule, yet in cases where the ends of justice would be defeated if
the trial is held in public, the court has got inherent jurisdiction to hold trial in camera. Holding a trial in jail
cannot be termed as illegal and bad and merely because a trial is held in jail, it does not automatically follow
that the trial is not open to public. Reasonable restrictions to regulate entry of general public does not mean that
it ceases to be a public and open trial.36.
In A.K. Roy v UOI,37. it was held, “the right to public trial is not one of the guaranteed rights under our
Constitution as it is under the 6th Amendment of the American Constitution which secures to persons charged
with crimes in public as well as speedy trial. Even under the American Constitution, the rights guaranteed by
the 6th Amendment is held to be personal to the accused, which the public in general cannot share”.
In all civilised countries governed by rule of law, all criminal trials have to be public trials where public and press
have complete access. Public access is essential if trial adjudication is to achieve the objective of maintaining
public confidence in administration of justice. Publicity is the authentic hallmark of judicial functioning distinct
from administrative functioning. Open trial serves an important prophylactic purpose, providing an outlet for
community concern, hostility and emotion. Public trial restores the balance in cases when a shocking crime
occurs in society. People have an inherent distrust for secret trials. One of the demands of democratic society
is that public should know what goes on in court while being told by the press or what happens there, to the end
that the public may judge whether the Indian system of criminal justice is fair and right. Criminal trial is a public
event. What transpires is a public property. Open trial is a universal rule and must be scrupulously adhered to
except under exceptional and extraordinary circumstances. The right to public trial has also been recognised
under section 327 CrPC.38. In Kehar Singh v State (Delhi Admn.),39. while justifying a trial in jail premises,
court said: “The enquiry or trial, however, must be conducted in open court. There should not be any veil of
secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of
judicial process should be thrown open to the public at every stage. The public must have reasonable access to
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the place of trial. The presiding judge must have full control of the court house. The accused must have all
facilities to have a fair trial and all safeguards to avoid prejudice”.
In Naresh Shridhar Mirajkar v State of Maharashtra,40. it was observed “ … that public trial of causes is a
means, though important and valuable, to ensure fair administration of justice; it is a means, not an end. It is the
fair administration of justice which is the end of judicial process and so, if even a real conflict arises between
fair administration of justice itself on the one hand, and public trial on the other, inevitably public trial may have
to regulated or controlled in the administration of justice.”41.
Public Trial, means an orderly trial and not an disorderly one. Therefore, while an accused has a right to be
present at his trial, he is at the same time under a corresponding duty to keep the decorum’s and dignity of the
court by his good behaviour.42.
In Mehram Ali v Federation of Pakistan,43. the court was considering the validity of section 19 of Anti-Terrorism
Act which authorized the court established under the Act, to order removal of any accused from court, if his
behaviour was such as to impede the course of justice and to proceed with the trial in his absence. It was held if
in such a case, the accused who is absent, is ultimately sentenced to death, the same will be deprivation of life
without due course of law and also of his right to consult a legal practitioner of his choice. The provision was
held to be violative by the constitutional provision which guarantees life and liberty and has no legal effect.
Articles 10 and 11 of Universal Declaration of Human Rightsguarantees public hearing and public trial. But
Article 14(1) spells an exception. Article 6 of European Convention for Protection of Human Rights also
provides for “fair and public hearing”, which also provides for exception. Article 8(5) of American Convention of
Human Rights provides that “Criminal proceedings shall be in public, “except in so far as may be necessary to
protect the interest of justice”.
U.K.
As in England the court itself has the power to exclude the public or to hear any case in camera “where the
presence of the public would make the administration of justice impracticable”,44. e.g., where there is
apprehension of public disturbance, or to safeguard “privacy”.45. This does not mean that the court has got
discretion to hear any case in public or in camera.45 The rule should be to observe the salutary principle of
public trial where the litigation is between two parties. As LORD HALDANE observed:
The broad principle is that the courts of this country must, as between parties, administer justice in public.46.
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One of the chief safeguards in the impartial administration of justice lies in the common law right of public
hearing including the press to be present and to publish accurate reports and fair comments of proceedings.
This is embodied too, in the maxim that it is not sufficient that justice be done, but it must be seen to be
done.47. Proceedings in open court ensure that justice is done and is seen to be done and the public may be
able to ponder whether justice has been done.48. It is also a requirement of Article 6(1) of European
Convention on Human Rights and a pre-condition of the right to freedom of expression (Article 10). In R v Chief
Registrar of Friendly Societies exparte New Cross Buildings Society,49. Court of Appeal pointed out that in
exceptional circumstances the paramount object of the courts – to do justice in accordance with law – could
only be achieved by proceedings “in camera”. A public hearing – irrespective of the decision – would have
caused financial loss was held to justify in camera proceedings. Statutory limitations on the ground of public
morality are imposed in certain cases on the details that may be published e.g., under Judicial Proceedings
(Regulation of Reports) Act, 1926 and various statutes relating to children and young persons, divorce, nullity
and proceeding were in camera proceedings are held valid.50.
India
In India, the foregoing common law principle has been codified in section 327, CrPC, 1973, which lays down
the general principle that a trial by a Criminal Court shall be held in an “open” court and the public generally
may have access but that the court has the discretion to exclude any person or the public generally fromtrial,
having regard to the accommodation available or on other grounds, in the public interest, such as decency or
morality, emergency. Special provisions for exclusion are also embodied in the Official Secrets Act [section 14];
Children Act, 1960 [section 28]; the Indian Divorce Act, 1869 [section 53]; the Parsi Marriage and Divorce Act,
1936 [section 43]; the Special Marriage Act, 1954 [section 33]; the Hindu Marriage Act, 1955 [section 22].51.
See also Order XXXIIA of CPC as amended by Act 104 of 1976 (with effect from 2 January 1977).
Right to speedy trial. U.S.A.
(iv) Analogously, the 6th Amendment to the American, Constitution guarantees a right to a “speedy trial” in all
criminal prosecutions.52.
By speedy trial is meant trial with such reasonable speed as is consistent with due course of justice.53.
According to BLACK’S LAW DICTIONARY;54. Speedy Trial means “a trial that the prosecution with reasonable
diligence, begins promptly and conducts expeditiously. The 6th Amendment secures the right to speedy trial. In
deciding whether an accused has been deprived of that right, courts generally consider the length of the delay,
the reason for the delay and the prejudice of the accused”.
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Section 299 of CrPC provides the circumstances under which a trial can proceed in absentia.
It was held in R. v Jones,55. that at common law, the principles which guide the English Court in relation to the
trial of an accused in his absence are—(1) the accused has, in general, a right to be present at his trial and a
right to be legally represented; (2) those right can be waived, separately or together, wholly or in part by the
accused himself. It was held that there is a discretion in the trial judge to proceed with the trial in the absence of
the accused not only after, but before the trial has begun. Due notice was also taken of the provision contained
in European Convention for the Protection of Human Rights and Fundamental Freedom 1950, which is now
part of English Law.
It has been held that the right to speedy trial is denied if a person is sought to be tried upon a charge brought
six years earlier, if the delay was deliberately made to have the accused tried before a court more likely to
convict,56. but not where the delay is accidental.57.
The guarantee of speedy trial has been held to serve a threefold purpose: It protects the accused, if held in jail
to await trial against prolonged imprisonment. It relieves him of the anxiety and public suspicious attendant
upon an untried accusation of crime; and finally like statute of limitation, it prevents him from being exposed to
the hazards of a trial, after the lapse of so great a time that the means of proving his innocence may have been
lost.58.
Besides, an arraignment before a judicial officer “without unnecessary delay” after arrest is required by statutory
rules, so that the arrested person may be advised of his rights and the cause for his arrest may be promptly
determined59. without giving the Police an opportunity for the extraction of a confession.
Under Article 6(1) of European Convention, a person must be brought before a tribunal within a “reasonable
time” (and not speedy trial). `The explanation for introducing “reasonableness” is that the person should not
have to wait for a longer period than necessary before the commencement of the hearings, so as to not suffer
the stress and apprehension and in some cases public humiliation often associated with court proceedings.
Article 6 is designed to avoid the situation of defendants remaining too long in a state of uncertainty about their
fate. Its aim is to protect them against excessive procedural delays, especially in criminal matter.60. Whether
the length of the proceedings are themselves reasonable is to be determined according to particular
circumstances of each case, taking into account such factors as the complexity of the issue involved61. as well
as how all parties conducted themselves during the period. Time begins to run from the day accused is being
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charged. In regard to appeal, reasonable time issue relates to the period between lodging of an appeal and the
date of decision in appeal.62. In determining what is meant by “reasonable”, fairly wide time-limits have been
applied, so that in some circumstances as much as seven or eight years may be reasonable.63. To consider
“reasonable time”, the court will take into account the conduct of the accused (which may have contributed for
the delay) and the need for proper preparation of the case bearing in mind any special circumstances such as
those which might arise in child care cases. In order to determine how long the delay has been, the point from
which time will run must be identified. In criminal cases, it will be the stage at which the situation of the person
concerned has been substantially affected as a result of a suspicion against him. In civil cases, it will be the
moment when proceedings concerned are initiated; not including pre-trial negotiation.64.
India
In India, there is no specific provision in the Constitution, like the 6th Amendment to the American Constitution,
to guarantee a speedy trial. Hence, until the Supreme Court pronouncements since 1979,65. the only provisions
to ensure speedy trial were to be found in the Criminal Procedure Code, 1973, such as section 167.
But, in 1979,65 the Supreme Court evolved the proposition that the right to a speedy trial is fundamental right,
emanating from Article 21, because no procedure can be said to be “fair” unless it ensures a speedy
determination of the guilt of the accused.65 In Salem Advocate Bar Association case, Supreme Court held that
having regard to the constitutional obligation to provide for fair, quick and speedy justice, the Central
Government has to provide substantial funds for establishing courts, which are subordinate to the High Court
and the Planning Commission and Finance Commission must make adequate provision, therefore, and these
must be “judicial impact assessment” whenever any legislation is introduced either in Parliament or in the State
Legislature. The financial memorandum attached to each Bill must estimate not only budgetary requirement of
other staff, but also the budgetary requirement for meeting the expenses of the additional cases that may arise
out of the new Bill when it is passed by the Legislature. The said budget must mention the number of civil and
criminal cases likely to be generated by the new Act, how many courts are necessary, how many judges and
staff are necessary and what is the infrastructure necessary.66.
It was held that it is the constitutional obligation of the State to dispense speedy justices, in the field of criminal
law and paucity of funds or resources is no defence to denial of right to justice.67. Taking into consideration that
the accused is entitled to have speedy trial are fundamental right, in regard to bail application, direction was
given to dispose of the application in the day when it is filed and directed the State not to such adjournment on
the ground of lack of records.68.
It was held therein that criticizing long incarceration of undertrials, the court held that any procedure, which
keeps large number of people behind bars without trial cannot possibly be regarded as reasonable, just and
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fair, so as to be in conformity with Article 21. It was held that law as enacted by the Legislature and
administered by courts must radically change to pretrial detention and ensure reasonable, just and fair
procedure. Prolonged detention of those awaiting trial violates the provision of Article 21.
In the Hussainara case, Supreme Court passed an Order:69. (a) directing the State Government in the matter of
completion of investigation where investigation is delayed over two years to be submitted within a further period
of three months and in default, the case must be withdrawn; (b) directing the session Judge in the case of non-
commencement of trial for several years and session Judge to forward to the High Court with an explanation,
when the trial had not been commenced; (c) direction to the State Government to file affidavit regarding
compliance with section 167(2) of CrPC and to the High Court to make an enquiry; (d) direction to the State
Government to submit revised chart listing separately those held for minor offences and those held for major
offences for speedy trial; (e) direction to the State Government to release such prisoners against whom no
charge sheet has been filed within a period of limitation prescribed under section 468 of Code of Criminal
Procedure; (f) direction to State Government and High Court to ensure compliance with section 167(5) CrPC in
the case of prisoners charged with offence trible as summons case; (g) directing the State Government to
release immediately women held in protective custody and put in Welfare Centres to be opened by the State.
In a further direction in the same case (1980) 1 SCC 98 [LNIND 1979 SC 188] : AIR 1979 SC 1369 [LNIND
1979 SC 188]70. and in (1980) 1 SCC 115 : AIR 1979 SC 181971. direction was given to release under-trial
prisoners who had been in jail for a period longer than the maximum term for which they could be sentenced, if
convicted as continuance of their detention violates the guarantee under Article 21. Direction was also given to
provide free-legal aid to such under-trial prisoner to get bail. It was declared that the fundamental right to
speedy trial cannot be denied to a citizen on the ground of lack of financial resources of the State. In another
direction in the same case, (1980) 1 SCC 108 [LNIND 1979 SC 241] : AIR 1979 SC 1377 [LNIND 1979 SC
241]72. it was held under-trial lunatics and person of unsound mind could not be kept in ordinary jail along with
other under-trials. It was further observed that an under-trial prisoner should be informed that he is entitled to
bail on his detention for ninety days or sixty days as the case may be under section 167(2) of CrPC.
Speedy trial has been recognised as an inherent and implicit aspect in the spectrum of Article 21 of the
Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is a
sacrosanct obligation of all concerned with the justice dispensation system to see that administration of criminal
justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to remain a
mere formality. However, speedy trial cannot be regarded as an exclusive right of the accused. The delay in
conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of a
victim. One cannot afford to treat the victim as an alien or a total stranger to the criminal trial. Criminal
jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is a perception
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of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context.73. Court
said that the guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the
court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee
serves a three fold purpose – (1) it protects the accused against oppressive pre-trial imprisonment; (2) it
relieves the accused of the anxiety and public suspicion due to unresolved criminal charges; and (3) it protects
against the risk that evidence will be lost or memories dimmed by the passage of time, thus impairing the ability
of the accused to defend him or herself. (In this case, the delay for completion of trial and disposal of criminal
charge took more than thirty eight years).
In that case, court said that the reason for the delay is one of the factors which the courts would normally
assess in determining as to whether a particular accused has been deprived of his or her right to speedy trial
including the party to whom the delay is attributed. Delay which is occasioned by the action or inaction of the
prosecution is one of the main factors which will be taken into consideration by court while interjecting a
criminal trial. A deliberate attempt to delay the trial, in order to hamper the accused is weighed heavily against
the prosecution. However, unintentional and unavoidable delays or administrative factors over which the
prosecution has no control such as over crowded court dockets, absence of Presiding Officers, strike by
lawyers, delay by superior forum in notifying the Designated Courts, the matters pending before other forums,
including the High Court and the Supreme Court and adjournment of criminal trial at the instance of accused
may be a good cause for failure to complete the trial within a reasonable time. This is only illustrative and not
exhaustive. Such delay or delays cannot be violative of the accused’s right to a speedy trial and needs to be
excluded while deciding whether unreasonable and unexplained delay. The good cause exception to the
speedy trial requirement focuses only on one factor i.e., the reason for the delay and the attending
circumstances bear on the inquiry only to the extent to the sufficiency of the reason itself. There is no basis for
holding that the right to speedy trial can be quantified into specific number of days, months or years. The mere
passage of time is not sufficient to establish denial of right to speedy trial, but a lengthy delay which is
presumptively prejudicial triggers the examination of other factors to determine whether rights have been
violated. The length of the delay is not sufficient in itself to warrant a finding that the accused was deprived of
his right to speedy trial. Rather it is only one of the factors to be considered and must be weighed against other
factors. The delay tolerated varies with the complexity of the case, the manner of proof as well as the gravity of
the alleged offence. This again depends on case to case basis. There cannot be a universal rule in this regard.
It is a balancing process while determining whether the accused’s right to speedy trial has been violated or not.
The length of delay in and itself is not a weighty factor. Prescribing a time-limit for the trial court to terminate the
proceedings or at the end thereof, to acquit or discharge the accused in all cases, will amount to legislation
which cannot be done by judicial directive within the arena of judicial law making power available to
Constitutional Courts however liberally the courts may interpret Articles 21, 32, 141 and 142. It is neither
advisable, feasible nor judicially permissible to prescribe an outer time-limit for conclusion of all criminal
proceedings. It is for the criminal court to exercise powers under sections 309, 311 and 253 of CrPC to
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effectuate the right of an accused to speedy trial. In appropriate cases, directives from the High Court under
section 482 of CrPC and Article 226/227 of the Constitution can be invoked to seek appropriate relief.74.
In Hardeep Singh v State of MP,75. the court found that the State was responsible for the disposal of criminal
case against the petitioner, and due to pendency, his dignity and reputation were affected. State was directed
to pay compensation for the delay caused.
It is not desirable to fix a time-limit for determination of a criminal case.76.
Corruption cases should not be allowed to be quashed only on the ground of delay. If such cases are quashed
on ground of delay, it may garner and pave way to anarchism. Factors like social justice, rule of law and
purpose of enactment concerned to secure and spread deterrent message have to be weighed and have to be
balanced.77.
In Kadra Pahadiya v State of Bihar,78. reiterated that right to speedy trial is a fundamental right under Article
21. It prohibited the practice of keeping the under trial prisoners in leg-iron.79.
In Kartar Singh v State of Punjab,80. the court observed: “The concept of speedy trial is read in to Article 21 as
an essential part of fundamental right to life and liberty guaranteed and preserved by our Constitution. The right
to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at
all stages, namely the stage of investigation, enquiry, trial, appeal and revision, so that any possible prejudice
that may result from impermissible and avoidable delay from the time of commission of the offence till its
consummates into a finality, can be averred”.81.
When a prisoner sends special leave petition from jail along with the certified copy of the judgment appealed
against, the matter requires immediate attention, so that the court may, having regard to the facts and
circumstances, can either suspend the sentence or enlarge him on bail. The registry need not in every case call
for the records of the lower court is a mechanical manner. It is part of fundamental right to speedy trial.82. The
accused cannot complain for the delay in disposing the case against him where he alone is responsible for the
long delay.83.
While every step should be taken for speedy trial, a maximum time limit cannot be fixed within which a trial
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must be completed. It was held that it is neither available, nor feasible nor judicially permissible to draw or
prescribe an outer limit for conclusion of all criminal proceedings.84.
Though no general guidelines can be fixed or issued for completion of trial and each case has to be examined
on its facts and circumstances, a case where no single witness is examined for more than twenty five year, its
continuation would amount to abuse of the process of law and the same is liable to quashed. Quick justice is
now regarded as sine qua non of Article 21. Inordinate delay may be taken as presumptive proof of prejudice.
In this context, the fact of incarceration of the accused will also be a relevant fact. The prosecution should not
be allowed to become persecution. But when does the prosecution become persecution again depends on facts
of a given case.85. In Vakil Prasad Singh v State of Bihar,86. currency notes were recovered from the appellant
in the year 1981 who was caught red-handed but charge-sheet was filed in 2007, during the pendency of a
petition filed in 1998 under section 482 CrPC alleging undue harassment for more than eighteen years. Court
held that as a clear case of violation of fundamental right of the accused conferred by Article 21, the case was
quashed.
Apart from “speedy trial” which is part of fair trial, “fair trial” would mean a trial before an impartial judge, a fair
prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against
the accused, the witness or the cause which is being tried is eliminated. Fair trial entails the familiar
triangulation of the interest of the accused, the victims and the society and it is the community that acts through
the State and prosecuting agencies …. It has to be unmistakenly understood that a trial which is primarily
aimed at ascertaining the truth has to be fair to all concerned. It will not be correct to say that it is only the
accused who must be fairly dealt with …
Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due
process of law. Since a fair hearing requires an opportunity to preserve the process, it may be vitiated and
violated by an over hasty, stage-managed tailored and partisan trial. A fair trial for a criminal offence consists
not only in technical observance of the frame and forms of law, but also in recognition and just application of its
principles in substance, to find out the truth and prevent miscarriage of justice.87. If the criminal trial is not free
and fair and free from bias, judicial fairness and the criminal judicial system would be at stake, shaking the
confidence of the public in the system and woe would be the rule of law. It is important to note that in such a
case, the question is not whether it is actually biased, but the question is whether the circumstances are such
that there is a reasonable apprehension in the mind of the petitioner.88.
Right to fair hearing is deduced from the comprehence guarantee of “Due Process”.89. A trial which is held in a
manner that would affect the “fairness, integrity or public reputation of judicial proceedings” is invalid.90.
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A fair hearing implies that the proceedings must be guaranteed to be impartial. The parties should not be
allowed to suffer dangers of bias of tribunal such that it prejudices a fair trial, and that it includes the conduct,
organization and composition of the court itself. For instance, the court may be made up of judges who have
also acted for the prosecution at the investigation stage and may not be impartial.91.
“Judicial Process demands that a judge moves within the framework of legal rules and court covenanted modes
of thought for ascertaining them. There is a good deal of shallow talk that the judicial robe does change the
man within it. It does, the fact is that on the judges do lay aside private views in discharging their judicial
functions. This is achieved through training, professional habits, self-discipline and fortunate alchemy by which
men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the
sub-conscious influence of which it is unaware. When there is ground for believing that such unconscious
feeling may operate in the ultimate judgment or may not fairly lead others to believe they are operating, judges
rescue themselves. They do not sit in judgment.92.
Judges’, like Caesar’s wife, should be above suspicion.93. It is of fundamental importance that justice should
not only be done, but should manifestly and undoubtedly be seen to be done.94.
A judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the
core with high moral values. When a litigant enters the court-room, he must feel secure that the judge before
whom his matter has come would deliver justice impartially and uninfluenced by any consideration. The
standard of conduct expected of a judge is much higher than an ordinary man. This is no excuse that since the
standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have
high standards and ethical firmness required of a judge. A Judge, like Caesar’s wife, must be above suspicion.
The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and
rule of law to survive, justice system and judicial process have to be strong and every judge must discharge his
judicial function with integrity, impartiality and intellectual honesty.1. No one can act in a judicial capacity if his
previous conduct gives ground for believing that he cannot act with an open mind or impartiality. A person trying
a cause must not only act fairly, but must be able to act above suspicion of unfairness and bias.2.
It is constitutional duty of State to see that every person gets a fair and speedy trial. Financial limitation or
constraints is not an excuse and State cannot be permitted to deny fundamental right to speedy trial to the
accused on the ground that State does not have adequate financial resources to incur necessary expenditure
needed for improving administrative and judicial apparatus to ensure speedy trial.3.
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Right to fair trial being a right guaranteed under Article 21, putting leading questions to the witness during
examination–in–chief would violate the guarantee. It is not a curable irregularity. A procedure which permits
leading question during chief–examination is an illegal procedure.4. But it is not the law that every leading
question would invalidate the trial. Import of leading question, if any, has to be assessed on facts of each case.
But question put to clarify is not considered as leading question especially when the finding of guilt is not based
on the answers to question which was clarificatory in nature.5.
When there is a procedure established by law for a fair-trial, a trial by press, electronic media or public agitation
amounts to antithesis to the rule of law. A judge has to guard himself against any such pressure and has to be
guided only by rules of law.6.
CARDOZO, one of the great judges of the American Supreme Court, in his Nature of Judicial Process (1921)
observed that Judges are subconsciously influenced by several forces. Same view was expressed by our
Supreme Court in P.C. Sen,7. and in Reliance Petrochemicals v Indian Express Newspapers, Bombay Pvt Ltd8.
In Manu Sharma v State (NCT of Delhi),9. court said that presumption of innocence of an accused is a legal
presumption and should not be destroyed at the very threshold through the process of media trial and that too
investigation is pending. In that event, it will be opposed to very basic rule of law and would impinge upon the
protection granted to an accused under Article 21. It is essential for the furtherance of dignity of courts and is
one of the cardinal principles of rule of law in a free democratic country that the criticism or even the reporting
particularly in subjudice matters must be subjected to checks and balances so as not to interfere with the
administration of justice. Court observed that the freedom of speech protected under Article 19(1)(a) of the
Constitution has to be carefully used, so as to avoid interference with administration of justice and leading to
undesirable results in the matter of subjudice before the court. Court also took note of an earlier decision in
R.K. Anand v Delhi High Court10. where the court said that “it would be a sad day for the court to employ the
media for setting its own house in order and the media too would not relish the role of being the snoopers for
the court. Media should perform the acts of journalism and not as a special agency for the court. The impact of
television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt
regardless of any verdict in a court of law will not be fair”. In M.P. Lohia v State of WB,11. the court reiterated its
earlier view that freedom of expression and speech sometimes may amount to interference with the
administration of justice as the articles appearing in the media could be prejudicial and this should not be
permitted.12.
Taking evidence by video-conferencing is permissible as it is a procedure established by law. Video-

conferencing is an advancement in science and technology which permits one to see, hear and talk with
someone far away with the same facility and ease as if he is present before the accused and his lawyer. The
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witness is before the screen. Except for touching, one can see, hear and observe as if the party is in the same
room. In video-conferencing both parties are in the presence of each other and evidence so taken is in the
“presence” of the accused. There is no violation of Article 21.13.
Strike or boycott by lawyers is an interference in the administration of justice and violates the fundamental right
of the accused for a speedy or fair trial. Advocates have no right to go on strike and courts are also not
expected to adjourn the cases. If the advocate abstains from attending court, when the case is called, he is
personally liable for costs and also damages suffered by the client.14.
Fixing period of limitation for taking cognizance of offences under sections 468(2) and 469(1) of Code of
Criminal Procedure is in consonance with the concept fairness of trial under Article 21.15.
Right to notice of charge: U.S.A.
(v) Another right guaranteed by the 6th Amendment to the American Constitution is that the accused must be
“informed of the nature and cause of accusation”. This right would be violated even where the charge is
obscure or vague.16. It has also been deduced from the guarantee of “due process”,17. which has already been
noticed.
A judicial proceeding may violate “Due Process” when the court imposes a penalty without hearing or without
giving adequate notices or opportunity to defend,18. when the decision is founded on coerced confession or
perjured testimony it amounts to denial of fair hearing.19. When a case is decided not according to established
notions of justice, but based on personal idiosyncrasies of the judge, the same is violation of “due process”.20.
In Miranda v Arizona21. the court directed the procedures to be followed by the police during interrogation and
declared that any statement elicited in violation of these procedures or directions would be inadmissible in
evidence.
Since the decision became very controversial, the Congress swiftly and directly declared by section 3501 of
Omnibus Safe Streets and Criminal Control Act of 1968 that a voluntary confession was admissible irrespective
of its conformity to Miranda’s directions. That provision proclaimed, “A confession shall be admissible in
evidence if it is voluntarily given and voluntariness shall be determined on the basis of all the circumstances
surrounding the giving of the confession including whether or not the defendant had been advised prior to
questioning of his right to the assistance of counsel when questioned”. To remove all doubts it continued “The
presence or absence of the above mentioned factors need not be conclusive on the voluntariness of
confession”. In Davis v US,22. it was held that the above provision has been studiously avoided by every
administration, not only in this court, but in the lower court since its enactment more than twenty five years
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ago”. In Dicherson v United States,23. it was held that Miranda being a constitutional decision of this court, may
not be in effect overruled by an Act of Congress and we decline to overrule “Miranda” ourselves. We, therefore,
hold that “Miranda” and its progeny in this court govern the admissibility of statements made during custodial
interrogation in both State and Federal Courts”.24.
The expression “charge” has been defined as “the official notification given to an individual by competent
authority of an allegation that he has committed a criminal offence”.25. European Convention, after enunciating
the right to fair trial generally in Article 6(1), enumerates in Article 6(3) certain minimum right which an accused
charged with a criminal offence must have e.g., the right to be informed of the cause of accusation in a
language which he understands.26. An accused person’s right of information falls under two heads – (A) Pre-
trial stage; As soon as a person is arrested, he has the right to be informed as to why he has been arrested i.e.,
the reason for his arrest. This right is guaranteed by Article 9(2) of the International Covenant; Article 5(2) of
European Convention; section 10(a) of Canadian Charter and Article 22(1) of Indian Constitution. (B) Post-
charge Right (a) Though the information under the preceding head must be given immediately or promptly after
arrest, it does not require any specific charge, but refers to grounds of arrest on general terms; (b) the framing
of a charge or accusation against the arrested person for trial gives him another right viz., the right to be
informed of the specific offences with which he is charged with necessary particulars.27.
India
In India, the formal framing of a charge in writing and the communication and explain thereof to the accused is
mandatory, under the CrPC, 1973, in the case of serious offences, such as those triable by a Court of Session
(section 228) or those triable by a Magistrate under the warrant procedure (section 240). That the charge so
framed shall be as specific and definite as ensured by the provisions in sections 211–13 and 216.
Even in cases triable under the summons (section 251) or summary procedure (sections 251, 262), though no
charge need be framed in, writing, the particulars of the offence with which the accused is charged, must be
stated to him. A failure of the court to discharge this duty would vitiate the trial.28.
The procedure contemplated under Article 21 is that the procedure must be “right, just and fair and not
arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair it should confirm to the principle
of natural justice, i.e., fair play in action.”29.
The essentials of “due process” are—(1) notices; (2) opportunity to be heard; (3) an impartial tribunal; and (4)
orderly course of procedures.30. But in case where investigation is conducted in strict compliance with the
statute the principles of audi alteram partem is not attracted and the accused has no say in the manner and
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method of investigation.31. In the case of pretrial procedures, such as commencing of enquiry, deprivation of
liberty is not involved and in such cases opportunity of hearing is not necessary nor it would be violative of
Article 21. Over-emphasis on the compliance with the minimum requirement of natural justice even in case of
need for expeditions, overlooking the other procedural safeguards prescribed would not be reasonable.32.
Rights to confront witnesses. U.S.A
(vi) The 6th Amendment to the American Constitution guarantees to an accused the right “to be confronted with
the witnesses against him”. The object of this guarantee is that the accused must have an opportunity to elicit
the truth out of the prosecution witnesses, by the process of cross-examination. Hence, any indirect obstruction
with this guarantee or any device which might interfere with this safeguard against the perjury of prosecution
witnesses, has been held to be violative of this provision.33. The confrontation clause of the Sixth Amendment
guarantees an accused person the right to be confronted with witnesses against him. It is one of the two
clauses in the Bill of Rights (the other being the Compulsory Process Clause) that explicitly address the right of
criminal defendant to elicit evidence in their defence from witnesses at trial. “They guarantee that a criminal
charge may be answered in a manner now considered fundamental to the fair administration of American
Justice – through the calling and interrogation of favourable witnesses, the cross-examination of adverse
witnesses and the orderly introduction of evidence. In short, they constitutionalize the right in an adversary
criminal trial to make a defence as we know it”.34. In Pointer v Texas,35. the court incorporated the
confrontation clause to apply to the States. The confrontation clause also literally guarantees the defendant a
face to face meeting with the witnesses appearing before the “trier of fact”; consequently it overturned the
conviction of a criminal defendant.36. But in Maryland v Craig,37. court declared by a majority that right to face
to face confrontation is not absolute.
India
In India, the accused’s right to cross-examine prosecution witnesses is safeguarded by various provisions of
the CrPC, 1973, e.g., ss., 231, 242–43, 246, 254 read with sections 137–38 of the Evidence Act.
Similarly, the public prosecutor cannot put to the witness during chief-examination leading question as material
part of the evidence, so as to elicit the evidence as desired by the prosecution. The same amounts to denial of
fair trial and violative of Article 21. It is also against the procedure established by law.38.
Refusal of the right to examine witnesses who made general remarks against the character of the charged
employee and were available for examination at the enquiry amounted to denial of reasonable opportunities to
showing cause against the action.39.
If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to
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cross-examine. The right to cross-examine a witness who is called by a court arises not under section 311 of
CrPC, but under the Evidence Act, which gives the party the right to cross-examine a witness who is not his
own witness. Since a witness summoned by a court could not be termed a witness for a particularly party, the
court should give the right to cross-examine to the complainant. To deny the right to cross-examine prosecution
witness would jeopardize accused of his right to life and liberty.40. In that case, court held the ultimate quest in
any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes
through the fire of cross-examination. In a criminal case, using the statement of witness at the trial without
affording to accused an opportunity to cross-examine tantamounts to condemning him unheard. Life and liberty
of an individual recognised as the most valuable right cannot be jeopardized leave alone taken away without
conceding to the accused the right to question those deposing against him from witness box.41.
Article 6(3)(d) of European Convention of Human Rights guarantees the right “to examine or have examined
witnesses against him and to obtain the attendance and examination of witnesses against him and to obtain the
attendance and examination of witness on his behalf under the same condition as witnesses against him”. A fair
hearing includes the right of the defendant to examine and cross-examine witness and this include being able
to see the witnesses. But in certain cases, due to the danger to the witnesses being intimidated by the accused,
the judge has a discretionary power to “screen” witnesses, i.e., to prevent the defendant from seeing the
witness, whether by use of physical barrier such as a screen around the witness base or by use of video link
whereby the witness gives evidence from separate room. This normally occurs during trials of serious assault,
blackmail, where children are witnesses, custody cases and especially terrorist offences, where there is
reluctance for prosecution witnesses to come forward for fear of reprisals.42.
The right to cross-examine would seem to be specific and unambiguous in its guarantee that witnesses against
the defendant must be at the public hearing if their evidence is to be relied on. It would therefore seem to
outlaw hearsay evidence.43.
Fair trial which is guaranteed under Article 21, contemplates to find out the truth. Witnesses are the eyes and
ears of justice from whose evidence truth is arrived. If the witness himself is incapacitated from acting as eyes
and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The
incapacitation may be due to several factors like the witnesses being not in position for reasons beyond control
to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. The witnesses turn
hostile either due to threats, coercion, lures and monetary consideration at the instance of those in power, their
henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously
adopted to smother and stifle the truth and realities from coming to the surface rendering truth and justice to
become ultimate causalities. Broader public and societal interests require that the victims of the crime who are
not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do
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not suffer even in slow process but irreversibly and irretrievably, which if allowed to undermine and destroy
public confidence in the administration of justice, which ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice of the law, enshrined and jealously
guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come
when serious and undiluted thoughts are to be bestowed for protecting witnesses, so that the ultimate truth is
presented before court and justice triumphs and the trial is not reduced to a mockery. The State has a definite
role to play in protecting witnesses. As a protector of its citizens it has to ensure that during trial in the court the
witness could safely depose the truth without any fear of being haunted by those against whom he had
deposed. Every State has a constitutional obligation and duty to protect life and liberty of citizens. That is the
fundamental requirement for observance of rule of law. There cannot be any deviation from this requirement
because of any extraneous factors like caste, creed, religion, political belief or ideology. Legislature measures
to emphasize prohibition against tampering with witnesses, victims or informant have become imminent and
inevitable need of the day. There should not be any undue anxiety to only protect the interest of the accused.
That would be unfair to the needs of the society. On the contrary, efforts should be to ensure fair trial where the
accused and the prosecution both get fair deal.44.
Where out of nine witnesses, except one, all were abducted and the only available was given police escort, who
supported the prosecution, the court said merely because he was given police escort, since his possibility of
being abducted and killed cannot be ruled out and his evidence cannot be discarded for that reason alone.45.
The State has a definite role to play in protecting the witnesses, to start with atleast in sensitive cases. A judge
is not expected to act like a tape-recorder to record whatever has been stated by the witness.46. In Himanshu
Singh Sabharwal v State of MP,47. court said: “As a protector of its citizen, it has to ensure that during a trial in
court the witnesses could safely depose the truth without any fear of being haunted by those against whom he
has deposed. Some legislative enactment like the Terrorist & Disruptive Activities (Prevention) Act 1987 (in
short TADA) has taken note of the reluctance shown by witnesses to depose against dangerous
criminals/terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against
people with muscle power, money power or political power has become an order of the day. If ultimately truth is
to be arrived at, the eyes and ears of justice have to be protected, so that the interests of justice do not get
incapacitated in the sense of making the proceedings before courts mere mock trials as is usually seen in
movies. Court further said: “Legislative measures to emphasise prohibition against tampering with witnesses,
victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately
affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with.
There should not be any undue anxiety to only protect the interest of the accused. On the contrary, the efforts
should be to ensure fair trial where the accused and prosecution both get a fair deal. Public interest, in the
proper administration of justice, must be given as much importance, if not more, as the interest of individual
accused. In this, courts have a vital role to play”.
Right to process for producing defence witnesses, U.S.A.
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(vii) A counterpart of the foregoing right is the right of the accused to have proper opportunity of producing his
own witnesses, if any.
In the U.S.A., this is secured by the latter part of the 6th Amendment.
India
In India,both the rights have been deduced from the principle of natural justice,48. apart from the provisions of
the CrPC, 1973 [e.g., sections 243(2) and 254(2)].
Right to counsel for defence
(viii) Another right safeguarded by the 6th Amendment to the American Constitution is the right to have the
assistance of counsel for defence.
This will be dealt with under Article 22(1), post.
Like a speedy trial, which is guaranteed under Article 21, another important right of the accused is to get
judgment pronounced at an early date, i.e., without any delay. It was held that justice should not only be done,
but should appear to have been done. Like justice delayed amounts to denial of justice, justice withheld is even
worse than that. The inordinate, unexplained and negligent delay in pronouncing the judgment really amounts
to denial of right of appeal conferred upon a convict under the CrPC and violation of Article 21. Once the entire
participation in the justice delivery is over and only thing to be done is the pronouncement of judgment, no
excuse can be found to further delay for adjudication of the right of parties, particularly when it affects any of
their rights conferred by the Constitution.49. It was held therein that delay in pronouncement of the judgment
facilitates the people to raise eye-brows and shakes the confidence of people in judicial system. In that case,
Supreme Court gave various directions which were to be complied with till a legislation was passed.50.
The accused is also entitled to a certified copy of judgment free of cost in case of death sentence and the same
must be supplied to him “immediately after the judgment is pronounced even if no application is filed to get a
copy. In other cases a certified copies should be supplied free of cost, without any delay whenever an
application is made. Section 363 CrPC guarantees the supply of free copies to the accused which is also part of
Article 21.51.
In regards to crime against women, i.e., rape cases, Supreme Court held that such a crime is against basic
human rights and is also violation of the victims most cherished of the fundamental rights namely, the right to
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life guaranteed under Article 21. It was held that it is not necessary that the victims of the violation of the
fundamental right should personally approach the court as the court itself can take cognizance of the matter
and process suo moto or on a petition of any public spirited individual. The court observed setting up Criminal
Injuries Compensation Board and compensation for the victims shall be awarded by the court on conviction of
the offender and by the Board, whether or not conviction has taken place. It was declared that the victim is
entitled to interim compensation to be awarded by court trying the offence.52.
In Chairman, Rly. Board v Chandrima Das,53. it was held that the Government is liable to pay compensation to
a foreign national who was gang-raped by some railway officials. Court also took note of the relevant provisions
in Universal Declaration of Human Rights, Declaration of Elimination of Violence Against Women, Declaration
and Covenants of Civil and Political Rights of Economic, Social and Cultural Rights.54.
(ix) The Eighth Amendment to the American Constitution says:
Excessive bail shall not be required....
Immunity from excessive bail: U.S.A.
It has been held that a pre-trial bail which is unusually higher than an amount which may be reasonably
calculated to assure the presence of the accused at the trial is excessive.55. Unless the right to a reasonable
bail is preserved, the presumption of innocence and the right to freedom before conviction would lose its
meaning.55
The above provision, however, applies only to criminal proceedings, so that an alien arrested for deportation
may be held without bail pending determination of his liability to be deported.56.
India
In India, there is no constitutional provision in this behalf, but the purpose is served by the ordinary law
contained in section 440(1) of the CrPC, 1973, which says:
The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case
and shall not be excessive.
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While emphasizing the right to bail, it was held that heavy bail condition from poor man is obviously wrong.
Poverty is society’s malady and sympathy, not sternness, is the judicial response.57.
In Babu Singh v State of U.P., court said: “ … the issue is one of liberty, justice, public safety and burden on the
public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitive
judicial process. Imposing unjust or harsh conditions while granting bail is violative of Article 21.
In TADA cases, release of under-trials on bail is extremely restricted. But the Supreme Court has ruled that
even in TADA cases, where there is no prospect of trial being concluded within a reasonable time, the release
on bail may be necessary as this can be taken to be embedded in the right of speedy trial.58. In Sumit Mehta v
State of NCT of Delhi,59. court said: “any condition” as stated in section 438 CrPC should not be regarded as
conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition
which has no relevance to fairness or propriety of investigation or trial cannot be imposed. While exercising
power under section 438 CrPC, the court is duty bound to strike a balance between the individual’s right and
personal freedom. “Any condition” has to be interpreted as a reasonable condition, acceptable in the facts,
permissible in the circumstances and effective in the pragmatic sense and should not defeat the order of grant
of bail.
It may also be stated that Supreme Court has held that anticipatory bail is a statutory right and it does not arise
out of Article 21. Anticipatory bail cannot be granted as of right as it cannot be considered as an essential
ingredient of Article 21.60.
Bail and pre-trial detention have perhaps raised fewer constitutional questions than any other practices in the
criminal judicial system in the USA. This is in part because “the excessive fines and bails” clause in the Eighth
Amendment has never been incorporated to apply to the States and in part because the Supreme Court of
America has never established an absolute right to bail. In determining whether bail will be granted and the
condition under which it will be granted, courts have traditionally asked just one question, i.e., will the accused
abscond or appear as required at his trial? Increasingly, however, a second question is also being asked : Will
the accused constitute a danger to the community and the safety of others by committing additional crimes
while free on bail?61. In Moti Ram v State of M.P.,62. court ordered bail on furnishing a surety of Rs 10,000
when the brother of the accused offered himself as surety, the same was rejected on the ground that his assets
are not situated in the same district. This approach was condemned and it was observed that thousands of poor
people were in jail only because they could not afford bail or do not know how to make an application. The court
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observed that the Magistrate must abandon the antiquated concept that pre-trial release could be ordered only
against money.63. Likewise in bail bonds, cash security cannot be demanded.64.
While considering whether a person should be enlarged on bail, the court has to balance the right to personal
liberty versus the interests of society. When the accused himself is responssible for long delay of the trial and
the allegation against him are very serious merely because he was in custody for long period may not be a
ground to grant bail.65.
(x) The Eighth Amendment to the American Constitution says:
...nor cruel and unusual punishments inflicted.
Execution of sentence in a cruel manner has also been held to violate “due process”.66.
Immunity from cruel punishment : U.S.A.
The Supreme Court has refused67. to exhaustively enumerate what modes of punishment would be regarded
as cruel, except that it would include any kind of punishment by torture,67 or lingering death, e.g., burning at the
stake, crucifixion, breaking on the wheel.68.
A penalty or judicial sentence which is grossly disproportionate to the offence in question, would come within
the present prohibition, e.g., a sentence of imprisonment for 20 years for a false entry in a public record.69. In
that case, punishment was based upon Spanish Penal Code which called for incarceration at “hard and painful
labour” with chains fastened on the wrists and ankles at all times. Several accessories were superadded
including permanent disqualification from holding any position of public trust, subjection to Government
surveillance for life and civil interdiction which consists of deprivation of right of parental authority, guardianship
of person or property, participation in family council, etc. It was held that the punishment was both severe and
unknown to Anglo-American tradition. It was also observed that mere disproportionality by itself might make the
punishment cruel and unusual. The widest application of the principle has been made in a recent case70. to
hold that the denationalisation of a citizen as a punishment for an offence must be regarded as a “cruel and
unusual punishment”, which means nothing else than a punishment beyond the limits of civilised standards,
even though no physical torture is involved. On the same principle, the Court has condemned imprisonment as
a punishment for drug or alcoholic addiction.71.
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The Eighth Amendment protects against the infliction of “cruel and unusual punishments”. The phraseology
derived from Bill of Rights (1689) originally was understood to refer to such ancient practices as branding,
drawing and quartering, burning alive and crucifixion. But in Trop v Dulles,72. it was held that the court must
determine the meaning of Eighth Amendment from the “evolving standards of decency that mark the progress
of a maturing society”. Put simply whatever the amendment was originally intended to mean must be of less
importance to the court than what “evolving standards of decency” require.73.
The doctrine of cruel and unusual punishment, in short, means that the punishment laid down by the
Legislature must not be so excessive or unnecessary as may justify the court to hold that it does not comport
with human dignity.74. Ultimately the test as to what is a cruel and unusual punishment lies with the conscience
of the Judiciary. It must not be grossly out of proportion to the severity of crime75. or so totally without
penological justification that it results in the gratuitous inflicting of suffering.76.
Section 5(2) of the Narcotic Control Act (Canada) provides for a minimum sentence of seven years of
imprisonment on conviction for importing narcotics. Accused pleaded guilty, who was awarded the mandatory
sentence. The accused questioned the punishment as cruel. It was held that in assessing whether a sentence
is grossly disproportionate to what would have been appropriate, the court may consider the gravity of the
offence, the personal characteristics of the offender, and the particular circumstances of the case in order to
determine what range of sentences would have been appropriate to punish, rehabilitate or defer the particular
offender or to protect the public from him. The court held that the provision which provide the mandatory
sentence has ignored the guidelines and hence is unconstitutional and cruel.77.
Article 3 of European Convention for the Protection of Human Rights guarantees that no one shall be subjected
to torture or to inhuman and degrading treatment or punishment. In Ireland v U.K.,78. was a case where certain
persons were detained to combat terrorism. While in detention, the detainee will be questioned by adopting
“five techniques”. The object of these techniques was to obtain information about the organization, to obtain
confession etc. The techniques include—(1) wall-standing, i.e., standing on their toes with their legs and feet
apart for hours against a cell-wall; (2) hooding, i.e., putting a bag over the detainees head throughout most of
the period of imprisonment; (3) noise, i.e., subjecting the person to continuous loud and hissing noises; (4)
sleep, i.e., depriving the person of continual sleep; (5) food and drink, i.e., depriving the person of sufficient
nourishment. It was declared that the “five techniques” constituted not only inhuman and degrading treatment,
but they also amounted to torture and violation of Article 3. The British Government gave an undertaking to
discontinue the “five techniques” on 8 February 1977.
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On the other hand, it has been held that punishment of death by shooting79. or electrocution80. is not cruel,
even where a previous attempt to execute by electrocution failed for accidental mechanical failure.81.
Inhuman punishment generally involves some form of legally authorised assault on the victim, but whether or
not the particular violence will constitute a breach of Article 3 of European Convention may be a question of
degree. In Tyrer v UK,82. a boy of 15 was sentenced to receive three strokes of the birch. The punishment was
carried out by the police at a police station. The applicant claimed before the Commission that this was a
violation of Article 3. The question was whether the punishment amounted to “degrading” and hence violative of
Article 3. Generally, mere legal punishment, although per se is humiliating, is not to be construed as degrading
within Article 3. In order for it to be degrading “the humiliation or debasement” involved must attain a particular
level of severity … it depends on all the circumstances of the case and in particular on the nature and context of
the punishment itself and the manner and method of its execution. A factor which the court will not take into
account is the deterrent effect which is not considered a defence to a violation of Article 3. The court said that
legal inflicting of a corporal punishment by those in authority constituted an attack on a “person’s dignity and
physical integrity which Article 3 sought to protect”. Added to this, the possible psychological problems from
having to wait six weeks before sentence was carried out and the bending over a table with his buttocks naked
to receive his punishment from strangers all contributed to court’s conclusion that the element of humiliation
attained the level inherent in the notion of degrading punishment.83. Sometimes even “threats” of punishment
may amount to degrading punishment.84.
Where a person is subjected to under investigation of crime to narco analysis, polygraph test (lie detector test)
and brain electrical activation profile test (BEAP) test, it violates the right against cruel, inhuman or degrading
treatment.85.
Article 36 of the Japanese Constitution provides:
The infliction of torture by any officer and cruel punishments are absolutely forbidden.
Japan
As in the U.S.A., the Japanese Supreme Court has held that a punishment of death as such is not a “cruel”
punishment and that it is sanctioned by Article 31.86. In USA, death penalty as such is not unconstitutional,87.
but it may be so if it is inflicted in an arbitrary and capricious manner.88.
India
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In India, there is no constitutional provision in this behalf.
But, in the exercise of its appellate powers, a superior court may, upon a consideration of the circumstances of
a case, reduce or quash a sentence as disproportionate to the offence charged [section 386(b)(i) and (iii) CrPC,
1973].
Immunity from Bill of Attainder: U.S.A.
(xi) Yet another limitation upon the power of the Legislature under the American Constitution to enact laws
against personal liberty is that provided in section 9(3) of Art. I of the Constitution which says that:
No Bill of attainder shall be passed.89.
It prohibits the Legislature from adjudging a man guilty and indicting punishment upon him, without going
through the ordinary process of a judicial trial.90. The Legislature, in short, cannot assume the function of a
Judge as well, for the purpose of punishing particular individuals.
Attainder, in a strict sense means an extinction of civil and political rights and capacities; and at the common
law it followed, as of course, on conviction and sentence to death for treason; and in greater or lesser degree,
on conviction and sentence for the different classes of felony. A bill of attainder was a legislative conviction for
alleged crime with judgment of death.91. It means, a legislative act, which indicted punishment without trial. Act
of the Supreme Power, pronouncing sentences, where the Legislature assumes judicial magistracy. “Bills of
attainder” are such special acts of the Legislature as inflict capital punishment on all persons supposed to be
guilty of high offences such as treason and felony, without any conviction, in the ordinary course of judicial
proceedings. An act of Parliament whereby sentence of death was pronounced against the accused; bills of
pains and penalties were acts denouncing milder punishments within the meaning of U.S.
Constitution, bill of attainder includes bill of pains and penalties. A Legislature Act that imposes punishment on
a particular individual without a hearing or trial.1.
India
Though our Constitution has no express provision condemning a Bill of Attainder, our Supreme Court has
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rendered it impossible for the Legislature to make any attempt to make any law simulating a bill of attainder, by
applying the provision of Article 14 against “ad hoc” legislation.2.
Right to Privacy
(xii) It has been deduced from the guarantee of “Due Process” that the security of one’s privacy in his own
home against arbitrary intrusion by the police is basic to a free society.3.
Privacy has got many facets and they have been compendiously described as the right “to be let alone”.4. That
expression, however, is nothing but the English of the French expression “laissez faire” which lay at the
foundation of the doctrine of individualism. The difference between the old and the modern version of “laissez
faire” is substantial. The 19th century doctrine of “laissez faire” had a negative attitude towards the State and
advocated that “the best Government is the one that governs the least” and that individual flourishes best if the
functions of the State were reduced to those of a “police State” and the individual was guaranteed freedom of
thought, action and enterprise in the residual sphere of human living. In the 20th century, the idea of a Welfare
State has come to stay as a reality and there is hardly any individualist who would not welcome the
multitudinous social services which the State is called upon to perform, say, in the matter of production and
distribution of essential commodities and supplies which it is impossible under modern conditions for any
individual or even group of individuals to secure through private enterprise. Hence, the function of the State can
no longer reasonably be confined to those of a police State and the periphery of governmental supply, control
and regulation is ever expanding. The object of modern individualist is, therefore, not to reduce these welfare
activities of the State but to protect the minimum of freedom which is essential to maintain the ethical value of
an individual as a human being and which is indispensable not only for individual happiness, but also for the
maximum development of human talents, culture, civilisation or personality which cannot be achieved without
personal incentives and freedom from social or collective interference. Hence arises the demand for longer
human rights to face the amazing pace of social control because the enumeration of the fundamental rights
which satisfied the makers of a written Constitution sometimes in the past are found to be inadequate to protect
the very existence of the individual as a human being.
From the foregoing premises, the American Supreme Court has deduced an independent right to privacy as an
emanation from various specified rights such as the 1st, 4th and 14th Amendments5. which has been expanded
to an indefinite length limited only by two fold considerations – (1) that the individual has an expectation of
privacy in regard to some activity or place i.e., an intention not to be exposed in relation thereto, and (2) that the
expectation is such that society is prepared to recognise it as “reasonable”.6.
U.S.A.
In the U.S.A., a fundamental right to privacy of life has similarly been established,7. being variously drawn from
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the Fourth Amendment (immunity of a person from, unreasonable searches and seizures)8. and the Fifth or
Fourteenth Amendment9. (the “liberty” Clause).
Griswold’s case (supra) distinguished the right of privacy from such things as injury to reputation by
emphasising that the nature of the damage lay in the lowering of the affected individuals’ estimation of himself.
The invasion of privacy was a personal right, not a proprietary right, whose infringement impaired people’s
sense of their uniqueness, trammeled their independence, impaired their integrity and assaulted their dignity. In
short, it was established, that privacy as a personal right — the right to inviolate personality.
In Union Pacific Railway Co v Botsford,10. it was observed, “No right is held more sacred or is more carefully
guarded by the common law than the right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
Article 8 of European Convention on Human Rights provide that: “(1) everyone has the right to respect for his
private and family life, his home and his correspondence, (2) There shall be no interference by a public
authority with the exercise of this right except such as in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals or for the protection of the right and
freedoms of others.” “The object of this Article is essentially that of protecting the individual from arbitrary
interference by the public authorities. It does not merely compel the State to abstain from such interference; in
addition to this primarily negative undertaking, there may be positive obligation inherent in an effective respect
for private or family life.”11. Private life, includes sexual life and where existing legislation affects victims’ life,
these may be violation of Article 8. In this type of situation, the individual is in a dilemma; if he continues his
normal sexual practices, he may face prosecution under the existing law and if he refrains from breaking the
law by not indulging in those sexual acts, the well-being of his personal life is being interfered with. In X v
U.K.,12. a person was convicted under Sexual Offence Act, which provided homosexual activity with persons
below the age of 21. The question before the court was whether fixation of age for giving consent was arbitrary
and whether the age of consent was “necessary in a democratic society”. The court upheld the views of the
Government which contended that it was necessary “to protect young men from influences and pressures of an
undesirable kind and stated that young men involved in homosexual relationships would be subject to
substantial pressures which would be harmful to their psychological development”.
In Dudgeon v U.K.,13. which was a similar case, the court upheld the necessity for a general rule that society
needs some guidance when attempting to preserve some form of moral standards. But at the same time, the
court held that even though the State is the best judge as to what laws are necessary, the court can evaluate
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these laws, if called upon and has also to consider whether the legislation was proportionate to the legitimate
aim pursued. Taking into consideration other comparative laws, court held that the impugned law, i.e., sections
61 and 62 of offences against Persons Act 1861 was disproportionate to the legitimate aim pursued and in
violation of Article 8.14.
The right to respect for ones’ private life from arbitrary intervention also extends to public authority interferences
which affect an individual’s home, including problems relating to some forms of nuisances. In Powell and
Rayner v U.K.,15. it was held that various types of search and seizure of property from a person’s house would
amount to nuisance. In Niemietz v Germany,16. court held thatit is the general right, if not absolute, to live how
one pleases.
Law recognizes the positive role the “family” plays in any democratic society and is prepared to recognize and
develop such a unit in situations which may be in contravention to a Member states domestic legal position.
Under Article 8, the right to respect for family life includes legitimate and illegitimate children for the purpose of
a “family”, since “illegitimacy” has lost its stigma in recent times. The illegitimate child must not be prevented in
any way from attaining a normal life within the family environment and where any domestic law exists to
constrain or hamper such a child’s right, that would be a violation of Article 8. The law should be such to protect
the child so as to provide an easy integration into the family and society as whole.17.
In Golder v U.K.,18. the question was whether officials of the Goverment can interfere by refusing free flow of
correspondence between a prisoner and his solicitor was violation of Article 8. It was held that correspondence
nowadays is not restricted merely to letters and written communication, but extends to telephone, wire services,
E-mail and the like and in general any interference with private communications by the public authorities is to
be considered as a violation of Article 8, i.e., violation of right to privacy.
The most striking feature of this judicial evolution of the right of privacy is that though it was originally set up as
a protection against arbitrary intrusion by the Police,19. it has been developed into a general right of privacy and
repose,19 belonging to a householder as a protection against door-to-door solicitation of vendors of
magazines20. or other commercial literature21. or against loudspeakers being operated on streets so as to
cause nuisance to neighbouring householders,22. and in general, to the protection23. of “the personal
intimacies of the home, the family, marriage, motherhood, procreation, and child rearing,”24. including—
(i) The right of married couples to use contraceptives;25.

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(ii) The right of a woman to terminate her pregnancy.26.
But the right of privacy, like any other individual right, cannot be absolute, and must, accordingly, be subject to
State regulation under its police power, “to maintain a decent society”.27.
Onthe other hand, the right of privacy would include “only those personal rights that can be deemed
‘fundamental’ or ‘implicit’ in the concept of ordered liberty”.28.
Only personal rights can be deemed fundamental or implicit in the concept or ordered liberty, the guarantee of
personal privacy was accepted.28 The right to privacy was held as are exhaustion to the activities relating to
marriage.29. In that case, the court invalidated a law that made a crime for whites to marry non-whites.
Right to child rearing and education was held to be within the right to privacy in Pierce v Society of Sisters.30.
The right to exhibit and viewing obscure films is not included in the right to privacy.31. Upholding the State’s
power to regulate the exposure of any obscene materials, the court held that it disapproves the theory, that
obscene, pornographic films acquire constitutional immunity from State regulation simply because they are
exhibited for consenting adults only. It was observed that State’s interest in regulating the exposure of obscene
materials to juveniles and non-consenting adults is highly important.32.
Right to privacy “denoted not merely freedom from bodily restraint, but also the right of any individuals to
contact, to engage in any common occupation of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to his own conscience and generally to enjoy those privileges
long recognized by common law as essential to the orderly pursuit of happiness of free man.33.
Article 3 of United Nation Declaration of Human rights states, “Everyone has right to life, liberty and security of
the person”. Article 12 says: “No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence and not attack upon his honour and reputation. Everyone has the right to the protection of
the law against such interferences or attacks.”
Article 17 of International Covenant as Civil and Political Rights 1966 provide: (1) No one shall be subjected to
arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on
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his honour and reputation. (2) Everyone has the right to protection of the law against such interference or
attacks.
American Convention on Human Rights (Article 11) says: “(1) Everyone has the right to have his honour
respected and his dignity recognized. (2) No one may be the object of arbitrary or abusive interference with his
private life, his family, his house, or his correspondence or of his unlawful attacks or his honour or reputation.
(3) Everyone has the right to the protection of the law against such interference or attacks.”
Though the State has no right to interfere with a person’s freedom to read anything he likes or to receive
information from any source he likes,34. e.g., a film, in the privacy of his home, so that the mere possession of
an obscene film in one’s own home cannot be penalised,34—a distributor or consumer of obscene materials
cannot claim that right wherever he goes.35. In short, commerce in obscene material is not protected by any
doctrine of privacy,36. even though the reader or the spectator be a consenting adult.37. The reason is that the
right of privacy, like any other right of the individual, not being absolute, the State has a legitimate interest to
control a public exhibition of obscene materials “to maintain a decent society”,38. and to prevent the injury to the
community as a whole which is likely to be caused by such commerce or public exhibition.37
India
In India, the need for protection of privacy to such extent has not yet been realised; so that the law is yet
undeveloped. But, as has been pointed out earlier, interference with privacy by domiciliary visits by the Police
or Police surveillance has been held to constitute an infringement of Article 21, if carried on without the
authority of a valid law.39.
The entire law on privacy in India is discussed in District Registrar and Collector v Canara Bank.40. Supreme
Court has discussed in detail the law in US, UK and has compared the same with Indian laws and observed
that the right to privacy would necessarily have to go through a process of case by case basis. It was held that
it is a right to let alone and every citizen has a right to safeguard the privacy of his own. It was further declared
that in the case of a matter being part of public records, including records, right to privacy cannot be claimed. It
was declared that right to privacy is implicit in the right to life and liberty guaranteed under Article 21. Any right
to privacy must encompass and protect the personal intimacies at home, the family, marriage, motherhood,
procreation and child-bearing. It was declared that the list is not exhaustive. It was held that the right to privacy
is not absolute and there can be reasonable intrusion or reasonable restrictions if State has reasonable basis or
reasonable materials to support it and any such restriction should be proportionate to the purpose sought to be
achieved. It was held that “unreasonable search or seizure” amounted to violation of right to privacy especially
when no guidelines are issued as to person who may be authorised to search the place and under what
circumstances the search are to made and when there are laws which are sufficient to meet the requirement. It
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was held that intrusion into privacy may be by—(1) legislative provisions (2) administration or executive orders
and (3) judicial orders. The legislative intrusion must be tested as the touchstone of reasonableness as
guaranteed by the Constitution and for that purpose the court can go into the proportionality of the intrusion vis-
à-vis the purpose sought to be achieved. So far as the administration or executive action is concerned, it has
again to be reasonable having regard to the facts and circumstances of the case. As regard judicial warrants,
the court must have sufficient reason to believe that search or seizure is warranted and it must keep in mind the
extent of search or seizure necessary for the protection of the particular State interest. In the case of
warrantless searches, it must be in good faith, intended to preserve evidence or intended to prevent sudden
danger to person or property. It was also held that right to privacy deals with persons and not places.41.
Regarding noise pollution, it was held that the same amounts to intrusion of right to privacy, i.e., the right to be
let alone. It was observed that if anyone increases his volume of speech and that too with the assistance of
artificial devices so as to compulsorily expose unwillingly person to hear a noise raised to unpleasant or
obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and
pollution free life guaranteed by Article 21.42.
In conceptualising the right to privacy, the distinction is between privacy in a physical sense and the privacy of
one’s mental process. So far the judicial understanding of privacy in our country has mostly stressed on the
protection of the body and physical spaces from intrusive action of the State. While the scheme of criminal
procedure as well as evidence law mandates interference with physical privacy through statutory provision that
enables arrest, detention, search, seizure among others, the same cannot be the basis for compelling a person
“to impart personal knowledge about a relevant fact”. The theory of inter-relationship of rights mandates that
right against self-incrimination should also be read as a component of personal liberty under Article 21. Hence,
our understanding of the right to privacy should account for its intersection with Article 20(3). Furthermore, the
rule against involuntary confession as embodied in sections 24, 25, 26 and 27 of Evidence Act, 1872 seeks to
serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A
conjunctive reading of Articles 20(3) and 21 along with the principles of evidence law leads us to a clear
answer. We must recognise the importance of personal autonomy in aspects such as the choice between
remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice
and there should be no scope for any other individual to interfere with such autonomy, especially in
circumstances where the person faces exposure to criminal charges or penalties. Subjecting a person to narco
analysis, polygraph test (lie detector test) and Brain Electrical Activation Profile (BEAP) test in an involuntary
manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental process is
not provided under any statute and it most certainly comes into conflict wit the right against self-incrimination.43.
[Art 21.3.39] Other Rights under Article 21
In the case of employers of nationalised bank, the right of the employer to withdraw his application for voluntary
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retirement before its acceptance by the management was declared. It was held that the bank cannot take
recourse to the “hire and fire” principle for the purpose of terminating the services of the employee and their
action must satisfy the requirement of Articles 14 to 21.44. Employing children as labourers was held violative of
right of children to live,45. where compensation was directed to be paid.
Various directions were given by Supreme Court to maintain good environment especially in regard to vehicular
pollution in Delhi.46. The right of medical facilities for Government employees was held as a right under Article
21, though the principle of fixation of rate and scale may depend on the financial capacity of Government.47.
Supreme Court has also come out heavily against child labour. In Francis Coralie Mullin v Administration, Union
Territory of Delhi,48. court observed that right to life includes the right to live with human dignity and all that
goes with it. The child labourers are firstly children and then labourers. As such, they should also be treated
with dignity and not to be treated cruelly and inhumanly.
In Bandhua Mukti Morcha v UOI,49. it was held that it is the fundamental right to every one in this country
assured under the interpretation given to Article 21 … to live with human dignity … it must include the tender
age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in
condition of freedom and dignity, educational facilities, just and humane conditions of work, maternity relief … ”
In labourers working in Salal Hydro Project v State of J&K,50. it was held that construction work is hazardous
employment and no child below the age of 14 can be allowed to employment in constructional work. Article 24
prohibits employment of children below 14 years in any factory or mine or engaged in any hazardous
employment.
Article 21-A guarantees compulsory free education to all children between six and fourteen years in such
manner as the State may by law, determine. Constitution (86th Amendment) Act 2002, dated 12 December
2002.51.
The right of the couple to adopt a son is a fundamental right under Article 21.52.
[Art 21.3.40] Fundamental Rights of Prisoners
The traditional theory was that once a person was deprived of his liberty under proper authority, he was not
entitled to enjoy any other individual rights as free men were capable of enjoying, except those, if any, which
were allowed by the laws regulating the prisons.
International Charters
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But in the international sphere, the perspective has changed since the adoption of the Charters relating to
human rights, under which a man does not cease to be a human being, even behind the prison bars, and is,
therefore, entitled to those minimum rights which are inseparable from human dignity. In other words, the
International Charters have laid an emphasis on the proposition that there is a basic level on which all human
beings must be treated by the law as equal, irrespective of other conditions and must, therefore, on no account
be degraded below the standard of a human being endowed with dignity. Thus,
Article 1 of the Universal Declaration says:
All human beings are... equal in dignity....
Article 5 implements the foregoing proposition:
No one shall be subjected to... inhuman or degrading treatment or punishment.
Article 6 says:
Everyone has the right to recognition everywhere as a person before the law.
It is obvious that the word “everyone” suggests that a prisoner is entitled to humane treatment even though he
may have been convicted for an offence by a competent court.
Article 3 of the European Convention on Human Rights reiterates the declaration in Article 5 of the Universal
Declaration. Article 6 of European Convention of Human Rights declares that “‘everyone’ is entitled to a fair and
public hearing within a reasonable time and also to have legal assistance of his own choice. Article 8
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guarantees the right to privacy to ‘everyone’ and there shall be no interference by a public authority with the
exercise of this right except such as in accordance with law and is necessary in a democratic society. … ”.
In Golder v UK,53. court considered whether the preventing or writing to a solicitor with a view to taking a libel
action against a prison officer was violation of Article 8(1). Court held that the applicant has a right to consult a
solicitor and that it was not upto the Home Secretary to consider the legal prospects for any possible future
proceedings – that is the court’s domain. By refusing the free flow of correspondence on this matter,
interference could not be justified as “being necessary in a democratic society” and there is violation of Article
8. In Silver v UK,54. it was held that a prisoner has the same rights with regard to free flow of correspondence
as any ordinary person. It was observed therein that although legal professional privilege should be protected,
letters which contain matters which are confidential between lawyer and client may be opened in circumstances
where there is reasonable suspicion that the privileged channel of communication is being abused.55. A rule
that a prisoner should exhaust his remedy through internal complaints machinery before seeking access to
court was held invalid. Court found that if a prisoner had to register a complaint internally before communicating
with a solicitor would constitute an impediment, an inmate might hesitate to make an internal complaint
because he could be himself open to a disciplinary charge. This would be the offence of making a false and
malicious allegation against a prison officer. Court held that the restriction placed on him by the simultaneous
ventilation rule was ultra vires because it conflicted with the fundamental rights – a right so fundamental that it
could be taken away only by express language.56.
In R v Secretary of State for Home Dept. exparte Leech,57. the power of Prison Governor to open and read
letters of the prisoner to his solicitor was challenged. The Court of Appeal found that it was a principle of great
importance that every citizen had an unimpeded right of access to a court and this buttressed by the principle of
legal professional privilege. A common law privilege of this nature could be openly taken away by subordinate
legislation only where this was expressly authorised by law. Court said that though section 47 of Prisons Act
might authorise screening of correspondence, it must be strictly construed in accordance with the presumption
against interference with common law right. Thus, it could not authorise an unrestricted right to read
correspondence or a broad right to stop a letter on ground of prolixity or objectionability. The relevant rule was
struck down as ulta vires.
Article 7 of the U.N. Covenant on Civil and Political Rights, 1966 is also to the same effect. The most explicit
provisions in regard to the humane treatment due to prisoners are to be found in Article 10 of this Covenant,
which deserve reproduction:
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1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of
the Human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons
and shall be subject to separate treatment appropriate to their status as unconvicted persons.
(b) Accused juvenile persons be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their
reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded
treatment appropriate to their age and legal status.
Article 16 of this Covenant reiterates Article 6 of the Universal Declaration.
Article 5 of the American Convention on Human Rights, 1969 follows the European Convention in this behalf:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to inhuman or degrading punishment or treatment. All persons deprived of their
liberty shall be treated with respect for the inherent dignity of the human person…
3. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall
be subject to separate treatment appropriate to their status as unconvicted persons.
4. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized
tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
5. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social
readaptation of the prisoners.
Though human rights declared by the International Charters are not enforceable in the Courts, both the
Legislatures and the courts in the progressive countries have, of late, adopted the trend of this new attitude
towards prisoners.
A number of decisions in the U.S.A., have laid down the following propositions:
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U.S.A.
(1) Prisoners are entitled to petition the Government for the redress of their grievances (First Amendment),
which includes the right of prisoners to the courts for the purpose of presenting their complaints.58.
On conviction and imprisonment, a profound change occurs in a person’s legal status. Duly convicted prisoners
lose entirely many freedoms enjoyed by free persons; however they do not relinquish all rights. It was held,
“though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is
not wholly stripped of constitutional protection when he imprisoned for crime. There is no iron curtain drawn
between the Constitution and prison of this country”.59. Prisoner retains all the rights of ordinary citizen except
those expressly or by necessary implications taken by law.60. The Supreme Court followed this line of
reasoning when it held that it would employ a strict scrutiny standard of review to evaluate claims that the rights
of prisoners were being denied. If declared that it would sustain limitations of prisoner’s right only if they
furthered are important or substantial governmental interest and if they were no greater than necessary to
protect that interest.61.
Fundamentally opposed to the decision in Coffin (supra) and Procunier (supra), the present view that is
dominant on the Supreme Court is that the inmates are without rights except for those conferred by law or
necessarily implied and that, as a consequence, court should employ the reasonableness test to assess the
legitimacy of restriction on what prisoners assert to be their rights. In Turner v Safley,62. Supreme Court
articulated this principle and rejected the use of strict scrutiny in prisoner’s rights cases. It was declared that
when a prison regulation impinges on inmate’s constitutional right, the regulation is valid if it is reasonably
related to legitimate “penological interests”. A four-prong test for measuring reasonableness was laid down – (1)
Is there a valid and rational connection between the prison regulation and the legitimate Government interest
put forward to justify it?; (2) Are alternative means of exercising the right open to prison inmates?; (3) What is
the impact that accommodation of the asserted constitutional right will have on guards and other inmates and
on the allocation of prison resources generally?; and (4) Is the absence of ready alternative, evidence of
reasonableness of the prison regulation?63. Security concerns generally trump the claims of prisoner’s right; the
court is hesitant to recognize inmates’ claim that the potential of putting at risk the prison itself, the guards,
other inmates or the petitioner.64.
Beyond assuring life necessities for inmates, the court has consistently held the inmates’ right in only two areas
– (1) their due process right of access to the courts and (2) their liberty interest in retaining “good time” and
avoiding solitary confinement. Concerning the former, the court has repeatedly insisted that inmates have the
right to access to legal redress and that this right of access to courts requires either an adequate law library or
assistance from persons trained in law (although not necessarily lawyers). Concerning the latter, court held that
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inmates have a liberty interest in the good time credit without a hearing before an impartial tribunal.65. Access
to court poses no problem at all and as this court made it explicit in Hewitt v Helms66. and Superintendent v
Hill,67. prison disciplinary proceedings can follow (and need not precede) solitary confinement and can impose
sanction based on the case evidentiary standard of “some evidence”.
The court denied inmates’ claim of First Amendment right to organise as a prisoners’ labour union, and rejected
the contention that an inmate’s right to privacy against routine strip and body-cavity searches and has refused
to recognize any inmate legal right in the ordinary classification process or inter-prison transfer. Court said that
no due process issues are implicated by “discretionary transfer of States” to a substantially less agreeable
prison, even where the transfer visits a less grievous loss upon the inmate.68. The same is true of prisoner
classification and eligibility for rehabilitative programme.69.
(2) The guarantee of free exercise of religion (First Amendment) is open to the prisoner, in so far is it is
consistent with his imprisonment. Thus, he is entitled to purchase religious publications, similar to those70.
which other prisoners are allowed to purchase, and also to be afforded reasonable opportunity to exercise his
religious freedom in the manner of prayer or worship, which may be afforded without involving the State into
elaborate arrangements.71.
(3) The guarantee of equal protection is available inside the prison as outside prisons, “save for the necessities
of prison security and discipline.” Hence, racial segregation of prisoners of particular races is not permissible.
Nor can the prison authorities discriminate between different prisoners in the matter of exercise of religion.72.
(a). As regards Equal Protection, the American Supreme Court has developed a considerable case-law on the
footing that the Constitution guarantees equality before the law between the rich and the poor, which subsists
between the prison bars, so that it should be the duty of the State to ensure that a poor convict should not be
deprived of such remedy, simply because of his poverty, which a convict who has the means can avail of.
Hence, it has been held that the State should—
(i) provide counsel for an indigent convict to conduct an appeal which is open to the accused under the law as of
right.73.
(ii) provide free copy of the evidence to such indigent appellants.74.

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(b). The court has also invalidated a prison regulation which provides for racial segregation in the prison,70 or
denies him his right of access to the courts.75. In Bounds v Smith,76. the court held that the fundamental
constitutional right of access to court requires the prison authorities to assist the inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from
prisoners trained in the law. The above decision was explained in Lewis v Casey77. where the court said that
the decision in Bounds (supra) did not create any freestanding right to a law to a law library or to legal
assistance, but simply a right of access to the courts. Court also said that in such cases, the prisoner had to
allege actual injury, i.e., he had to show that the alleged shortcomings of the prison library or legal assistance
interfered with efforts to pursue a non-frivolous legal claim. The court specifically disclaimed any obligation
flowing from Bound’s case that State authorities must also enable a prisoner to discover grievances and
effectively litigate them in court. The decision in Bound does not obligate the State to provide the means for
prisoners to file any and every type of legal claim, but only to enable them to challenge their sentences and the
condition of confinement.
(4) The convict retains his fundamental right to freedom of expression, subject to the interest of the State in the
penal administration and discipline within prisons, in so far as it is legitimate.78.
The American Supreme Court has thus struck down a provision of censorship of the mail of a prisoner on
vague or wide grounds, e.g., because the statements of the prisoner contained therein are “inappropriate” or
“magnify his grievances”. Such law of censorship must also contain the minimal safeguards.79.
The liberty interest of prisoners protected by Due Process clause will be generally limited to freedom from
restraint which imposes a typical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.80. For example, an inmate was judged to have been cruelly and unusually punished when prison
guards handcuffed him to a hitching post for disruptive behaviour, though he had already been subdued. In
Hope v Pelzer81. it was held that the guards knowingly subjected the prisoner to a substantial risk of physical
harm, to unnecessary pain caused by the handcuffing and the restricted position on confinement for a seven
hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting and to a
deprivation of bathroom breaks that created a risk of particular discomfort and humiliation.
At the same time, reasonable regulations as to the time, place and manner of communications between the
prisoner and the world outside have been held not to be violative of the freedom of expression of the prisoner or
such third party, because of the legitimate governmental interest involved;82. e.g., the barring of access of
representatives of the Press to and interview with prisoners.83.
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(5) The American Supreme Court has also annulled Prison Regulations which constitute a denial or
interference with the right of a prisoner to apply to the courts for a writ of habeas corpus, e.g., where the
Regulation required the prisoner’s pleadings to be screened by State officials before it could reach the court;84.
or denied the facility to an illiterate prisoner the assistance of another prisoner in preparing such petitions or
pleadings, without the State itself providing such assistance to illiterate prisoners.85.
But inthe interest of the prison administration the right of the authorities to open a prisoner’s mail in his
presence has been acknowledged.86.
After Procunier’s case, there is a change in view. It is now held that inmates are without rights except for those
conferred by laws or necessary implied and that as a consequence, courts should employ the reasonableness
test to assess the legitimacy of the restriction on what prisoners assert to be their rights. It was held that “when
a prison regulation impinges on inmate’s constitutional rights, the regulation is valid if it is reasonably related to
legitimate eological interests”. The court also propounded the test for measuring reasonableness—(1) Is there
valid, rational connection between the prison regulation and legimate Government interest put forward to justify
it? (2) Are alternative means of exercising the right... open to prison inmates? (3) What is the impact (that)
accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation
of prison resources generally and (4) Is the absence of ready alternatives … evidence of the reasonableness of
the prison regulation?87.
Security concerns generally trump the claims of prisoners. It was held that the interest in preserving order and
authority in prison is to be considered when the prisoner claims certain rights.88.
In Wolf v McDonnell (supra) it was held that inmates have a liberty interest in “good time” credit they have
acquired that they should not be stripped off these credits without hearing before an impartial tribunal. The court
held that the above right of the prisoner will not jeopardize prison security. Access to court poses and problems
at all was declared in Hewitt v Helms.89.
In Sandin v Conner,90. the court held that liberty interest of prisoners protected by Due Process Clause will be
generally limited to freedom from restraint “which imposes a typical and significant hardship on the inmate in
relation to the ordinary incident in prisons life”.
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In that case, it was held that denying an inmate charged with misconduct an opportunity to present witnesses at
his disciplinary hearing before imposing solitary confinement did not amount to a violation of due process.
In Turner v Safley,91. invalidated a prison regulation that permitted inmates to marry only when the
superintendent found compelling reason to grant permission. In practices, such reasons were found only in
cases of pregnancy or the birth of a non-martial child. It was held that “the right to marry, like any other rights is
subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain,
however, after taking into account the limitations imposed by prison life. Although, “legitimate security concerns”
might require “reasonable, restrictions” on the exercise of the right to marry and might “justify” requiring the
approval of superintendent, the regulation represented, “an exaggerated response to security objective and
was, therefore, invalid”.
Section 47 of the Prison Act 1952 conferred power to make rules for the regulation and management of prison.
The Prison Rules 1964 [Rule 33(3)] authorized the prison authorities the reading and stopping of a prisoner’s
correspondence with his solicitor.
When challenged, it was declared that this rule was ultra vires as creating a substantial impediment to the
exercise of the constitutional right of a prisoner to unimpeded access to the courts and to solicitors for advice as
to instituting proceeding.1.
A person who by virtues of any enactment detained in prison or elsewhere retains all his rights as citizens
except those taken away or by implication.2. In Golder v UK,3. the court considered whether preventing or
writing to a solicitor with a view to taking a libel action against prison officer was justified for “the prevention of
disorder or crime — or whether it was violative Article 8(1) of European Convention. The court held that the
applicant has a right to consult a solicitor and that it was not up to Home Secretary to consider the legal
prospects for any possible future proceedings — that in the courts’ domain. Therefore, by refusing the free flow
of correspondence, was held violative of Article 8(1) and the same could not be justified or being “necessary in
a democratic society”.4.
West Germany
In West Germany, the view has been taken that though a prisoner does not forfeit his fundamental rights, any
exercise of such rights must be subject to reasonable restrictions in view of his special status, namely, that he
has been imprisoned as a result of conviction for an offence. Thus, (a) the freedom of movement guaranteed to
all Germans by Article 11(l) of the Constitution is not available to a prisoner,5. (b) Nor can he complain of a
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violation of the right to life and physical inviolability [Article 2(2)] by a prison regulation which authorised the
shooting of convicts attempting to escape,5 or the cutting of the excessively long hair of a convict.5
On the other hand,
A convict is entitled to the right to dignity guaranteed by Article 1(1) of the West German Constitution in these
words—
The dignity of man is inviolable. To respect and protect it is the duty of all State authority.
In Wolf v McDonell,6. the Supreme Court of America said that though the rights may be diminished by the
needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional
protection when he is imprisoned for a crime”. There is no iron curtain drawn between the Constitution and the
prisoner of the country. The right of prisoners to a non-life threatening environment goes beyond the provision
of life’s necessities. It includes their right to be protected from one another and for themselves. On this last
point, lower courts have been more responsive to prisoner’s claim than the Supreme Court have found that
prison crowding is unconstitutional. Prison crowding “endangers the very lives of the inmates” and, therefore,
violates the Eighth Amendment guarantee against cruel and unusual punishment.7. In Coffin v Reichand,8.
court declared that prisoners retain all the rights of ordinary citizens except those expressly or by necessary
implication taken by law. In Procunier v Maritime,9. court followed this line of reasoning when it held that it
would employ a strict scrutiny standard of review to evaluate the claim that rights of prisoners were being
denied. It declared that it would sustain the claim that rights of prisoners were being denied only if they
furthered an important or substantial governmental interest and if they are no greater than necessary to protect
that interest.
A convict is thus entitled to relief if he is placed, along with two others, in a one-man cell having a toilet which
was not partitioned for privacy, and that overcrowding of the prison and lack of adequate detention facilities was
no defence for the State.10.
India
I. In India, some observations of the majority in Gopalan’s case11. suggested that as soon as a person is
convicted under a penal law enacted by a competent Legislature, he would forfeit his fundamental rights under
Pt III of our Constitution, so long as he remains behind the prison bars. But later decisions in the U.S.A. and
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India demonstrate that this need not happen as regards all the fundamental rights; a prisoner may still be
entitled to claim and exercise some of them to the extent that they may be exercised consistently with his status
as a prisoner;12. even though the fact of imprisonment renders him incapable of exercising some of the rights
and privileges belonging to a free citizen;13. or disentitled to some of them because to allow them would be to
defeat the object of conviction as a penal and deterrent measure.12 These objectives must, therefore, have to
be borne in mind when the constitutionality of a prison regulation or a law relating to prisoners is under
challenge.14.
The case of State of Maharashtra v Prabhakar15. would have raised the question whether the freedom of
expression under Article 19(l)(a) was available at all to a prisoner, but for the fact that Article 19 itself was under
suspension for the time being under the Proclamation of Emergency [Articles 358–59]. A detenu under the
Defence of India Rules wrote a scientific book but was refused permission by the State Government to send the
book to his wife for publication. The Supreme Court held that such order of the Government was ultra vires
inasmuch as there was no rule in the Defence of India Rules, under which the Petitioner has been detained,
which prevented a detenu from writing a book or sending it out of the prison for publication.
In Prabhakar’s case,15 the Supreme Court did not express any opinion as to the availability of the freedom of
expression [Article 19(l)(a)] to the detenu. But from the observations in the judgment, it would appear that the
right to write and publish a book could be exercised by a detenu or a convict, in so far as it could be exercised
without violating the conditions of detention or imprisonment, could not be denied to him.
II. But even though Prabhakar’s case15 is no direct authority on the point that any of the rights under Article
19(1) survives imprisonment or detention “according to procedure established by law”, it is direct authority for
the proposition that the authority of law under Article 21 must be produced for the infringement of any legal right
of a prisoner or detenu, while he remains in detention. In other words, though a conviction by a competent court
or a lawful order of detention (in compliance with Article 22) offers lawful justification for the deprivation of
liberty, it would not follow that the prisoner or detenu would cease to be a person, so that the Government might
starve him to death or refuse to send his manuscript out of the jail for the publication of a book, without any
authority of law to justify such invasion of the rights of the individual which are distinct from his right to be freed
from imprisonment or detention which he has lost in conformity with Article 21. In short, the conditions under
imprisonment or detention may constitute distinct and fresh invasion of personal liberty, for which separate
authority of law, under Article 21, must be produced. In this context, the observations of SUBBA RAO, J., in the
unanimous judgment in Prabhakar’s case16. are worth reproducing:
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…the first respondent’s liberty is restricted under the Defence of India Rules subject to conditions determined in the
manner prescribed in sub-rule (4) of Rule 30 thereof. We find it difficult to accept the argument that the Bombay
Conditions of Detention Order, 1951, which, lays down the conditions regulating therestrictions on the liberty of a
detenu, conferred only certain privileges on the detenu. If this argument were to be accepted, it would mean that the
detenu could be starved to death, if there was no provision for giving food to the detenu. In the matter of liberty of a
subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons... As
there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or
sending it for publication, the State of Maharashtra infringed the personal liberty of the first respondent in derogation of
the law whereunder he is detained...
In that case, court also said that a prisoner is entitled to pursue his academic pursuits, including publication of
his writing, in so far as that is not inconsistent with prison discipline and scrutiny. Any unreasonable interference
with this right would be an infringement of his personal liberty. Applying the requirements of a fair procedure,
the court has quashed an order of detention on the ground that while the Advisory Board allowed the detaining
authority to be represented by a lawyer, it refused legal assistance to the detenu. In Nand v State of Punjab,17.
Supreme Court also held that the rights of a detenu under preventive detention are to be drawn not only from
Article 22, but also from those enshrined in Articles 14, 19 and 21.18.
Supreme Court has emphasised that a prisoner, whether a convict, under-trial or detenu, does not cease to be
a human being and while in jail, he enjoys all his fundamental rights including the right to life guaranteed by the
Constitution. Even if a person is convicted and deprived of his liberty in accordance with the procedure
established by law, the person still retains the rest of residue of constitutional rights. Articles 14, 19 and 21 are
available to prisoners as well as a freeman. Prison walls do not keep out fundamental rights.19.
The fundamental right of an under-trial prisoner under Article 21 is not absolute. Such a right is circumscribed
by the Prison Manual and other relevant rules imposing reasonable restrictions on such right. An under-trial
prisoner was bound to maintain the internal discipline of prison. A convict has no right to dictate regarding the
presence of guards, since guards ought to be present to prevent the escape of prisoners as the same causes
no interference with the personal liberty of prisoners or their lawful pre-occupation. Therefore, a convict or an
under-trial prisoner who disobeys the law of the land cannot contend that it is not permissible to transfer from
one jail to another because the Jail Manual does not provide for a transfer.20.
A.D.M. v Shukla
III. A serious set-back to the foregoing development of the law was received from the majority decision of the
Constitution Bench in A.D.M. v Shukla21. to the effect that once the fundamental right under Article 21 was
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suspended under Article 359, a prisoner or detenu lost his locus standi to urge that his detention was illegal, on
any ground whatever.22.
Once this view is taken, it would follow that a prisoner would not be entitled to complain before a court that the
conditions of his imprisonment or detention had no authority of law, even where the authorities were “starving
him to death”;23. or the conditions of detention regarding interviews with relatives, facilities for medical attention
for appearing at an examination were unreasonable or unsupported by specific legal authority;24. or his
application to be released on parole for a temporary period to attend the Assembly session as a member, was
illegally refused.25.
A virtual result of this decision was that Article 32 would cease to operate even though that Article had not been
specifically suspended under Article 359.
Fortunately for lovers of liberty in India, the view taken in A.D.M. v Shukla, 21 that when Article 21 is suspended
by an order under Article 359, the person imprisoned or detained “loses his locus standi to regain his liberty on
any ground”, has been superseded by the Constitution (44th Amendment) Act, 1978, by which the words
“except Articles 20 and 21” have been inserted in Article 359(l).26.
This amendment 26 has taken out the Articles 20 and 21 from the mischief of Article 359. In the result the
Presidential Order cannot suspend the enforcement of the rights conferred by Articles 20 and 21.
Consequently, even during the operation of a Proclamation of Emergency, the individual’s right to move the
Supreme Court or a High Court to challenge either a law or an executive order on the ground of contravention
of the rights guaranteed by Articles 20 and 21 [Clause (1)], shall survive.
This means that the right to habeas corpus shall remain unimpaired by the issue of an Order under Article 359.
The Executive shall have no power to deprive a person of his life or liberty without the authority of a law and no
law can be given retrospective effect so as to create an offence ex post facto.
In State of Maharashtra v Saeed Sohail Sheik,27. the court held that right to transfer a prisoner from one jail to
another is a judicial function. Transfer of an under-trial may adversely affect him i.e., the right to defend himself
and his right to have contact with his relatives and friends. Court must apply its mind fairly and objectively to the
circumstances in which transfer is being prayed for and take a considered view having regard to the objection
which the prisoner may have to offer. Before passing an order of transfer to another prison, notice must be
issued to the prisoner and his views are also to be taken into consideration. An order of transfer of a prisoner
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and under-trial can be passed only after an opportunity is given to the prisoner. Being not an administrative
power, the authorities must give notice and a reasoned order has to be passed. It is a judicial power. Such an
order of transfer is valid and comes under Article 21.28.
In Mehmood Nayyar Azam v State of Chattisgarh,29. court said that any form of torture, cruelty, inhuman or
degrading treatment falls within Article 21 of the Constitution, whether it occurs during investigation,
interrogation or otherwise. If the functionaries of Government become law-makers, it is bound to breed
contempt for the law and would encourage lawlessness and every man would have the tendency to become
law unto himself thereby leading to anarchy. No civilised nation can permit that to happen, for, a citizen does
not shed his fundamental right to life, the moment the policeman arrests him. The right to life of a citizen cannot
be put in abeyance on his arrest. The precious right guaranteed under Article 21 cannot be denied to convicts,
under-trial, detenus and other prisoners in custody except according to the procedure established by law by
placing such reasonable restrictions as are permitted by law.
In State of Gujarat v Honourable High Court of Gujarat,30. it was held that extaction of hard labour from
convicted persons undergoing rigorous imprisonment is under authority of law and their consent is not required.
But in the case of persons who are undergoing simple imprisonment on conviction or under trial prisoners, can
be permitted to do any work of their choice on their request. But prisoners doing labour are entitled to equitable
wages which has to be determined on the basis of the recommendation of a wage fixation body to be
constituted by each State. It was further declared that if extraction of hard labour is without payment of wages
or even with payment of wages, but below the minimum wages fixed by Minimum Wages Act, it would amount
to “forced labour” prohibited under Clause (1) of Article 23. But prohibition under Article 23(1) is subject to
exception in Article 23(2) regarding imposition of compulsory service by State for public purpose. Since the
purpose of punishment is reformatory, which is a public purpose, imposition of hard labour on the convicted
prisoner on payment of minimum wages would serve the public purpose of his reformation and rehabilitation
and would be saved under Article 23(2).31.
It has been observed that the right of an accused to watch the prosecution witnesses deposing before a court of
law has not been accepted as a fundamental right within the meaning of Article 21 of the Constitution by Indian
courts. In the absence of such an express provision in the Constitution and as such has to proceed on the
premise that such a right is only of a statutory character.32.
The court has characterised the system of bail in India as “inadequate”. It is oppressive and weighed against
the poor. Improvement of the system is very necessary as the court insists in Babu Singh v State of UP33.
where the court said that the issue is one of liberty, justice, public safety and burden on the public treasury, all
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of which insists that a developed jurisprudence of bail is integral to a socially sensitive judicial process.
Imposing unjust or harsh condition while granting bail is violative of Article 21.34. Ordinarily in cases under
TADA, release of under-trials on bail is extremely restricted. But the Supreme Court has ruled that, even in
TADA cases, where there is no prospect of a trial being concluded within a reasonable time, release on bail
may be necessary as this can be taken to have been embedded in the right to speedy trial under Article 21.
The Supreme Court has also directed the release of all under-trials who have been in jail for periods longer
than the maximum term of imprisonment, for which they could be sentenced if convicted of the offence
charged.35. The court has also directed that all under-trial prisoners who are accused of multiple offences and
who have been already in jail for the maximum term for which they could be sentenced on conviction, even if
the sentence awarded to them were consecutive and not concurrent, should be released forthwith, since their
continued detention clearly violates not only human dignity, but also their fundamental rights under Article 21 of
the Constitution.36. Liberty of a person accused of an offence and interest of society have to be balanced. Court
said that liberty of an individual is precious and is to be zealously protected by courts. The same have to be
balanced. Right to bail is not absolute in every situation. Valuable right of liberty of an individual and interest of
society in general have to be balanced. It is possible that in a given situation, collective interest of community
may outweigh right to personal liberty of individual concerned. Liberty of a person accused of an offence would
depend upon exigencies of the case.37.
It has been realized that an under-trial prisoner is entitled to the presumption of innocence and to the protection
against any unreasonable restriction on his liberty under Article 21. Applying these principles, Supreme Court
refused to read into the provision of anticipatory bail in section 436 of CrPC or in section 438 of CrPC any
condition which was not there – not even those specified in section 437 of CrPC.38.
Even in the matter of anticipatory bail which is governed by sections 436–437 of CrPC, the new perspective is
that since refusal of bail affects the fundamental rights of the accused under Article 21, bail should not be
refused except where it is necessary to prevent the accused from fleeing from justice and excessive bail bond
shall not be required from poor men.39. In Hussainara v Home Secretary, (1),40. court discarded the traditional
view that in the case of pre-trial release, bail could be granted only with monetary surety. Instead, it was laid
down that where it appeared that the accused had his roots in the community and there was no likelihood of his
absconding, the court might release him on his personal bond without monetary sureties.
Articles 5 and 6 of ECHR are relevant to bail proceedings and the court and police now have a duty to interpret
the Bail Act 1976 as far as possible to comply with these rights. Article 5(3) of ECHR provides that anyone who
has been lawfully arrested is entitled to “trial within a reasonable time or for release pending trial”; this in effect
Page 321 of 467
creates a presumption in favour of granting bail,41. and where bail is denied, it must be justified by relevant and
sufficient reasons based on the facts in the particular case.
1. See also Articles 114 Weimar; 5(1) Jugoslav; 74(1) Danzig, Constitutions.
2. 28 Edw. III, 3. Coke also supposed the expressions “law of the land” and “due process of law” identical (Institutes,
1628); also in (1640) 16 Ch. I, c. 10.
3. Dicey, Law of the Constitution, 1959 Edn, pp 202–03.
4. Eshugbayi v Govt of Nigeria, AIR 1931 PC 238 (252).
5. Christie v Leachinsky, (1947) 1 All ER 567 (576).
6. Hurtado v California, (1884) 110 US 576.
7. Stephen, Commentaries on the Laws of England, Butterworth & Co., 21st Edn,Vol I., pp 115, 545.
8. May, Parliamentary Practice, Butterworth & Co., 16th Edn, p 28.
9. Liversidge v Anderson, (1942) AC 206 (260).
10. Cf. Dastagir v State of Madras, AIR 1960 SC 756 [LNIND 1960 SC 57](761) : (1960) 3 SCR 116 [LNIND 1960 SC 57],
where this position was assumed.
11. Smith and Hogan, Criminal Law, 2nd Edn, 1969, pp 229 et seq.
12. Also see D.D. Basu, Commentary on the Constitution of India, Vol 1, Article 14, 8th Edn, 2007,p. 1307, Wadhwa & Co.
Page 322 of 467
13. R (Pretty) v DPP, (2002) 1 All ER 1 .
14. Bugdaycay v Secretary of State, (1987) 1 All ER 940 .
15. L.&N.E. Rly v Berriman, (1946) 1 All ER 268 (HL).
16. Elderton v Totalisator Co, (1945) 2 All ER 624 (CA).
17. Wheeler v Green, (1946) 1 All ER 63 (66) (CA).
18. Central Control Board v Cannon Brewery, (1919) AC 744 (752).
19. Edgington v Swindon, Borrough Council, (1938) 4 All ER 57.
20. Woolmington v D.P.P., (1935) AC 462.
21. Cf. Gatland v Police Commr., (1968) 2 All ER 100; R. v Podola, (1959) 3 All ER 418; R. v Dunbar, (1957) 2 All ER 737.
22. Chester v Bateson, (1920) 1 KB 829; see also R v Lord Chancellor ex parte Witham, (1998) QB 515 .
23. Waddington v Miah, (1974) 2 All ER 377.
24. R v Home Secretary ex parte Simms, (2000) 2 AC 115.
25. D.P.P. v Ping Lin, (1975) 3 All ER 175 (HL); Ibrahim v R., (1914) AC 599 (606) (PC).
26. Callis v Gunn, (1963) 3 All ER 677 (680).
27. Cooper v Wandsworth Board, (1863) 143 ER 414 (420).
28. Board of Education v Rice, (1911) AC 179 (182) (HL).

Page 323 of 467
29. R. v Gaming Bd., (1970) 2 QB 417 (429) (CA).
30. Re Pergamon Press, (1971) ChD 388 (399) (CA).
31. R. v Dy. Commr., (1965) 1 QB 456 (488) (CA).
32. C.C.S.U. v Min., (1985) AC 394 (402) (HL).
33. Wiseman v Borneman, (1971) AC 297 ; Maxwell v Dept. of Trade, (1974) QB 523 ; Selvarajan v Race Relation Board,
(1976) 1 All ER 12 .
34. R v Commission for Racial Equality ex parte Hillingdon Council, (1982) AC 779 .
35. See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn, p 712.
36. The “due process” clause was adopted in s. l(a) of the Canadian Bill of Rights Act, 1960. In the Canada Act, 1982, this
expression has been substituted by “the principles of fundamental justice” [section 7].
37. Craig R. Ducat, Constitutional Interpretation, 8th Edn, 2002, p 475.
38. Murray’s Lessee v Hoboken Land & Improvement Co, (1856) 18 How 272.
39. (1951) 341 US 123.
40. Brock v N. Carolina, (1951) 344 US 424 (427).
41. 1351 Stat. 25 Edw. III, C.4.
42. Chambers v Florida, (1940) 309 US 227; Rochin v California, (1952) 342 US 165.
43. Chambers v Florida, (1940) 309 US 227; Rochin v California, (1952) 342 US 165.
Page 324 of 467
44. Wolf v Colorado, (1949) 338 US 25.
45. Joint Anti-Fascist Refugee Committee v McGrath, (1951) 341 US 123.
46. Brock v N. Carolina, (1951) 344 US 424 (427).
47. Powell v Alabama, (1932) 287 US 45 (67).
48. Gideon v Wainwright, (1963) 372 US 335 (343–4); Pointer v Taxes, (1965) 380 US 400 (403).
49. Gault, Re, (1967) 387 US 1; Winship, Re, (1970) 397 US 358; Lisenba v California, (1941) 314 US 219 (236); Belts v
Brady, (1942) 316 US 455.
50. Rochin v California, (1952) 342 US 165.
51. Murray’s Lessee v Hoboken Land & Improvement Co, (1856) 18 How 272; Chambers v Florida, (1940) 309 US 227;
Rochin v California, (1952) 342 US 165; Wolf v Colorado, (1949) 338 US 25; Joint Anti-Fascist Refugee Committee v
McGrath, (1951) 341 US 123; Brock v N. Carolina, (1951) 344 US 424 (427); Powell v Alabama, (1932) 287 US 45
(67); Gideon v Wainwright, (1963) 372 US 335 (343–44); Pointer v Taxes, (1965) 380 US 400 (403); Gault, Re, (1967)
387 US 1; Winship, Re, (1970) 397 US 358; Lisenba v California, (1941) 314 US 219 (236); Belts v Brady, (1942) 316
US 455; Rochin v California, (1952) 342 US 165; Cf. Jt. Anti-Fascist Committee v McGrath, (1951) 341 US 123; Brown
v Mississippi, (1936) 297 US 278; Haelan, J. in Twining v N.J., (1908) 211 US 78; Malinski v N.Y., (1945) 324 US 401;
Snyder v Massachusetts, (1934) 291 US 97; see Tagore’s Law Lectures on Limited Government and Judicial Review,
pp 216–67, as an essay on “Due Process”.
52. Cf. Jt. Anti-Fascist Committee v McGrath, (1951) 341 US 123; Brown v Mississippi, (1936) 297 US 278; Haelan, J. in
Twining v N.J., (1908) 211 US 78; Malinski v N.Y., (1945) 324 US 401; Snyder v Massachusetts, (1934) 291 US 97;
see Tagore’s Law Lectures on Limited Government and Judicial Review, pp 216–67, as an essay on “Due Process”.
53. Also See D.D. Basu, Commentary on the Constitution of India, Article 19, Vol 2, 8th Edn, 2007, p 2346, Wadhwa & Co.
54. Also See D.D. Basu, Commentary on the Constitution of India, Article 19, Vol 2, 8th Edn, 2007, p 2176, Wadhwa & Co.
Page 325 of 467
55. Hagar v Reclamation Dist., (1884) 111 US 701.
56. Chicago R.R. Co v Minnesota, (1890) 134 US 418.
57. See Joint Anti-Farcist Refugee Committee v Mc Grath, (1951) 341 US 123 (supra).
58. See Massey, American Constitutional Law: Powers and Liberties, 2nd Edn, 2005, pp 431–432.
59. Craig R. Ducat, Constitutional Interpretation, 8th Edn, 2002, p 475.
60. Mathews v Elridge, (1976) 424 US 319.
61. Hovey v Elliot, (1897) 167 US 409.
62. The Dartmouth College Case, (1819) 4 Wh 518.
63. Hagar v Reclamation Dist., (1884) 111 US 701.
64. Wolff v McDonnell, 418 US 539 : 557–558 (1974).
65. Joint Anti-fascist Commr v McGrath, (1951) 341 US 123.
66. (1976) 424 US 319.
67. (1975) 419 US 419.
68. Massey, American Constitutional Law: Powers and Liberties, 2nd Edn, 2005, p 432.
69. North American Cold Storage Co v Chicago, (1908) 211 US 306; Mackey v Montrym, (1979) 443 US 1; Ingraham v
Wright, (1977) 430 US 651.
Page 326 of 467
70. Parrott v Taylor, (1981) 451 US 527; Hudson v Palmer, (1984) 468 US 517.
71. (1986) 474 US 327.
72. (1986) 474 US 344.
73. (2004) 13 S Ct 2633.
74. Connecticut Department of Public Safety v Doe, (2003) 538 US 1.
75. Willis, Constitutional Law of the United States, Principal Press, p 662.
76. Connolly v General Construction Co, (1926) 269 US 385.
77. Feldman v United States, (1943) 322 US 487 (502).
78. Adamson v California, (1947) 332 US 46 (53).
79. Brown v Mississippi, (1936) 297 US 278.
80. (1940) 309 US 227.
81. Lisenba v California, (1941) 314 US 219 (236).
82. Goldberg v Kelly, (1970) 397 US 254.
83. Tumey v Ohio, (1927) 273 US 510.
84. Story, Constitution , 4th Edn, Articles 1943–46.
85. Malinski v N.Y., (1945) 324 US 401 (416).

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86. Betts v Brady, (1942) 316 US 455. Overruled in Gideon v Wainwright, (1963) 372 US 335 on other grounds.
87. Darcy v Handy, (1955) 351 US 454 (462).
88. Gaines v Washington, (1928) 277 US 81. Apart from the deduction from the “Due Process” clause, a public trial is
specifically guaranteed by the Sixth Amendment; as regards criminal proceedings in federal courts [Cf. Betts v Brady,
(1942) 316 US 455] see under Article 22(l), (post); See Article 10 of the Universal Declaration of Human Rights, post.
89. Re. Oliver, (1948) 333 US 257.
90. Joint Anti Fascist Refugees Commission v McGrath, (1951) 341 US 123.
91. Bell v Burrow, (1971) 402 US 535.
92. Moore v Dempsey, (1923) 261 US 86 (91).
93. Stroble v California, (1952) 343 US 181; Irvin v Dowd, (1691) 366 US 717; Estes v Texas, (1966) 381 US 532;
Sheppard v Maxwell, (1966) 384 US 333.
94. Ridean v Lousiana, (1962) 372 US 723.
95. Stroble v California, (1952) 343 US 181.
1. Shepherd v Florida, (1951) 331 US 50.
2. Betts v Brady, (1942) 316 US 455. Overruled in Gideon v Wainwright, (1963) 372 US 335 on other grounds.
3. Estes v Texas, (1965) 381 US 532.
4. Chandler v Florida, (1981) 449 US 560.
5. Murphy v Florida, (1975) 421 US 794; Nebraska Press v Stuart, (1976) 427 US 539.
6. Sheppard v Maxwell, (1966) 384 US 333; Irwin v Dowd, (1961) 366 US 717; Redeau v Lousiana, (1963) 373 US 723.
7. Murphy v Florida, (1975) 421 US 794 (supra).
8. Gannett v De Pasquale, (1979) 443 US 368; Sheppard v Maxwell, (1966) 384 US 333 (supra).
9. Cf. “Independent and impartial tribunal” in Article 10 of the Universal Declaration of Human Rights.
10. Tumey v Ohio, (1927) 273 US 510; Ward v Monroeville, (1972) 409 US 57.
11. Republican Party of Minnesota v White, (2002) 536 US 765.
12. Tumey v Ohio, (1927) 273 US 510; Ward v Monroeville, (1972) 409 US 57.
13. Dugan v Ohio, (1928) 277 US 61.
14. Twining v New Jersey, (1908) 211 US 78.
15. Smith v O’Grady, (1941) 312 US 329.
16. De Jonge v Oregon, (1937) 299 US 353.

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17. Smith v O’Grady, (1941) 312 US 329.
18. Cole v Arkansas, (1948) 333 US 196.
19. Paterno v Lyons, (1948) 334 US 314.
20. U.S. v Lattimore, (1955) 127 F. Supp. 405.
21. Powell v Alabama, (1932) 287 US 45.
22. (1963) 372 US 335.
23. (1967) 388 US 218.
24. See Escobedo v Illinois, (1964) 387 US 478; Miranda v Arizona, (1966) 384 US 436.
25. US v Wade, (1967) 388 US 218.
26. Coleman v Alabama, (1970) 399 US 1.
27. Hamilton v Alabama, (1961) 368 US 52.
28. Douglas v California, (1963) 372 US 353.
29. Meupa v Rhay, (1967) 389 US 128.
30. Meupa v Rhay, (1967) 389 US 128.
31. U.S. v Cohen Grocery, (1921) 255 US 81.
32. Winship, Re, (1970) 397 US 358 (364).
33. Williams v Florida, (1970) 369 US 78 (106). See also Carter v Kentucky, (1981) 450 US 288; Estelle v Smith, (1981)
451 US 454; Rochin v California, (1952) 342 US 165.
34. Wardius v Oregon, (1973) 37 LEd 2d 82.
35. Manley v Georgia, (1929) 279 US 1.
36. Tot v U.S., (1943) 319 US 463 (467–68); Leary v U.S., (1969) 395 US 6 (53).
37. U.S. v Gainey, (1965) 319 US 463 (467); Barnes v U.S., (1973) 37 L Ed 2d 380 (387); Turner v U.S., (1970) 396 US
398 (417).
38. Morrison v California, (1934) 291 US 82 (88–9).
39. Morrison v California, (1934) 291 US 82 (88–9); Hawker v N.Y., (1898) 170 US 189.
Page 329 of 467
40. In Re Oliver, (1948) 333 US 257; Washington v Texas, (1967) 388 US 14.
41. This includes the obligation of the State to produce the accuser and offer him for cross-examination [Cf. Beard v Stahr,
(1962) 1 L Ed (2d) 3211].
42. Wardius v Oregon, (1973) 37 LEd 2d 82.
43. Peters v Hobby, (1955) 349 US 331 (351).
44. Pointer v Texas, (1965) 380 US 400; Parker v Gladden, (1966) 385 US 363.
45. Pointer v Texas, (1965) 380 US 400; Parker v Gladden, (1966) 385 US 363; Snyder v Massachussets, (1934) 291 US
97.
46. (1988) 487 US 1012.
47. (1990) 497 US 836.
48. See also California v Green, (1970) 399 US 149.
49. Kirby v U.S., (1809) 174 US 47 (61).
50. Matiox v U.S., (1895) 156 US 237 (240).
51. Shaughnessy v Mezei, (1954) 345 US 206.
52. Berman v U.S., (1938) 302 US 211 (213).
53. Jay v Boyd, (1956) 351 US 345.
54. Lynuman v Illinois, (1963) 372 US 528 (534); Townsend v Sain, (1962) 372 US 293 (309); Blackburn v Alabama,
(1958) 361 US 199; Chambers v Florida, (1940) 309 US 227; Upshaw v U.S., (1949) 335 US 410.
55. (1936) 197 US 278.
56. (1959) 360 US 315.
57. Rochin v California, (1952) 342 US 165.
58. Sherman v U.S., (1958) 356 US 369. See also Jacobson v US, (1992) 503 US 540.
59. Mooney v Holohan, (1935) 294 US 103; Napue v Illinois, (1958) 360 US 264.
60. Alcorta v Texas, (1957) 355 US 28 (31).
61. Brady v Maryland, (1962) 373 US 83 (87).
62. Sorello v US, (1932) 287 US 435.

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63. Alcorta v Texas, (1957) 355 US 28 (31).
64. Mooney v Holohan, (1935) 294 US 103; Napue v Illinois, (1958) 360 US 264.
65. Lisenba v California, (1941) 314 US 219 (236).
67. Gibbs v Butke, (1949) 337 US 773; Gallegos v Nebraska, (1951) 342 US 55 (64).
68. Gideon v Wainwright, (1962) 372 US 335 (345); Herring v N.Y., (1975) 45 LEd 2d.
69. Reece v Georgia, (1955) 350 US 85; Moore v Michigan, (1957) 355 US 155 (160).
70. Avery v Alabama, (1940) 308 US 444 (446); Hamilton v Alabama, (1961) 368 US 52.
71. Spano v N.Y., (1959) 79 S Ct 1202 (1209).
73. Chandler v Fretag, (1953) 348 US 3.
74. Gideon v Wainwright, (1962) 372 US 335 (345); Herring v N.Y., (1975) 45 LEd 2d.
75. (1942) 348 US 455.
76. (1975) 422 US 806.
77. Paul v Davis, (1976) 424 US 693. But see Wisconsion v Constantinean, (1971) 400 US 433.
78. Meachum v Fano, (1976) 427 US 215.
79. Vivek v Jones, (1980) 445 US 480.
80. Greenholtz v Inmates, (1979) 442 US 1.
81. Board of Regents v Roth, (1972) 408 US 5611. But see Persy v Sundermann, (1972) 408 US 593.
82. Gitlow v N.Y., (1925) 268 US 652; Stromberg v California, (1931) 283 US 359; Thornhill v Alabama, (1940) 310 US 88;
Butler v Michigan, (1956) 352 US 380.
83. De Jonge v Oregon, (1937) 299 US 353.
84. Cf. Yates v U.S., (1956) 354 US 298.
85. Cohen v California, (1971) 403 US 15 (24–6); O’Connor v Donaldson, (1975) 45 LEd 2d 396 (paras 7–9).
Page 331 of 467
86. Jackson v Indiana, (1972) 406 US 715 (736–37).
87. O’Connor v Donaldson, (1975) 45 LEd 2d 396 (paras 7–9).
88. Coates v Cincinnati, (1971) 402 US 611 (615).
89. Chaplinsky v New Hampshire, (1942) 315 US 568.
90. Street v New York, (1969) 394 US 576.
91. Cohen v California, (1971) 403 US 15 (supra).
92. Better Austin v Keefe, (1971) 402 US 415.
93. Bachellor v Maryland, (1969) 397 US 564.
94. Tinker v Des Moines School District, (1969) 393 US 503.
95. Strousberg v California, (1931) 283 US 359.
96. Connally v General Construction Co, (1926) 269 US 385.
1. Musser v Utah, (1948) 333 US 95; Winters v New York, (1948) 333 US 95; Winters v New York, (1948) 333 US 507.
2. US v Cohen Grocery, (1921) 255 US 81; Herndon v Lowry, (1937) 301 US 241; Chine v Frink Dairy, (1927) 274 US
445.
3. Lanzetta v New Jersey, (1939) 306 US 451; Cox v Lousiana, (1965) 379 US 539; Papachriston v Jacksonville, (1972)
405 US 105.
4. (1967) 385 US 589.
5. See also City of Chicago v Morales, (1999) 527 US 41.
6. Musser v Utah, (1948) 333 US 95 (97). See also Watkins v United States, (1957) 354 US 178; Barenblatt v United
States, (1959) 360 US 109; City of Chicago v Morabs, (1999) 527 US 41.
7. U.S. v Cardiff, (1952) 344 US 174.
8. City of Chicago v Morabs, (1999) 527 US 41; see also Greyned v Rockford, (1972) 408 US 104.
Page 332 of 467
9. Winters v N.Y., (1948) 333 US 507; Williams v U.S., (1951) 341 US 97.
10. Smith v Goguen, (1974) 39 LEd 2d 605; Coates v Cincinnati, (1971) 402, US 611 (614).
11. Lanzetta v New Jersey, (1939) 306 US 451.
13. Elderton v Totaisator, (1945) 2 All ER 624; Herudon v Lowry, (1937) 301 US 242.
14. Strousberg v California, (1931) 283 US 359; Winters v New York, (1948) 333 US 507 (supra).
15. (1974) 415 US 566.
16. (1971) 402 US 611.
17. (1971) 403 US 15 (supra).
18. U.S. v Cohen Grocery, (1921) 255 US 81.
19. Gelling v Texas, (1952) 343 US 960.
21. Shevlin Carpenter Co v Minnesota, (1911) 218 US 57 (68).
22. Chicago B. & Q.R. Co v U.S., (1929) 229 US 559.
23. Lambert v California, (1957) 355 US 225 (228).
24. Musser v Utah, (1948) 333 US 95 (97). See also Watkins v United States, (1957) 354 US 178; Barenblatt v United
States, (1959) 360 US 109; City of Chicago v Maralu, (1999) 527 US 41.
25. U.S. v Petrillo, (1947) 332 US 1.

Page 333 of 467
26. Omaechevarria v Idaho, (1918) 246 US 343.
27. Nash v U.S., (1913) 229 US 373.
28. U.S. v Spector, (1952) 343 US 169; Grayned v Rockford, (1972) 408 US 104.
29. Jordan v De George, (1951) 341 US 223.
30. Screws v U.S., (1945) 325 US 91 (101–02).
31. U.S. v Petrillo, (1947) 332 US 1; Omaechevarria v Idaho, (1918) 246 US, 343; Nash v U.S., (1913) 229 US 373; U.S. v
Spector, (1952) 343 US 169; Grayned v Rockford, (1972) 408 US 104.
32. Boyce Motor Lines v U.S., (1952) 342 US 837. See also Grayned v City of Rockford, (1972) 408 US 104.
33. Roth v U.S., (1956) 354 US 476 (491).
34. Omaechevarria v Idaho, (1918) 246 US 343.
35. U.S. v Petrillo, (1947) 332 US 1.
36. Baltimore, & Ohio Rly. Co v Inter-State Commerce Commn, (1911) 221 US 612.
37. Nash v U.S., (1913) 229 US 373.
38. Smith v Goguen, (1974) 39 LEd 2d 605.
39. Lewis v New Orleans, (1974) 39 LEd 2d 214; Broadrick v Oklahoma, 413 US 601; Gooding v Wilson, (1972) 405 US
518 (520).
40. Parker v Levy, (1947) LEd 2d.
41. Shelton v Tucker, (1960) 364 US 479.
42. Massey, American Constitutional Law: Powers and Liberties, 2nd Edn, 2005, pp 445–46.
43. Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law, 3rd Edn, Vol 2.
44. Jacobson v Massachusetts, (1905) 197 US 11 (supra).
45. Treigle v Acme Homstead Assn., (1936) 297 US 189; East New York Savings Bank v Hahn, (1946) 326 US 230.
Page 334 of 467
46. (1887) 123 US 623.
47. Meyer v Nebraska, (1923) 262 US 390.
48. Pierce v Society of Sisters, (1925) 268 US 510.
49. NAACP v Alabama, (1958) 357 US 449.
50. Griswold v Connecticut, (1965) 381 US 479.
51. Craig R. Ducat, Constitutional Interpretation, 8th Edn 2002, p 24.
52. Cf. Francis v Resweber, (1947) 329 US 459.
53. Chessman v Teets, (1957) 354 US 156. See also Felker v Turpin, (1996) 518 US 651.
54. Chessman v Teets, (1957) 354 US 156; Smith v O’Grady, (1941) 312 US 321.
55. Frank v Mangum, (1915) 237 US 309 (331).
56. McClisrey v Kemp, (1987) 481 US 279.
57. See Fay v Noia, (1963) 372 US 391; Miller v Fanton, (1985) 474 US 104; Reed v Ross, (1984) 468 US 1.
58. Fay v Noia, (1963) 372 US 391 (supra); Miller v Fanton, (1985) 474 US 104 (supra).
59. Frank v Margum, (1915) 237 US 309 (supra).
60. Wainwright v Greenfield, (1986) 474 US 284.
61. Gideon v Wainwright, (1963) 372 US 335.

Page 335 of 467
62. Casteneda v Partrida, (1977) 430 US 482.
63. In Re Article 26, (1940) IR 470 .
64. State v Lennon (Burke’s case), (1940) IR 136 .
65. State v Donoughe, (1976) IR 325 .
66. State v Donoughe, (1976) IR 325 (supra).
67. AG v O. Callagan, (1966) IR 501 .
68. R v AG, (1981) IR 233 .
69. DPP v Madden, (1977) IR 336 ; DPP v Farrell, (1975) IR 13 .
70. In Re. Haughey, (1971) IR 231 . See D.D. Basu, Human Rights in Constitutional Law, 8th Edn, p 425.
71. People (DPP) v Walsh, (1980) IR 294 .
72. See D.D. Basu, Human Rights in Constitutional Law, 8th Edn, p 426.
73. Curr v R., (1972) SCR 889 .
74. Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22] .
75. 3 SCW 98 ff.
76. Law Society v Skapinker, (1984) 9 DLR (4th) 161 (167ff.) (SC); A.G. Que v Quebec School Boards, (1984) 10 DLR
(4th) 321 (324–25) (SC); Hunter v Southam, (1984) 11 DLR (4th) 641 (643, 660) SC; R. v Big M., (1985) 18 DLR (4th)
321 (359) (SC); R. v Oakes, 26 DLR (4th) 200 (216) (SC); Morgantaler v R., (1990) LRC (Const.) 242 (336) (SC).
77. A.G. Que v Quebec School Bds, (1984) 10 DLR (4th) 321 (324–25) (SC); Hunter v Southam, (1984) 11 DLR (4th) 641
(643, 660) (SC).
78. R. v Big M., (1985) 18 DLR (4th) 321 (359) (SC); R. v Oakes, 26 DLR (4th) 200 (216) (SC); Morgantaler v R., (1990)
LRC (Const.) 242 (336) (SC).
79. 3 SCW 385.
80. See Silver v UK, (1983) EHRR 343.
81. As to its legal effect, see M. v Organisation Belge, (1972) 45 Inter, LR 446 (447, 451, et sq.).
82. See 2 Yearbook of European Convention on Human Rights, 385; 5 Yearbook 256; 6 Yearbook, 480.
83. (1988) 2 EHRR 25 .
84. Aydin v Turkey, (1998) 25 EHRR 251 .
85. See Ireland v UK, (1988) 2 EHRR 25 (supra).

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86. See Tyrer v UK, (1978) 2 EHRR 1 ; see also Y v UK, (1992) 17 EHRR 238 ; Tomasi v France, (1992) 15 EHRR 1 .
87. On this article generally, read Fawcett, The Application of the European Convention on Human Rights, 1969.
88. See the Matznetter Case, (1972) 45 Int. Law Rep. 277 (303 et seq.); S. v Bavaria, ibid., p 321 et seq.
89. Bugdaycay v Secretary of State, (1987) 1 All ER 940 .
90. R (Pretty) v DPP, (2002) 1 All ER 1 .
91. G. Gurunadha Reddy v A.P. Road Transport Corp, AIR 1999 AP 179 .
92. See Justice Fazal Karim (Retd. Judge of Pakistan Supreme Court), Judicial Review of Public Actions, p 587 (notes).
93. Sant Ram, Re., AIR 1960 SC 932 [LNIND 1960 SC 113] : (1960) 3 SCR 499 .
94. Olga Tellis v Bombay Municipal Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215] : (1985) 3 SCC 545 [LNIND 1985 SC
215] ; Delhi Transport Corpn v DTC Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 489] : 1991 (Supp-1) SCC
600; Delhi Development Horticultural Employees Union v Delhi Admn., AIR 1992 SC 789 [LNIND 1992 SC 123] :
(1992) 4 SCC 99 [LNIND 1992 SC 123] .
95. Centre for Environment & Food Security v UOI, (2011) 5 SCC 676 [LNIND 2011 SC 530] : (2010) 3 Scale 489 . But
see State of Karnataka v Uma Devi, (2006) 4 SCC 1 (para 51) : AIR 2006 SC 1806 [LNIND 2006 SC 1944] .
96. Dewan Chand v UOI, (2012) 1 SCC 101 [LNIND 2011 SC 1169] : (2011) 13 Scale 12 [LNIND 2011 SC 1169] .
1. Narendra Kumar Chaudha v State of Haryana, AIR 1995 SC 519 : (1994) 4 SCC 460 .
2. O. Konavalov v Commander, Coast Guard Region, (2006) 4 SCC 620 [LNIND 2006 SC 203] : (2006) 3 Scale 398
[LNIND 2006 SC 203] .
3. AIR 1999 SC 1416 : (1999) 3 SCC 679 .
4. Also see O.P. Gupta v UOI, AIR 1987 SC 2257 [LNIND 1987 SC 626] : (1987) 4 SCC 328 [LNIND 1987 SC 626] ;
State of Maharashtra v Chanderbhan, AIR 1983 SC 803 [LNIND 1983 SC 165] : (1983) 3 SCC 387 [LNIND 1983 SC
165] .
215] ; see also D.K. Yadav v J.M.A. Industries, (1993) 3 SCC 259 [LNIND 1993 SC 443] ; Dr. Hariraj L. Chulani v Bar
Council of Maharashtra, AIR 1996 SC 1708 [LNIND 1996 SC 743] : (1996) 3 SCC 345 .
6. State of Bihar v Bihar Human Rights Commission, AIR 2014 Pat. 30 [LNINDORD 2013 PAT 12002] .
7. Mohiuddin Khan v State of Jharkhand, (2012) 116 AIC 743 (Jhar).
8. State of A.P. v Challa Ramakrishna Reddy, AIR 2000 SC 2083 [LNIND 2000 SC 741] .
9. Bipinchand J. Diwan v State of Gujarat, AIR 2002 Guj 99 [LNIND 2001 GUJ 80] .
10. Kehar Singh v State of Chattisgarh, AIR 2002 Chatt 14 .
11. Jagat Dhar Sharma v State of Assam, AIR 2003 Gau 101 .
12. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] . See also
Shyama Devi v National Capital Territory of Delhi, AIR 1999 Del 264 [LNIND 1999 DEL 206] ; Unnikrishnan J.P. v State
of A.P., AIR 1993 SC 2178 [LNIND 1993 SC 1110] .
Page 337 of 467
13. National Human Rights Commission v State of Arunachal Pradesh, (1996) 1 SCC 742 [LNIND 1996 SC 58] ;
Chairman, Railway Board v Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182] : (2000) 2 SCC 465 [LNIND 2000
SC 182] ; Sarbananda Sonowal v UOI, AIR 2005 SC 2920 [LNIND 2005 SC 523] : (2005) 5 SCC 665 [LNIND 2005 SC
523] . See also O. Konavalov v Commander, Coast Guard Region, (2006) 4 SCC 620 [LNIND 2006 SC 203] . See also
Bhim Singh v UOI, (2011) 13 SCC 94 : (2011) 1 Scale 697 ; Bisharat Ali Rajput v UOI, (2010) 15 SCC 521 ; Mohd.
Khalil Chisti v State of Rajasthan, (2013) 2 SCC 563 : (2012) 4 Scale 568 ; Jafaria v UOI, (2010) 4 SCC 560 : (2010) 3
JT 601 ; G. Nasirulla v Public Prosecutor, AP, AIR 1979 SC 429 [LNIND 1978 SC 364] : (1978) 1 SCC 240 [LNIND
1977 SC 336] ; Vinod Narain v State of UP, (1996) Cr LJ 1309 (All).
14. Kehar Singh v UOI, AIR 1989 SC 653 [LNIND 1988 SC 586] : (1989) 1 SCC 204 [LNIND 1988 SC 586] .
15. Ozhair Hussain v UOI, AIR 2003 Del 103 [LNIND 2002 DEL 1689] .
16. Kartar Singh v State of Punjab, (1994) 3 SCC 569 .
17. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436] : (1964) 1 SCR 332 [LNIND 1962 SC 436] .
18. Montesquieu, Spirit of the Laws, Book III, Chapter III, as quoted in A.K. Gopalan v State of Madras, AIR 1950 SC 27
[LNIND 1950 SC 22] : (1950) SCR 88 [LNIND 1950 SC 22] .
19. Webster in his works, Vol II p 393, as quoted in A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC
22] : (1950) SCR 88 [LNIND 1950 SC 22] .
20. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) SCR 88 [LNIND 1950 SC 22] .
21. See Francis v Union Territory, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND 1981 SC 27] :
(1981) 2 SCR 516 [LNIND 1981 SC 27] ; Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1
SCC 248 [LNIND 1978 SC 25] ; Ramsharan v UOI, AIR 1989 SC 549 [LNIND 1988 SC 550] : 1989 (Supp-1) SCC 251
: 1988 (Supp-3) SCR 870.
22. P. Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : (1994) 3 SCC 394 [LNIND 1994 SC 1533] , overruled
on an another point in Gian Kaur v State of Punjab, AIR 1996 SC 946 [LNIND 1996 SC 653] : (1996) 2 SCC 648
[LNIND 1996 SC 653] . See also State of H.P. v Umed Ram, AIR 1986 SC 847 [LNIND 1986 SC 29] : (1986) 2 SCC
614 [LNIND 1986 SC 105] .
23. See Kharak Singh v State of U.P., (1964) 1 SCR 332 [LNIND 1962 SC 436] : AIR 1963 SC 1295 [LNIND 1962 SC 436]
; State of W.B. v Ashok Dey, (1972) 1 SCC 199 [LNIND 1971 SC 582] : AIR 1972 SC 1660 [LNIND 1971 SC 582] :
(1972) 2 SCR 434 [LNIND 1971 SC 582] ; Haradhan Saha v State of W.B., (1975) 3 SCC 198 [LNIND 1974 SC 243] :
AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 [LNIND 1974 SC 243] ; John Martin v State of W.B., AIR
1975 SC 775 [LNIND 1975 SC 26] : (1975) 3 SCC 836 [LNIND 1975 SC 26] : (1975) 3 SCR 211 [LNIND 1975 SC 26] ;
Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND 1981 SC
27] : (1981) 2 SCR 576 ; Salwant Singh v A.P.O., (1967) 2 SCR 526 ; Shantisar Builders v Narayan Khimlal Totame,
AIR 1990 SC 630 [LNIND 1995 SC 1144] : (1990) 1 SCC 520 [LNIND 1995 SC 1144] ; Olga Tellis v Bombay Municipal
Corp, AIR 1986 SC 180 [LNIND 1985 SC 215] : (1985) 3 SCC 545 [LNIND 1985 SC 215] : 1985 (Supp-2) SCR 51.
See also Siddharam Satlingappa Mhetre v State of Maharashtra, AIR 2011 SC 312 [LNIND 2010 SC 1174] : (2011) 1
SCC 694 [LNIND 2010 SC 1174] : (2010) 4 Ker LT 930 ; State of West Bengal v Committee for Protection of
Democratic Rights, AIR 2010 SC 1476 [LNIND 2010 SC 186] : (2010) 3 SCC 571 [LNIND 2010 SC 732] .
Page 338 of 467
25. AIR 1970 SC 564 [LNIND 1970 SC 40] : (1970) 1 SCC 248 [LNIND 1970 SC 40] : (1970) 3 SCR 530 [LNIND 1970 SC
40] .
27. AIR 2010 SC 186 : (2009) 9 SCC 1 [LNINDORD 2009 SC 593] .
28. Report of National Commission to review the working of the Constitution submitted by Justice M.N. Venkatachaliah on
31st March, 2002.
29. Vidya Verma v Shivnarayan, (1955) 2 SCR 983 [LNIND 1955 SC 102] : AIR 1956 SC 108 [LNIND 1955 SC 102] . See
also Subeena Faikage v UOI, AIR 2013 SC 189 [LNIND 2012 SC 660] : (2013) 1 SCC 262 [LNIND 2012 SC 660] ;
Jafaria v UOI, (2010) 4 SCC 560 : (2010) 3 Scale 304 .
30. Anwar v State of J&K, (1970) 2 SCWR 276 (279).
31. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214] (426) : (1966) 1 SCR 702 [LNIND 1965
SC 214] : 1966 Cr LJ 311 ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1 SCR 392 [LNIND
1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215] . See also Bisharat Ali Rajput v UOI, (2010) 15 SCC 521 .
32. Chairman, Railway Board v Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182]: (2000) 2 SCC 465 [LNIND 2000
SC 182]; National Human Rights Commission v State of Arunachal Pradesh, (1996) 1 SCC 742 [LNIND 1996 SC 58].
33. Louis De Raedt v UOI, (1991) 3 SCC 554 : JT (1991) 3 SC 306 [LNIND 1991 SC 316].
34. State of Andhra Pradesh v Cholla Ramkrishna Reddy, AIR 2000 SC 2083 [LNIND 2000 SC 741]: (2000) 5 SCC 712
[LNIND 2000 SC 741].
35. AIR 2005 SC 972 [LNIND 2005 SC 141]: (2005) 1 SCC 801.
36. See State of AP v Chella Ramakrishna Reddy, AIR 2000 SC 2083 [LNIND 2000 SC 741]: (2000) 5 SCC 712 [LNIND
2000 SC 741]; N. Nagendra Rao & Co v State of AP, AIR 1994 SC 2663 [LNIND 1994 SC 789]: (1994) 6 SCC 205
[LNIND 1994 SC 789]; Sunil Batra (1) v Delhi Admn., AIR 1978 SC 1975 : (1978) 4 SCC 494 [LNIND 1978 SC 215];
Sunil Batra (2) v Delhi Admn., AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215]; Francis Coralie Mullin v
Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27]: (1981) 1 SCC 608 [LNIND 1981 SC
27]; Charles Shobraj v Supt., Central Jail, Tihar, AIR 1978 SC 1514 [LNIND 1978 SC 218]: (1978) 2 SCC 104; D.
Bhuvan Mohan Patnaik v State of AP, AIR 1974 SC 2092 [LNIND 1974 SC 269]: (1975) 3 SCC 185 [LNIND 1974 SC
269]; State of Maharashtra v Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424 [LNIND 1965 SC 214]: (1966) 1 SCR
702 [LNIND 1965 SC 214]; Mehmood Nayyar Azam v State of Chandigarh, AIR 2012 SC 2573 [LNIND 2012 SC 456]:
Page 339 of 467
(2012) 8 SCC 1 [LNIND 2012 SC 456]; Joginder Kumar v State of UP, (1994) 4 SCC 260 [LNINDORD 1994 SC 51] :
AIR 1994 SC 1349 [LNINDORD 1994 SC 51]: 1994 Cr LJ 1981.
37. Thippeswamy v State of Karnataka, AIR 1983 SC 747 [LNIND 1982 SC 179]: (1983) 1 SCC 194 [LNIND 1982 SC
179].
38. Jayendra Vishnu Thakur v State of Maharashtra, (2009) 7 SCC 104 [LNIND 2009 SC 1244] : (2009) 7 Scale 757
[LNIND 2009 SC 1244].
39. US v Bailey, (1989) 444 US 394.
40. AIR 1997 SC 3011 [LNIND 1997 SC 1081]: (1997) 6 SCC 241 [LNIND 1997 SC 1081].
41. See Justice J.S. Verma, The New Universe of Human Rights, 2004 Edn, pp 131–133.
42. P. Rathiram v UOI, (1994) 3 SCC 394 [LNIND 1994 SC 1533].
43. Gian Kaur v State of Punjab, (1996) 2 SCC 648 [LNIND 1996 SC 653] : AIR 1996 SC 946 [LNIND 1996 SC 653]. See
also Aruna Ramachandra Shanbaug v UOI, AIR 2011 SC 1290 [LNIND 2011 SC 265]: (2011) 4 SCC 454 [LNIND 2011
SC 265].
44. See also Lokendra Singh v State of MP, AIR 1996 SC 946 [LNIND 1996 SC 653]: (1996) 2 SCC 648 [LNIND 1996 SC
653]; State of Maharashtra v Maruti Sripati Dubal, AIR 1997 SC 411 [LNIND 1996 SC 1357]: (1996) 6 SCC 42 [LNIND
1996 SC 1357].
45. Radul v State of Bihar, AIR 1983 SC 1086 [LNIND 1983 SC 181]: (1983) 4 SCC 141 [LNIND 1983 SC 181] : (1983) 3
SCR 508 [LNIND 1983 SC 181].
46. See Shanti Star Builders v Narayan Khimalai Tolemi, AIR 1990 SC 630 [LNIND 1995 SC 1144]: (1990) 1 SCC 520
47. Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 2 SCR 621 [LNIND 1978 SC 25] : (1978) 1 SCC 248
[LNIND 1978 SC 25] .
Page 340 of 467
48. See also District Registrar and Collector, Hyderabad v Canara Bank, AIR 2005 SC 186 [LNIND 2004 SC 1478] :
(2005) 1 SCC 496 [LNIND 2004 SC 1478] . See also Avishek Goenka v UOI, AIR 2012 SC 2226 [LNIND 2012 SC 268]
: (2012) 5 SCC 321 [LNIND 2012 SC 268] ; Maharashtra University of Health Sciences v Satchikitsa Prasarak Mandal,
AIR 2010 SC 1325 [LNIND 2010 SC 202] : (2010) 3 SCC 786 [LNIND 2010 SC 202] .
49. Haradhan Saha v State of W.B., (1975) 3 SCC 731 [LNIND 1974 SC 400] : AIR 1975 SC 179 [LNIND 1974 SC 400] ;
Sambhu Nath Sarkar v State of W.B., (1973) 1 SCC 856 [LNIND 1973 SC 138] : AIR 1973 SC 1425 [LNIND 1973 SC
138] : (1974) 1 SCR 1 [LNIND 1973 SC 454] ; R.C. Cooper v UOI, (1970) 1 SCC 248 [LNIND 1970 SC 40] : AIR 1970
SC 564 [LNIND 1970 SC 40] : (1970) 3 SCR 530 [LNIND 1970 SC 40] .
50. AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] (supra).
52. Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : 2012 Cr LJ 3516 : (2012) 2 Scale 682 .
53. A.K. Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] .
54. State of W.B. v Anwar Ali Sarkar, (1952) SCR 284 [LNIND 1952 SC 1] : AIR 1952 SC 75 [LNIND 1952 SC 1] .
55. Kathi Raning Rawat v State of Saurashtra, AIR 1952 SC 123 [LNIND 1952 SC 12] : (1952) SCR 435 [LNIND 1952 SC
12] .
56. See also Sunil Batra v Delhi Administration, AIR 1980 SC 1579 : (1978) 4 SCC 494 [LNIND 1978 SC 215] .
57. See also Khudiram Das v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC
386] .
60. T.V. Vatheeswaran v State of Tamil Nadu, AIR 1983 SC 361 [LNIND 1983 SC 43] (2) : (1983) 2 SCC 68 [LNIND 1983
SC 58] .
61. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214] : (1966) 1 SCR 702 [LNIND 1965 SC 214]
.
62. In Re, The Special Courts Bill, 1978, AIR 1979 SC 478 [LNIND 1978 SC 661] : (1979) 1 SCC 380 [LNIND 1978 SC
661] .
63. Kameshwar Singh v Municipal Corpn. of Bombay, 1996 AIHC 4444 (Bom); Sodan Singh v New Delhi Municipal
Committee, AIR 1989 SC 1988 [LNIND 1989 SC 423] .
64. Bapuji Nagar Khodsa Byapsai Association v State of Orissa, AIR 1997 Ori. 189 [LNIND 1996 ORI 42] .
65. Pramod Malhotra v UOI, AIR 2004 SC 3338 [LNIND 2004 SC 1543] .
66. Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 2 SCR 621 : (1978) 1 SCC 248 [LNIND 1978 SC 25] .
67. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] (186–7, Kania C.J.) : (1950) SCR 88 [LNIND 1950
SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22] .
68. Francis v Union Territory, AIR 1981 SC 746 [LNIND 1981 SC 27] (para 3) : (1981) 2 SCR 516 [LNIND 1981 SC 27] :
(1981) 1 SCC 608 [LNIND 1981 SC 27] .
Page 341 of 467
69. Louis v UOI, (1991) 3 SCJ 141 (para13) : AIR 1991 SC 1886 [LNIND 1991 SC 316] : (1991) 3 SCR 149 : (1991) 3
SCC 554 . Also see Chairman Rly. Board v Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182] : (2000) 2 SCC
465 [LNIND 2000 SC 182] ; National Human Rights Commission v State of Arunachal Pradesh, (1996) 1 SCC 742
[LNIND 1996 SC 58] : AIR 1996 SC 1234 [LNIND 1996 SC 58] . See also Pawan Deep Singh v UOI, (2004) AIHC 1102
(P&H).
70. Sarbananda Sonowal v UOI, AIR 2005 SC 2920 [LNIND 2005 SC 523] : (2005) 5 SCC 665 [LNIND 2005 SC 523] ;
State of Arunachala Pradesh v Khudiram Chakma, 1994 (Supp-1) SCC 615 : AIR 1994 SC 1461 [LNIND 1993 SC 396]
; Louis De Raedt v UOI, AIR 1991 SC 1886 [LNIND 1991 SC 316] : (1991) 3 SCC 554 ; Gilles Pfeiffer v UOI, AIR 1996
Mad. 322 [LNIND 1996 MAD 289] ; Cherchi Domenico Ferdinando v UOI, AIR 2004 Del 147 [LNIND 2004 DEL 101] .
71. Ch. Chaitanya v State of U.P., (1989) 2 SCJ 304 : AIR 1989 SC 1452 : (1989) 2 SCC 314 (paras 5–6); Banwasi Seva
Ashram v State of U.P., (1992) 2 SCC 202 [LNIND 1992 SC 179] : AIR 1992 SC 920 [LNIND 1992 SC 179] (para 1).
73. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436] (1300) : (1964) 1 SCR 332 [LNIND 1962 SC
436] : (1963) 2 Crimes 329 : (1964) 2 SCJ 107 .
74. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214] (426) : (1966) 1 SCR 702 [LNIND 1965 SC
214] : 1966 Cr LJ 311 ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1 SCR 392 [LNIND
1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215] .
75. Kiran v Govt. of A.P., (1990) 1 SCC 328 [LNIND 1989 SC 553] : (1989) 4 JT 366 [LNIND 1989 SC 553] (paras 14–17);
Mehta v UOI, (1987) 1 SCC 395 [LNIND 1986 SC 539] : AIR 1987 SC 1086 [LNIND 1986 SC 539] : (1987) 1 SCR 819
[LNIND 1986 SC 539] .
76. Kartar Singh v State of Punjab, (1994) 3 SCC 569 .
77. See T.M. Cooley, A Treatise on the Constitutional Limitation, 1st Indian Reprint, p 339.
78. Manmatha Nath Kayal v Dist. Manager, FCI, AIR 1996 Cal 316 [LNIND 1996 CAL 8] .
79. Narinder Singh v UOI, AIR 2001 SC 3810 [LNIND 2001 SC 2325] : (2002) 2 SCC 210 [LNIND 2001 SC 2325] .
80. Bhajan Kaur v Delhi Administration, 1996 AIHC 5644 (Del).
81. Bijayalakshmi Tripathi v Managing Committee of Working Women Hostel, AIR 1992 Ori. 242 [LNIND 1992 ORI 171] .
82. D.K. Basu v State of West Bengal, AIR 1997 SC 610 [LNIND 1996 SC 2177] .
83. MCD v Uphaar Tragedy Victims’ Assn., (2011) 14 SCC 481 [LNIND 2011 SC 1147] : AIR 2012 SC 100 [LNIND 2011
SC 1147] .
84. Mehmood Nayyar Azam v State of Chandigarh, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND
2012 SC 456] .
85. K. Nagaraj v State of Andhra Pradesh, AIR 1985 SC 551 [LNIND 1985 SC 9] : (1985) 1 SCC 523 [LNIND 1985 SC 9] .
86. T. Venkata Reddy v State of Andhra Pradesh, AIR 1985 SC 724 [LNIND 1985 SC 106] : (1985) 3 SCC 198 [LNIND
1985 SC 106] .
Page 342 of 467
87. Sodan Singh v New Delhi Municipal Committee, AIR 1989 SC 1988 [LNIND 1989 SC 423] : (1989) 4 SCC 155 [LNIND
1989 SC 423] .
88. M.J. Sivani v State of Karnataka, AIR 1995 SC 1770 [LNIND 1995 SC 519] : (1995) 6 SCC 289 [LNIND 1995 SC 521]
.
89. State of Sikkim v Sonam Lama, AIR 1991 SC 534 . See also Srivastava v State of MP, AIR 1984 SC 630 [LNIND
1984 SC 22] : (1984) 2 SCC 8 [LNIND 1984 SC 22] : (1984) 2 SCR 466 [LNIND 1984 SC 22] .
90. BOI v O.P. Swarnakar, AIR 2003 SC 858 [LNIND 2002 SC 817] .
91. L.A.O.-cum-R.D.O. v Mekala Pandu, AIR 2004 AP 250 [LNIND 2004 AP 279] .
92. AIR 1991 SC 101 [LNIND 1990 SC 489] : 1991 (Supp-1) SCC 600.
93. AIR 1999 SC 1416 : (1999) 3 SCC 679 .
94. See also State of Maharashtra v Chandrabhan, AIR 1983 SC 803 [LNIND 1983 SC 165] : (1983) 3 SCC 387 [LNIND
1983 SC 165] .
95. A.K. Bindal v UOI, (2003) 5 SCC 163 [LNIND 2003 SC 475] : AIR 2003 SC 2189 [LNIND 2003 SC 475] .
96. Nakara v UOI, (1983) 1 SCC 305 [LNIND 1982 SC 208] ; Poonammal v UOI, AIR 1985 SC 1196 [LNIND 1985 SC
159] : (1985) 3 SCC 345 [LNIND 1985 SC 159] .
97. Nakara v UOI, (supra); Poonammal v UOI, (supra).
98. Sodan Singh v NDMC, AIR 1989 SC 1988 [LNIND 1989 SC 423] : (1989) 4 SCC 155 [LNIND 1989 SC 423] .
99. Sodan Singh v NDMC, (supra).
1. Justice Fazal Karim, Judicial Review of Public Actions, Vol I, pp 588–89
2. Reliance Energy Ltd v Maharashtra State Road Tranport Corpn. Ltd, (2007) 8 SCC 1 [LNIND 2007 SC 1052] . See
also Divine Retreat Centre v State of Kerala, AIR 2008 SC 1614 [LNIND 2008 SC 644] : (2008) 3 SCC 542 [LNIND
2008 SC 644] ; Om Prakash Chautala v Kanwar Bhan, AIR 2014 SC 1220 [LNIND 2014 SC 1164] : (2014) 5 SCC 417
[LNIND 2014 SC 66] .
4. Francis Coralie Mullin v Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC
608 [LNIND 1981 SC 27] .
5. P. Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : (1994) 3 SCC 394 [LNIND 1994 SC 1533] .
7. Siddharam Satlingappa Mhetre v State of Maharashtra, AIR 2011 SC 312 [LNIND 2010 SC 1174] : (2011) 1 SCC 694
[LNIND 2010 SC 1174] : (2010) 4 Ker LT 930 .
8. (1987) 1 All ER 940 (HL).
9. R (Pretty) v DPP, (2002) 1 All ER 1 (HL) : (2002) 1 AC 800 .
10. Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : (2012) 2 Scale 682 .
Page 343 of 467
11. Chameli Singh v State of U.P., AIR 1996 SC 1051 [LNIND 1995 SC 1370] : (1996) 2 SCC 549 [LNIND 1995 SC 1370]
. See also Consumer Education and Research Centre v UOI, AIR 1995 SC 922 [LNIND 1995 SC 166] ; P.A. Jacob v
Supt. of Police, Kottayams, AIR 1993 Ker. 1 [LNIND 1992 KER 217] ; D.O. Vyas v Ghaziabad Development Authority,
AIR 1993 All 57 [LNIND 1992 ALL 154] ; Subhash Kumar v State of Bihar, AIR 1991 SC 420 [LNIND 1991 SC 13] ;
Vijayalakshmi Tripathy v Managing Committee of Working Women Hostel, AIR 1992 Ori. 242 [LNIND 1992 ORI 171] ;
Air India Statutory Corpn v United Labour Union, AIR 1997 SC 645 [LNIND 1996 SC 2076] ; U.P. Avas Evam Vikas
Parishad v Friends Co-op. Housing Society Ltd, AIR 1996 SC 114 [LNIND 1995 SC 566] .
12. See also U.P. Avas Evam Vikas Parishad v Friends Co-op Housing Society Ltd, AIR 1996 SC 114 [LNIND 1995 SC
566] : 1995 (Supp-3) SCC 456. See also Maharashtra University of Health Sciences v Satchikitsa Prasarak Mandal,
AIR 2010 SC 1325 [LNIND 2010 SC 202] : (2010) 3 SCC 786 [LNIND 2010 SC 202] ; Sukhwant Singh v State of
Punjab, (2009) 7 SCC 559 [LNINDORD 2009 SC 298] : (2009) 7 Scale 700 [LNINDORD 2009 SC 298] .
13. “Clean Environment: A Human Rights Imperative”, Fifth Green Law Lecture at the Centre for Environment Law on 25-
2-2001.
14. Edwin Shorts & Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, 1998 Edn.
15. State of WB v Committee for Protection of Democratic Rights, AIR 2010 SC 1476 [LNIND 2010 SC 186] : (2010) 3
SCC 571 [LNIND 2010 SC 732] .
16. Kishore Samriti v State of UP, AIR 2012 SC (Supp) 699 : (2013) 2 SCC 398 [LNIND 2012 SC 657] .
17. Umesh Kumar v State of AP, (2013) 10 SCC 591 [LNIND 2013 SC 793] : AIR 2014 SC 1106 [LNIND 2013 SC 793] .
18. Om Prakash Chautala v Kanwar Bhan, AIR 2014 SC 1220 [LNIND 2014 SC 1164] : (2014) 5 SCC 417 [LNIND 2014
SC 66] .
20. 55 ALR 11 (1927).
21. See also Viswanath Agarwal v Sarla Viswanath Agarwal, AIR 2012 SC 2586 [LNIND 2012 SC 374] : (2012) 7 SCC
288 [LNIND 2012 SC 374] .
2012 SC 456] ; see also Board of Trustees of the Port of Bombay v Dilip Kumar Raghavendranath Nadkarni, AIR 1983
SC 109 [LNIND 1982 SC 167] : (1983) 1 SCC 124 [LNIND 1982 SC 167] ; State of Maharashtra v Public Concern for
Governance Trust, AIR 2007 SC 777 [LNIND 2007 SC 5] : (2007) 3 SCC 587 [LNIND 2007 SC 5] .
23. See Edwin Shorts & Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, 1998 Edn, pp 13 & 14.
24. See Khwaja Abdul Muntaqim, Protection of Human Rights, who has stated that Pt III of the Constitution represents
Human Rights.
25. Election Commission of India v St. Mary’s School, (2008) 2 SCC 390 [LNIND 2007 SC 1423] .
26. Francis Coralie Mullin v Administrator, Union Territory of Delhi, (1981) 2 SCR 516 [LNIND 1981 SC 27] : AIR 1981 SC
746 [LNIND 1981 SC 27] . See also Bijaylakshmi Tripathy v Managing Committee of Working Women Hostel, AIR 1992
Ori. 242 [LNIND 1992 ORI 171] ; Mohini Jain v State of Karnataka, AIR 1992 SC 1858 [LNIND 1992 SC 465] ; Shaibya
Shukla v State of U.P., AIR 1993 All 171 ; Inderpuri General Store v UOI, AIR 1992 J&K 11 .
27. See Article 14 of Pakistan Constitution.

Page 344 of 467
28. PLD 1998 SC 388 .
29. See Justice Fazal Karim (R), Judicial Review of Public Actions, 2006 Edn, pp 662–663.
30. Consumer Education and Research Centre v UOI, AIR 1995 SC 922 [LNIND 1995 SC 166] .
31. Ammini E.D. v UOI, AIR 1995 Ker. 252 .
32. Indian Drug & Pharmaceuticals v Workmen, (2007) 1 SCC 408 [LNIND 2006 SC 984] .
33. Gaurav Jain v UOI, AIR 1997 SC 3021 [LNIND 1997 SC 917] .
34. Shyama Devi v National Capital Territory of Delhi, AIR 1999 Del 264 [LNIND 1999 DEL 206] .
35. Ram Saran v UOI, AIR 1989 SC 549 [LNIND 1988 SC 550] .
36. Ashok v UOI, AIR 1997 SC 2298 [LNIND 1997 SC 780] : 1997 (5) SCC 10 [LNIND 1997 SC 780] ; UOI v Ashok
Kumar Mitra, AIR 1995 SC 1976 [LNIND 1995 SC 295] . See also A.R. Antulay v R.S. Nayak, AIR 1992 SC 1701
[LNIND 1991 SC 673] ; Delhi Development Horticulture Employees Union v Delhi Administration, AIR 1992 SC 789
[LNIND 1992 SC 123] .
37. D.D. Basu, Human Rights in Constitutional Law, 2nd Edn, p 384.
38. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : 1978 (1) SCC 248 [LNIND 1978 SC 25] .
39. Munn v Illinois, 94 US 113.
40. (1897) 156 US 578.
41. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436] .
42. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] .
43. Benazir Bhuto v President of Pakistan, PLD 1998 SC 388 , 606.
44. Shehla Zia v WAPDA, PLD 1994 SC 693 .
45. A.K. Bindal v UOI, AIR 2003 SC 2189 [LNIND 2003 SC 475] .
46. Shantistar Builders v Narayan Khimlal Totame, AIR 1990 SC 630 [LNIND 1995 SC 1144] : (1990) 1 SCC 520 [LNIND
1995 SC 1144] (supra).
47. See also People’s Union of Civil Liberties v UOI, AIR 1997 SC 568 [LNIND 1996 SC 2173] : (1997) 1 SCC 301 ; Sunil
Batra (II) v Delhi Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] ; Valsamma Paul v
Cochin University, (1996) 3 SCC 545 [LNIND 1996 SC 19] .
48. Kiran v Govt. of A.P., (1990) I SCC 328 (paras 14–17) : (1989) 4 JT 366 [LNIND 1989 SC 553] ; Mehta v UOI, (1987) 1
SCC 395 [LNIND 1986 SC 539] : AIR 1987 SC 1086 [LNIND 1986 SC 539] : (1987) 1 SCR 819 [LNIND 1986 SC 539] .
See also Consumer Educaiton and Research Centre v UOI, AIR 1995 SC 922 [LNIND 1995 SC 166] ; Vimal
Choudhary v Nagar Nigam, Jaipur, AIR 2004 Raj. 17 .
49. Madhav Hayawadan Rao Hosker v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 3 SCC
544 [LNIND 1978 SC 199] .
50. Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1980) 1 SCC 98
[LNIND 1979 SC 188] .
Page 345 of 467
608 [LNIND 1981 SC 27] .
52. Shehla Zia v WAPDA, (supra).
53. Griffin v Illinois, (1956) 351 US 12.
54. P. Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] . Overruled on another point in Gian Kaur v State of
Punjab, AIR 1996 SC 946 [LNIND 1996 SC 653] : (1996) 2 SCC 648 [LNIND 1996 SC 653] .
55. Bandhua Mukti Morcha v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564] : (1984) 3 SCC 161 [LNIND 1983 SC 564]
(para 10).
56. Peoples’ Union for Democratic Rights v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135] : (1983) 1 SCR 456 [LNIND
1982 SC 135] : (1982) 3 SCC 235 [LNIND 1982 SC 135] .
57. Neeraja v State of M.P., AIR 1984 SC 1099 [LNIND 1984 SC 153] : (1984) 3 SCC 243 [LNIND 1984 SC 153] : 1984
Scale 874 : (1984) 2 Crimes 511 (para 5). See also Bandhua Mukti Morcha v UOI, AIR 1992 SC 38 [LNIND 1991 SC
807] : (1991) 4 SCC 177 [LNIND 1991 SC 807] ; Bandhua Mukti Morcha v UOI, (2000) 9 SCC 322 ; Bandhua Mukti
Morcha v UOI, (2000) 10 SCC 104 .
SCC 545 [LNIND 1985 SC 215] ; D.T.C. v Mazdoor, AIR 1991 SC 101 [LNIND 1990 SC 489] (paras 223, 234, 259) :
1990 (Supp-1) SCR 142 : 1991 (Supp-1) SCC 600; D.D.H.E.U. v Delhi Admn., (1992) 4 SCC 99 [LNIND 1992 SC 123]
(para 20) : AIR 1992 SC 789 [LNIND 1992 SC 123] : (1992) 1 JT 394 : (1992) 2 LLJ 452 [LNIND 1992 SC 123] .
[Contrary view Re, Sant Ram, AIR 1960 SC 932 [LNIND 1960 SC 113] , not consistent with international
understanding]; Board of Trustees v Dilip, AIR 1983 SC 109 [LNIND 1982 SC 167] .
SCC 545 [LNIND 1985 SC 215] ; D.T.C. v Mazdoor, AIR 1991 SC 101 [LNIND 1990 SC 489] (paras 223, 234, 259) :
1990 (Supp-1) SCR 142 : 1991 (Supp-1) SCC 600; D.D.H.E.U. v Delhi Admn., (1992) 4 SCC 99 [LNIND 1992 SC 123]
(para 20) : AIR 1992 SC 789 [LNIND 1992 SC 123] : (1992) 1 JT 394 : (1992) 2 LLJ 452 [LNIND 1992 SC 123] .
[Contrary view Re, Sant Ram, AIR 1960 SC 932 [LNIND 1960 SC 113] , not consistent with international
understanding]; Board of Trustees v Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109 [LNIND 1982 SC 167] :
(1983) 1 SCC 124 [LNIND 1982 SC 167] .
60. Parmanand v UOI, AIR 1989 SC 2039 [LNIND 1989 SC 418] (paras 7, 8) : (1989) 3 SCR 997 [LNIND 1989 SC 418] :
(1989) 4 SCC 286 [LNIND 1989 SC 418] (3 Judges). Consumer Education & Research Centre v UOI, (1995) 3 SCC
421 ; State of Punjab v Mohinder Singh Chawla, (1997) 2 SCC 83 [LNIND 1996 SC 2161] . See also Paschimbanga
Khet Mazdoor Samity v State of West Bengal, AIR 1996 SC 2426 [LNIND 1996 SC 914] : (1996) 4 SCC 487 . See also
P.B. Khet Mazdoor Samity v State of W.B., AIR 1996 SC 2426 [LNIND 1996 SC 914] .
Page 346 of 467
61. Rakesh Chandra v State of Bihar, AIR 1989 SC 348 [LNIND 1988 SC 485] : 1989 (Supp-1) SCC 644.
63. See also Khatri v State of Bihar (II), AIR 1981 SC 928 [LNIND 1980 SC 473] : (1981) 1 SCC 627 [LNIND 1980 SC 473]
.
64. See State of Punjab v Ram Lubbayya Bagga, AIR 1998 SC 1703 [LNIND 1998 SC 245] : (1998) 4 SCC 117 [LNIND
1998 SC 247] .
66. Novartis AG v UOI, (2013) 6 SCC 1 [LNIND 2013 SC 250] : AIR 2013 SC 1311 [LNIND 2013 SC 250] .
67. (2012) 8 SCC 450 [LNIND 2012 SC 459] : AIR 2012 SC 3106 .
68. See also Paschim Bangla Khat Mazdoor Samiti v State of W.B., (1996) 4 SCC 37 [LNIND 1996 SC 914] (supra).
69. Kapoor v UOI, (1989) 3 SCJ 465 (para 4).
70. Chaitanya v State of U.P., (1989) 2 SCJ 204 : AIR 1989 SC 1452 : (1989) 2 SCC 314 . See also Mehmood Nayyar
Azam v State of Chandigarh, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND 2012 SC 456] ;
Raghuvansh Dewanchand Bhasin v State of Maharashtra, AIR 2011 SC 3393 [LNIND 2011 SC 892] : (2012) 9 SCC
791 [LNIND 2011 SC 892] ; Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : 2012 Cr LJ 3516 .
71. Shantistar v Narayan, (1990) 2 SCJ 10 (para 13) (3 Judges).
72. Sodan v N.D.M.C..., (1990) 3 SCJ 431 (para 20), explaining Olga v B.M.C., AIR 1986 SC 180 [LNIND 1985 SC 215] :
1985 (Supp-2) SCR 51 : (1985) 3 SCC 545 [LNIND 1985 SC 215] .
73. Banwasi Seva Ashram v State of U.P., (1986) 4 SCC 753 [LNIND 1986 SC 472] : AIR 1987 SC 374 [LNIND 1986 SC
472] : (1987) 1 SCR 336 (paras 1, 5, 10).
Page 347 of 467
74. Cf. Upendra v State of U.P., (1986) 4 SCC 106 [LNIND 1986 SC 232] : AIR 1987 SC 191 [LNIND 1986 SC 232] (paras
1, 2). See also Prajwala (II) v UOI, (2005) 12 SCC 136 [LNIND 2009 SC 522] . See also Vikram Deo Singh Tomar v
State of Bihar, AIR 1988 SC 1782 [LNIND 1988 SC 287] : (1988) Supp (1) SCR 755 ; Upendra Baxi v State of UP,
(1998) 8 SCC 622 .
75. (2010) 5 SCC 423 : (2010) 1 Scale 546 .
76. See also Peoples’ Union for Civil Liberties v UOI, (2010) 13 SCC 45 : (2010) 13 SCC 63 ; Peoples’ Union for Civil
Liberties (Night Shelter Matters) v UOI, (2011) 14 SCC 723 : (2011) 14 SCC 721 [LNIND 2009 SC 419] : (2011) 14
SCC 129 : (2012) 11 SCC 728 .
77. Board of Trustees v Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109 [LNIND 1982 SC 167] : (1983) 1 SCC
124 [LNIND 1982 SC 167] (para 13). See also State of Bihar v Lal Krishna Advani, AIR 2003 SC 3357 [LNIND 2003
SC 788] : (2003) 8 SCC 361 [LNIND 2003 SC 788] . See also State of Maharashtra v Public Concern for Governance
Trust, (2007) 3 SCC 587 [LNIND 2007 SC 5] .
78. Divine Retreat Centre v State of Kerala, (2008) 3 SCC 542 [LNIND 2008 SC 644] .
79. State of Maharashtra v Public Conern for Governance Trust, AIR 2007 SC 777 [LNIND 2007 SC 5] : (2007) 3 SCC 587
[LNIND 2007 SC 5] .
80. Mohini v State of Karnataka, (1992) 3 SCC 666 [LNIND 1992 SC 465] : AIR 1992 SC 1858 [LNIND 1992 SC 465]
(paras 12, 14). See also Unnikrishnan J.P. v State of A.P., AIR 1993 SC 2178 [LNIND 1993 SC 1110] , wherein it was
held that right to free education upto age of fourteen years is also a fundamental right. Vidyaranya Education Society v
Director of School Education, AIR 1995 AP 295 [LNIND 1995 AP 104] ; Penakshi v State of Orissa, AIR 1995 Ori. 168
[LNIND 1994 ORI 225] .
81. Avishek Goenka v UOI, AIR 2012 SC 2226 [LNIND 2012 SC 268] : (2012) 5 SCC 321 [LNIND 2012 SC 268] ; Avishek
Goenka v UOI (II), (2012) 8 SCC 441 [LNIND 2012 SC 448] : AIR 2012 SC 3230 [LNIND 2012 SC 448] .
82. Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : 2012 Cr LJ 3516 .
83. Peoples’ Union for Civil Liberties (PDS matters) v UOI, (2011) 14 SCC 556 : (2011) 14 SCC 559 [LNIND 2009 SC 951]
: (2011) 14 SCC 561 [LNIND 2009 SC 951] : (2011) 14 SCC 393 ; see also Peoples’ Union for Civil Liberties (Additional
allocation of food-grains for BPL families) v UOI, (2011) 14 SCC 561 : (2010) 1 Scale 546 .
Page 348 of 467
84. LIC of India v Consumer Education & Research Centre, AIR 1995 SC 1811 [LNIND 1995 SC 653] : (1995) 5 SCC 482
[LNIND 1995 SC 653] .
85. Ahmedabad Municipal Corp v Nawab Khan Gulab Khan, AIR 1997 SC 152 [LNIND 1996 SC 1685] ; Consumer
Education and Research Centre v UOI, AIR 1995 SC 922 [LNIND 1995 SC 166] . See also Mangalore Municipal
Market Welfae Society v Corp of Mangalore, AIR 1993 Kant. 220 [LNIND 1992 KANT 356] ; Inderpuri General Store v
UOI, AIR 1992 J&K 11 .
86. M.D. Farooque v State of West Bengal, AIR 1995 Cal 98 [LNIND 1994 CAL 47] .
87. Haniraj L. Chulani v Bar Council of Maharashtra and Goa, AIR 1996 SC 1708 [LNIND 1996 SC 743] : (1996) 3 SCC
342 [LNIND 1996 SC 743] .
88. Chint Ram Ramchand v State of Punjab, AIR 1996 SC 1406 [LNIND 1996 SC 307] .
89. State of W.B. v UOI, AIR 1996 Cal 181 [LNIND 1995 CAL 69] .
90. Consumer Education & Research Centre v UOI, AIR 1995 SC 922 [LNIND 1995 SC 166] : (1995) 3 SCC 42 [LNIND
1995 SC 166] .
91. Niyamakendram, Kochi v Secry. Corp of Cochin, AIR 1997 Ker. 152 [LNIND 1997 KER 410] ; State of Punjab v
Mohinder Singh Chawla, AIR 1997 SC 1225 [LNIND 1996 SC 2157] ; Shantha v State of A.P., AIR 1998 AP 51 [LNIND
1997 AP 102] ; State of Punjab v Ram Lubhaya Bagga, AIR 1998 SC 1703 [LNIND 1998 SC 245] ; Sahil Society for
Welfare of the Aged, Poor and Homeless v UOI, 1999 All 87 ; S.K. Kanitkar v Bhiwandi Nizampura Municipal Coucil,
AIR 2000 Bom 444 [LNIND 2000 GOA 47] ; P.R. Subhash Chandran v Govt of A.P., AIR 2002 AP 272 ; Chander
Prakash v Ministry of Health, AIR 2002 Del 188 [LNIND 2001 DEL 1803] .
92. Rajneesh Kapur v UOI, AIR 2007 MP 204 .
93. Rajesh Kumar v A.P. Verma, AIR 2005 All 175 [LNIND 2006 AP 831] .
94. Narmada Bachao Andolan v UOI, (2000) 10 SCC 664 [LNIND 2000 SC 1361] : JT 2000 (Supp-2 ) SC 6. See also A.P.
Pollution Control Board II v Prof. M.V. Naidu, (2001) 2 SCC 62 [LNIND 2000 SC 1720] ; Subhash Kumar v State of
Bihar, (1991) 1 SCC 598 [LNIND 1991 SC 13] : AIR 1991 SC 420 [LNIND 1991 SC 13] .
Page 349 of 467
95. Delhi Water Supply & Sewage Disposal Undertaking v State of Haryana, AIR 1996 SC 2992 : (1996) 2 SCC 572 . See
also Shajiman Joseph v State of Kerala, AIR 2007 (NOC) 547 Ker..
96. Murlidhar Dayandeo Kesekar v Viswanath Pandu Barde, 1995 (Supp-2) SCC 549 : JT (1995) 3 SC 563 [LNIND 1995
SC 277] .
97. Dalmia Cement (Bhora) Ltd v UOI, (1996) 10 SCC 104 [LNIND 1996 SC 2555] : JT (1996) 4 SC 555 .
98. K. Sai Reddy v Dy. Executive Engineer, I & CAD, Nampally, AIR 1995 AP 208 [LNIND 1995 AP 133] ; R. Kanakamma v
Dt. Collector, Nellore, 1996 AIHC 2393 (AP).
99. Chameli Singh v State of U.P., AIR 1996 SC 1051 [LNIND 1995 SC 1370] .
1. Capt. M. Paul Anthony v Bharat Gold Mines Ltd, AIR 1999 SC 1416 : (1999) 3 SCC 679 ; O.P. Gupta v UOI, (1987) 4
2. Paramanand Katara v UOI, (1995) 3 SCC 248 . See also Prof. S.N. Hegde v The Lokayukta, AIR 2004 (NOC) 169
Kant..
3. A.R. Autulay v Nayak, (1992) 1 SCC 225 [LNIND 1991 SC 673] : AIR 1992 SC 1701 [LNIND 1991 SC 673] .
4. See also Surinder Singh v State of Punjab, (2005) 7 SCC 387 [LNIND 2005 SC 675] . See also Radhe Shyam v State
of M.P., 1995 AIHC 3307 (MP); Bijan Bihari Gupta v State of W.B., 1995 AIHC 3309 (Cal); Shaheen Welfare
Association v UOI, AIR 1996 SC 2957 [LNIND 1996 SC 2747] .
5. State of Maharashtra v Manubhai Pragaji Vashi, AIR 1996 SC 1 [LNIND 1995 SC 788] .
6. P.G. Gupta v State of Gujarat, 1995 (Supp-2) SCC 182. See also Ahmedabad Municipal Corp v Nawab Khan Gulab
Khan, AIR 1997 SC 152 [LNIND 1996 SC 1685] ; Kasmal Nagar Welfare Associatioin v Govt of A.P., 2000 AP 132 .
Page 350 of 467
8. See UP Avas Evam Vikas Parishad v Friends Co-op. Housing Society Ltd, AIR 1996 SC 114 [LNIND 1995 SC 566] :
1995 (Supp-3) SCC 456; J.P. Ravidas v Navyuvak Uthapan Multi Unit Industrial Co-op. Society Ltd, AIR 1996 SC 2151
[LNIND 1996 SC 774] : (1997) 6 SCC 378 [LNIND 1996 SC 774] ; Ahmedabad Municipal Corpn v Nawab Khan Gulab
Khan, AIR 1997 SC 152 [LNIND 1996 SC 1685] : (1997) 11 SCC 121 [LNIND 1996 SC 1685] ; P.G. Gupta v State of
Gujarat, 1995 (Supp-2) SCC 182; State of Karnataka v Narasimhamurthy, AIR 1996 SC 90 [LNIND 1995 SC 775] :
(1995) 5 SCC 524 [LNIND 1995 SC 775] .
9. Shantistar Builders v Narayan Khimlal Totame, (1990) 1 SCC 520 [LNIND 1995 SC 1144] .
10. See Philip Alston and Mary Robinson edited Chapter IV, “Democracy and Right to Food” of Human Rights and
Development: Towards Mutual Reinforcement,
11. See also People’s Union for Civil Liberties v UOI, (2004) 12 SCC 104 [LNIND 2009 SC 951] .
12. Hussainara Khatoon v State of Bihar, AIR 1979 SC 1360 . See also Sabura Textiles v V.S. Krishamoorthy, 2001 Mad
LJ (Criminal) 269 (Mad); Aktari Bi v State of M.P., (2001) 4 SCC 355 [LNIND 2001 SC 765] : 2001 Mad LJ (Criminal)
558 (SC); Usha Ahuja v State of Haryana, AIR 1999 SC 3242 [LNIND 1999 SC 1672] : (1999) 7 SCC 486 [LNIND
1999 SC 1672] . See also Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2013 SC 3648 [LNIND 2013 SC 1400]
: (2013) 9 SCC 500 [LNIND 2013 SC 1400] .
13. Mohd. Hussain v State (Govt. of NCT of Delhi), (2012) 9 SCC 408 [LNIND 2012 SC 14] : (2012) Cr LJ 4537 (SC); see
also Gopi Chand v Delhi Admn., AIR 1959 SC 609 [LNIND 1959 SC 8] : (1959) Cr LJ 782 ; Abdul Rehman Antulay v
R.S. Nayak, (1992) 1 SCC 225 [LNIND 1991 SC 673] ; Kartar Singh v State of Punjab, (1994) 3 SCC 569 ; P.
Ramachandra Rao v State of Karnataka, (2002) 4 SCC 578 [LNIND 2002 SC 296] : AIR 2002 SC 1856 [LNIND 2002
SC 296] ; Tyron Nazareth v State of Goa, 1994 (Supp-3) SCC 321 : 1994 SCC (Cr) 1716; Phoolan Devi v State of MP,
(1996) 11 SCC 19 [LNIND 1996 SC 2945] : (1996) 10 JT 633 ; Zahira Habibullah H. Sheik v State of Gujarat, AIR 2004
SC 3114 [LNIND 2004 SC 471] : (2004) 4 SCC 158 [LNIND 2004 SC 471] ; Satyajit Banerjee v State of WB, (2005) 1
SCC 115 [LNIND 2004 SC 1171] ; Mohd. Hussain v State (Govt. of NCT of Delhi), (2012) 2 SCC 584 [LNIND 2012 SC
14] ; Sudarshanacharya v Purushottamacharya, (2012) 9 SCC 241 [LNIND 2012 SC 530] : (2012) Cr LJ 4559 ;
Rattiram v State of MP, AIR 2012 SC 1485 [LNIND 2012 SC 129] : (2012) 4 SCC 516 [LNIND 2012 SC 129] : (2012)
Cr LJ 1769 ; Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579] : (2012) 8 SCC 495 [LNIND 2012 SC
1579] ; Niranjan Hemachandra Sashittal v State of Maharashtra, AIR 2013 SC 1682 [LNIND 2013 SC 1217] : (2013) 4
SCC 642 [LNIND 2013 SC 1217] .
14. See also State of Bihar v Uma Shankar Kotriwal, AIR 1981 SC 641 [LNIND 1980 SC 495] : (1981) 1 SCC 75 [LNIND
1980 SC 499] : (1981) 2 SCR 402 [LNIND 1980 SC 499] ; Kadra Pahadiya v State of Bihar, AIR 1982 SC 1167 [LNIND
1980 SC 493] ; Sheela Borse v UOI, AIR 1986 SC 1173 [LNIND 1986 SC 169] : (1986) 3 SCR 562 : (1986) 3 SCC 632
; Raghbir Singh v State of Bihar, AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481 [LNIND 1986 SC 336] :
(1986) 3 SCR 802 [LNIND 1986 SC 336] ; State of Andhra Pradesh v P.V. Pavithran, AIR 1990 SC 1266 [LNIND 1990
Page 351 of 467
SC 120] : (1990) 2 SCC 340 [LNIND 1990 SC 120] . See also Brij Mohan Lal v UOI, (2012) 6 SCC 502 [LNIND 2012
SC 1201] : (2012) 4 Scale 450 [LNIND 2012 SC 1201] .
15. Diwan Nanbat Rai v State (Delhi Administration), AIR 1989 SC 542 . But see Stephen T.J. v Parle Bottling Co Pvt Ltd,
AIR 1988 SC 994 [LNIND 1988 SC 186] : (1988) 3 SCR 296 [LNIND 1988 SC 186] . Salem Advocate Bar Association
v UOI, AIR 2005 SC 3353 [LNIND 2005 SC 573] : (2005) 6 SCC 344 [LNIND 2005 SC 573] . See also Aktari Bi v State
of M.P., (2001) 4 SCC 355 [LNIND 2001 SC 765] ; Rajdeo Sharma (II) v State of Bihar, (1997) 2 SCC 604 ; Usha Ahuja
v State of Haryana, AIR 1999 SC 3242 [LNIND 1999 SC 1672] : (1999) 7 SCC 486 [LNIND 1999 SC 1672] .
16. Madhu Mehta v UOI, AIR 1989 SC 2299 [LNIND 1989 SC 390] : (1989) 4 SCC 62 [LNIND 1989 SC 390] .
17. Zahira Habibulla H. Sheikh v State of Gujarat, (2004) 4 SCC 158 [LNIND 2004 SC 471] .
18. Kalyani Baskar (Mrs.) v M.S. Sampoornam, (2007) 2 SCC 258 [LNIND 2006 SC 1125] .
19. Zahira Habibullah H. Sheik v State of Gujarat, AIR 2004 SC 3114 [LNIND 2004 SC 471] : (2004) 4 SCC 158 [LNIND
2004 SC 471] .
20. Varkey Joseph v State of Kerala, AIR 1993 SC 1892 [LNIND 1993 SC 403] : 1993 (Supp-3) SCC 745.
21. Pratap Singh v State of Jharkhand, AIR 2005 SC 2731 [LNIND 2005 SC 100] : (2005) 3 SCC 551 [LNIND 2005 SC
100] .
22. Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2013 SC 3648 [LNIND 2013 SC 1400] : (2013) 9 SCC 500
[LNIND 2013 SC 1400] .
23. Karan Singh v State of Haryana, AIR 2013 SC 2348 [LNIND 2013 SC 547] : (2013) 12 SCC 529 [LNIND 2013 SC 547]
.
24. Kharak Singh v State of U.P., (1964) 1 SCR 332 [LNIND 1962 SC 436] : AIR 1963 SC 1295 [LNIND 1962 SC 436] .
25. Gobind v State of M.P., (1975) 2 SCC 148 [LNIND 1975 SC 124] : AIR 1975 SC 1378 [LNIND 1975 SC 124] : (1975) 3
SCR 946 [LNIND 1975 SC 124] .
Page 352 of 467
26. R. Rajagopal v State of T.N., (1994) 6 SCC 632 [LNIND 1994 SC 958] : AIR 1995 SC 264 [LNIND 1994 SC 958] .
27. People’s Union for Civil Liberties v UOI, (1997) 1 SCC 301 : AIR 1997 SC 568 [LNIND 1996 SC 2173] ; “X” v Hospital
“Z”, (1998) 8 SCC 296 [LNIND 1998 SC 1239] : AIR 1999 SC 495 [LNIND 1998 SC 1239] ; People’s Union for Civil
Liberties v UOI, (2003) 4 SCC 399 [LNIND 2003 SC 342] : AIR 2003 SC 2363 [LNIND 2003 SC 342] ; Sharda v
Dharmpal, (2003) 4 SCC 493 [LNIND 2003 SC 366] : AIR 2003 SC 3450 [LNIND 2003 SC 366] ; District Registrar &
Collector v Canara Bank, (2005) 1 SCC 496 [LNIND 2004 SC 1478] : AIR 2005 SC 186 [LNIND 2004 SC 1478] .
28. See Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : (2012) 2 Scale 682 ; see also Malak Singh v
State of P&H, AIR 1981 SC 760 [LNIND 1980 SC 476] : (1981) 1 SCC 420 [LNIND 1980 SC 476] ; State of
Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207 [LNIND 1990 SC 610] : (1991) 1 SCC 57 [LNIND 1990
SC 610] ; Mr. X v Hospital Z, AIR 1999 SC 495 [LNIND 1998 SC 1239] : (2000) 9 SCC 439 ; Sharda v Dharmpal, AIR
2003 SC 3450 [LNIND 2003 SC 366] : (2003) 4 SCC 493 [LNIND 2003 SC 366] ; Peoples’ Union for Civil Liberties v
UOI, AIR 2003 SC 2363 [LNIND 2003 SC 342] : (2003) 4 SCC 399 [LNIND 2003 SC 342] ; Bhavesh Jayanti Lakhani v
State of Maharashtra, (2009) 9 SCC 551 [LNIND 2009 SC 1646] : (2009) 11 Scale 467 [LNIND 2009 SC 1646] ; Selvi v
State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
29. See Ram Jethmalani v UOI, (2011) 8 SCC 1 [LNIND 2011 SC 568] : (2011) 6 Scale 691 [LNIND 2011 SC 568] .
30. Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438]
(supra).
31. Bhabani Prasad Jena v Orissa State for Commission for Women, AIR 2010 SC 2851 [LNIND 2010 SC 694] : (2010) 8
SCC 633 [LNIND 2010 SC 694] .
32. Avishek Goenka v UOI, AIR 2012 SC 2226 [LNIND 2012 SC 268] : (2012) 5 SCC 321 [LNIND 2012 SC 268] .
33. Hinsa Virodhak Sangh v Mirzapur Moti Kureshi Jamaat, AIR 2008 SC 1892 [LNIND 2008 SC 692] : (2008) 5 SCC 33
[LNIND 2008 SC 692] .
34. Directorate of Revenue v Mohd. Nisar Holia, (2008) 2 SCC 370 [LNIND 2007 SC 1414] : AIR 2009 SC 1032 [LNIND
2008 SC 2461] .
35. (2008) 13 SCC 5 [LNIND 2008 SC 1743] : (2008) 12 Scale 167 [LNIND 2008 SC 1743] .
Page 353 of 467
36. Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 [LNIND 2009 SC 1646] : (2009) 11 Scale 467
[LNIND 2009 SC 1646] .
37. Noise Pollution, Re, AIR 2005 SC 3136 : (2005) 5 SCC 733 . See also N.D. Jayal v UOI, AIR 2004 SC 867 [LNIND
2003 SC 1171] : (2004) 9 SCC 362 [LNIND 2003 SC 1171] . See also Farhad Wadia v UOI, (2009) 2 SCC 442 [LNIND
2008 SC 2382] : (2009) 1 Scale 293 .
38. Milkmen Colony Vikas Samiti v State of Rajasthan, (2007) 2 SCC 413 [LNIND 2007 SC 57] : AIR 2007 SC 1046
[LNIND 2007 SC 57] .
39. Reliance Infocom Ltd v Chemancherry Gram Panchayat, AIR 2007 Ker. 33 [LNIND 2006 KER 698] .
40. P.A. Jacob v Supt. of Police, Kottayam, AIR 1993 Ker. 1 [LNIND 1992 KER 217] .
41. Blue Nile Advertising Pvt Ltd v Commr., (2005) AIHC 970 (Kant). See also Justice R.S. Verma v State of Rajasthan,
AIR 2004 Raj. 175 .
43. Peoples’ Union for Civil Liberties v UOI, AIR 2008 SC 495 [LNIND 2007 SC 1346] : (2009) 16 SCC 149 [LNIND 2007
SC 830] .
44. Democratic Youth Federation of India v UOI, (2011) 15 SCC 530 : (2011) 11 Scale 398 ; see also later orders in the
same case (2011) 15 SCC 468 : (2011) 15 SCC 528 : (2011) 15 SCC 570 .
45. G. Sundararajan v UOI, (2013) 6 SCC 620 [LNIND 2013 SC 509] : (2013) 7 Scale 102 [LNIND 2013 SC 509] .
46. Kalyaneshwari v UOI, (2011) 3 SCC 287 [LNIND 2011 SC 93] : (2011) 1 Scale 651 [LNIND 2011 SC 93] . See also
Consumer Education and Research Centre v UOI, (1995) 3 SCC 42 [LNIND 1995 SC 166] : AIR 1995 SC 922 [LNIND
1995 SC 166] .
47. Gujarat Ambuja Cements Ltd v Chavi Raj Singh, (2007) 15 SCC 632 .
Page 354 of 467
48. D.K. Basu v State of W.B., AIR 1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND 1996 SC 2177] . See
also Sukhla Abdul Gafar v Vasant Raghunath Dhoble, AIR 2003 SC 4567 [LNIND 2003 SC 653] .
49. D.K. Basu v State of W.B., (2002) 10 SCC 741 . See also D.K. Basu v State of W.B., (2003) 11 SCC 725 ; D.K. Basu v
State of W.B., (2003) 11 SCC 723 ; Kartar Singh v State of Punjab, (1994) 3 SCC 569 . Also see Article “Custodial
Atrocities, Human Rights and Judiciary, Notes and Comments” by Jitendra Misra, Journal of Indian Law Institute, Vol 47
(2005), p 508.
50. Shakila Abdul Gafar Khan v Vasanth Raghunath Dhobe, (2003) 7 SCC 749 [LNIND 2003 SC 653] . State of M.P. v
Shyam Sunder Trivadi, (1995) 4 SCC 262 [LNIND 1995 SC 644] ; Munshi Singh Gautham v State of M.P., AIR 2005
SC 402 [LNIND 2004 SC 1140] : (2005) 9 SCC 631 [LNIND 2004 SC 1140] . See also Vinay Kanodia v J.P. Singh,
(2013) 2 SCC 582 [LNIND 2013 SC 50] : (2013) 1 Scale 560 [LNINDORD 2013 SC 9971] .
51. State of Maharashtra v Saeed Sohail Sheik, AIR 2013 SC 168 [LNINDORD 2012 SC 393] : (2012) 13 SCC 192
[LNIND 2012 SC 1107] : (2013) Cr LJ 214 .
52. Rohtash Kumar v State of Haryana, (2013) 14 SCC 290 [LNIND 2013 SC 105] : (2013) Cr LJ 1518 ; see also Nilabeti
Behera v State of Orissa, (1993) 2 SCC 746 [LNIND 1993 SC 1167] : AIR 1993 SC 1960 [LNIND 1993 SC 1167] .
54. See also Ramlila Maidan Incident v Home Secretary UOI, (2012) 5 SCC 1 : 2012 Cr LJ 3516 : (2012) 2 Scale 682 .
56. See also Rubabhuddin Sheik v State of Gujarat, (2009) 17 SCC 653 [LNIND 2009 SC 1667] : (2009) 13 Scale 63 ;
Jaywant P. Sankpal v Suman Ghalop, (2010) 11 SCC 208 [LNIND 2010 SC 672] : (2010) 7 Scale 540 ; Commr v
Shivakka, (2011) 12 SCC 419 : (2011) 2 Scale 422 .
57. Prakash Kadam v Ramprasad Viswanath Gupta, AIR 2011 SC 1945 [LNIND 2011 SC 2627] : (2011) 6 SCC 189
[LNIND 2011 SC 2627] .
58. Anil Yadav v State of Bihar, (1981) 1 SCC 622 ; Khatri v State of Bihar, (1981) 1 SCC 635 [LNIND 1982 SC 16] : AIR
1981 SC 928 [LNIND 1980 SC 473] . See also Khatri (IV) v State of Bihar, (1981) 2 SCC 493 [LNIND 1981 SC 146] :
AIR 1981 SC 1068 [LNIND 1981 SC 146] .
59. Nilabeti Behera v State of Orissa, (1993) 2 SCC 746 [LNIND 1993 SC 1167] : AIR 1993 SC 1960 [LNIND 1993 SC
1167] : (1993) 2 SCR 581 [LNIND 1993 SC 1167] ; Rudul Sah v State of Bihar, (1983) 4 SCC 141 [LNIND 1983 SC
181] : AIR 1983 SC 1086 [LNIND 1983 SC 181] ; Bhim Singh v State of J&K, (1985) 4 SCC 677 [LNIND 1985 SC 350] :
AIR 1986 SC 494 [LNIND 1985 SC 350] ; People’s Union for Democratic Rights v Police Commissioner, (1993) 2 SCC
746 [LNIND 1993 SC 1167] . See also Qamar Sultana v Commr. Municipal Corp of Hydrabad, AIR 1995 AP 230
[LNIND 1995 AP 109] .
60. People’s Union for Civil Liberties v UOI, AIR 1997 SC 1203 [LNIND 2003 SC 1103] : (1997) 3 SCC 433 [LNIND 2003
SC 1103] . See also Shri Dino DG Dympep v State of Meghalaya, AIR 2007 Gau 155 [LNIND 2007 GAU 182] .
61. Sube Singh v State of Haryana, (2006) 3 SCC 178 [LNIND 2006 SC 78] .
62. See M.C. Mehta v UOI, (1987) 1 SCC 395 [LNIND 1986 SC 539] : AIR 1987 SC 1086 [LNIND 1986 SC 539] : (1987) 1
SCR 819 [LNIND 1986 SC 539] .
Page 355 of 467
63. Danial Latifi v UOI, (2001) 7 SCC 740 [LNIND 2001 SC 2181] : AIR 2001 SC 3958 [LNIND 2001 SC 2181] : 2001
(Supp-3) SCR 419. See also Param Lal Burman v Ravi Kumar Sharma, AIR 2000 MP 299 [LNIND 2000 MP 159] . See
also Ramlila Maidan Incident v Home Secretary UOI, (2012) 5 SCC 1 : (2012) 2 Scale 682 : 2012 Cr LJ 3516 ; Hardeep
Singh v State of MP, (2012) 1 SCC 748 [LNINDU 2011 SC 18] ; Maharashtra University of Health Sciences v
Satchikitsa Prasarak Mandal, AIR 2010 SC 1325 [LNIND 2010 SC 202] : (2010) 3 SCC 786 [LNIND 2010 SC 202] ;
Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
64. Bandhu Mukti Morcha v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564] : (1984) 3 SCC 161 [LNIND 1983 SC 564] .
65. Vikram Deo Singh Tomar v State of Bihar, 1988 (Supp-1) SCR 755 : AIR 1988 SC 1782 [LNIND 1988 SC 287] . See
also Prajwala (I) v UOI, (2005) 12 SCC 135 ; Prajwala (II) v UOI, (2005) 12 SCC 136 [LNIND 2009 SC 522] .
66. Gajresh Venketray Anrekar v State of Karnataka, AIR 2013 SC 329 [LNIND 2013 SC 4] : (2013) 3 SCC 462 [LNIND
2013 SC 4] .
67. See Inspector General of Police v S. Samuthiram, AIR 2013 SC 14 [LNIND 2012 SC 755] : (2013) 1 SCC 598 [LNIND
2012 SC 755] .
68. Budhadev Karmaskar v State of WB, (2011) 11 SCC 538 [LNIND 2011 SC 176] : (2011) 2 Scale 435 [LNIND 2011 SC
176] : 2011 Cr LJ 1684 .
69. See also in the same case (2011) 10 SCC 351 [LNIND 2011 SC 176] : (2011) 10 SCC 277 [LNIND 2011 SC 916] : AIR
2011 SC 2636 [LNIND 2011 SC 708] : (2011) 10 SCC 283 [LNIND 2011 SC 176] : (2011) 10 SCC 354 [LNIND 2011
SC 176] .
73. Joginder Kumar Singh v Commissioner, Govt. of NCT of Delhi, AIR 2005 Del 258 [LNIND 2005 DEL 80] (FB).
74. B.L. Wadchra (Dr.) v UOI, AIR 1996 SC 2699 [LNIND 1996 SC 1255] : (1996) 2 SCC 594 [LNIND 1996 SC 522] .
75. M.C. Mehta v UOI, AIR 2004 SC 4016 [LNIND 2004 SC 367] : (2004) 12 SCC 118 [LNIND 2004 SC 367] ; Subhash
Kumar v State of Bihar, AIR 1991 SC 420 [LNIND 1991 SC 13] : (1991) 1 SCC 598 [LNIND 1991 SC 13] .
76. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] .
77. D.K. Basu v State of W.B., AIR 1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND 1996 SC 2177] .
2012 SC 456] ; see also D.K. Basu v State of WB, (supra); Joginder Kumar v State of UP, (1994) 4 SCC 260
[LNINDORD 1994 SC 51] ; Nilabeti Behera v State of Orissa, AIR 1993 SC 1960 [LNIND 1993 SC 1167] : (1993) 2
SCC 746 [LNIND 1993 SC 1167] ; Sube Singh v State of Haryana, (2006) 3 SCC 178 [LNIND 2006 SC 78] ; Hardeep
Singh v State of MP, (2012) 1 SCC 748 [LNINDU 2011 SC 18] : AIR 2012 SC 1751 [LNINDU 2011 SC 18] .
79. Gian Kaur v State of Punjab, (1996) 2 SCC 648 [LNIND 1996 SC 653] .
81. P. Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : (1994) 3 SCC 394 [LNIND 1994 SC 1533] .
Page 356 of 467
82. Paramanand Ketara v UOI, (1995) 3 SCC 248 . See also All India Anna D.M.K. v K. Govindankutty, 1996 AIHC 4509
(AP).
83. Ashray Adhikar Abhiyam v UOI, AIR 2002 SC 554 [LNIND 2002 SC 16] : (2002) 2 SCC 27 [LNIND 2002 SC 16] .
84. Chandra Rajkumari v Police Commr., Hyderabad, AIR 1998 AP 302 [LNIND 1997 AP 1064] .
85. Nirmal Singh Sahu v State of M.P., 1999 AIHC 4237 (MP).
86. Union Pacific Railway Co v Botsford, 141 US 250.
87. Buck v Bell, 274 US 200.
88. Katz v US, 389 US 347 : 19 LEd 2d 576.
89. Olmstead v United States, 277 US 438 : 72 LEd 944.
90. People’s Union for Civil Liberties v UOI, AIR 1997 SC 568 [LNIND 1996 SC 2173] : (1997) 1 SCC 301 . See also M.K.
Chandran v Commr. of Police, Kochin, AIR 1998 Ker. 347 [LNIND 1998 KER 170] . See also State of Maharashtra v
Madhukar Narayan Mardikar, AIR 1991 SC 207 [LNIND 1990 SC 610] : (1991) 1 SCC 57 [LNIND 1990 SC 610] ;
Neera Mathur v LIC, (1992) 1 SCC 286 [LNIND 1991 SC 576] ; Amar Singh v UOI, (2011) 7 SCC 69 [LNIND 2011 SC
516] ; see also Amar Singh v UOI, (2011) 7 SCC 90 : (2006) 2 Scale 698 .
91. Sharda v Dharmpal, AIR 2003 SC 3450 [LNIND 2003 SC 366] : (2003) 4 SCC 493 [LNIND 2003 SC 366] .
92. Sharda v Dharmpal, AIR 2003 SC 3450 [LNIND 2003 SC 366] : (2003) 4 SCC 493 [LNIND 2003 SC 366] (supra).
93. Selvi v State of Karnataka, (2010) 7 SCC 263 [LNIND 2010 SC 438] : AIR 2010 SC 1974 [LNINDORD 2010 SC 207] .
94. R. v Broadcasting Standards Commission, (2000) 3 All ER 898 .
95. Gobind v State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124] : (1975) 2 SCC 148 [LNIND 1975 SC 124] .
96. Marchx v Belgium, (1979) 2 EHRR 330 .
1. See also Harrow London BC v Quazi, (2003) 4 All ER 461 .
2. Meyer v Nebraska, (1923) 262 US 390.
3. Roe v Wade, (1973) 410 US 113.
5. See Edwin Shorts & Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, 1998 Edn, p 363.
6. R. v Broadcasting Standards Commission, (2000) 3 All ER 898 .
7. Benazir Bhutto v President of Pakistan, PLD 1998 SC 388 . Also see Article “The Right to Privacy with Era of Smart
Governance – Concern Raised by the Introduction of Biometric–enabled National ID Cards in India” by Sheetal Asrani;
Damm- Legal Associates, World Bank-Journal of Indian Law Institute, Vol 47, 2005 Edn, p 53.
8. Bodhisattwa Gautham v Subhira Chakroborthy, AIR 1996 SC 922 [LNIND 1995 SC 1314] : (1996) 1 SCC 490 [LNIND
1995 SC 1314] . See also State of M.P. v Munna Choubey, AIR 2005 SC 682 [LNIND 2005 SC 72] : (2005) 2 SCC 710
[LNIND 2005 SC 72] ; State of H.P. v Shree Kant Stekari, AIR 2004 SC 4404 [LNIND 2004 SC 921] : (2004) 8 SCC
153 [LNIND 2004 SC 921] ; State of Punjab v Ramdev Singh, AIR 2004 SC 1290 [LNIND 2003 SC 1106] : (2004) 1
SCC 421 [LNIND 2003 SC 1106] . See also Ahmedabad Municipal Corpn v Nawab Khan Gulab Khan, AIR 1997 SC
Page 357 of 467
152 [LNIND 1996 SC 1685] . See also Mohd. Iqbal v State of Jharkhand, (2013) 14 SCC 481 [LNIND 2013 SC 679] :
AIR 2013 SC 3077 [LNIND 2013 SC 679] ; Pushpanjali Sahu v State of Orissa, (2012) 9 SCC 705 [LNIND 2012 SC
579] ; State of MP v Sk. Shahid, (2009) 12 SCC 715 [LNIND 2009 SC 867] : AIR 2009 SC 2951 [LNIND 2009 SC 867] .
9. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : (2013) 7 SCC 675 [LNIND 2013 SC
533] .
10. Shyam Narain v State (NCT of Delhi), AIR 2013 SC 2209 [LNIND 2013 SC 534] : (2013) 7 SCC 77 [LNIND 2013 SC
534] .
11. Samatha v State of A.P., AIR 1997 SC 3297 [LNIND 1997 SC 935] .
12. Anukul Chandra Pradhan v UOI, AIR 1997 SC 2814 .
13. Pragathi Vargheese v Cyril George Vargheese, AIR 1997 Bom 349 [LNIND 1997 BOM 513] .
14. Tarun Bora v State of Assam, AIR 2002 SC 2926 [LNIND 2002 SC 489] .
15. Vishaka v State of Rajasthan, AIR 1997 SC 3011 [LNIND 1997 SC 1081] : (1997) 6 SCC 241 [LNIND 1997 SC 1081] .
16. See also Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC 625 [LNIND 1999 SC 33] : (1999) 1 SCC
759 [LNIND 1999 SC 33] .
17. Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC 625 [LNIND 1999 SC 33] : (1999) 1 SCC 759 [LNIND
1999 SC 33] ; see also S. Lalitha Sundaram v R. Kethar Nathan, AIR 2002 Mad. 17 [LNIND 2001 MAD 722] .
18. (2013) 1 SCC 311 : (2004) 5 Scale 573 .
19. Vishaka v State of Rajasthan, AIR 1997 SC 3011 [LNIND 1997 SC 1081] : (1997) 6 SCC 241 [LNIND 1997 SC 1081]
(supra).
20. See M.P. Jain, Indian Constitutional Law, 2014 Edn, p 1168. But see Subeena Faikage v UOI, AIR 2013 SC 189
[LNIND 2012 SC 660] : (2013) 1 SCC 262 [LNIND 2012 SC 660] where the court said that right under Article 21 is
available only against the State and not against private individuals.
21. Hussainara Khatoon v State of Bihar, AIR 1979 SC 1360 : (1980) 1 SCC 93 [LNIND 1979 SC 155] .
22. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] ; Satwant
Singh v D. Ramarathnam, (1967) 3 SCR 525 [LNIND 1967 SC 427] : AIR 1967 SC 1836 [LNIND 1967 SC 126] . See
also Sri-La-Sri Arunagirinathar Sri Gnananda Desika Paramacharya Swamigal, Madurai v State of Tamil Nadu, AIR
1989 Mad. 3 [LNIND 1987 MAD 25] ; ICICI Ltd v Passport Officer, Bangalore, AIR 2002 Kant. 118 [LNIND 2001 KANT
364] .
23. Sri. La. Sri Arunagirinathar v State of T.N., AIR 1989 SC 3 .
24. ICICI Ltd v Passport Office, Bangalore, AIR 2002 Kant. 118 [LNIND 2001 KANT 364] .
25. Mohini Jain (Miss) v State of Karnataka, (1992) 3 SCC 666 [LNIND 1992 SC 465] : AIR 1992 SC 1858 [LNIND 1992
SC 465] .
26. Unnikrishnan J.P. v State of Andhra Pradesh, AIR 1993 SC 2178 [LNIND 1993 SC 1110] : (1993) 1 SCC 645 [LNIND
1993 SC 1110] . See also Sathyavan Kottarekara v State of Kerala, AIR 1997 Ker. 133 [LNIND 1996 KER 356] ,
wherein it was held that right to education uninterrupted by any outside forces, political or otherwise is a fundamental
right under Article 21 read with Articles 39, 41, 45 and 46 which will make life meaningful and purposeful; Governing
Page 358 of 467
Body, Salandi Mahavidyalaya v State of Orissa, 1998 AIHC 3266 (Ori); Ravneet Kaur v CMC, Ludhiana, AIR 1998
P&H. 1 .
27. AIR 1993 Del 117 .
28. Sambhavana v University of Delhi, (2013) 14 SCC 781 [LNIND 2013 SC 1218] : (2013) 5 LW 289 : AIR 2013 SC 3825
[LNIND 2013 SC 1218] .
29. State of Tamil Nadu v K. Shyam Sundar, (2011) 8 SCC 737 [LNIND 2011 SC 738] : (2011) 5 LW 97 : (2011) 4 SCC
874 .
30. State of H.P. v H.P. State Recognized and Aided Schools Managing Committee, (1995) 4 SCC 507 : JT 1995 (8) SC
406 . See also Amarjeet Jena v Council for Higher Secondary Education, AIR 1999 Ori. 129 [LNIND 1998 ORI 178] ;
Sanjeev Chhajer v Jai Narayan Vyas University, AIR 2000 Raj. 166 ; Gramvikas Shikshan Prasarak Mandal v State of
Maharashtra, AIR 2000 Bom 437 [LNIND 2000 BOM 240] .
31. Balbir Thomas v Centre for Cellular & Molecular Biology, AIR 1997 AP 167 [LNIND 1997 AP 44] ; Unnikrishnan J.P. v
State of Andhra Pradesh, AIR 1993 SC 2178 [LNIND 1993 SC 1110] : (1993) 1 SCC 645 [LNIND 1993 SC 1110] .
32. See Society for Unaided Private School of Rajasthan v UOI, AIR 2012 SC 3445 [LNIND 2012 SC 236] : (2012) 6 SCC
1 [LNIND 2012 SC 236] .
33. (2012) 6 SCC 1 [LNIND 2012 SC 236] : AIR 2012 SC 3445 [LNIND 2012 SC 236] (supra).
34. See Helen Fenwick, Civil Liberties, 1994 Edn, p 65.
35. See Philip Alston and Mary Robinson, (edited), Human Rights and Development: Towards Mutual Reinforcement, 1st
Indian Edn, 2006, Chapter XI, “Human Rights and Public Goods – Education as a fundamental Right in India”, pp 262–
64.
36. Mullipudi Mukunda Rao v S.I. of Police, AIR 2004 (NOC) 366 AP : 2003 (2) DN WR 87. See also Sukesh Chander
Khajuria v State of J&K, AIR 1994 J&K 73 ; Ramachandra Tandi v State of Orissa, AIR 1994 Ori. 228 [LNIND 1994 ORI
169] ; P. Cheriyakoya v UOI, AIR 1994 Ker. 27 [LNIND 1993 KER 280] .
37. Sathyavan Kotharakara v State of Kerala, AIR 1997 Ker. 133 [LNIND 1996 KER 356] .
38. A. Balasubramaniam v Secy. to Govt. Education Dept., AIR 1996 Mad. 95 [LNIND 1995 MAD 157] .
39. Raghunath Dwivedi v Vice-Chancellor, University of Allahabad, AIR 1996 All 52 [LNIND 1995 ALL 536] .
40. M.R. Sivakumar v State of Tamil Nadu, AIR 1999 Mad. 187 [LNIND 1998 MAD 514] .
41. AIIMS Students Union v AIIMS, AIR 2001 SC 3262 [LNIND 2001 SC 1804] : (2002) 1 SCC 428 [LNIND 2001 SC
1804] .
42. T.M.A. Pai Foundation v State of Karnataka, (2002) 8 SCC 481 [LNIND 2002 SC 681] : JT 2002 (9) SC 1 [LNIND 2002
SC 681] . See also Nikhil Himthani v State of Uttarakhand, (2013) 10 SCC 237 [LNINDORD 2013 SC 2884] : (2013) 10
Scale 174 ; Pradeep Jain v UOI, (1984) 3 SCC 654 [LNIND 1984 SC 165] ; Magan Mehrotra v UOI, (2003) 11 SCC 186
: (2003) 3 Scale 101 ; Saurabh Chaudri v UOI, (2003) 11 SCC 146 [LNIND 2003 SC 950] : AIR 2004 SC 361 [LNIND
2003 SC 950] ; Jagadish Saran v UOI, (1980) 2 SCC 768 [LNIND 1980 SC 35] .
43. Islamic Academy of Education v State of Karnataka, (2003) 6 SCC 697 [LNIND 2003 SC 667] : AIR 2003 SC 3724
[LNIND 2003 SC 667] .
Page 359 of 467
44. P.A. Inamder v State of Maharashtra, AIR 2005 SC 3226 [LNIND 2005 SC 614] : (2005) 6 SCC 537 [LNIND 2005 SC
614] .
45. (2008) 3 SCC 315 [LNIND 2008 SC 85] : [2008] 1 SCR 908 .
46. See also Ashok Kumar Thakur v UOI, (2008) 6 SCC 1 [LNIND 2008 SC 873] : [2008] 4 SCR 1 [LNIND 2008 SC 873] .
47. Maria Grace Rural Middle School v Govt of Tamil Nadu, AIR 2007 Mad. 52 [LNIND 2006 MAD 2593] : (2007) 2 Mad
LJ 497.
48. Association of Private Educational Institution v Chandigarh Administration, AIR 1999 P&H. 43 .
49. Tamil Nadu Tamil & English School Association v State of Tamil Nadu, (2000) 2 Mad LJ 575 (FB).
50. AIR 1989 Kant. 226 (FB).
55. Virendar Gaur v State of Haryana, (1995) 2 SCC 577 . See also All India Lawyer’s Union v UOI, AIR 1999 Del 120
[LNIND 1998 DEL 934] , (wherein the court directs to provide clean drinking water to school children); Ambala UE
Welfare Society v Haryana Urban Development Authority, AIR 1994 P&H. 288 . See also People’s Union for Civil
Liberties v UOI, (2007) 1 SCC 728 [LNIND 1996 SC 2173] . See also, news Item Published in Hindustan Times Titled
“And Quiet Flows, the Maily Yamuna, In re.”, (2009) 17 SCC 718 ; Amarnath Shrine, Re. v UOI, (2013) 3 SCC 247 :
(2012) 12 JT 503 ; Gujarat Ambuja Cements Ltd v Chavi Raj Singh, (2007) 15 SCC 632 ; Indian Council Envira Legal
Action v UOI, (2007) 15 SCC 633 : (1995) 9 JT 427 .
56. S. Rathi v UOI, AIR 1998 All 331 [LNIND 1998 ALL 1417] .
57. Research Foundation of Science, Technology National Resources Policy v UOI, (2005) 10 SCC 510 [LNIND 2005 SC
18] : (2003) 9 Scale 303 .
58. Association for Environment Protection v State of Kerala, (2013) 7 SCC 226 [LNIND 2013 SC 580] : (2013) 3 Ker LT
201 [LNIND 2013 SC 580] ; see also Intellectual Forum v State of AP, (2006) 3 SCC 549 [LNIND 2006 SC 119] ; M.I.
Builders Pvt Ltd v Radhey Shyam Sahu, (1999) 6 SCC 464 [LNIND 1999 SC 612] ; M.C. Mehta v Kamal Nath, (1997) 1
SCC 388 [LNIND 1996 SC 2131] ; Fomento Resorts and Hotels Ltd v Minguel Martim, (2009) 3 SCC 571 [LNIND 2009
SC 2947] ; Karnataka Industrial Area Development Board v C. Kenchappa, AIR 2006 SC 2083 : (2006) 6 SCC 371
[LNIND 2006 SC 403] .
59. See Sansar Chand v State of Rajasthan, (2010) 10 SCC 604 [LNIND 2010 SC 1009] : (2010) 11 JT 82 .
60. T.N. Godavarman Thirumulpad v UOI, AIR 2003 SC 724 [LNIND 2002 SC 676] : (2002) 10 SCC 606 [LNIND 2002 SC
676] . See also Residents of Sanjay Nagar v State of Rajasthan, AIR 2004 Raj. 116 .
61. B.L. Wadehra v UOI, AIR 1996 SC 2969 [LNIND 1996 SC 522] : (1996) 2 SCC 594 [LNIND 1996 SC 522] .
62. Subha Jayan v Meenakshy Kumaran, AIR 2004 Ker. 39 [LNIND 2003 KER 588] .
63. Subhash Kumar v State of Bihar, AIR 1991 SC 420 [LNIND 1991 SC 13] .
Page 360 of 467
64. Also see M.C. Mehta v UOI (Delhi Stone Crushing case), (1992) 3 SCC 256 [LNIND 1992 SC 418] ; A.P. Pollution
Control Board II v Prof. M.V. Naidu, (2001) 2 SCC 62 [LNIND 2000 SC 1720] ; Chameli Singh v State of U.P., AIR 1996
SC 1057 , wherein it was held that right would include the “right to decent environment an reasonable accommodation
to live in”. See Shantistar Builders v Narayan K. Totame, AIR 1990 SC 630 [LNIND 1995 SC 1144] . Also see Ram
Veer Upadhaya v State of U.P., AIR 1996 All 131 [LNIND 1995 ALL 604] ; Hamid Khan v State of M.P., AIR 1997 191;
S.K. Garg v State of U.P., 1999 AIHC 1804 (All); Mahendra Prasad Sankar v State of U.P., 2005 AIHC 197 (All).
65. Centre for Environmental Law, World Wide Fund v UOI, (2013) 8 SCC 234 [LNINDORD 2013 SC 5063] : (2013) 5
Scale 710 [LNINDORD 2013 SC 5063] .
66. (2012) 4 SCC 362 [LNIND 2012 SC 124] : (2012) 2 Scale 551 .
68. Burrabazar Fire Works Dealer’s Association v Commr. of Police, Calcutta, AIR 1998 Cal 121 [LNIND 1997 CAL 254] .
See also Ramlila Maidan Incident, Re., (2012) 5 SCC 1 : 2012 Cr LJ 3516 : (2012) 2 Scale 682 .
69. Nature Park Walker’s Association v State of A.P., 1999 AIHC 2607 (AP); Municipal Council, Tonk v Sevva Seva
Sanasthan, AIR 2004 Raj. 96 ; Kholamohana Primary Fishermen Co-op. Society v State of Orissa, AIR 1994 Ori. 191
[LNIND 1993 ORI 58] .
70. T. Damodar Rao v Special Officer, Municipal Corp of Hyderabad, AIR 1987 AP 171 [LNIND 1987 AP 17] ; similar view
is also expressed by other High Courts, L.K. Koolwal v State of Rajasthan, AIR 1988 Raj. 2 ; Arvind Textiles v State of
Rajasthan, AIR 1994 Raj. 195 ; Madhavi v Tilekan, (1988) 2 Ker LT 730 ; Attakaya Thangal v UOI, (1990) 1 Ker LT 580
; Law Society of India v FACT, AIR 1994 Ker. 308 [LNIND 1994 KER 372] ; Kinkri Devi v State of H.P., AIR 1988 HP 4
[LNIND 1987 HP 2] ; V. Lakshmipathy v State of Karnataka, AIR 1994 Kant. 57 . See also Fatima Joas v Village
Panchayat, AIR 2000 Bom 444 [LNIND 2000 GOA 47] .
71. Vellore Citizen Welfare Forum v UOI, AIR 1996 SC 2721 : (1996) 5 SCC 647 [LNIND 1996 SC 1344] .
72. M.C. Mehta v UOI, AIR 1988 SC 1037 [LNIND 1987 SC 663] : (1987) 4 SCC 463 [LNIND 1987 SC 663] ; M.C. Mehta
v UOI, AIR 1999 SC 3192 [LNIND 1999 SC 762] ,
73. M.C. Mehta v UOI, AIR 1997 SC 734 [LNIND 1996 SC 2207] .
74. Indian Council for Enviro-Legal Action v UOI, AIR 1996 SC 1446 [LNIND 1996 SC 353] : (1996) 3 SCC 212 [LNIND
1996 SC 353] ; M.C. Mehta v UOI, AIR 1997 SC 761 ; A.P. Pollution Control Board v M.V. Naidu, AIR 1999 SC 812
[LNIND 1999 SC 65] : (1999) 2 SCC 718 [LNIND 1999 SC 65] . See also Vijay Singh Puniya v State of Rajasthan, AIR
2004 Raj. 1 . See Sterlite Industries (India) Ltd v UOI, (2013) 4 SCC 575 [LNIND 2013 SC 1325] : (2013) 5 Scale 202
[LNIND 2013 SC 1325] ; Lafarge Uiam Mining Pvt Ltd v UOI, (2011) 7 SCC 338 [LNIND 2011 SC 621] ; M.C. Mehta v
UOI, (1987) 1 SCC 395 [LNIND 1986 SC 539] .
75. Vellore Citizen Welfare Forum v UOI, AIR 1996 SC 2715 [LNIND 1996 SC 1344] : (1996) 5 SCC 647 [LNIND 1996 SC
1344] ; see also M.C. Mehta v UOI, (1987) 4 SCC 463 [LNIND 1987 SC 663] .
76. See Stuart Bell & Donald McGillivray, Environmental Law, 5th Edn, p 207.
77. N.D. Jayal v UOI, AIR 2004 SC 867 [LNIND 2003 SC 1171] : (2004) 9 SCC 362 [LNIND 2003 SC 1171] . See also
T.N. Godavarman Thirumulpad v UOI, (2008) 2 SCC 222 [LNIND 2007 SC 1367] .
Page 361 of 467
78. State of W.B. v Kesoram Industries Ltd, (2004) 10 SCC 201 [LNIND 2004 SC 63] : JT (2004) 1 SC 375 [LNIND 2004
SC 63] .
79. AIR 2000 SC 3751 [LNIND 2000 SC 1361] : (2000) 10 SCC 664 [LNIND 2000 SC 1361] . Also see (2000) 7 SCC 264
[LNIND 2000 SC 1141] : (2000) 6 Scale 42 [LNIND 2000 SC 1141] .
80. See A.P. Pollution Control Board v M.V. Nayudu, AIR 1999 SC 812 [LNIND 1999 SC 65] : (1999) 2 SCC 718 [LNIND
1999 SC 65] .
81. M.C. Mehta v UOI, (2004) 6 SCC 588 [LNIND 2004 SC 648] .
82. Secretary, Minor Irrigation and Rural Engineering Services U.P. v Sahngao Ram Arya, AIR 2002 SC 2225 [LNIND
2002 SC 384] : (2002) 5 SCC 521 [LNIND 2002 SC 384] .
83. M.C. Mehta v Kamal Nath, (1997) 1 SCC 388 [LNIND 1996 SC 2131] ; M.C. Mehta v Kamal Nath, (2000) 6 SCC 213
[LNIND 2000 SC 893] : AIR 2000 SC 1997 [LNIND 2000 SC 893] . See also Prem Chand Pandey v Savitri Pandey, AIR
1999 All 41 [LNIND 1998 ALL 501] .
84. Thilakan v Circle Inspector of Police, 2008 Ker LT 141 .
85. A.P. Pollution Control Board II v Prof. M.V. Naryanan, (2001) 2 SCC 62 [LNIND 2000 SC 1720] : 2000 (Supp-5) SCR
249; Narmada Bachao Andolan v UOI, (2000) 10 SCC 664 [LNIND 2000 SC 1361] : JT 2000 (Supp-2 ) SC 6; State of
Karnataka v State of Andhra Pradesh, (2000) 9 SCC 572 [LNIND 2000 SC 722] : JT (2000) 6 SC 1 [LNIND 2000 SC
722] ; Indian Council for Enviro – Legal Action v UOI, AIR 1999 SC 1502 : JT 1998 (4) SC 495 .
86. M.C. Mehta v UOI, (1999) 6 SCC 9 ; M.C. Mehta v UOI, (2003) 5 SCC 376 [LNIND 2003 SC 384] ; see also M.C.
Mehta v UOI, (1998) 6 SCC 63 [LNIND 1998 SC 1128] : AIR 1998 SC 2963 [LNIND 1998 SC 1128] ; M.C. Mehta v
UOI, (1999) 6 SCC 12 ; M.C. Mehta v UOI, (1999) 1 SCC 413 [LNIND 1998 SC 1130] : AIR 1999 SC 301 [LNIND 1998
SC 1130] . See also M.C. Mehta v UOI, AIR 1991 SC 1132 [LNIND 1991 SC 147] : (1991) 2 SCC 137 .
87. See Stuart Bell and Donald McGillivray, Environmental Law, 5th Edn, p 431.
88. Noise Pollution v Re, AIR 2005 SC 3136 : (2005) 5 SCC 733 . See also Bijayananda Patra v Dist. Magistrate, Cuttack,
AIR 2000 Ori. 70 [LNIND 1999 ORI 43] .
89. See also Free Legal Aid Cell v Govt of NCT Delhi, AIR 2001 Del 455 [LNIND 2001 DEL 854] ; Church of God (Full
Gospel) in India v K.K.R. Majestic Colony Welfare Association, AIR 2000 SC 2773 [LNIND 2000 SC 1165] : (2000) 7
SCC 282 [LNIND 2000 SC 1165] .
90. Murli S. Deora v UOI, (2001) 8 SCC 765 [LNIND 2001 SC 2489] : AIR 2002 SC 40 [LNIND 2001 SC 2489] : 2001
(Supp-4) SCR 650; K. Ramakrishnan v State of Kerala, AIR 1999 Ker. 385 [LNIND 1999 KER 234] .
91. Buffalo Traders Welfare Association v Maneka Gandhi, (1996) 11 SCC 35 [LNIND 1996 SC 2750] .
92. Municipal Council, Ratlam v Vardichand, (1980) 4 SCC 162 [LNIND 1980 SC 287] : AIR 1980 SC 1622 [LNIND 1980
SC 287] ; B.L. Wadehra (Dr.) v UOI, (1996) 2 SCC 594 [LNIND 1996 SC 522] : AIR 1996 SC 2969 [LNIND 1996 SC
522] .
93. State of H.P. v Umed Ram Sharma, AIR 1986 SC 847 [LNIND 1986 SC 29] : (1986) 2 SCC 68 [LNIND 1986 SC 29] .
94. M.H. Hoskot v State of Maharashtra, (1978) 3 SCC 544 [LNIND 1978 SC 199] ; State of Maharashtra v Manubhai
Pragaji Vashi, (1995) 5 SCC 730 [LNIND 1995 SC 788] . See also Advocate’s Association, Bangalore v C.M.
Page 362 of 467
Government of Karanataka, AIR 1997 Kant. 18 [LNIND 1996 KANT 236] . (It was held therein that State is bound to
provide buildings and other facilities to Advocate’s Association.)
95. A.S. Mohammekd Rafi v State of TN, AIR 2011 SC 308 [LNIND 2010 SC 1609] : (2011) 1 SCC 688 [LNIND 2010 SC
1609] ; see also Mohd. Sukur Ali v State of Assam, AIR 2011 SC 1222 [LNINDORD 2011 SC 143] : (2011) 4 SCC 729
[LNINDORD 2011 SC 143] .
1. Chaluvegowda v State, (2012) 13 SCC 538 : (2012) 4 Scale 382 .
2. Mohd. Ajmal Amir Kasab v State of Maharashtra, AIR 2012 SC 3565 [LNIND 2012 SC 1215] : (2012) 9 SCC 1 [LNIND
2012 SC 1215] .
3. Rajoo v State of MP, AIR 2012 SC 3034 [LNIND 2012 SC 466] : (2012) 8 SCC 553 [LNIND 2012 SC 466] .
4. K.S. Panduranga v State of Karnataka, AIR 2013 SC 2164 [LNIND 2013 SC 389] : (2013) 3 SCC 721 [LNIND 2013
SC 389] ; see also Bani Singh v State of UP, (1996) 4 SCC 720 [LNIND 1996 SC 1033] : 1996 Cr LJ 3491 ; N.S. Giri v
Corpn. of City of Mangalore, (1999) 4 SCC 697 [LNIND 1999 SC 555] : AIR 1999 SC 1958 [LNIND 1999 SC 1466] ; LIC
v D.J. Bahadur, (1981) 1 SCC 315 [LNIND 1980 SC 442] ; Pradip Chandra Parija v Pramod Chandra Patnaik, (2002) 1
SCC 1 [LNIND 2001 SC 2759] : AIR 2002 SC 296 [LNIND 2001 SC 2759] ; Chandra Prakash v State of UP, (2002) 4
SCC 234 [LNIND 2002 SC 257] : AIR 2002 SC 1652 [LNIND 2002 SC 257] ; Rattiram v State, (2012) 4 SCC 516
[LNIND 2012 SC 129] : AIR 2012 SC 1484 ; IOC v Municipal Corpn., (1995) 4 SCC 96 [LNIND 1995 SC 499] : AIR
1995 SC 1480 [LNIND 1995 SC 499] . But see Mohd. Sukur Ali v State of Assam, (2011) 4 SCC 729 [LNINDORD 2011
SC 143] : AIR 2011 SC 1222 [LNINDORD 2011 SC 143] (supra).
5. Khatri v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] : (1981) 1 SCC 627 [LNIND 1980 SC 473] ; see also
Sukh Das v Union Territory of Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 [LNIND
1986 SC 60] .
7. Sukh Das v Union Territory of Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 [LNIND
1986 SC 60] (supra).
8. M.H. Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 3 SCC 544 [LNIND 1978 SC
199] .
9. Khatri v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] : (1981) 1 SCC 627 [LNIND 1980 SC 473] .
10. See Bajiban v UPSRTC, 1990 (Supp) SCC 769.
11. Hussainara Khatoon v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC
188] .
12. Sukh Das v Union Territory of Arunachal Pradesh (supra); Sheela Barse v State of Maharashtra, AIR 1983 SC 378
[LNIND 1983 SC 57] .
13. Kishore v State of HP, (1991) 1 SCC 286 [LNIND 1990 SC 468] .
14. Sukh Das v Union Territory of Arunachal Pradesh (supra); Sheela Barse v State of Maharashtra, AIR 1983 SC 378
[LNIND 1983 SC 57] ; Nand v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1981) 4 SCC 327 [LNIND
1981 SC 388] .

Page 363 of 467
16. For further discussion, see Article 39A.
17. S.K. Mastan Bee v G.M. South Central Railway, (2003) 1 SCC 184 [LNIND 2002 SC 769] ; Kapila Hingorani v State of
Bihar, (2003) 6 SCC 1 [LNIND 2003 SC 521] .
18. In Re, Sant Ram, AIR 1960 SC 932 [LNIND 1960 SC 113] .
19. Board of Trustees of Port of Bombay v Dilip Kumar R. Nandkarni, AIR 1983 SC 109 [LNIND 1982 SC 167] : (1983) 1
SCC 124 [LNIND 1982 SC 167] .
20. State of H.P. v Raja Mahendra Pal, AIR 1999 SC 1786 [LNIND 1999 SC 328] .
21. M.P. Rambabu v D.F.O., AIR 2002 AP 256 [LNIND 2001 AP 735] .
22. Ashwani Kumar v State of Bihar, AIR 1996 SC 2833 [LNIND 1995 SC 1137] .
23. Narendra Kumar Chandla v State of Haryana, AIR 1995 SC 519 .
24. Dewan Chand Builders and Contractors v UOI, (2012) 1 SCC 101 [LNIND 2011 SC 1169] : (2011) 13 Scale 12 [LNIND
2011 SC 1169] .
25. Centre for Environment & Food Security v UOI, (2011) 5 SCC 676 [LNIND 2011 SC 530] : AIR 2011 SC 3361 [LNIND
2011 SC 431] .
26. See Chameli Singh v State of UP, AIR 1996 SC 1051 [LNIND 1995 SC 1370] : (1996) 2 SCC 549 [LNIND 1995 SC
1370] ; see also Narmada Bachao Andolan v UOI, AIR 2000 SC 3751 [LNIND 2000 SC 1361] : (2000) 10 SCC 664
[LNIND 2000 SC 1361] ; State of Kerala v Peoples’ Union for Civil Liberties, (2009) 8 SCC 46 [LNIND 2009 SC 1477] :
(2009) 11 Scale 217 [LNIND 2009 SC 1652] . Also see State of MP v Narmada Bachao Andolan, (2011) 7 SCC 639
[LNIND 2011 SC 518] : (2011) 5 Scale 624 [LNIND 2011 UTTAR 2759] .
27. Olga Tellis v Bombay Municipal Corp, AIR 1986 SC 180 [LNIND 1985 SC 215] : (1985) 3 SCC 545 [LNIND 1985 SC
215] .
28. See also D.K. Yadav v J.M.A. Industries, (1993) 3 SCC 259 [LNIND 1993 SC 443] : (1993) 3 SCR 930 [LNIND 1993
SC 443] ; Dr. Haniraj L. Chulani v Bar Council of Maharashtra and Goa, AIR 1996 SC 1708 [LNIND 1996 SC 743] :
(1996) 3 SCC 345 . The right to get family pension is a right to livelihood. S.K. Mastan Bee v G.M. South Central
Railway, (2003) 1 SCC 184 [LNIND 2002 SC 769] .
29. Sanjay Agarwal v Nagar Mahapalika, Allahabad, AIR 1999 All 348 [LNIND 1999 ALL 742] ; Sandan Singh v N.D.M.C,
AIR 1992 SC 1153 [LNIND 1992 SC 256] .
30. N.R. Nair v UOI, AIR 2000 Ker. 340 .
31. Saibya Shukla v State of U.P., AIR 1993 All 171 .
32. Jubilee Hills Labour Welfare Association v Municipal Corp of Hydrabad, 2004 AIHC 241 (AP).
33. Sodan Singh v NDMC, AIR 1989 SC 1988 [LNIND 1989 SC 423] : (1989) 4 SCC 155 [LNIND 1989 SC 423] .
34. Calcutta D.L.B v Jaffer Imam, AIR 1966 SC 282 [LNIND 1965 SC 92] : 1966 Cr LJ 282 ; Town Area Committee v
UJSC, 359.
35. Delhi Transport Corp v DTC Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 489] : 1991 (Supp-1) SCC 600.
36. Isaac Nirman v State of Kerala, 1996 AIHC 857 (Ker).

Page 364 of 467
37. Mx of Bombay Indian Inhabitant v Zy, AIR 1997 Bom 406 [LNIND 1997 BOM 393] .
38. Delhi Development Horticulture Employees Union v Delhi Administration, AIR 1992 SC 789 [LNIND 1992 SC 123] :
(1992) 4 SCC 99 [LNIND 1992 SC 123] . See also M.K. Chandran v Commr. of Polices, Kochi, AIR 1998 Ker. 347
[LNIND 1998 KER 170] .
39. Air India Statutory Corp v United Labour Union, AIR 1997 SC 645 [LNIND 1996 SC 2076] .
40. Air India Statutory Corp v United Labour Union, AIR 1997 SC 645 [LNIND 1996 SC 2076] : (1997) 9 SCC 377 [LNIND
1996 SC 2076] .
41. Capt. M. Paul Anthony v Bharat Gold Mines Ltd, AIR 1999 SC 1416 : (1999) 3 SCC 679 ; Ghanashyam Das
Srivastava v State of M.P., AIR 1973 SC 1183 [LNIND 1973 SC 51] : (1973) 1 SCC 541 .
42. Smith v Texas, 53 L Ed. 1129; Terrace v Thompson, 68 L Ed. 225; Griffiths, Re., 37 L Ed. 2d 910; Examining Board of
Engineers v Deoten, 49 L Ed 2d 65.
43. State of Maharashtra v Madhekar Narayan Mardikar, AIR 1991 SC 207 [LNIND 1990 SC 610] : (1991) 1 SCC 57
[LNIND 1990 SC 610] . See also Indian Drugs & Pharmaceuticals Ltd v Workmen, (2007) 1 SCC 408 [LNIND 2006 SC
984] .
44. Mr. “X” v Hospital “Z”, (1998) 8 SCC 296 [LNIND 1998 SC 1239] .
45. See also “X” v “Z”, AIR 2002 Del 217 [LNIND 2001 DEL 1771] .
46. Mr. “X” v Hospital “Z”, (2003) 1 SCC 500 [LNIND 2002 SC 785] .
47. Sharda v Dharmapal, AIR 2003 SC 3450 [LNIND 2003 SC 366] : (2003) 4 SCC 493 [LNIND 2003 SC 366] .
48. Surjit Singh Thind v Kanwaljit Kaur, AIR 2003 P&H. 353 .
49. Ashit Kapur v UOI, AIR 2004 Del 203 [LNIND 2003 DEL 1226] .
50. Mukesh Kumar Ajmera v State of Rajasthan, AIR 1997 Raj. 250 [LNIND 1997 SC 633] (DB); Javed v State of
Haryana, AIR 2003 SC 3057 [LNIND 2003 SC 596] : (2003) 8 SCC 369 [LNIND 2003 SC 596] .
51. District Registrar and Collector v Canara Bank, AIR 2005 SC 186 [LNIND 2004 SC 1478] : (2005) 1 SCC 496 [LNIND
2004 SC 1478] .
52. Ram Jethmalani v UOI, (2011) 8 SCC 1 [LNIND 2011 SC 568] : (2011) 6 Scale 691 [LNIND 2011 SC 568] .
53. Teeku Dutta v State, AIR 2004 Del 205 [LNIND 2004 DEL 32] .
54. See Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC
438] .
55. 4 Har LR 193.200.
57. Meyon v Nebraska, (1923) 262 US 390.
58. Roe v Wade, (1973) 410 US 113.
59. See Edwin Shorts and Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, Sweet & Maxwell, 1998
Edn, Chapter 7, pp 362–63.
Page 365 of 467
60. See the US Privacy Act, 1974, Canadian Protection of Privacy Act, 1974, Article 1382 of the French Civil Code,
German Courts can protect privacy under Article 823(1) of the Civil Code. See also Article 8 of the European
Convention of Human Rights and Article 17 of the International Covenant of Civil and Political Rights.
61. Dudgeon v UK, (1981) 4 EHRR 149 .
62. Gaskin v UK, (1990) 12 EHRR 36) . Helen Fenwick, Civil Liberties, 1st Edn, 1994, p 269.
63. Stone, Textbook on Civil Liberties and Human Rights, p 338.
64. Report of the Committee on Privacy and Related Matters.
65. Westin, Privacy and Freedom, 1970 Edn, p 7.
66. (1965) 381 US 479.
67. (1891) 141 US 250.
68. (1927) 274 US 200.
69. (1923) 262 US 390.
70. See Loving v Virginia, (1967) 388 US 1; McLaughlin v Florida, (1964) 379 US 184.
71. See Edwin Shorts and Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, Chapter 7, pp 360–61.
72. S.P. Gupta v President of India, AIR 1982 SC 149 .
73. See also People’s Union for Civil Liberties (PUCL) v UOI, AIR 2003 SC 2363 [LNIND 2003 SC 342] : (2003) 4 SCC
399 [LNIND 2003 SC 342] .
74. Indian Express v UOI, AIR 1986 Raj. 515 .
75. L.K. Koolwal v State, AIR 1988 SC 2 -4.
76. Girish Ramachandra Deshpande v Central Information Commissioner, (2013) 1 SCC 212 [LNIND 2012 SC 615] :
(2013) 9 Scale 700 .
77. Francis v Union Territory, AIR 1981 SC 746 [LNIND 1981 SC 27] (para 3) : (1981) 2 SCR 516 [LNIND 1981 SC 27] :
(1981) 1 SCC 608 [LNIND 1981 SC 27] ; A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] (para 108) : (1982)
2 SCR 272 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] .
78. Francis v Union Territory, AIR 1981 SC 746 [LNIND 1981 SC 27] (para 3) : (1981) 2 SCR 516 : (1981) 1 SCC 608
[LNIND 1981 SC 27] .
79. See Phool Kumari v Office of the Superintendent, Tihar Jail, (2012) 8 SCC 183 [LNINDORD 2012 SC 410] : AIR 2012
SC 3198 [LNINDORD 2012 SC 410] ; see also State of Gujarat v High Court of Gujarat, (1998) 7 SCC 392 [LNIND
1998 SC 920] : AIR 1998 SC 3164 [LNIND 1998 SC 920] .
82. See also Ram Murthy v State of Karnataka, AIR 1997 SC 1739 : (1997) 2 SCC 642 .
83. Ram Narain v State, (1953) SCR 652 [LNIND 1953 SC 28] .
Page 366 of 467
84. Supreme Court Legal Aid Committee v UOI, (1994) 6 SCC 731 [LNIND 1994 SC 955] ; Supreme Court Legal Aid
Committee representing under-trial prisoners v UOI, (1995) 4 SCC 695 ; Shaheen Welfare Assn v UOI, (1996) 2 SCC
616 [LNIND 1996 SC 2747] : AIR 1996 SC 2957 [LNIND 1996 SC 2747] ; Common Cause, A Registered Society v
UOI, (1996) 4 SCC 33 [LNIND 1996 SC 897] : AIR 1996 SC 1619 [LNIND 1996 SC 897] ; R.D. Upadhaya v State of
AP, (1996) 3 SCC 422 [LNIND 2000 SC 1693] ; P. Ramachandra Rao v State of Karnataka, (2002) 4 SCC 578 [LNIND
2002 SC 296] .
85. Mahendra Lal Das v State of Bihar, (2002) 1 SCC 149 [LNIND 2001 SC 2324] ; see also Hussainara Khatoon v Home
Secretary, State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC 188] ;
Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1177 [LNIND 1978 SC 360] : (1980) 1 SCC 108
[LNIND 1979 SC 241] ; Kadra Pahadia v State of Bihar, AIR 1981 SC 939 [LNIND 1980 SC 493] : (1981) 3 SCC 671
[LNIND 1980 SC 493] ; Kadra Pahadia v State of Bihar, AIR 1982 SC 1167 [LNIND 1980 SC 493] : (1983) 2 SCC 104
[LNIND 1980 SC 493] ; Kadra Pahadia v State of Bihar, (1997) 4 SCC 287 [LNIND 1980 SC 493] : AIR 1997 SC 3750
[LNIND 1980 SC 493] .
86. Rudal Shah v State of Bihar, AIR 1983 SC 1086 [LNIND 1983 SC 181] : (1983) 4 SCC 141 [LNIND 1983 SC 181] .
87. Mathew v State of Bihar, AIR 1984 SC 1854 [LNIND 1984 SC 253] ; Kamala Devi Chattopadhyaya v State of Punjab,
AIR 1984 SC 1895 .
88. Veena Sethi v State of Bihar, (1981) 2 SCC 583 .
89. Sunil Batra (I) v Delhi Admn., AIR 1979 SC 1675 : (1978) 4 SCC 494 [LNIND 1978 SC 215] ; see also Sunil Batra (II)
v Delhi Admn., AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] .
90. Watch Dog International v UOI, (1998) 8 SCC 338 .
91. Raninen v Finland, (1998) 26 EHRR 563 ; see also Ireland v UK, (1988) 2 EHRR 25 ; Aydin v Turkey, (1998) 25 EHRR
251 .
92. D.K. Basu v State of WB, AIR 1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND 1996 SC 2177] ; see
also (1997) 6 SCC 380 [LNIND 1997 SC 868] : (1997) 1 SCC 410 : AIR 1997 SC 610 [LNIND 1996 SC 2177] ; Caloc v
France, (2002) 35 EHRR 14 .
93. Citizens for Democracy v State of Assam, (1995) 3 SCC 743 [LNIND 1995 SC 602] : AIR 1996 SC 2193 [LNIND 1995
SC 602] ; Keval Pati (Smt.) v State of UP, (1995) 3 SCC 600 : [1995] 3 SCR 207 ; R.D. Upadhyaya v State of HP,
(2001) 1 SCC 437 [LNIND 2000 SC 1693] ; State of Haryana v Ghasita Ram, (1997) 3 SCC 766 [LNIND 1997 SC 362]
: AIR 1997 SC 1868 [LNIND 1997 SC 362] ; State of Haryana v Ram Divya, (1990) Cr LJ 1327 ; State of Maharashtra v
Ravi Gandhi, (1991) 2 SCC 377 ; State of MP v Mohan Singh, (1995) 6 SCC 321 [LNIND 1995 SC 943] : AIR 1996 SC
2106 [LNIND 1995 SC 943] ; State of Punjab v Joginder Singh, (1990) 2 SCC 661 [LNIND 1990 SC 181] ; T.N. Mathur
v State of UP, 1993 (Supp-1) SCC 722; M. Karunanidhi (Dr.) v State of Tamil Nadu, (1994) Cr LJ 2599 ; S. Bala
Murugan v IG of Prisons, (1996) Cr LJ 1779 ; Zoil Nath Sharma v State of Assam, (1992) Cr LJ 207 .
94. Sheela Barse v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57] : (1983) 2 SCC 96 [LNIND 1983 SC 57]
. See D.D. Basu, Human Rights in Constitutional Law, 3rd Revised Edn, 2008, pp 446–448.
95. Nachane v UOI, AIR 1982 SC 1126 [LNIND 1981 SC 468] (para 7) : (1982) 2 SCR 246 [LNIND 1981 SC 468] : (1982)
1 SCC 205 [LNIND 1981 SC 468] .
Page 367 of 467
96. Saroj v Sudarshan, AIR 1984 SC 1562 [LNIND 1984 SC 200] (para 17) : (1985) 1 SCR 303 [LNIND 1984 SC 200] :
(1984) 4 SCC 90 [LNIND 1984 SC 200] .
97. Ram v State of U.P., AIR 1984 SC 1213 [LNIND 1983 SC 213] (para 16) : (1983) 3 SCR 684 [LNIND 1983 SC 213] :
(1983) 4 SCC 276 [LNIND 1983 SC 213] .
98. Deena v UOI, AIR 1983 SC 1155 [LNIND 1983 SC 265] : (1984) 1 SCR 1 [LNIND 1983 SC 265] : (1983) 4 SCC 645
[LNIND 1983 SC 265] .
99. Att. Gen v Lachma, AIR 1986 SC 467 : 1989 (Supp-1) SCC 264 : 1986 Cr LJ 364 .
1. Paton v UK, (1980) 3 EHRR 408 .
2. Bmggeman and Scheuten v Federal Republic of Germany, (1978) 10 DR 100.
3. See Edwin Shorts and Clarie de Than, Civil Liberties: Legal Principle of Individual Freedom, Sweet & Maxwell
Publication, 1998, pp 445–46.
4. Bonda, “The Impact of Constitutional Law on the Protection of Unborn Human Life: Some Comparative Remarks”, 6
Human Rights 223; also see the article “Abortion and the Law in the Countries of the Indian Sub-continent, Asean
Region, UK, Ireland and United States” by K.D. Gaur, Journal of Indian Law Institute, Vol 37, (1995), p 293.
5. Roe v Wade, 410 US 113 (1973). See also Doe v Bolton, (1973) 410 US 113; Planned Parenthood of Central Missouri
v Danforth, (1976) 428 US 52; Doe v Smith, (1988) 486 US 1308.
6. Webster v Reproductive Health Services et al, (1989) 492 US 490.
7. See also Planned Parenthood of Southeastern Pennsylvania v Casey, (1992) 505 US 830 : 120 LEd 2nd 674, where
the decision in Roe v Wade (supra) was reaffirmed. Stenberg v Carhart, (2000) 530 US 914; Planned Parenthood of
Central Missouri v Damforth, (1976) 428 US 52.
8. (1989) 3 WLR 891 .
9. Williams v Marrison Rapid Transit Inc, 152 Ohio 114 : (1949) 87 NE 2d 334; Sylvia v Gobella, 220 A 2d 222 (1960).
10. 05 F Supp 138 DDC 1946.
11. See the article “Right to conceive vis-à-vis Right to Birth” by G.V. Ramaih (Lecturer in Law, Sidhartha Law College,
Vijayawada), AIR 1996 Journal Section, p 136.
12. (1973) 410 US 179.
13. Abortion Reform Law Case, (1975) 39 B Verf GE 1.
14. A.G. v ODC, (1988) IR 593 ; SPUC v Grogan, (1990) 1 LRM 350.
15. D.D. Basu, Human Rights in Constitutional Law, 3rd Edn, p 85.
Page 368 of 467
16. D. Rajeswari v State of Tamil Nadu, (1996) Cr LJ 3795 (Mad) : (1996) 2 Mad LW (Crl) 385 ; see also Momalavalli v Er.
Nair, (1983) Mad LW 190 : (1984) Cr LJ 446 .
17. V. Krishnan v G. Rajan alias Madipu Rajan, (1994) 1 Mad LW (Crl) 16 .
18. Roe v Wade, (1973) 410 US 113 (supra).
19. (1975) 39 B Verf GE (supra).
20. See D.D. Basu, Human Rights in Constitutional Law, 3rd Revised Edn, 2008, pp 84–85.
21. Allegeyer v Louisiana, (1897) 165 US 578.
22. T.M. Cooley, A Treatise on the Constitutional Limitation, 18th Indian Reprint, 2005, p 339.
23. See the article on the meaning of the First Amendment: “Absolutes in the Balances”, 50 California Law Review 821
(1962).
24. Munn v Illinois, 94 US 113.
25. Meyer v Nebraska, 262 US 390.
26. Roe v Wade, (1973) 410 US 113 : (1973) 35 L Ed 147.
27. Halsbury’s Laws of England, 4th Edn, Vol 8, para 832.
28. Dicey, Law of the Constitution, 10th Edn, pp 207–08.
29. Boiling v Sharpe, (1954) 347 US 497 (499).
30. Smith v Texas, 53 L Ed 1129; Terrace v Thompson, 68 L Ed 255; Griffith, Re., 37 L Ed 2d 910.
31. International Encyclopaedia of Social Sciences, Vol III, p 307.
32. Blackstone, Commentaries on the Laws of England, 5th Edn p 251.
33. Blackstone, Commentaries on the Laws of England, 5th Edn pp 6 & 125.
34. 91 American State Papers 934. See Ramanatha Aiyar, Advanced Law Lexicon, 3rd Edn, Book I, p 808.
35. Keith, Constitutional Law, p 434.
36. Allegeyer v Louisiana, (1897) 165 US 578.

Page 369 of 467
37. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22]: 1950 SCR
88 [LNIND 1950 SC 22] (270–72, Mukherjea, J.). [Our Supreme Court thus differed from the view expressed in Willis,
Constitutional Law of the United States, at p 710.]
38. See Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207]: (2010) 7 SCC 263 [LNIND 2010 SC
438] (supra).
39. Blackstone, Commentaries on the Laws of England, Book I, p 134.
40. Om Kumar v UOI, (2001) 2 SCC 386 [LNIND 2000 SC 1585] : AIR 2000 SC 3689 [LNIND 2000 SC 1585]: 2000
(Supp-4) SCR 693.
42. ADM v Shivakant Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196]: (1976) 2 SCC 521 [LNIND 1976 SC 196].
43. H.M. Seervai, Constitutional Law of India, 4th Edn, Vol 2, pp 990–91.
44. Kharak Singh v State, AIR 1963 SC 1295 [LNIND 1962 SC 436], as per Ayyanyar J.
45. See Dharmendra Kirthal v State of UP, (2013) 8 SCC 368 [LNIND 2013 SC 695] : AIR 2013 SC 2569 [LNIND 2013 SC
695].
46. (2012) 9 SCC 446 [LNIND 2012 SC 559] : (2012) Cr LJ 4670.
47. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25]: (1978) 1 SCC 248 [LNIND 1978 SC 25].
48. See Siddharam Satlingappa Mhetre v State of Maharashtra, AIR 2011 SC 312 [LNIND 2010 SC 1174]: (2011) 1 SCC
694 [LNIND 2010 SC 1174] : (2010) 4 Ker LT 930.
49. Dicey, Treatise on Constitutional Law, 9th Edn, pp 207–208.
50. Justice H.R. Khanna in a speech published in 2 IJIL Vol 18 (1978) p 133.
Page 370 of 467
51. Suchitha Srivastava v Chandigarh Admn., (2009) 9 SCC 1 [LNINDORD 2009 SC 593] : AIR 2010 SC 235 [LNINDORD
2009 SC 593].
52. A.K. Roy v UOI, (1982) 1 SCC 271 [LNIND 1981 SC 469]; see also Attorney General for India v Amratlal Prajivandas,
(1994) 5 SCC 54 [LNIND 1993 SC 1093]; State of Maharashtra v Bhaurao Punjabrao Gowandi, (2008) 3 SCC 613
[LNIND 2008 SC 547]; Som Mittal v Govt. of Karnataka, AIR 2008 SC 1126 [LNIND 2008 SC 197]: (2008) 3 SCC 753
[LNIND 2008 SC 197].
53. Siddharam Satlingappa Mhetre v State of Maharashtra, AIR 2011 SC 312 [LNIND 2010 SC 1174]: (2011) 1 SCC 694
[LNIND 2010 SC 1174] : (2010) 4 Ker LT 930. See also State of AP v Chella Ramakrishna Reddy, (2000) 5 SCC 712
[LNIND 2000 SC 741]; Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25]: (1978) 1 SCC 248 [LNIND 1978
SC 25]; Kartar Singh v State of Punjab, (1994) 3 SCC 569; P. Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC
1533]: (1994) 3 SCC 394 [LNIND 1994 SC 1533]; Francis Coralie Mullin v Administrator, Union Territory of Delhi, AIR
1981 SC 746 [LNIND 1981 SC 27]: (1981) 1 SCC 608 [LNIND 1981 SC 27].
54. See Siddharam Satlingappa Mhetre v State of Maharashtra, AIR 2011 SC 312 [LNIND 2010 SC 1174]: (2011) 1 SCC
694 : (2010) 4 Ker LT 930; Pebam Ningol Mikoi Devi v State of Manipur, (2010) 9 SCC 618 [LNIND 2010 SC 926] :
(2010) 10 Scale 248 [LNIND 2010 SC 926].
55. Sunil Fulchand Shah v UOI, AIR 2000 SC 1023 [LNIND 2000 SC 323].
56. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22]: 1950 SCR 88 [LNIND 1950 SC 22].
57. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214]: (1966) 1 SCR 702 [LNIND 1965 SC 214].
58. Satwant Singh v D. Ramanathnam, AIR 1957 SC 1836 : (1967) 3 SCR 525 [LNIND 1967 SC 427].
59. Kartar Singh v State of Punjab, (1994) 3 SCC 569 (per Ramaswamy J.). See also Dharmendra Kirthal v State of UP,
AIR 2013 SC 2569 [LNIND 2013 SC 695]: (2013) 8 SCC 368 [LNIND 2013 SC 695]; Ash Mohammed v Shiv Raj Singh,
(2012) 9 SCC 446 [LNIND 2012 SC 559] : (2012) Cr LJ 4670.
60. Bharat Kumar K. Paticha v State of Kerala, AIR 1997 Ker. 292, affirmed in Communist Party of India (M) v Bharat
Kumar, AIR 1998 SC 184 [LNIND 1997 SC 1424]: (1998) 1 SCC 201 [LNIND 1997 SC 1424].
Page 371 of 467
61. Triveniben v State of Gujarat, (1989) 1 SCC 678 [LNIND 1989 SC 885] : AIR 1989 SC 1335 [LNIND 1989 SC 885]:
(1989) 1 SCR 509 [LNIND 1989 SC 885]. See also Parbhani Transport Cooperative Society Ltd v RTA Aurangabad,
AIR 1960 SC 801 [LNIND 1960 SC 389]: (1960) 3 SCR 177 [LNIND 1960 SC 389]; Naresh Sridhar Mirajkar v State of
Maharashtra, AIR 1967 SC 1 [LNIND 1966 SC 74] (1966) 3 SCR 744 [LNIND 1966 SC 74]; Lalita Jalan v Bombay Gas
Co, (2003) 6 SCC 107 [LNIND 2003 SC 438] : AIR 2003 SC 3157 [LNIND 2003 SC 438].
62. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436](1300) : (1964) 1 SCR 332 [LNIND 1962 SC
436] : (1963) 2 Crimes 329 : (1964) 2 SCJ 107.
63. Cf. State v Bhawani, AIR 1968 Del 208 [LNIND 1967 DEL 127] (para 9).
64. See also Siddharam Satlingappa Mhetre v State of Maharashtra, AIR 2011 SC 312 [LNIND 2010 SC 1174] : (2011) 1
SCC 694 [LNIND 2010 SC 1174] : (2010) 4 Ker LT 930 . See also Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND
1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] ; Satwant Singh Sawhney v Asst. Passport Officer, AIR 1967 SC
65. Subba Rao, J., however, gained majority in the Constitution Bench of 5 in the Passport case—Satwant v A.P.O., AIR
1967 SC 1836 [LNIND 1967 SC 126](paras 28–32) : (1967) 3 SCR 525 [LNIND 1967 SC 427].
Constitutional Law, at p 710].
67. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436](1300) : (1964) 1 SCR 332 [LNIND 1962 SC
436] : (1963) 2 Crimes 329 : (1964) 2 SCJ 107.
436] : (1963) 2 Crimes 329 : (1964) 2 SCJ 107 .
69. Govind v State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124](para 14 et seq.) : (1975) 3 SCR 946 [LNIND 1975
SC 124] : (1975) 2 SCC 148 [LNIND 1975 SC 124].
Constitutional Law, at p 710.]
71. As regards privacy, thus, we are proceeding towards the American view, where the right of privacy has been deduced,
inter alia, from the guarantee of “liberty” in the 14th Amendment [Griswold v Connecticut, (1965) 381 US 479;
Page 372 of 467
Eisenstadt v Baird, (1972) 405 US 438; Roe v Wade, (1973) 410 US 113; Loving v Virginia, (1967) 388 US 1(12); Wolf
v Colorado, (1948) 338 US 25].
73. (1994) 6 SCC 632 [LNIND 1994 SC 958].
74. AIR 1997 SC 568 [LNIND 1996 SC 2173]: (1997) 1 SCC 301; see also Meyer v Nebraska, (1923) 262 US 390
(parent’s choice in education); Roe v Wade, (1973) 410 US 113 (right of a woman to choose what happens to her own
body in terms of the decision whether to have abortion); Griswold v Connecticut, (1965) 381 US 479 (the right to use
contraceptive).
75. Charles Fried on Privacy, 77 Yale LJ 475 at pp 477–78.
76. Edwin Shorts & Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, 1998 Edn, p 364.
77. Poolpandi v Supdt., (1992) 3 SCC 259 [LNIND 1992 SC 405] : AIR 1992 SC 1795 [LNIND 1992 SC 405](paras 9, 11)
(3 Judges).
78. Selvi v State of Karnataka, (2010) 7 SCC 263 [LNIND 2010 SC 438] : AIR 2010 SC 1974 [LNINDORD 2010 SC 207].
79. Govind v State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124]: (1975) 3 SCR 946 [LNIND 1975 SC 124] : (1975) 2
SCC 148 [LNIND 1975 SC 124] (para 14 et seq.).
80. M.C. Mehta v UOI, (1998) 6 SCC 63 [LNIND 1998 SC 1128] : AIR 1998 SC 2963 [LNIND 1998 SC 1128]; M.C. Mehta
v UOI, AIR 2001 SC 1848 [LNIND 2001 GUJ 6136]: (2001) 3 SCC 763.
81. State of Maharashtra v Chandrabhan, AIR 1983 SC 803 [LNIND 1983 SC 165]: (1983) 3 SCR 337 [LNIND 1983 SC
165] : (1983) 3 SCC 387 [LNIND 1983 SC 165] (paras 1, 20).
82. Satwant v Asstt. Passport Officer, AIR 1967 SC 1836 [LNIND 1967 SC 126] (1844–45) : (1967) 3 SCR 525 [LNIND
1967 SC 427] .
Page 373 of 467
83. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214] (426) : (1966) 1 SCR 702 [LNIND 1965
SC 214] : 1966 Cr LJ 311 ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1 SCR 392 [LNIND
1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215] .
84. Hussainara v Home Secy., AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81 ; Kadra v State of Bihar, AIR
1981 SC 939 [LNIND 1980 SC 493] : (1981) 3 SCC 671 [LNIND 1980 SC 493] (para 2).
85. State of U.P. v Shah Md., AIR 1969 SC 1234 [LNIND 1969 SC 123] (para 7) : (1969) 3 SCR 1006 [LNIND 1969 SC
123] : (1969) 1 SCC 771 [LNIND 1969 SC 123] .
86. Jayantilal v Eric, (1975) Cr LJ 661 Guj (paras 15, 17).
87. Board of Trustees v Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109 [LNIND 1982 SC 167] : (1983) 1 SCC
124 [LNIND 1982 SC 167] (para 13).
88. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 2 SCR 272 [LNIND 1981 SC 469] : (1982) 1 SCC
271 [LNIND 1981 SC 469] (para 94).
89. Dilip S. Dahanukar v Kotak Mahindra Co Ltd, (2007) 6 SCC 528 [LNIND 2007 SC 451] .
90. Murli S. Deora v UOI, (2001) 8 SCC 765 [LNIND 2001 SC 2489].
1. See Francis Coralie Mullin v Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27]: (1981) 1
SCC 608 [LNIND 1981 SC 27]; see also Mohini Jain v State of Karnataka, AIR 1992 SC 1858 [LNIND 1992 SC 465]:
(1992) 3 SCC 666 [LNIND 1992 SC 465]; J.P. Unnikrishnan v State of AP, AIR 1993 SC 2178 [LNIND 1993 SC 1110]:
(1993) 1 SCC 645 [LNIND 1993 SC 1110]; Bharat Bhushan v G.B. Pant University of Agriculture and Technology, AIR
2005 Uttaranchal 12; UP Avas Evam Vikas Parishad v Friends Co-op. Housing Society Ltd, AIR 1996 SC 114 [LNIND
1995 SC 566]: 1995 (Supp-3) 456; Shanti Star Builders v Narayan Khimalai Tolemi, AIR 1990 SC 630 [LNIND 1995
SC 1144]: (1990) 1 SCC 520 [LNIND 1995 SC 1144]; Chameli Singh v State of UP, AIR 1996 SC 1051 [LNIND 1995
SC 1370]: (1996) 2 SCC 549 [LNIND 1995 SC 1370]; Ahmedabad Municipal Corpn v Nawab Khan Gulab Khan, AIR
1997 SC 152 [LNIND 1996 SC 1685]: (1997) 11 SCC 121 [LNIND 1996 SC 1685]; Chhetriya Pardushan Mukti
Sangarsh Samithi v State of UP, AIR 1990 SC 2060 [LNIND 1990 SC 421]: (1990) 4 SCC 449 [LNIND 1990 SC 421];
S.K. Garg v State of UP, AIR 1999 All 42; State of Maharashtra v Chandrabhan, AIR 1983 SC 803 [LNIND 1983 SC
165] (1983) 3 SCC 387 [LNIND 1983 SC 165]; Olga Tellis v Bombay Municipal Corpn., AIR 1986 SC 180 [LNIND 1985
SC 215]: (1985) 3 SCC 545 [LNIND 1985 SC 215]; J.N. Chaturvedi v Commisisoner, Allahabad, AIR 2001 All 148
[LNIND 2000 ALL 1260].
2. Kamal Nagar Welfare Assn v Govt. of AP, AIR 2000 AP 132 [LNIND 1999 AP 590].
3. Ranaveer Upadhyaya v State of UP, AIR 1999 All 131.
4. State v Lavu, (1971) 1 SCC 607 [LNIND 1971 SC 120] : AIR 1971 SC 2560 [LNIND 1971 SC 120] : (1971) 3 SCR 699
[LNIND 1971 SC 120] .
Page 374 of 467
5. State of Maharashtra v Basantibai, AIR 1986 SC 1466 [LNIND 1986 SC 75] (para 16) : (1986) 1 SCR 707 [LNIND
1986 SC 75] : (1986) 2 SCC 516 [LNIND 1986 SC 75] .
6. Louis v UOI, (1991) 3 SCJ 141 (para 13) : AIR 1991 SC 1886 [LNIND 1991 SC 316] : (1991) 3 SCR 149 : (1991) 3
SCC 554 .
7. Hans Muller v Supdt, (1955) 1 SCR 1284 [LNIND 1955 SC 14] : AIR 1955 SC 367 [LNIND 1955 SC 14] : 1955 Cr LJ
876 : 1955 SCJ 324 [LNIND 1955 SC 14] .
8. Ashoka Marketing v P.N.B., (1990) 3 SCJ 116 (para 28).
9. Sodan v N.D.M.C., (1990) 3 SCJ 431 (para 20).
10. B.K. Parthasarathy v Govt of A.P., AIR 2000 AP 156 [LNIND 1999 AP 759] . See also Mukesh Kumar Ajmera v State
of Rajasthan, AIR 1997 Raj. 250 [LNIND 1997 SC 633] ; Saraj Chotiya v State of Rajasthan, AIR 1998 Raj. 28 ; Shiv
Ram v State of Rajasthan, AIR 2000 Raj. 416 ; Javed v State of Haryana, (2003) 8 SCC 369 [LNIND 2003 SC 596] ;
Zile Singh v State of Haryana, (2004) 8 SCC 1 [LNIND 2004 SC 1050] .
12. McNabb v US, 318 US 332.
13. Shaughnessy v US, 345 US 206.
14. Ex parte Milligan, 71 US (4 Wallac) 2 (1867) : 18 LEd 281.
15. Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : (2012) 2 Scale 682 .
18. (2010) 7 SCC 263 [LNIND 2010 SC 438] : AIR 2010 SC 1974 [LNINDORD 2010 SC 207] .
19. District Registrar and Collector v Canara Bank, (2005) 1 SCC 496 [LNIND 2004 SC 1478] .
20. See E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 555 [LNIND 1973 SC 359] : (1974) 4 SCC 3 [LNIND 1973 SC
359] ; Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] ; M.H.
Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 3 SCC 544 [LNIND 1978 SC 199] ;
Sunil Batra (I) v Delhi Admn., AIR 1979 SC 1675 : (1978) 4 SCC 494 [LNIND 1978 SC 215] ; Sita Ram v State of UP,
AIR 1979 SC 745 [LNIND 1979 SC 65] : (1979) 2 SCC 656 [LNIND 1979 SC 65] ; Hussainara Khatoon v Home
Secretary, State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC 188] ; Sunil
Batra (II) v Delhi Admn., AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] ; Jolly George Varghese v Bank
of Cochin, AIR 1980 SC 470 [LNIND 1980 SC 48] : (1980) 2 SCC 360 [LNIND 1980 SC 48] ; Kasturilal Lakshmi Reddy
v State of J&K, AIR 1980 SC 1992 [LNIND 1980 SC 250] : (1980) 4 SCC 1 [LNIND 1980 SC 250] ; Francis Coralie
Mullin v Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND
1981 SC 27] .
215] .
22. Zahira Habibullah H. Sheikh v State of Gujarat, AIR 2004 SC 3114 [LNIND 2004 SC 471] .
23. Sarbananda Sonawal v UOI, AIR 2005 SC 2920 [LNIND 2005 SC 523] : (2005) 5 SCC 665 [LNIND 2005 SC 523] .
Page 375 of 467
[LNIND 1978 SC 25] ; Inderjeet v State of U.P., AIR 1979 SC 1867 [LNIND 1979 SC 329] : (1980) 1 SCR 255 [LNIND
1979 SC 329] : (1979) 4 SCC 246 [LNIND 1979 SC 329] ; Francis v Union Territory, AIR 1981 SC 746 [LNIND 1981
SC 27] (para 3) : (1981) 2 SCR 516 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND 1981 SC 27] .
26. Additional Secretary to Government of India v Alka Subbash Gadia (Smt), 1992 (Supp-1) SCC 496.
27. Dadu v State of Maharashtra, (2000) 8 SCC 437 [LNIND 2000 SC 1340] : JT 2000 (Supp-1 ) SC 449.
215] .
29. Jolly George v Bank of Cochin, AIR 1980 SC 470 [LNIND 1980 SC 48] : (1980) 2 SCC 360 [LNIND 1980 SC 48] :
(1980) 2 SCR 913 [LNIND 1980 SC 48] . See also Maruti Ltd, Chandigarh v Pan India Plastic Pvt Ltd, AIR 1993 P&H.
215 ; Narendra Kumar v Collector, Buland Shahar, 2004 AIHC 3558 (All).
30. Ram Narayan Agarwal v State of U.P., AIR 1983 SC 1213 [LNIND 1983 SC 234] : (1983) 4 SCC 276 [LNIND 1983 SC
213] .
31. In Re Special Court Bill 1978, AIR 1979 SC 478 [LNIND 1978 SC 661] : (1979) 1 SCC 380 [LNIND 1978 SC 661] .
33. Zahira Habibulla H. Sheik v State of Gujarat, AIR 2004 SC 3114 [LNIND 2004 SC 471] : (2004) 4 SCC 158 [LNIND
2004 SC 471] .
34. (2014) 2 SCC 401 [LNIND 2013 SC 885] .
35. See also Rajesh Talwar v CBI, (2014) 1 SCC 628 [LNIND 2013 SC 911] ; Triveniben v State of Gujarat, AIR 1989 SC
1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678 [LNIND 1989 SC 885] ; Zahira Habibullah Sheik v State of Gujarat (5),
AIR 2006 SC 1367 [LNIND 2006 SC 168] : (2006) 3 SCC 374 [LNIND 2006 SC 168] ; Amrinder Singh v Prakash Singh
Badal, (2009) 6 SCC 260 [LNIND 2009 SC 1286] ; Mohd. Hussain v State (Govt. of NCT of Delhi), AIR 2012 SC 750
[LNIND 2012 SC 14] : (2012) 3 SCC 584 ; Natasha Singh v CBI, (2013) 5 SCC 741 [LNIND 2013 SC 504] .
36. See Neumeister v Austria, (1979–80) 1 EHRR 91.
37. Dombo Beheer BV v The Netherlands, (1994) 18 EHRR 213 .
38. (1984) 6 EHRR 17 .
39. (1985) 7 EHRR 236 .
40. See Edwin Shorts & Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, 1998 Edn, pp 477, 481,
482 and 483.
41. Kartar Singh v State of Punjab, (1994) 3 SCC 569 . See also Delhi Transport Corp v D.T.C. Mazdoor Congress, AIR
1991 SC 101 [LNIND 1990 SC 489] .
42. State of Bihar v P.P. Sharma, 1992 (Supp-1) SCC 222 : AIR 1991 SC 1260 [LNIND 1991 SC 184] .
43. State of Haryana v Mohinder Pal, (2001) 9 SCC 292 .
Page 376 of 467
45. Aziza Begum v State of Maharashtra, (2012) 3 SCC 126 [LNINDORD 2012 SC 399] : (2012) 1 Scale 328 [LNINDORD
2012 SC 399] .
.
47. State of Maharashtra v Praful B. Desai (Dr), AIR 2003 SC 2053 [LNIND 2003 SC 380] : (2003) 4 SCC 601 [LNIND
2003 SC 380] .
48. Charan v UOI, (1990) 1 SCC 613 [LNIND 1989 SC 639] (paras 97–98) : AIR 1990 SC 1480 [LNIND 1989 SC 639] :
1989 (Supp-2) SCR 597 : (1989) 4 JT 582 .
49. Gurdev Singh v State of H.P., AIR 1992 HP 76 [LNIND 1991 HP 42] ; L. Venkatesh Naik v Asst. Collector, Special
Customs Prevention Division, AIR 1992 Ker. 383 [LNIND 1992 KER 410] .
50. Varkey Joseph v State of Kerala, AIR 1993 SC 1892 [LNIND 1993 SC 403] . See also Girdhari v State (NCT of Delhi),
AIR 2011 SC (Supp) 43 : (2011) 15 SCC 373 [LNINDORD 2011 SC 160] : (2012) Cr LJ 984 .
52. Supra.
53. Krishnan v State of Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35] : 1951 Cr
LJ 1103 : 1951 SCJ 453 (Mahajan & Das, JJ.); State of U.P. v Shah Md., AIR 1969 SC 1234 [LNIND 1969 SC 123]
(1238) : (1969) 3 SCR 1006 [LNIND 1969 SC 123] : (1969) 1 SCC 771 [LNIND 1969 SC 123] .
54. State of Bombay v Mr. P., AIR 1959 Bom 182 (190) [Apart from the Letters Patent, Article 215 itself could have been
relied upon for the purpose].
55. State of Punjab v Baldev Singh, AIR 1999 SC 2378 [LNIND 1999 SC 596] : (1999) 6 SCC 172 [LNIND 1999 SC 596] .
But see Pooran Mal v The Director of Inspection (Investigation), AIR 1974 SC 348 [LNIND 1973 SC 400] : (1974) 1
SCC 345 [LNIND 1973 SC 400] .
56. State of Haryana v Bhajan Lal, AIR 1992 SC 604 : 1992 (Supp-1) SCC 335; see also K.V. Rajendran v Inspector of
Police, 2001 Cr LJ 4092 (Mad).
215] .
58. Ahmadabad Municipal Corp v Nawab Khan Gulab Khan, AIR 1997 SC 152 [LNIND 1996 SC 1685] : (1997) 11 SCC
121 [LNIND 1996 SC 1685] . See also UOI v W.N. Chadha, AIR 1993 SC 1082 .
59. M.H. Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 3 SCC 544 [LNIND 1978 SC
199] .
60. Dadu v State of Maharashtra, (2000) 8 SCC 437 [LNIND 2000 SC 1340] .
61. P. Sanjeeva Rao v State of AP, AIR 2012 SC 2242 [LNIND 2012 SC 367] : (2012) 7 SCC 56 [LNIND 2012 SC 367] .
62. Pratap Singh v State of Jharkhand, AIR 2005 SC 2731 [LNIND 2005 SC 100] : (2005) 3 SCC 355 .
63. Rattiram v State of MP, AIR 2012 SC 1485 [LNIND 2012 SC 129] : (2012) 4 SCC 516 [LNIND 2012 SC 129] : (2012)
Cr LJ 1769 .
Page 377 of 467
64. Suk Das v Union Territory, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 [LNIND 1986 SC 60] : (1986) 1
SCR 590 [LNIND 1986 SC 60] ; Nand Lal Bajaj v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1981) 4
SCC 327 [LNIND 1981 SC 388] : (1982) 1 SCR 718 [LNIND 1981 SC 388] ; Madhav Hayawadanrao Hoskot v State of
Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 3 SCC 544 [LNIND 1978 SC 199] .
65. Suk Das v Union Territory of Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 : (1986)
1 SCR 590 [LNIND 1986 SC 60] ; Sheela v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57] : (1983) 2
SCC 96 [LNIND 1983 SC 57] : (1983) 2 SCR 337 [LNIND 1983 SC 57] ; Nand Lal Bajaj v State of Punjab, AIR 1981 SC
66. Kishore Chand v State of H.P., (1991) 1 SCC 286 [LNIND 1990 SC 468] : AIR 1990 SC 2140 [LNIND 1990 SC 468] :
1990 (Supp-1) SCR 105.
67. Suk Das v Union Territory of Arunachal Pradash, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 [LNIND
1986 SC 60] ; Tyron Nazareth v State of Goa, 1994 (Supp-3) SCC 321.
2012 SC 1215] .
69. Mohd. Hussain v State (Govt. of NCT of Delhi), (2012) 9 SCC 408 [LNIND 2012 SC 14] : (2012) Cr LJ 4537 (SC).
70. Chaluvegowda v State, (2012) 13 SCC 538 : (2012) 4 Scale 382 . See also Mohd. Sukur Ali v State of Assam, (2011)
4 SCC 729 [LNINDORD 2011 SC 143] : AIR 2011 SC 1222 [LNINDORD 2011 SC 143] .
71. K.S. Panduranga v State of Karnataka, AIR 2013 SC 2164 [LNIND 2013 SC 389] : (2013) 3 SCC 721 [LNIND 2013
SC 389] . See also Bani Singh v State of UP, (1996) 4 SCC 720 [LNIND 1996 SC 1033] ; N.S. Giri v Corpn. of City of
Mangalore, (1999) 4 SCC 697 [LNIND 1999 SC 555] ; Pradip Chandra Parija v Pramod Chandra Patnaik, (2002) 1
SCC 1 [LNIND 2001 SC 2759] ; Chandra Prakash v State of UP, (2002) 4 SCC 234 [LNIND 2002 SC 257] ; Rattiram v
State, (2012) 4 SCC 516 [LNIND 2012 SC 129] .
72. X and Y v Austria, (1979) D & R 15. See Helen Fenwick, Civil Liberties, 1994 Edn, p 50.
73. Artico v Italy, (1980) 3 EHRR 1 .
74. See also Kama Sinki v Austria, (1989) 13 EHRR 36 .
75. Powell v Alabama, 287 US 45 : (1932) 77 Law Ed 158; Gideon v Wain Wright, 372 US 335 : (1963) 9 Law Ed. 2d 799
— both cases quoted in Ranjan Dwivedi v UOI, AIR 1983 SC 624 [LNIND 1983 SC 126] : (1983) 3 SCC 307 [LNIND
1983 SC 126] .
76. Shiv Bahadur v State of U.P., (1953) SCR 1188 [LNIND 1953 SC 68] (1200) : AIR 1953 SC 394 [LNIND 1953 SC 68] :
1953 Cr LJ 1480 : 1953 SCJ 563 [LNIND 1953 SC 68] ; Nand v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC
388] (para 8) : (1982) 1 SCR 718 [LNIND 1981 SC 388] : (1981) 4 SCC 327 [LNIND 1981 SC 388] .
77. Ram Krishna v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] (715) : AIR 1953 SC 318 [LNIND 1953 SC 49] :
1953 Cr LJ 1241 : 1953 SCJ 444 .
78. Ranjit v State of Maharashtra, AIR 1965 SC 881 [LNIND 1964 SC 205] (885) : (1965) 1 SCR 65 [LNIND 1964 SC 205]
: (1965) 2 Crimes 8 ; Supdt v Ram Manohar, AIR 1960 SC 633 [LNIND 1960 SC 17] (635) : (1960) 2 SCR 821 [LNIND
1960 SC 17] : 1960 Cr LJ 1002 : 1960 SCJ 567 [LNIND 1960 SC 17] ; Krishna v State of M.P., AIR 1965 SC 307
[LNIND 1963 SC 21] (310) : (1964) 1 SCR 765 [LNIND 1963 SC 21] : (1965) 1 Crimes 347 .
Page 378 of 467
1979 SC 329] : (1979) 4 SCC 246 [LNIND 1979 SC 329] .
80. Makhan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 [LNIND 1963 SC 234] :
(1964) 1 Crimes 269 ; Cf. State of Nagaland v Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] (224) : (1966) 3
SCR 830 [LNIND 1966 SC 77] : 1967 Cr LJ 265 .
81. Makhan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 : (1964) 1 Crimes 269 ;
Cf. State of Nagaland v Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] (224) : (1966) 3 SCR 830 [LNIND 1966
SC 77] : 1967 Cr LJ 265 .
82. Antulay v Nayak, AIR 1988 SC 1531 [LNIND 1988 SC 264] (paras 60–61) : 1988 (Supp-1) SCR 1 : (1988) 2 SCC 602
[LNIND 1988 SC 264] (4:3 Judges).
83. Malkani v State of Maharashtra, AIR 1973 SC 157 [LNIND 1972 SC 457] (para 30) : (1973) 2 SCR 417 [LNIND 1972
SC 457] : (1973) 1 SCC 471 [LNIND 1972 SC 457] .
84. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCR 509 [LNIND 1989 SC 885] :
(1989) 1 SCC 678 [LNIND 1989 SC 885] ; Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] : AIR 1950
SC 27 [LNIND 1950 SC 22] .
85. Abbas v UOI, AIR 1971 SC 481 [LNIND 1970 SC 388] : (1971) 2 SCR 446 [LNIND 1970 SC 388] : (1970) 2 SCC 780
[LNIND 1970 SC 388] ; Casebook (I), p 286; State of M.P. v Baldeo, (1961) 1 SCR 970 [LNIND 1960 SC 228] (979) :
AIR 1961 SC 293 [LNIND 1960 SC 228] : (1961) 1 Crimes 442 : (1961) 2 SCJ 484 [LNIND 1960 SC 228] .
86. Nand v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] (para 9) : (1982) 1 SCR 718 [LNIND 1981 SC 388] :
(1981) 4 SCC 327 [LNIND 1981 SC 388] ; Kavita v State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] :
(1982) 1 SCR 138 [LNIND 1981 SC 313] : (1981) 3 SCC 558 [LNIND 1981 SC 313] ; Khatri v State of Bihar, AIR 1981
SC 928 [LNIND 1980 SC 473] (para 4) : (1981) 1 SCC 635 [LNIND 1982 SC 16] ; Kadra v State of Bihar, AIR 1981 SC
939 [LNIND 1980 SC 493] (para 2) : (1981) 3 SCC 671 [LNIND 1980 SC 493] ; Hussainara v State of Bihar, AIR 1979
SC 1369 [LNIND 1979 SC 188] : (1979) 3 SCR 532 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC 188] .
1979 SC 329] : (1979) 4 SCC 246 [LNIND 1979 SC 329] ; Francis v Union Territory, AIR 1981 SC 746 [LNIND 1981
SC 27] (para 3) : (1981) 2 SCR 516 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND 1981 SC 27] .
Page 379 of 467
88. Antulay v Nayak, AIR 1988 SC 1531 [LNIND 1988 SC 264] (paras 60–61) : 1988 (Supp-1) SCR 1 : (1988) 2 SCC 602
[LNIND 1988 SC 264] (4:3 Judges). See also Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1
SCC 248 [LNIND 1978 SC 25] ; Nawab Khana v State of Gujarat, AIR 1974 SC 1471 [LNIND 1974 SC 53] .
89. Rudul v State of Bihar, AIR 1983 SC 1086 [LNIND 1983 SC 181] : (1983) 3 SCR 508 [LNIND 1983 SC 181] : (1983) 4
SCC 141 [LNIND 1983 SC 181] (paras 8–10) (3 Judges).
90. Sowmithri v UOI, AIR 1985 SC 1618 [LNIND 1985 SC 202] (para 9) : 1985 (Supp-1) SCR 741 : 1985 Supp SCC 137 .
92. Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] [Kania C.J. (109; 111–12); Mukherjee, J. (p. 256);
Das, J. (p. 319)] : AIR 1950 SC 27 [LNIND 1950 SC 22] .
This view was adopted by Sastri J. in the later case of Ram Singh v State of Delhi, (1951) SCR 451 [LNIND 1951 SC
24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951 Cr LJ 904 : 1951 SCJ 374 and by Mahajan, J. in Krishnan v State
of Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35] : 1951 Cr LJ 1103 : 1951
SCJ 453 .
93. Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] [Kania, C.J. (109; 111–12); Mukherjee, J. (p. 256);
Das, J. (p. 319)] : AIR 1950 SC 27 [LNIND 1950 SC 22] . This view was adopted by Sastri, J. in the later case of Ram
Singh v State of Delhi, (1951) SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951 Cr LJ 904
: 1951 SCJ 374 and by Mahajan, J. in Krishnan v State of Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC
301 [LNIND 1951 SC 35] : 1951 Cr LJ 1103 : 1951 SCJ 453 ; Collector of Malabar v Ebrahim, AIR 1957 SC 688
[LNIND 1957 SC 40] (690) : 1957 SCR 970 [LNIND 1957 SC 40] : 1957 Cr LJ 1030 : 1957 SCJ 640 [LNIND 1957 SC
40] . See also Lily Thomas v UOI, AIR 2000 SC 1650 [LNIND 2000 SC 827] .
94. Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] [Kania C.J. (109; 111–12); Mukherjee, J. (p. 256);
Das, J. (p. 319)] : AIR 1950 SC 27 [LNIND 1950 SC 22].
This view was adopted by Sastri J. in the later case of Ram Singh v State of Delhi, (1951) SCR 451 [LNIND 1951 SC
24] : AIR 1951 SC 270 [LNIND 1951 SC 24]: 1951 Cr LJ 904 : 1951 SCJ 374 and by Mahajan, J. in Krishnan v State of
Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35]: 1951 Cr LJ 1103 : 1951 SCJ
453.
95. Cf. CAD, Vol VIII, p 844.
96. Munro, Constitution of United States, 1944 Edn, p 193.
97. Lord Denning, The Due Process of Law, 1980 Edn.
98. M. Hidayathullah (edited), Constitutional Law of India, Chapter “Protection” by Justice V.S. Deshpande, Bar Council of
India Trust, 1984, Vol I, pp 493–94.
1. Justice B.N. Krishna, “Skinning a Cat”, (2005) 8 SCC Journal Section, p 3.
2. Matsumoto v Japan, (1962) 16 Keishu 5.

Page 380 of 467
3. Death Penalty case, (1948) Ground Bench dated 12.3.1948. See Human Rights on Constitutional Law, 3rd Edn, 2008,
p 426.
4. VII CAD, pp 851–54; 1000.
5. State of Maharashtra v Basantibai, AIR 1986 SC 1466 [LNIND 1986 SC 75] (para 16) : (1986) 1 SCR 707 [LNIND
1986 SC 75] : (1986) 2 SCC 516 [LNIND 1986 SC 75] .
6. IX CAD, 1496–97.
This view was adopted by Sastri, J. in the later case of Ram Singh v State of Delhi, (1951) SCR 451 [LNIND 1951 SC
of Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35] : 1951 Cr LJ 1103 : 1951
SCJ 453 .
Das, J. (p. 319)] : AIR 1950 SC 27 [LNIND 1950 SC 22].
24] : AIR 1951 SC 270 [LNIND 1951 SC 24]: 1951 Cr LJ 904 : 1951 SCJ 374 and by Mahajan, J. in Krishnan v State of
Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35]: 1951 Cr LJ 1103 : 1951 SCJ
453.
9. Krishnan v State of Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35] : 1951 Cr
LJ 1103 : 1951 SCJ 453 (Mahajan & Das, JJ.); See also Kharak Sigh v State of U.P., AIR 1963 SC 1295 [LNIND 1962
SC 436] (1299) : (1964) 1 SCR 332 [LNIND 1962 SC 436] : (1963) 2 Crimes 329 : (1964) 2 SCJ 107 ; Ram Chandra v
State of Bihar, AIR 1961 SC 1629 [LNIND 1961 SC 182] (1631) : (1962) 2 SCR 50 [LNIND 1961 SC 182] : (1961) 2
Crimes 811 : (1962) 2 SCJ 13 ; Collector v Ibrahim, AIR 1957 SC 688 [LNIND 1957 SC 40] (690) : 1957 SCR 970
[LNIND 1957 SC 40] : 1957 Cr LJ 1030 : 1957 SCJ 640 [LNIND 1957 SC 40] ; Purshottam v Desai, AIR 1956 SC 20
[LNIND 1955 SC 79] (23) : (1955) 2 SCR 887 [LNIND 1955 SC 79] : 1956 Cr LJ 129 : 1956 SCJ 75 [LNIND 1955 SC
79] ; State of U.P. v Shah, AIR 1969 SC 1234 [LNIND 1969 SC 123] (1238) : (1969) 3 SCR 1006 [LNIND 1969 SC
123] : (1969) 1 SCC 771 [LNIND 1969 SC 123] .
10. Krishnan v State of Madras, (1951) SCR 621 [LNIND 1951 SC 35] : AIR 1951 SC 301 [LNIND 1951 SC 35]: 1951 Cr
LJ 1103 : 1951 SCJ 453 (Mahajan & Das, JJ.).
11. Yoshida v Japan, (1965) 19 Keishu 203; Nakamura v Japan, (1962) 16 Keishu 11.
12. (1961) AIR 3636 Gr. Bench.
13. Supra.
14. See D.D. Basu, Human Rights in Constitutional Law, 3rd Revised Edn, 2008, pp 426–427.
Page 381 of 467
16. Cooper v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40] .
17. Supra.
18. See Gurbeksh v State of Punjab, AIR 1980 SC 1632 [LNIND 1980 SC 168] : (1980) 2 SCC 565 [LNIND 1980 SC 168]
: (1980) 2 SCR 383
19. See Nawab Khan v State of Gujarat, AIR 1974 SC 1471 [LNIND 1974 SC 53] : (1974) 2 SCC 121 [LNIND 1974 SC
53] : (1974) 3 SCR 427 [LNIND 1974 SC 53] .
20. Nawab Khan’s case (supra).
21. Sunil Batra v Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215] .
22. Cooper v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40] .
24. See also Mithu v State of Punjab, AIR 1983 SC 473 [LNIND 1983 SC 105] .
25. D.D. Basu, Human Rights in Constitutional Law, 2nd Edn, 2000, p 386.
26. Supra.
27. (1979) 2 EHRR 387 : (1979) EUCR 33.
28. See D.D. Basu, Human Rights on Constitutional Law, 3rd Edn, 2008, p 429; see also Nawab Khan v State of Gujarat,
AIR 1974 SC 1471 [LNIND 1974 SC 53] : (1974) 2 SCC 121 [LNIND 1974 SC 53] : (1974) 3 SCR 427 [LNIND 1974
SC 53] ; Common Cause, A Registered Society v UOI, AIR 1999 SC 3434 ; M.C. Mehta v UOI, AIR 1998 SC 186
[LNIND 1997 SC 1461] : (1997) 8 SCC 770 [LNIND 2004 SC 367] ; Vineet Narain v UOI, AIR 1999 SC 889 : (1998) 1
SCC 226 [LNIND 1997 SC 1657] ; Commissioner of Police v Registrar of Delhi High Court, AIR 1997 SC 95 [LNIND
1996 SC 1687] ; Peoples’ Union for Civil Liberties v UOI, AIR 1997 SC 568 [LNIND 1996 SC 2173] : (1997) 1 SCC 301
; D.K. Basu v State of WB, AIR 1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND 1996 SC 2177] ; Air
India Statutory Corpn v United Labour Union, AIR 1997 SC 645 [LNIND 1996 SC 2076] ; M.C. Mehta v UOI, AIR 1997
SC 734 [LNIND 1996 SC 2207] ; Peoples’ Union for Civil Liberties v UOI, AIR 1997 SC 1203 [LNIND 2003 SC 1103] ;
State of Punjab v Mohinder Singh Chawla, AIR 1997 SC 1225 [LNIND 1996 SC 2157] ; A.A. Mulla v State of
Maharashra, AIR 1997 SC 1441 ; Common Cause, A Registered Society v UOI, AIR 1997 SC 1539 [LNINDORD 1996
SC 47] ; Anukul Chand Pradhan v UOI, AIR 1997 SC 2814 ; Samantha v State of AP, AIR 1997 SC 3297 [LNIND 1997
SC 935] ; Mansukh Lal Vithal Das Chauhan v State of Gujarat, AIR 1997 SC 3400 [LNIND 1997 SC 1158] : (1997) 7
SCC 622 [LNIND 1997 SC 1158] ; State of Maharashtra v Manubhai Pragajit, AIR 1996 SC 1 [LNIND 1995 SC 788] ;
Bodhi Satva Gowtham v M.S. Subha Chakraborthy, AIR 1996 SC 922 [LNIND 1995 SC 1314] ; Sunil Batra (1) v Delhi
Admn., AIR 1978 SC 1975 : (1978) 4 SCC 494 [LNIND 1978 SC 215] ; Bachan Singh v State of Punjab, AIR 1980 SC
898 [LNIND 1980 SC 260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] : (1980) Cr LJ 636 ; Sher Singh v State of
Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] ; Mithu v State of Punjab, AIR 1983 SC 473 [LNIND 1983 SC 105] .
(supra).
30. Thippeswamy v State of Karnataka, AIR 1983 SC 747 [LNIND 1982 SC 179] . See also Re, The Special Court Bill,
1978, AIR 1979 SC 478 [LNIND 1978 SC 661] : (1979) 1 SCC 380 [LNIND 1978 SC 661] .
31. Silver v U.K., (1983) 5 EH RR 347.

Page 382 of 467
32. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] [Kania, C.J. (109; 111–12); Mukherjee, J. (p. 256);
of Madras, (1951)SCR 621 : AIR 1951 SC 301 [LNIND 1951 SC 35] : 1951 Cr LJ 1103 : 1951 SCJ 453 .
33. Sharma v Sri Krishna, AIR 1959 SC 395 [LNIND 1958 SC 163] (410) : 1959 (Supp-1) SCR 806.
34. State of Bombay v Mr. P., AIR 1959 Bom 182 (185).
35. Sukhdeo Singh v Teja Singh, AIR 1954 SC 186 [LNIND 1953 SC 108] (190) : 1954 SCR 454 [LNIND 1953 SC 108] :
1954 Cr LJ 460 : 1954 SCJ 67 . [This power has since been controlled by enacting the Contempt of Courts Act, 1971].
36. State of U.P. v Poosu, AIR 1976 SC 1750 [LNIND 1976 SC 151] (para 14) : (1976) 3 SCR 1005 [LNIND 1976 SC 151]
: (1976) 3 SCC 1 [LNIND 1976 SC 151] .
37. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] (1021) : 1966 Supp SCR 239 : 1966 Cr LJ 1521
.
38. Ratilal v Asstt. Collector, AIR 1967 SC 1639 [LNIND 1967 SC 181] (1642) : (1967) 3 SCR 926 [LNIND 1967 SC 181] :
1967 Cr LJ 1576 .
39. State of Nagaland v Ratan, AIR 1967 SC 212 [LNIND 1966 SC 77] (224) : (1966) 3 SCR 830 [LNIND 1966 SC 77] :
1967 Cr LJ 265 ; Rajendran v State of Madras, AIR 1968 SC 1012 [LNIND 1968 SC 10] (1017) : (1968) 2 SCR 786
[LNIND 1968 SC 10] .
271 [LNIND 1981 SC 469] .
41. A.K. Roy v UOI, (supra).
42. Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154] : (1973) 4 SCC 225 [LNIND 1973
SC 154] —per Roy J. Also see the dissenting opinion of Gupta J. in A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981
SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] .
43. State of Maharashtra v Buddhikota Subha Rao, AIR 1989 SC 2292 [LNIND 1989 SC 481] : 1989 (Supp-2) SCC 605.
44. Wood Phillips & Jackson, Constitutional and Administrative Law, 8th Edn, p 3.
Page 383 of 467
45. Vick Wocase, 30 L Ed 220.
46. In Re Sant Ram, AIR 1960 SC 932 [LNIND 1960 SC 113] : (1960) 3 SCR 499 ; RatilalMathani v Assistant Collector of
Customs, AIR 1967 SC 1639 [LNIND 1967 SC 181] : (1967) 3 SCR 926 [LNIND 1967 SC 181] .
47. State of Nagaland v Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] : (1966) 3 SCR 830 [LNIND 1966 SC 77]
(supra).
48. Purshottam v Desai, AIR 1956 SC 20 [LNIND 1955 SC 79] : (1955) 2 SCR 887 [LNIND 1955 SC 79] : 1956 Cr LJ 129
: 1956 SCJ 75 [LNIND 1955 SC 79] .
49. Collector of Madras v Ibrahim, AIR l957 SC 688 (690).
50. Agrawal v State of U.P., AIR 1983 SC 1224 : 1984 (Supp-1) SCC 607.
51. State of Maharashtra v Chandrabhan, AIR 1983 SC 803 [LNIND 1983 SC 165] (para 20) : (1983) 3 SCR 337 [LNIND
1983 SC 165] : (1983) 3 SCC 387 [LNIND 1983 SC 165] .
52. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] (255) : AIR 1950 SC 27 [LNIND 1950 SC 22] .
53. State of U.P. v Shah Md., AIR 1969 SC 1234 [LNIND 1969 SC 123] (para 7) : (1969) 3 SCR 1006 [LNIND 1969 SC
123] : (1969) 1 SCC 771 [LNIND 1969 SC 123] .
54. Patnaik v State of A.P., AIR 1974 SC 2092 [LNIND 1974 SC 269] (para 8) : (1975) 2 SCR 24 [LNIND 1974 SC 269] :
(1975) 3 SCC 185 [LNIND 1974 SC 269] .
(1964) 1 Crimes 269 ; Cf. State of Nagaland v Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] (224) : (1966) 3
SCR 830 [LNIND 1966 SC 77] : 1967 Cr LJ 265 .
436] : (1963) 2 Crimes 329 : (1964) 2 SCJ 107 .
57. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] (paras 18, 19, 31) : (1982) 2 SCR 272 [LNIND 1981 SC 469]
: (1982) 1 SCC 271 [LNIND 1981 SC 469] .
58. Govind v State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124] (paras 10–11) : (1975) 3 SCR 946 [LNIND 1975 SC
124] : (1975) 2 SCC 148 [LNIND 1975 SC 124] .
59. Puttappa Honappa Talawar v Dy. Commr. Dharwad, AIR 1998 Kant. 10 [LNIND 1997 KANT 68] .
60. Bachan v State of Punjab, (1980) 2 SCC 684 [LNIND 1980 SC 261] : AIR 1980 SC 898 [LNIND 1980 SC 260] : 1980
Cr LJ 636 ; Triveniben v State of Gujarat, (1989) 1 SCC 678 [LNIND 1989 SC 885] : AIR 1989 SC 1335 [LNIND 1989
SC 885] : (1989) 1 SCR 509 [LNIND 1989 SC 885] . See also Jagmohan Singh v State of UP, AIR 1973 SC 947
Page 384 of 467
[LNIND 1972 SC 477] : (1973) 1 SCC 20 [LNIND 1972 SC 477] ; Machchi Singh v State of Punjab, AIR 1983 SC 947 :
(1983) 3 SCC 470 [LNIND 1983 SC 170] ; Surja Ram v State of Rajasthan, AIR 1997 SC 18 [LNIND 1996 SC 1548] :
(1996) 6 SCC 271 [LNIND 1996 SC 1548] ; Allaudin Mian v State of Bihar, AIR 1989 SC 1456 [LNIND 1989 SC 236] :
(1989) 3 SCC 5 [LNIND 1989 SC 236] ; Jumman Khan v State of UP, AIR 1991 SC 345 [LNIND 1990 SC 750] : (1991)
1 SCC 752 [LNIND 1990 SC 750] ; Devendra Pal Singh Bhullar v State (NCT of Delhi), (2013) 6 SCC 195 [LNIND 2008
SC 2975] : AIR 2013 SCW 2939 .
61. Alauddin v State of Bihar, (1989) 3 SCC 5 [LNIND 1989 SC 236] (para 9) : AIR 1989 SC 1456 [LNIND 1989 SC 236] :
(1989) 2 SCR 498 .
62. Supra.
63. Supra.
64. AIR 1983 SC 947 : (1983) 3 SCC 470 [LNIND 1983 SC 170] .
65. See also Kartar Singh v State of Punjab, (1994) 3 SCC 569 : 1994 Cr LJ 3139 .
66. Mithu v State of Punjab, AIR 1983 SC 473 [LNIND 1983 SC 105] : (1983) 2 SCC 277 [LNIND 1983 SC 105] .
67. State of Nagaland v Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] (224) : (1966) 3 SCR 830 [LNIND 1966 SC
77] : 1967 Cr LJ 265 .
69. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] (320) : AIR 1950 SC 27 [LNIND 1950 SC 22]. See
also Rameshwar v D.M., AIR 1964 SC 334 [LNIND 1963 SC 214]: (1964) 4 SCR 921 [LNIND 1963 SC 214] : (1964) 1
Crimes 257; D’Souza v State of Bombay, (1956) SCR 382 (387) : AIR 1956 SC 531 [LNIND 1956 SC 36]: 1956 SCJ
559; Mukherjee v State of W.B., AIR 1970 SC 852 [LNIND 1968 SC 332](855) : (1969) 2 SCR 635 [LNIND 1968 SC
332] : (1969) 1 SCC 10 [LNIND 1968 SC 332] : 1970 Cr LJ 852.
70. A.K. Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] (109) : AIR 1950 SC 27 [LNIND 1950 SC 22] .
71. Collector of Madras v Ibrahim, AIR 1957 SC 688 [LNIND 1957 SC 40] (690) : 1957 SCR 970 [LNIND 1957 SC 40] :
1957 Cr LJ 1030 : 1957 SCJ 640 [LNIND 1957 SC 40] .
72. Shiv Bahadur v State of U.P., (1953) SCR 1188 [LNIND 1953 SC 68] (1200) : AIR 1953 SC 394 [LNIND 1953 SC 68] :
1953 Cr LJ 1480 : 1953 SCJ 563 [LNIND 1953 SC 68] .
73. State of W.B. v Anwar Ali, (1952) SCR 284 [LNIND 1952 SC 1] : AIR 1952 SC 75 [LNIND 1952 SC 1] : 1952 Cr LJ
510 : 1952 SCJ 55 [LNIND 1952 SC 1] ; Kathi Ranning v State of Saurashtra, AIR 1952 SC 123 [LNIND 1952 SC 12] :
1952 SCR 435 [LNIND 1952 SC 12] : 1952 Cr LJ 805 : 1952 SCJ 168 .
75. Ram Krishan v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] (713) : AIR 1953 SC 318 [LNIND 1953 SC 49] :
1953 Cr LJ 1241 : 1953 SCJ 444 ; Madhu Limaye, Re, AIR 1969 SC 1014 (1019) : (1969) 3 SCR 154 : (1969) 1 SCC
292 : 1969 Cr LJ 1440 .
76. Ram Singh v State of Delhi, (1951) SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951 Cr
LJ 904 : 1951 SCJ 374 ; State of Punjab v Ajaib Singh, (1953) SCR 254 [LNIND 1952 SC 68] (271) : AIR 1953 SC 10
Page 385 of 467
[LNIND 1952 SC 68] : 1953 Cr LJ 180 : 1952 SCJ 664 [LNIND 1952 SC 68] ; Collector of Malabar v Ibrahim, AIR 1957
SC 688 [LNIND 1957 SC 40] : 1957 SCR 970 : 1957 Cr LJ 1030 : 1957 SCJ 640 [LNIND 1957 SC 40] .
77. Collector of Malabar v Ibrahim, AIR 1957 SC 688 [LNIND 1957 SC 40] : 1957 SCR 970 : 1957 Cr LJ 1030 : 1957 SCJ
640 [LNIND 1957 SC 40] .
78. Ram Singh v State of Delhi, (1951) SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951 Cr
LJ 904 : 1951 SCJ 374 .
79. Cooper v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40](596) : (1970) 3 SCR 530 [LNIND 1970 SC 40] : (1970) 1 SCC
248 [LNIND 1970 SC 40].
80. Sambhu v State of W.B., AIR 1973 SC 1425 : (1974) 1 SCR 1 [LNIND 1973 SC 454] : (1973) 1 SCC 856 [LNIND 1973
SC 138]; Khudiram v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386]: (1975) 2 SCR 832 [LNIND 1974 SC 386]
: (1975) 2 SCC 81 [LNIND 1974 SC 386]; State of Bihar v Misra, AIR 1971 SC 1667 [LNIND 1969 SC 441](para 28) :
(1970) 3 SCR 181 [LNIND 1969 SC 441] : (1969) 3 SCC 337 [LNIND 1969 SC 441]; see also Hamdard Dawakhana v
UOI, AIR 1960 SC 554 [LNIND 1959 SC 230]: (1960) 2 SCR 671 [LNIND 1959 SC 230] : 1960 SCJ 611 [LNIND 1959
SC 230]; Ranjit v State of Maharashtra, AIR 1965 SC 881 [LNIND 1964 SC 205](885) : (1965) 1 SCR 65 [LNIND 1964
SC 205] : (1965) 2 Crimes 8.
81. See, generally, D.D. Basu, Casebook on Indian Constitutional Law, S.C. Sarkar & Sons Pvt Ltd, Calcutta, 1974; State
of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214](426) : (1966) 1 SCR 702 [LNIND 1965 SC 214] :
1966 Cr LJ 311; Satwant v A.P.O, AIR 1967 SC 1836 [LNIND 1967 SC 126]: (1967) 3 SCR 525 [LNIND 1967 SC 427].
82. Cooper v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40](596) : (1970) 3 SCR 530 : (1970) 1 SCC 248 [LNIND 1970 SC
40].
84. Supra.
85. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] (148–157) : AIR 1950 SC 27 [LNIND 1950 SC 22].
86. Supra.
87. It is to be noted that even Fazl Ali, J., sought to save the Penal Code as a whole, by observing that its “primary” object
was punishment and not restriction of the freedom of movement, so that Article 19(l)(d) could not possibly be invoked to
annul any provision of the Penal Code [vide (1950) SCR 88 [LNIND 1950 SC 22] (145)]. Even capital punishment has
been held to be reasonable [Jagmohan v State of U.P., AIR 1973 SC 947 [LNIND 1972 SC 477]: (1973) 2 SCR 541
Page 386 of 467
[LNIND 1972 SC 477] : (1973) 1 SCC 20 [LNIND 1972 SC 477] (paras 12–16)]; Patnaik v State of A.P., AIR 1974 SC
2092 [LNIND 1974 SC 269](para 6) : (1975) 2 SCR 24 [LNIND 1974 SC 269] : (1975) 3 SCC 185 [LNIND 1974 SC
269].
88. AIR 1970 SC 564 [LNIND 1970 SC 40]: (1970) 3 SCR 530 [LNIND 1970 SC 40] : (1970) 1 SCC 248 [LNIND 1970 SC
40] (supra).
90. State of Bihar v Misra, AIR 1971 SC 1667 [LNIND 1969 SC 441](para 28) : (1970) 3 SCR 181 [LNIND 1969 SC 441] :
(1969) 3 SCC 337 [LNIND 1969 SC 441].
91. Hans Muller v Supdt, (1955) 1 SCR 1284 [LNIND 1955 SC 14] : AIR 1955 SC 367 [LNIND 1955 SC 14]: 1955 Cr LJ
876 : 1955 SCJ 324 [LNIND 1955 SC 14].
92. State of Bihar v Misra, AIR 1971 SC 1667 [LNIND 1969 SC 441](para 28) : (1970) 3 SCR 181 : (1969) 3 SCC 337
[LNIND 1969 SC 441].
93. Cf. Jayantilal v Eric, (1975) Cr LJ, 661 (Guj) (paras 8, 15).
95. Collector of Malabar v Ibrahim, AIR 1957 SC 688 [LNIND 1957 SC 40]: 1957 SCR 970 [LNIND 1957 SC 40] : 1957 Cr
LJ 1030.
96. Sukhdeo Singh v Teja Singh, AIR 1954 SC 186 [LNIND 1953 SC 108](190) : 1954 SCR 454 [LNIND 1953 SC 108] :
1954 Cr LJ 460.
97. Kochunni v State of Madras, AIR 1960 SC 1080 [LNIND 1960 SC 436]: (1960) 3 SCR 887 [LNIND 1960 SC 436] :
(1961) 2 SCJ 443 [LNIND 1960 SC 436].
Page 387 of 467
2. Kochunni v State of Madras, AIR 1960 SC 1080 [LNIND 1960 SC 436]: (1960) 3 SCR 887 : (1961) 2 SCJ 443 [LNIND
1960 SC 436].
3. Patnaik v State of A.P., AIR 1974 SC 2092 [LNIND 1974 SC 269](para 6) : (1975) 2 SCR 24 [LNIND 1974 SC 269] :
(1975) 3 SCC 185 [LNIND 1974 SC 269]; State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC
214](426) : (1966) 1 SCR 702 [LNIND 1965 SC 214] : 1966 Cr LJ 311.
4. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436]: (1964) 1 SCR 332 [LNIND 1962 SC 436].
5. See State of W.B. v Ashok Dey, AIR 1972 SC 1660 [LNIND 1971 SC 582]: (1972) 1 SCC 199 [LNIND 1971 SC 582];
Haradhan Saha v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243]: (1975) 3 SCC 198 [LNIND 1974 SC 243];
John Martin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26]: (1975) 3 SCC 386 and finally in Maneka Gandhi v
UOI, AIR 1978 SC 597 [LNIND 1978 SC 25]: (1978) 1 SCC 248 [LNIND 1978 SC 25].
6. Khudiram Das v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386]: (1975) 2 SCC 81 [LNIND 1974 SC 386].
7. See also Sambhu Nath Sarkar v State of W.B., AIR 1973 SC 1425 [LNIND 1973 SC 138].
8. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22].
9. Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25](para 56) : (1978) 2 SCR 621 [LNIND 1978 SC 25] : (1978) 1
SCC 248 [LNIND 1978 SC 25]. This view has been followed in subsequent case; Sunil v Delhi Administration, AIR 1978
SC 1675 [LNIND 1978 SC 215]: (1979) 1 SCR 392 [LNIND 1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215];
Hussainara v State of Bihar, AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; State of Maharashtra v
Champalal, AIR 1981 SC 1675 [LNIND 1981 SC 340]: (1982) 1 SCR 299 [LNIND 1981 SC 340] : (1981) 3 SCC 610
[LNIND 1981 SC 340]; Olga v Bombay Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215](para 31) : 1985 (Supp-2) SCR
51 : (1985) 3 SCC 545 [LNIND 1985 SC 215].
10. Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] (para 56) : (1978) 2 SCR 621 [LNIND 1978 SC 25] : (1978) 1
SCC 248 [LNIND 1978 SC 25] . This view has been followed in subsequent case; Sunil v Delhi Administration, AIR
1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1 SCR 392 [LNIND 1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC
215] ; Hussainara v State of Bihar, AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81 ; State of Maharashtra v
Champalal, AIR 1981 SC 1675 [LNIND 1981 SC 340] : (1982) 1 SCR 299 [LNIND 1981 SC 340] : (1981) 3 SCC 610
[LNIND 1981 SC 340] ; Olga v Bombay Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215] (para 31) : 1985 (Supp-2)
SCR 51 : (1985) 3 SCC 545 [LNIND 1985 SC 215] ; Sita Ram v State of U.P., AIR 1979 SC 745 [LNIND 1979 SC 65]
(para 29) : (1979) 2 SCR 1085 [LNIND 1979 SC 65] : (1979) 2 SCC 656 [LNIND 1979 SC 65] .
Page 388 of 467
12. Haradhan Saha v State of WB, AIR 1974 SC 2154 [LNIND 1974 SC 243]: (1975) 3 SCC 198 [LNIND 1974 SC 243]
(supra).
13. Supra.
14. Supra.
15. AIR 1952 SC 75 [LNIND 1952 SC 1]: (1952) SCR 285.
16. AIR 1952 SC 123 [LNIND 1952 SC 12]: (1952) SCR 435 [LNIND 1952 SC 12].
19. AIR 2011 SC 312 [LNIND 2010 SC 1174]: (2011) 1 SCC 694 [LNIND 2010 SC 1174] (para 55) : (2010) 4 Ker LT 930.
20. (1994) 3 SCC 569 : 1994 Cr LJ 3139.
21. See Prem Shankar Shukla v Delhi Admn., AIR 1980 SC 1535 [LNIND 1980 SC 215]: (1980) 3 SCC 526 [LNIND 1980
SC 215].
SCC 248 [LNIND 1978 SC 25]. This view has been followed in subsequent case; Sunil v Delhi Administration, AIR 1978
SC 1675 [LNIND 1978 SC 215]: (1979) 1 SCR 392 [LNIND 1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215];
Hussainara v State of Bihar, AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; State of Maharashtra v
Champalal, AIR 1981 SC 1675 [LNIND 1981 SC 340]: (1982) 1 SCR 299 [LNIND 1981 SC 340] : (1981) 3 SCC 610
[LNIND 1981 SC 340]; Olga v Bombay Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215](para 31) : 1985 (Supp-2) SCR
51 : (1985) 3 SCC 545 [LNIND 1985 SC 215]; Sita Ram v State of U.P., AIR 1979 SC 745 [LNIND 1979 SC 65](para
29) : (1979) 2 SCR 1085 [LNIND 1979 SC 65] : (1979) 2 SCC 656 [LNIND 1979 SC 65].
Page 389 of 467
23. Sunil Batra v Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215]: (1978) 4 SCC 494 [LNIND 1978 SC
215].
24. Cooper v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40].
25. Mithu v State of Punjab, (1983) 2 SCC 277 [LNIND 1983 SC 105] : AIR 1983 SC 473 [LNIND 1983 SC 105].
28. See M.P. Jain, Indian Constitutional Law, 2014 Edn, p 1120.
29. District Registrar & Collector v Canara Bank, AIR 2005 SC 186 [LNIND 2004 SC 1478]: (2005) 1 SCC 496 [LNIND
2004 SC 1478].
30. See Inspector General of Police v S. Samuthiram, AIR 2013 SC 14 [LNIND 2012 SC 755]: (2013) 1 SCC 598 [LNIND
2012 SC 755].
31. Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : (2012) Cr LJ 3516.
SCC 248 [LNIND 1978 SC 25]. This view has been followed in subsequent case, Sunil Batra v Delhi Administration,
AIR 1978 SC 1675 [LNIND 1978 SC 215]: (1978) 4 SCC 494 [LNIND 1978 SC 215]; Hussainara v State of Bihar, AIR
1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; State of Maharashtra v Champalal, AIR 1981 SC 1675 [LNIND
1981 SC 340]: (1982) 1 SCR 299 [LNIND 1981 SC 340] : (1981) 3 SCC 610 [LNIND 1981 SC 340]; Olga v Bombay
Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215](para 31) : 1985 (Supp-2) SCR 51 : (1985) 3 SCC 545 [LNIND 1985
SC 215]; Special Courts Bill, 1978, Re., AIR 1979 SC 478 [LNIND 1978 SC 661](7 Judge Bench) (paras 94–98, 145,
147, 156, 161, 167); Bachan v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260]: (1980) 2 SCC 684 [LNIND
1980 SC 261] : 1980 Cr LJ 636; Mithu v State of Punjab, AIR 1983 SC 473 [LNIND 1983 SC 105]: (1993) 2 SCR 690 :
(1983) 2 SCC 277 [LNIND 1983 SC 105].
33. Special Courts Bill, 1978, Re., (1979) 1 SCC 380 [LNIND 1978 SC 661] : AIR 1979 SC 478 [LNIND 1978 SC 661](7
Judge Bench) (paras 94–98, 145, 147, 156, 161, 167); Bachan v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC
Page 390 of 467
260]: (1980) 2 SCC 684 [LNIND 1980 SC 261] : 1980 Cr LJ 636; Mithu v State of Punjab, AIR 1983 SC 473 [LNIND
1983 SC 105]: (1993) 2 SCR 690 : (1983) 2 SCC 277 [LNIND 1983 SC 105].
34. Special Courts Bill, 1978, Re., (1979) 1 SCC 380 [LNIND 1978 SC 661] : AIR 1979 SC 478 [LNIND 1978 SC 661] (7
Judge Bench) (paras 94–98, 145, 147, 156, 161, 167); Bachan v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC
260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] : 1980 Cr LJ 636 ; Mithu v State of Punjab, AIR 1983 SC 473 [LNIND
1983 SC 105] : (1993) 2 SCR 690 : (1983) 2 SCC 277 [LNIND 1983 SC 105] .
35. Sambhu v State of W.B., AIR 1973 SC 1425 [LNIND 1973 SC 138]: (1974) 1 SCR 1 [LNIND 1973 SC 454] : (1973) 1
SCC 856 [LNIND 1973 SC 138]; Khudiram v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386]: (1975) 2 SCR
832 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC 386]; State of Bihar v Misra, AIR 1971 SC 1667 [LNIND
1969 SC 441](para 28) : (1970) 3 SCR 181 [LNIND 1969 SC 441] : (1969) 3 SCC 337 [LNIND 1969 SC 441].
36. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214]: (1966) 1 SCR 702 [LNIND 1965 SC 214]
: 1966 Cr LJ 311.
37. State of AP v Chella Ramakrishna Reddy, AIR 2000 SC 2083 [LNIND 2000 SC 741]: (2000) 5 SCC 712 [LNIND 2000
SC 741].
38. T.V. Vatheeswaran v State of Tamil Nadu, AIR 1983 SC 361 [LNIND 1983 SC 43]: (1983) 2 SCC 68 [LNIND 1983 SC
58]; see also N. Nagendra Rao & Co v State of AP, AIR 1994 SC 2663 [LNIND 1994 SC 789]: (1994) 6 SCC 205
[LNIND 1994 SC 789]; Sunil Batra v Delhi Admn. (I), AIR 1978 SC 1975 : (1978) 4 SCC 494 [LNIND 1978 SC 215];
Sunil Batra v Delhi Admn. (II), AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215]; Francis Coralie Mullin v
Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27]: (1981) 1 SCC 608 [LNIND 1981 SC
27]; Charles Shobraj v Supt., Central Jail, Tihar, AIR 1978 SC 1514 [LNIND 1978 SC 218]: (1978) 2 SCC 104; D.
Bhuvan Mohan Patnaik v State of AP, AIR 1974 SC 2092 [LNIND 1974 SC 269]: (1975) 3 SCC 185 [LNIND 1974 SC
269]; State of Maharashtra v Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424 [LNIND 1965 SC 214]: (1966) 1 SCR
702 [LNIND 1965 SC 214].
39. Procunier v Martinex, (1974) 40 L Ed 2d 224.
41. See Justice J.S. Verma, The New Universe of Human Rights, 2004 Edn, pp 131–132.
42. D. Bhuvan Mohan Patnaik v State of AP, AIR 1974 SC 2092 [LNIND 1974 SC 269]: (1975) 3 SCC 185 [LNIND 1974
SC 269]; see also Sunil Batra (1) v Delhi Admn., AIR 1978 SC 1975 : (1978) 4 SCC 494 [LNIND 1978 SC 215].
Page 391 of 467
43. Ram Narain v State of Delhi, (1953) SCR 652 [LNIND 1953 SC 28]; Kishan Mohan Bera v State of W.B., AIR 1972 SC
1749; Bhoot Nath Mate v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31]: (1974) 1 SCC 645 [LNIND 1974 SC
31]; Montoo Mazumdar v State of Bihar, AIR 1980 SC 847 [LNIND 1980 SC 91]: (1980) 2 SCC 406 [LNIND 1980 SC
91]; Daulat Ram v State of Haryana, (1996) 11 SCC 711 : AIR 1995 SC 847; Krishna Murari Aggarwalla v UOI, AIR
44. State of Maharashtra v Prabhakar, AIR 1966 SC 424 [LNIND 1965 SC 214]: (1966) 1 SCR 702 [LNIND 1965 SC 214];
Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25](paras 68 et seq.84, 135, 143) : (1978) 2 SCR 621 [LNIND 1978
SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25].
45. Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25](paras 68 et seq. 84, 135, 143) : (1978) 1 SCC 248 [LNIND
1978 SC 25].
46. Inderjeet v State of U.P., AIR 1979 SC 1867 [LNIND 1979 SC 329] : (1980) 1 SCR 255 [LNIND 1979 SC 329] : (1979)
4 SCC 246 [LNIND 1979 SC 329] (DB).
also D.K. Basu v State of W.B., (1997) 6 SCC 642 ; D.K. Basu v State of W.B., (1998) 6 SCC 380 : (1998) 9 SCC 437
[LNIND 2015 SC 421] .
48. Robinson v California, (1962) 370 US 660.
49. Sunil Batra (I) v Delhi Admn., AIR 1978 SC 1975 : (1978) 4 SCC 494 [LNIND 1978 SC 215] (supra).
50. Jumman v State of U.P., AIR 1991 SC 345 [LNIND 1990 SC 750] : (1991) 1 SCC 752 [LNIND 1990 SC 750] . But see
Govindasamy v President of India, Government of India, (2000) 1 CTC 432 [LNIND 2000 MAD 85] (Mad), where it was
held on fact that delay for disposal of mercy petition did not violate Article 21.
51. Sher Singh v State of Punjab, (1983) 2 SCC 344 [LNIND 1983 SC 89] ; Triveniben v State of Gujarat, (1989) 1 SCC
678 [LNIND 1989 SC 885] : AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCR 509 [LNIND 1989 SC 885] .
52. See Shatrughan Chauhan v UOI, (2014) 3 SCC 1 [LNIND 2014 SC 40] ; see also Triveniben v State of Gujarat, AIR
1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678 [LNIND 1989 SC 885] ; see also (1988) 4 SCC 574 ; T.V.
Vatheeswaran v State of Tamil Nadu, AIR 1983 SC 361 [LNIND 1983 SC 43] (2) : (1983) 2 SCC 68 [LNIND 1983 SC
58] .
53. (2014) 4 SCC 242 [LNIND 2014 SC 134] : 2014 Cr LJ 1681 .
54. Soering v UK, (1989) 11 EHRR 439 .
55. (1992) 15 EHRR 1 .
56. Deena v UOI, AIR 1983 SC 1155 [LNIND 1983 SC 265] : (1983) 4 SCC 645 [LNIND 1983 SC 265] ; Mithu v State of
Punjab, AIR 1983 SC 473 [LNIND 1983 SC 105] : (1983) 2 SCC 277 [LNIND 1983 SC 105] .
57. Attorney General v Lachma Devi, AIR 1986 SC 467 : 1989 (Supp-1) SCC 264.
Page 392 of 467
58. Triveniben v State of Gujarat, (1989) 1 SCC 678 [LNIND 1989 SC 885] : AIR 1989 SC 1335 [LNIND 1989 SC 885] :
(1989) 1 SCR 509 [LNIND 1989 SC 885] .
59. Ireland v UK, (1988) 2 EHRR 25 .
60. (1993) 19 EHRR 112 .
61. (1992) 17 EHRR 238 .
62. See Helen Fenwick, Civil Liberties, 1994 Edn, pp 36–37.
63. (1982) CrLRev 679 (PC).
64. Ireland v UK, (1988) 2 EHRR 25 .
65. Aydui v Turkey, (1998) 25 EHRR 251 ,
66. Tyrer v UK, (1978) 2 EHRR 1 .
67. See also Y v U.K., (1992) 17 EHRR 238 .
68. Campbell and Cozan v U.K., (1982) 2 EHRR 293 .
69. Soering v U.K., (1989) 11 EHRR 439 .
70. See also Tomasi v France, (1992) 15 EHRR 1 .
71. Smith v Queen, 40 DLR (4th) 435 (Canada).
72. See Bachan Singh v State of Punjab, (1980) 2 SCC 684 [LNIND 1980 SC 261] —opinion of Bhagavati J. reported in
(1982) 2 SCC 24 . See also Om Kumar v UOI, AIR 2001 SC 3689 [LNIND 2001 SC 2018] : (2001) 2 SCC 286 .
73. D.V. Kapoor v UOI, AIR 1990 SC 1923 [LNIND 1990 SC 408] : (1990) 4 SCC 314 [LNIND 1990 SC 408] . See also
Bishan Singh v State of Punjab, AIR 1997 SC 2670 [LNIND 1996 SC 1360] : (1996) 10 SCC 461 [LNIND 1996 SC
1360] ; Mehnga Singh v Inspector General of Police, (1995) 5 SCC 682 [LNIND 1995 SC 860] ; Ram Kishen v UOI, AIR
1996 SC 255 [LNIND 1995 SC 858] : (1995) 6 SCC 157 [LNIND 1995 SC 858] .
74. Francis Coralie Mullui v The Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] .
75. Kishor Singh Ravinder Dev v State of Rajasthan, AIR 1981 SC 625 [LNIND 1980 SC 436] .
76. Sunil Batra v Delhi Administrator, AIR 1978 SC 1675 [LNIND 1978 SC 215] .
77. Sheela Barse v State of Maharashtra, (1983) 2 SCC 596 .
78. D.K. Basu v State of W.B., (1996) 4 SCC 29 .
79. AG v Wilts United Dairies, (1921) 37 TLR 884 (HL); Congreve v Home Office, (1976) All ER 697 .
80. Trop v Dulless, (1958) 356 US 86.
81. Supra.
82. (1972) 408 US 238.
83. See D.D. Basu, Comparative Constitutional Law, 2nd Edn, 2008, pp 271–274.
Page 393 of 467
84. See also Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] (paras 13, 16, 19) : (1983) 2 SCR 582
[LNIND 1983 SC 89] : (1983) 2 SCC 344 [LNIND 1983 SC 89] (unjustifiable delay in executing a death sentence).
Triveniben v State of Gujarat, (1989) 1 SCC 678 [LNIND 1989 SC 885] : AIR 1989 SC 1335 [LNIND 1989 SC 885] .
85. Maneka v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25](paras 68 et seq.84, 135, 143) : (1978) 2 SCR 621 [LNIND
1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25]; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215]:
(1979) 1 SCR 392 [LNIND 1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215]; Sita Ram v State of U.P., AIR
1979 SC 745 [LNIND 1979 SC 65]: (1979) 2 SCR 1085 [LNIND 1979 SC 65] : (1979) 2 SCC 656 [LNIND 1979 SC 65];
Jolly v Bank of Cochin, AIR 1980 SC 470 [LNIND 1980 SC 48](para 10) : (1980) 2 SCR 913 [LNIND 1980 SC 48] :
(1980) 2 SCC 360 [LNIND 1980 SC 48].
86. Jolly v Bank of Cochin, AIR 1980 SC 470 [LNIND 1980 SC 48](para 10) : (1980) 2 SCR 913 : (1980) 2 SCC 360
[LNIND 1980 SC 48].
87. Ram Narayan Agarwal v State of U.P., AIR 1983 SC 1213 [LNIND 1983 SC 234]: (1983) 4 SCC 276 [LNIND 1983 SC
213]; See also Sardar Dilshar Singh v Labour Commission, (1995) 6 SCC 66; Purshotham Govind Halai v B. M. Desai,
AIR 1956 SC 20 [LNIND 1955 SC 79]: (1955) 2 SCR 887 [LNIND 1955 SC 79].
88. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89](paras 6. 13, 16, 19) : (1983) 2 SCR 582 [LNIND
1983 SC 89] : (1983) 2 SCC 344 [LNIND 1983 SC 89]; Hussainara v Home Secy., AIR 1979 SC 1360 (para 8) : (1979)
3 SCR 169 : (1980) 1 SCC 81. The court ordered immediate release of many persons kept in jail for a long time,
without trial or even without a charge. [Mathew v State of Bihar, AIR 1984 SC 1854 [LNIND 1984 SC 253]: (1985) 1
SCR 776 [LNIND 1984 SC 253] : (1985) 2 SCC 102 [LNIND 1984 SC 253]; Kamaladevi v State of Punjab, AIR 1984
SC 1895 : (1985) 1 SCC 41 : 1985 Cr LJ 356]; Hussainara v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188]:
(1979) 3 SCR 532 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC 188]; Hussainara v Stateof Bihar (II), AIR
1979 SC 1377 [LNIND 1979 SC 241]: (1979) 3 SCR 760 [LNIND 1979 SC 241] : (1980) 1 SCC (Cri) 50 : 1979 CAR
234.
89. Hussainara v Home Secy., AIR 1979 SC 1360 (para 8) : (1979) 3 SCR 169 : (1980) 1 SCC 81. See Bipin Shantilal
Panchal v State of Gujarat, AIR 2001 SC 1158 [LNIND 2001 SC 509]: (2001) 3 SCC 1 [LNIND 2001 SC 509]; Aktari Bi
v State of M.P., AIR 2001 SC 1528 [LNIND 2001 SC 773]: (2001) 4 SCC 355 [LNIND 2001 SC 765]; Uday Mohanlal
Acharya v State of Maharashtra, AIR 2001 SC 1910 [LNIND 2001 SC 852]: (2001) 5 SCC 453 [LNIND 2001 SC 852];
Sunil K. Sinha v State of Bihar, (1998) 5 SCC 607; Narasimahalu v Public Prosecutor, AIR 1978 SC 429 [LNIND 1977
SC 336]; Babu v State of U.P., AIR 1978 SC 527 [LNIND 1978 SC 29]; Gurubaksh v State of Punjab, AIR 1980 SC
1632 [LNIND 1980 SC 168].
90. Babu Singh v State of U.P., AIR 1978 SC 527 [LNIND 1978 SC 29]: (1978) 1 SCC 579 [LNIND 1978 SC 29].
Page 394 of 467
91. Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2013 SC 3648 [LNIND 2013 SC 1400]: (2013) 9 SCC 500
[LNIND 2013 SC 1400].
92. See Niranjan Hemachandra Sashital v State of Maharashtra, (2013) 4 SCC 642 [LNIND 2013 SC 1217] : AIR 2013 SC
1682 [LNIND 2013 SC 1217].
93. Supreme Court Legal Aid Committee v UOI, (1994) 6 SCC 731 [LNIND 1994 SC 955] : JT (1994) 6 SC 544 [LNIND
1989 SC 165].
94. Kartar Singh v State of Punjab, (1994) 3 SCC 569. See also Collector of Custom v Ahmadalieva Nodira, (2004) 3 SCC
549 [LNIND 2004 SC 309]; UOI v Gurcharan Singh, (2003) 11 SCC 764; T. Bijando Sk. Mohd. Idocha, (2004) 10 SCC
151; Narcotics Control Bureau v Dilip Pralhad Namade, (2004) 3 SCC 619 [LNIND 2004 SC 361]; UOI v Saurabh
Cheterjee, (2006) 2 SCC 759; Narcotic Control Bureau v Raju, (2006) 9 SCC 712.
95. Sheik Salam v State of Maharashtra, 1996 AIHC 255 (Bom). See also State of M.P. v Kajad, (2001) 7 SCC 673
[LNIND 2001 SC 1949]; Narcotics Control Bureau v Karma Phuntsok, (2005) 12 SCC 480; UOI v Abdul Momin, (2005)
13 SCC 144.
1. People’s Union for Civil Liberties v UOI, AIR 2004 SC 456 [LNIND 2003 SC 1103]: (2004) 9 SCC 580 [LNIND 2003
SC 1103].
2. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : JT (1994) 2 SC 423. See also Jai Singh v UOI, AIR 1993 Raj. 177
(FB); Narcotics Control Board v Kishan Lal, AIR 1991 SC 558 : (1991) 1 SCR 139 : (1991) 1 SCC 705; Ushmanbhai
Dawoodbhai Memon v State of Gujarat, AIR 1988 SC 922 [LNIND 1988 SC 170]: (1988) 2 SCC 271 [LNIND 1988 SC
170] : (1988) 3 SCR 225 [LNIND 1988 SC 170]; State of M.P. v Ram Krishna Balothia, AIR 1995 SC 1198 [LNIND
1995 SC 201]: (1995) 3 SCC 221 [LNIND 1995 SC 201]. See Jai Singh v UOI, AIR 1993 Raj. 177. See also Jai
Prakash Singh v State of Bihar, AIR 2012 SC 1676 [LNIND 2012 SC 202]: (2012) 4 SCC 379 [LNIND 2012 SC 202].
3. Jai Prakash Singh v State of Bihar, AIR 2012 SC 1676 [LNIND 2012 SC 202]: (2012) 4 SCC 379 [LNIND 2012 SC
202].
4. See also D.K. Ganesh Babu v P.T. Manokaran, (2007) 4 SCC 434 [LNIND 2007 SC 221]; State of Maharashtra v
Mohd. Sajid Hussain Mohd. S. Hussain, (2008) 1 SCC 213 [LNIND 2007 SC 3050]; UOI v Padam Narain Agarwal,
(2008) 13 SCC 305 [LNIND 2008 SC 1976] : AIR 2009 SC 254 [LNIND 2008 SC 1976].
Page 395 of 467
5. Hussainara v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188]: (1979) 3 SCR 532 : (1980) 1 SCC 98 [LNIND
1979 SC 188]; Hussainara v Stateof Bihar (II), AIR 1979 SC 1377 [LNIND 1979 SC 241]: (1979) 3 SCR 760 [LNIND
1979 SC 241] : (1980) 1 SCC (Cri) 50 : 1979 CAR 234.
6. See Powell v Alabama, (1932) 287 US 45.
7. (1938) 304 US 458.
8. (1942) 316 US 455.
9. (1963) 372 US 335. See also Arger Singer v Hamlin, (1972) 407 US 25.
10. See United States v Cronic, (1984) 466 US 648.
11. (1984) 466 US 668.
12. Faretta v California, (1975) 422 US 806.
13. (1989) 491 US 600.
14. (1989) 491 US 617.
15. (1964) 378 US 478.
16. Hussainara v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188]: (1979) 3 SCR 532 [LNIND 1979 SC 188] :
(1980) 1 SCC 98 [LNIND 1979 SC 188]; Hussainara v Stateof Bihar (II), AIR 1979 SC 1377 [LNIND 1979 SC 241]:
(1979) 3 SCR 760 [LNIND 1979 SC 241] : (1980) 1 SCC (Cri) 50 : 1979 CAR 234.
17. Suk Das v Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60](para 6) : (1986) 1 SCR 590 [LNIND 1986 SC
60] : (1986) 2 SCC 401 [LNIND 1986 SC 60].
18. Ranchod v State of Gujarat, AIR 1974 SC 1143 [LNIND 1973 SC 309]: (1974) 7 SCR 72 : (1974) 3 SCC 581 [LNIND
1973 SC 309].
Page 396 of 467
19. Khatri v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473](para 4) : (1981) 1 SCC 635 [LNIND 1982 SC 16]. See
also Sheela Barse v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57]: (1983) 2 SCC 96 [LNIND 1983 SC
57]; Ranjan Dwivedi v UOI, AIR 1983 SC 624 [LNIND 1983 SC 126]: (1983) 3 SCC 307 [LNIND 1983 SC 126]; Sukh
Das v Union Territory of Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60]: (1986) 2 SCC 401 [LNIND 1986
SC 60].
20. Chaluvegowda v State, (2012) 13 SCC 538 : (2012) 4 Scale 382; see also Mohd. Sukur Ali v State of Assam, (2011) 4
SCC 729 [LNINDORD 2011 SC 143]; Mohd. Hussain v State (Govt. of NCT of Delhi), (2012) 2 SCC 584 [LNIND 2012
SC 14] : (2012) 1 Scale 508 [LNIND 2012 SC 59].
21. Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188]: (1980) 1 SCC 98
[LNIND 1979 SC 188]; see also M.H. Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199]: (1978)
3 SCC 544 [LNIND 1978 SC 199].
22. State of Maharashtra v Manubhai Pragaji, AIR 1996 SC 1 [LNIND 1995 SC 788]: (1995) 5 SCC 730 [LNIND 1995 SC
788].
24. See also Pool Pandi v Supt., Central Bureau, AIR 1992 SC 1795 [LNIND 1992 SC 405]: (1992) 3 SCC 259 [LNIND
1992 SC 405].
25. (2012) 9 SCC 1 [LNIND 2012 SC 1215] : AIR 2012 SC 3565 [LNIND 2012 SC 1215].
26. (1966) 348 US 436.
27. See K.S. Panduranga v State of Karnataka, AIR 2013 SC 2164 [LNIND 2013 SC 389]: (2013) 3 SCC 721 [LNIND
2013 SC 389]; see also Bani Singh v State of UP, (1996) 4 SCC 720 [LNIND 1996 SC 1033] : (1996) 5 Scale 126; N.S.
Giri v Corpn. of City of Mangalore, (1999) 4 SCC 697 [LNIND 1999 SC 555] : AIR 1999 SC 1958 [LNIND 1999 SC
1466]; LIC v D.J. Bahadur, (1981) 1 SCC 315 [LNIND 1980 SC 442]; Pradip Chandra Parija v Pramod Chandra
Patnaik, (2002) 1 SCC 1 [LNIND 2001 SC 2759] : AIR 2002 SC 296 [LNIND 2001 SC 2759]; Rattiram v State of MP,
(2012) 4 SCC 516 [LNIND 2012 SC 129] : (2012) 2 Scale 593; IOC v Municipal Corpn., (1995) 4 SCC 96 [LNIND 1995
SC 499] : AIR 1995 : 1480.
Page 397 of 467
28. Khatri v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473](para 4) : (1981) 1 SCC 635 [LNIND 1982 SC 16]. See
also Sheela Barse v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57]: (1983) 2 SCC 96 [LNIND 1983 SC
57]; Ranjan Dwivedi v UOI, AIR 1983 SC 624 [LNIND 1983 SC 126]: (1983) 3 SCC 307 [LNIND 1983 SC 126]; Sukh
Das v Union Territory of Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60]: (1986) 2 SCC 401 [LNIND 1986
SC 60].
29. Thippeswamy v State of Karnataka, AIR 1983 SC 747 [LNIND 1982 SC 179]: (1983) 1 SCC 194 [LNIND 1982 SC
179] (para 1).
30. Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215]: (1979) 1 SCR 392 [LNIND 1978 SC 215] : (1978) 4
SCC 494 [LNIND 1978 SC 215]; Sita Ram v State of U.P., AIR 1979 SC 745 [LNIND 1979 SC 65]: (1979) 2 SCR 1085
[LNIND 1979 SC 65] : (1979) 2 SCC 656 [LNIND 1979 SC 65]. Also see “Fundamental Rights of Prisoners”, below.
31. Sunil Batra v Delhi Admn., AIR 1980 SC 1579 (paras 31, 42) : (1980) 2 SCR 557 [LNIND 1978 SC 215] : (1980) 3 SCC
488 [LNIND 1978 SC 215].
32. Javed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310](para 4) : (1985) 2 SCR 8 [LNIND 1984 SC
310] : (1985) 1 SCC 275 [LNIND 1984 SC 310]; Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC
89](para 11) : (1983) 2 SCR 582 [LNIND 1983 SC 89] : (1983) 2 SCC 344 [LNIND 1983 SC 89].
33. Mithu v State of Punjab, AIR 1983 SC 473 [LNIND 1983 SC 105](paras 23–25) : (1993) 2 SCR 690 : (1983) 2 SCC
277 [LNIND 1983 SC 105].
34. Inderjeet v State of U.P., AIR 1979 SC 1867 [LNIND 1979 SC 329] : (1980) 1 SCR 255 [LNIND 1979 SC 329] : (1979)
4 SCC 246 [LNIND 1979 SC 329] (DB).
35. Maru v UOI, AIR 1980 SC 2147 [LNIND 1980 SC 446] : (1981) 1 SCR 1196 [LNIND 1980 SC 446] : (1981) 1 SCC 107
[LNIND 1980 SC 446] .
36. Charles Sobraj v Supdt, AIR 1978 SC 1514 [LNIND 1978 SC 218] : (1979) 1 SCR 512 [LNIND 1978 SC 218] : (1978)
4 SCC 104 [LNIND 1978 SC 218] .
37. Rupinder v UOI, AIR 1983 SC 65 [LNIND 1982 SC 170] : (1983) 1 SCR 841 [LNIND 1982 SC 170] : (1983) 1 SCC
140 [LNIND 1982 SC 170] .
38. Sita Ram v State of U.P., (1979) 2 SCC 656 [LNIND 1979 SC 65] (para 55) : AIR 1979 SC 745 [LNIND 1979 SC 65] :
(1979) 2 SCR 1085 [LNIND 1979 SC 65] .
39. Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] :
1980 Cr LJ 636 , overruling Iyer & Desai, JJ., in Rajendra v State of U.P., AIR 1979 SC 916 [LNIND 1979 SC 107] :
(1979) 3 SCR 78 [LNIND 1979 SC 107] : (1979) 3 SCC 646 [LNIND 1979 SC 107] ; Triveniben v State of Gujarat, AIR
Page 398 of 467
1989 SC 1335 [LNIND 1989 SC 885] (paras 10–11) : (1989) 1 SCR 509 [LNIND 1989 SC 885] : (1989) 1 SCC 678
[LNIND 1989 SC 885] (CB); Jumman Khan v State of U.P., AIR 1991 SC 345 [LNIND 1990 SC 750] (para 14) : (1990)
(Supp-3) SCR 498 : (1991) 1 SCC 752 [LNIND 1990 SC 750] . See also Machchi Singh v State of Punjab, AIR 1983
SC 947 : (1983) 3 SCC 470 [LNIND 1983 SC 170] ; Allaudin Mian v State of Bihar, AIR 1989 SC 1456 [LNIND 1989
SC 236] : (1989) 3 SCC 5 [LNIND 1989 SC 236] ; Surja Ram v State of Rajasthan, AIR 1997 SC 18 [LNIND 1996 SC
1548] : (1996) 6 SCC 271 [LNIND 1996 SC 1548] .
40. Deena v UOI, AIR 1983 SC 1155 [LNIND 1983 SC 265] (paras 80–86) : (1984) 1 SCR 1 [LNIND 1983 SC 265] :
(1983) 4 SCC 645 [LNIND 1983 SC 265] .
41. State of Punjab v Dalbir Singh, (2012) 3 SCC 346 [LNIND 2012 SC 93] . In this connection, it is better to read D.D.
Basu, Comparative Constitutional Law, 2nd Edn, 2008, pp 65–76 where the learned author has given his comments on
death sentence which is prevalent in many countries.
43. Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260]: (1980) 2 SCC 684 [LNIND 1980 SC 261] :
1980 Cr LJ 636, overruling Iyer & Desai, JJ., in Rajendra v State of U.P., AIR 1979 SC 916 [LNIND 1979 SC 107]:
(1979) 3 SCR 78 [LNIND 1979 SC 107] : (1979) 3 SCC 646 [LNIND 1979 SC 107]; Triveniben v State of Gujarat, AIR
1989 SC 1335 [LNIND 1989 SC 885](paras 10–11) : (1989) 1 SCR 509 [LNIND 1989 SC 885] : (1989) 1 SCC 678
[LNIND 1989 SC 885] (CB); Jumman Khan v State of U.P., AIR 1991 SC 345 [LNIND 1990 SC 750](para 14) : (1990)
(Supp-3) SCR 498 : (1991) 1 SCC 752 [LNIND 1990 SC 750]. See also Machchi Singh v State of Punjab, AIR 1983 SC
947 : (1983) 3 SCC 470 [LNIND 1983 SC 170]; Allaudin Mian v State of Bihar, AIR 1989 SC 1456 [LNIND 1989 SC
236]: (1989) 3 SCC 5 [LNIND 1989 SC 236]; Surja Ram v State of Rajasthan, AIR 1997 SC 18 [LNIND 1996 SC 1548]:
(1996) 6 SCC 271 [LNIND 1996 SC 1548].
44. Jamuna v State of Bihar, (1974) 3 SCC 774 [LNIND 1973 SC 385] : AIR 1974 SC 1822 [LNIND 1973 SC 385] : (1974)
2 SCR 609 [LNIND 1973 SC 385] ; State of Bihar v Saldanha, (1980) 1 SCC 554 [LNIND 1979 SC 448] : AIR 1980
(SC) 326 [LNIND 1979 SC 448] : (1980) 2 SCR 16 [LNIND 1979 SC 448] .
45. State of Bihar v Sharma, (1991) Cr LJ 1438 (paras 22, 35) : AIR 1991 SC 1260 [LNIND 1991 SC 184] : (1991) 2 SCR
1 [LNIND 1991 SC 184] : 1992 (Supp-1) SCC 222; Sharma v Bipen, (1970) Cr LJ 764 : AIR 1970 SC 786 [LNIND 1970
SC 121] : (1970) 3 SCR 946 [LNIND 1970 SC 121] : (1970) 1 SCC 653 [LNIND 1970 SC 121] .
.
47. Vinay Tyagi v Irshad Ali, (2013) 5 SCC 762 [LNIND 2012 SC 826] : (2013) Cr LJ 754 : AIR 2013 SC (Criminal) 292;
see also Arija Begum v State of Maharashtra, (2012) 3 SCC 126 [LNINDORD 2012 SC 399] : (2012) 1 Scale 328
[LNINDORD 2012 SC 399] .
Page 399 of 467
48. State of Bihar v P.P. Sharma, (1991) Cr LJ 1438 (paras 22, 35) : AIR 1991 SC 1260 [LNIND 1991 SC 184] : (1991) 2
SCR 1 [LNIND 1991 SC 184] : 1992 (Supp-1) SCC 222.
49. Sharma v Bipen, (1970) Cr LJ 764 : AIR 1970 SC 786 [LNIND 1970 SC 121] : (1970) 3 SCR 946 [LNIND 1970 SC
121] : (1970) 1 SCC 653 [LNIND 1970 SC 121] .
50. State of W.B. v Sampat, (1985) 1 SCC 317 [LNIND 1984 SC 332] (para 26) : AIR 1985 SC 195 [LNIND 1984 SC 332]
: (1985) 2 SCR 256 [LNIND 1984 SC 332] . See also Vinay Tyagi v Irshad Ali, (2013) 5 SCC 762 [LNIND 2012 SC 826]
: (2013) Cr LJ 754 : AIR 2013 SC (Criminal) 292.
51. Abhinandan v Dinesh, AIR 1968 SC 117 [LNIND 1967 SC 144] : (1967) 3 SCR 668 [LNIND 1967 SC 144] .
52. State of Bihar v Raj Narain, AIR 1991 SC 1308 (para 6) : 1991 (Supp-2) SCC 393 : 1991 Cr LJ 1416 (3 Judges).
53. Dilip Kumar Basu v State of W.B., AIR 1997 SC 3775 [LNIND 1997 SC 486] : (1997) 1 SCC 416 [LNIND 1996 SC
2177] . See also UOI v Vasanbharthi, AIR 1990 SC 1216 .
54. See Dilip Kumar Basu v State of W.B., (1998) 6 SCC 380 .
55. See Narmada Bai v State of Gujarat, AIR 2011 SC 1804 [LNIND 2011 SC 391] : (2011) 5 SCC 79 [LNIND 2011 SC
391] : AIR 2011 SC 1804 [LNIND 2011 SC 391] ; Disha v State of Gujarat, AIR 2011 SC 3168 [LNIND 2011 SC 675] :
(2011) 13 SCC 337 [LNIND 2011 SC 675] .
56. 3 SCW 74.
57. Klopfer v N. Carolina, (1967) 386 US 213.
58. T.M. Cooley, A Treatise on the Constitutional Limitation, 1st Indian Reprint, 2005, pp 311–12.
59. Hussainara v Home Secy. (I), AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; Kadra v State of Bihar, AIR
1981 SC 939 [LNIND 1980 SC 493](para 2) : (1981) 3 SCC 671 [LNIND 1980 SC 493]. See also Mansukhlal Vithaldas
Chauhan v State of Gujarat, AIR 1997 SC 3400 [LNIND 1997 SC 1158]. See also Dharmendra Kirthal v State of UP,
AIR 2013 SC 2569 [LNIND 2013 SC 695]: (2013) 8 SCC 368 [LNIND 2013 SC 695].
60. See Mohammed Hussain v State (Govt. of NCT of Delhi), (2012) 9 SCC 408 [LNIND 2012 SC 14] : (2012) Cr LJ 4537;
see also Gopi Chand v Delhi Admn., AIR 1959 SC 609 [LNIND 1959 SC 8]; A.R. Antulay v R.S. Nayak, AIR 1992 SC
Page 400 of 467
1701 [LNIND 1991 SC 673]: (1992) 1 SCC 225 [LNIND 1991 SC 673]; Kartar Singh v State of Punjab, (1994) 3 SCC
569 : 1994 Cr LJ 3139; P. Ramachandra Rao v State of Karnataka, (2002) 4 SCC 578 [LNIND 2002 SC 296] : AIR
2002 SC 1856 [LNIND 2002 SC 296]: 2002 Cr LJ 2547.
61. Hussainara v Home Secy. (I), AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81 ; Kadra v State of Bihar, AIR
1981 SC 939 [LNIND 1980 SC 493] (para 2) : (1981) 3 SCC 671 [LNIND 1980 SC 493] .
62. See Justice J.S. Verma, “Delays in Indian Judicial System—Remedies—the Fifth Bhilwara Orative” compiled in the
book The New Universe of Human Rights, p 350.
63. Triveniben v State of Gujarat, (1990) Guj LJ 1810 (SC).
64. Abdul Rehman Antulay v R.S. Nayak, AIR 1992 SC 1701 [LNIND 1991 SC 673]: (1992) 1 SCC 225 [LNIND 1991 SC
673]. See also S.N. Puri v N. Banerjee, 1997 AIHC 2293 (Bom).
66. Rattiram v State of MP, AIR 2012 SC 1485 [LNIND 2012 SC 129]: (2012) 4 SCC 516 [LNIND 2012 SC 129] : (2012)
Cr LJ 1769.
67. Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579] : (2012) 8 SCC 495 [LNIND 2012 SC 1579] .
68. A Registered Society v UOI, (1996) 4 SCC 33 [LNIND 1996 SC 897].
69. Raj Deo Sharma v State of Bihar, (1998) 7 SCC 507 [LNIND 1998 SC 940].
70. P. Ramachandra Rao v State of Karnataka, (2002) 4 SCC 578 [LNIND 2002 SC 296] : AIR 2002 SC 1856 [LNIND
2002 SC 296]: (2002) 3 SCR 60. See also A.R. Antulay v R.S. Nayak, AIR 1992 SC 1701 [LNIND 1991 SC 673]:
(1992) 1 SCC 225 [LNIND 1991 SC 673].
71. Raj Deo Sharma v State of Bihar, (1998) 7 SCC 507 [LNIND 1998 SC 940].
72. Raj Deo Sharma (II) v State of Bihar, (1999) 7 SCC 604 [LNIND 1999 SC 856].
Page 401 of 467
73. Vakil Prasad Singh v State of Bihar, AIR 2009 SC 1822 [LNIND 2009 SC 163]: (2009) 3 SCC 355 [LNIND 2009 SC
163].
74. Surinder Singh v State of Punjab, AIR 2005 SC 3669 [LNIND 2005 SC 675]: (2005) 7 SCC 387 [LNIND 2005 SC 675].
75. State v Narayan Waman Nerukar, AIR 2002 SC 2977 [LNIND 2002 SC 1529]: (2002) 7 SCC 6 [LNIND 2002 SC
1529]. See also State of U.P. v Padam Singh, 1996 AIHC 169 (All).
76. Seeta Hemchandra Shashittal v State of Maharashtra, AIR 2001 SC 1246 [LNIND 2001 SC 403]: (2001) 4 SCC 525
[LNIND 2001 SC 403].
77. UOI v Ashok Kumar Mitra, AIR 1995 SC 1976 [LNIND 1995 SC 295]: (1995) 2 SCC 768 [LNIND 1995 SC 295];
Anukul Chandra Pradhan v UOI, (1996) 6 SCC 354 [LNIND 1996 SC 1622]. But see Stephen T.J. v Parle Bottling
Company Pvt Ltd, AIR 1989 SC 994. See also Sudarshanacharya v Purushottamacharya, (2012) 9 SCC 241 [LNIND
2012 SC 530] : (2012) Cr LJ 4559.
78. Raghubir Singh v State of Bihar, AIR 1987 SC 149 [LNIND 1986 SC 336]: (1986) 4 SCC 481 [LNIND 1986 SC 336].
79. Mahendra Pal Das v State of Bihar, AIR 2001 SC 2989 [LNIND 2001 SC 2324]: (2002) 1 SCC 149 [LNIND 2001 SC
2324]. See also Kuldeep Singh v UOI, 1996 AIHC 1751 (Raj); S.N. Puri v N. Banerjee, 1997 AIHC 2293 (Bom).
80. AIR 1992 SC 1701 [LNIND 1991 SC 673]: (1992) 1 SCC 225 [LNIND 1991 SC 673] (supra).
81. Niranjan Hemachandra Sashittal v State of Maharashtra, AIR 2013 SC 1682 [LNIND 2013 SC 1217]: (2013) 4 SCC
642 [LNIND 2013 SC 1217]; see also A.R. Antulay v R.S. Nayak (supra); P. Ramachandra Rao v State of Karnataka,
(2002) 4 SCC 578 [LNIND 2002 SC 296] : AIR 2002 SC 1856 [LNIND 2002 SC 296](supra).
82. Anil Rai v State of Bihar, (2001) 7 SCC 318 [LNIND 2001 SC 1606] : AIR 2001 SC 3173 [LNIND 2001 SC 1606].
83. Koluttumottil Razak v State of Kerala, (2000) 4 SCC 465 [LNIND 2000 SC 369].
84. B.L. Wadehra v State (NCT of Delhi), AIR 2000 Del 266 [LNIND 2000 DEL 357]; approved in Harish Uppal (Ex-Capt.) v
UOI, (2003) 2 SCC 45 [LNIND 2002 SC 809] : AIR 2003 SC 739 [LNIND 2002 SC 809]; Common Cause, a Registered
Society v UOI, AIR 2005 SC 4442 [LNIND 2005 SC 742]: (2006) 9 SCC 295 [LNIND 2005 SC 742].
Page 402 of 467
85. Barker v Wingo, (1972) 407 US 514.
86. Barker v Wingo, (1972) 407 US 514; Raghubir v State of Bihar, AIR 1987 SC 149 [LNIND 1986 SC 336]: (1986) 3
SCR 802 [LNIND 1986 SC 336] : (1986) 4 SCC 481 [LNIND 1986 SC 336].
87. State of Punjab v Kailash, AIR 1989 SC 558 [LNIND 1988 SC 558] : (1989) 1 SCC 321 [LNIND 1988 SC 558] .
88. Mangilal v State of Rajasthan, (1990)1 JT 74 (SC).
89. Raghubir v State of Bihar, AIR 1987 SC 149 [LNIND 1986 SC 336]: (1986) 3 SCR 802 [LNIND 1986 SC 336] : (1986)
4 SCC 481 [LNIND 1986 SC 336]; Agarwal v Vasantraj, AIR 1988 SC 1106 [LNIND 1988 SC 213](para 9) : (1988) 3
90. Sudarshanacharya v Purushottamacharya, (2012) 9 SCC 241 [LNIND 2012 SC 530] : (2012) Cr LJ 4559. In Vakil
Prasad Singh v State of Bihar, AIR 2009 SC 1822 [LNIND 2009 SC 163]: (2009) 3 SCC 355 [LNIND 2009 SC 163]
(supra).
91. Raghubir v State of Bihar, AIR 1987 SC 149 [LNIND 1986 SC 336](para 9) : (1986) 3 SCR 802 [LNIND 1986 SC 336]
: (1986) 4 SCC 481 [LNIND 1986 SC 336]; Rakesh Saxena v State, AIR 1987 SC 740 [LNIND 1986 SC 423]: (1987) 1
SCR 173 [LNIND 1986 SC 423] : 1986 (Supp-1) SCC 505.
92. State of Punjab v Kailash, AIR 1989 SC 558 [LNIND 1988 SC 558] : (1989) 1 SCC 321 [LNIND 1988 SC 558] .
93. State of A.P. v Pavithran, AIR 1990 SC 1266 [LNIND 1990 SC 120] (paras 13–15) : (1990) 1 SCR 746 [LNIND 1990
SC 120] : (1990) 2 SCC 340 [LNIND 1990 SC 120] . See also Mansukhlal Vithaldas Chauhan v State of Gujarat, AIR
1997 SC 3400 [LNIND 1997 SC 1158] : (1997) 7 SCC 622 [LNIND 1997 SC 1158] ; Mahendra Lal Das v State of
Bihar, AIR 2002 SC 2989 [LNIND 2002 SC 520] : (2002) 1 SCC 149 [LNIND 2001 SC 2324] ; Ramanand Choudhary v
State of Bihar, AIR 1994 SC 948 ; Santosh De v Archana Guha, AIR 1994 SC 1229 [LNIND 1994 SC 148] : 1994
(Supp-3) SCC 735.
94. Sheela v UOI, AIR 1986 SC 1773 [LNIND 1986 SC 244] (para 12) : (1986) 3 SCR 562 : (1986) 3 SCC 632 .
95. Kadra v State of Bihar, AIR 1981 SC 939 [LNIND 1980 SC 493] : (1981) 3 SCC 671 [LNIND 1980 SC 493] .
1. Guin v Grindlays, AIR 1986 SC 289 [LNIND 1985 SC 359] (para 4) : (1986) 1 SCC 654 [LNIND 1985 SC 359] .
2. Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1979) 1 SCR 192 [LNIND 1978 SC 199] :
(1978) 3 SCC 544 [LNIND 1978 SC 199] .
Page 403 of 467
3. Raghubir v State of Bihar, AIR 1987 SC 149 [LNIND 1986 SC 336] (para 9) : (1986) 3 SCR 802 [LNIND 1986 SC 336]
: (1986) 4 SCC 481 [LNIND 1986 SC 336] ; Rakesh Saxena v State, AIR 1987 SC 740 [LNIND 1986 SC 423] : (1987)
1 SCR 173 [LNIND 1986 SC 423] : 1986 (Supp-1) SCC 505.
4. State of Maharashtra v Champalal, AIR 1981 SC 1675 [LNIND 1981 SC 340] (paras 1–2) : (1982) 1 SCR 299 [LNIND
1981 SC 340] : (1981) 3 SCC 610 [LNIND 1981 SC 340] . See also UOI v Ashok Kumar Mitra, AIR 1995 SC 1976
[LNIND 1995 SC 295] : (1995) 2 SCC 768 [LNIND 1995 SC 295] ; Ankul Chandra Pradhan v UOI, (1996) 6 SCC 354
[LNIND 1996 SC 1622] . See also Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579] : (2012) 8 SCC
495 [LNIND 2012 SC 1579] .
5. State of A.P. v Pavithran, AIR 1990 SC 1266 [LNIND 1990 SC 120]: (1990) 1 SCR 746 [LNIND 1990 SC 120] : (1990)
2 SCC 340 [LNIND 1990 SC 120].
7. Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579]: (2012) 8 SCC 495 [LNIND 2012 SC 1579].
8. See also Mohd. Hussain v State (Govt. of NCT of Delhi), (2012) 9 SCC 408 [LNIND 2012 SC 14] : (2012) Cr LJ 4537
(SC).
10. See also Mahendra Lal Das v State of Bihar, AIR 2002 SC 2989 [LNIND 2002 SC 520]: (2002) 1 SCC 149 [LNIND
2001 SC 2324].
11. State of Bihar v Uma Shankar Ketriwal, AIR 1981 SC 641 [LNIND 1980 SC 495]: (1981) 2 SCR 402 [LNIND 1980 SC
499] : (1981) 1 SCC 75 [LNIND 1980 SC 499].
12. Magni Lal v State of Rajasthan, (1988) Cr LJ 1188 (appeal dismissed by SC).
13. See Thara Singh v Central Bureau of Narcotics, (2013) 2 SCC 603 : (2013) 2 SCC (Cr) 829; see also Supreme Court
Legal Aid Committee v UOI, (1994) 6 SCC 731 [LNIND 1994 SC 955] : 1994 Supp (4) SCR 386.
14. Sheela v UOI, AIR 1986 SC 1773 [LNIND 1986 SC 244](para 12) : (1986) 3 SCR 562 : (1986) 3 SCC 632.
Page 404 of 467
15. Vipul Shital Prasad Agarwal v State of Gujarat, AIR 2013 SC 73 [LNIND 2012 SC 1145]: (2013) 1 SCC 197 [LNIND
2012 SC 1145].
16. Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2013 SC 3648 [LNIND 2013 SC 1400]: (2013) 9 SCC 500
[LNIND 2013 SC 1400]; see also mtiaz Ahmed v State of UP, (2011) 15 SCC 602; Imtiaz Ahmed v State of UP, (2012)
2 SCC 688 [LNIND 2012 SC 87].
17. Triveniben v State of Gujarat, (1990) Guj LJ 1810 (SC). See also. Sridharan Alias Murugan v UOI, (2014) 4 SCC 242
[LNIND 2014 SC 134] : 2014 Cr LJ 1681 : AIR 2014 SC 1368 [LNIND 2014 SC 134]; Devendra Pal Singh Bhullar v
State (NCT of Delhi), (2013) 6 SCC 195 [LNIND 2008 SC 2975] : AIR (2013) SCW 2939; Mahendra Nath Das v UOI,
(2013) 6 SCC 253 [LNIND 2013 SC 522] : (2013) 6 Scale 591 [LNIND 2013 SC 522]; Madhu Mehta v UOI, (1989) 4
SCC 62 [LNIND 1989 SC 390]; Daya Singh v UOI, (1991) 3 SCC 61 [LNIND 1991 SC 231]. See “Delay in execution of
death sentence”, post.
18. Sheela v UOI, AIR 1986 SC 1773 [LNIND 1986 SC 244](para 12) : (1986) 3 SCR 562 : (1986) 3 SCC 632.
19. Dharmendra Kirthal v State of UP, AIR 2013 SC 2569 [LNIND 2013 SC 695]: (2013) 8 SCC 368 [LNIND 2013 SC
695].
20. Brij Mohan Lal v UOI, (2007) 15 SCC 614 [LNIND 2005 SC 321] : (2005) 4 Scale 375.
21. Mohan Kumar Rayana v Komal Mohan Rayana, AIR 2008 SC 471 [LNIND 2007 SC 1291]: (2007) 14 SCC 357
[LNIND 2007 SC 1291].
22. Mahadevan v State of Maharashtra, (1992) Cr LJ 1388 (para 11) (Bom); Mihir v State of W.B., (1990) Cr LJ 26 (Cal);
State v Balwantrai, (1992) Cr LJ 1222 (para 2) (Kant). See also Pankaj Kumar v State of Maharashtra, AIR 2008 SC
3077 [LNIND 2008 SC 1393]: (2008) 16 SCC 117 [LNIND 2008 SC 1393].
23. Hussainara v State of Bihar, AIR 1979 SC 1360 (para 4) : (1979) 3 SCR 169 : (1980) 1 SCC 81; Babu v State of U.P.,
AIR 1978 SC 527 [LNIND 1978 SC 29](paras 17, 23 –24) : (1978) 2 SCR 777 [LNIND 1978 SC 29] : (1978) 1 SCC 579
[LNIND 1978 SC 29].
24. Bipin Shantilal Panchal v State of Gujarat, AIR 2001 SC 1158 [LNIND 2001 SC 509]: (2001) 3 SCC 1 [LNIND 2001
SC 509].
Page 405 of 467
25. Akhtari Bi v State of M.P., AIR 2001 SC 1528 [LNIND 2001 SC 773]: (2001) 4 SCC 355 [LNIND 2001 SC 765].
26. See also Sunil K. Sinha v State of Bihar, (1998) 5 SCC 607; Mahesh Kumar Bhawsinghla v State of Delhi, (2000) 9
SCC 383; Vivek Kumar v State of U.P., (2000) 9 SCC 443.
27. Gurbaksh v State of Punjab, AIR 1980 SC 1632 [LNIND 1980 SC 168]: (1980) 2 SCC 565 [LNIND 1980 SC 168] :
(1980) 3 SCR 383 [LNIND 1980 SC 168].
28. Hussainara v State of Bihar, AIR 1979 SC 1360.
29. Narasimhalu v Public Prosecutor, AIR 1978 SC 429 [LNIND 1977 SC 336]: (1978) 1 SCC 240 [LNIND 1977 SC 336] :
(1978) 2 SCR 371 [LNIND 1977 SC 336].
30. Rajesh Ranjan Yadav v CBI, (2007) 1 SCC 70 [LNIND 2006 SC 981] : AIR 2007 SC 451 [LNIND 2006 SC 981].
31. State of Maharashtra v Captain Budhirta Subba Rao, AIR 1989 SC 2292 [LNIND 1989 SC 481]: 1989 (Supp-2) SCC
605. See also Uday Mohanlal Acharya v State of Maharashtra, AIR 2001 SC 1910 [LNIND 2001 SC 852]: (2001) 5
SCC 453 [LNIND 2001 SC 852] : (2001) 2 SCR 878 [LNIND 2001 SC 852].
32. Neumeister v Austria, (1968) 1 EHRR 91.
33. Scott v Spain, (1996) 24 EHRR 391.
34. (1989) 11 EHRR 117.
35. See also Brannigan and McBride v UK, (1993) The Times 28 May 1993 : (1994) 17 EHRR 539.
36. Muller v France, 1997 Judgment dated 17-3-1997.
37. (1968) 1 EHRR 91.
38. See Matzmettev v Austria, 1969 1 EHRR 198; Letellier v France, (1991) 14 EHRR 83. See Edwin Shorts and Claire de
Than, Civil Liberties: Legal Principles of Individual Freedom, Sweet & Maxwell, 1998 Edn, pp 472–73.
Page 406 of 467
39. Moti Ram v State of M.P., AIR 1978 SC 1594 [LNIND 1978 SC 206]: (1978) 4 SCC 47 [LNIND 1978 SC 206].
40. Gudikanti Narasimhulu v Public Prosecutor, High Court of A.P., AIR 1978 SC 429 [LNIND 1977 SC 336]: (1978) 1
SCC 240 [LNIND 1977 SC 336].
41. Minerva Mills v UOI, AIR 1980 SC 1789 [LNIND 1980 SC 257] : (1981) 1 SCR 206 [LNIND 1986 SC 307] : (1980) 3
SCC 625 [LNIND 1980 SC 257] ; Olga v Bombay Corpn., AIR 1986 SC 180 [LNIND 1985 SC 215] : 1985 (Supp-2)
SCR 51 : (1985) 3 SCC 545 [LNIND 1985 SC 215] ; D.T.C. v Mazdoor Union, AIR 1991 SC 101 [LNIND 1990 SC 489]
(paras 258–59) : 1990 (Supp-1) SCR 142 : 1991 (Supp-1) SCC 600.
46. T.V. Vatheeswaran v State of Tamil Nadu, AIR 1983 SC 361 [LNIND 1983 SC 43] (2) : (1983) 2 SCC 68 [LNIND 1983
SC 58] .
47. District Registrar & Collector v Canara Bank, AIR 2005 SC 186 [LNIND 2004 SC 1478] : (2005) 1 SCC 496 [LNIND
2004 SC 1478] .
48. William A. Schabas, The Abolition of the Death Penalty in International Law, 2nd Edn.
49. Paul Savey-Casard, La Peine de mort: Esquisse historiqueet juridique, Geneva: Droz, 1968, pp 4–14.
50. Exodus XXI, 14, xxii, 18; Leviticus xx, 13, 15, xxiv; Deuteronomy xxi, 21, xxii, 11, 25, xxix, 13; Numbers, xiii, 5, xvii, 7,
xix, 19, xxii, 23, xxxiii, iv, 37. See: Jean Imbert, La peine de mort, Paris: Presses Universitaires de France, 1989, pp 7–
8.
51. Charles L. Black Jr., Capital Punishment: The Inevitability of Caprice and Mistake, New York: Norton, 1974, p 94; F.
Frez, Thou Shalt Not Execute. Hebrew Law Perspective on Capital Punishment, (1981) 19 Criminology 25.
52. Jean Imbert, La peine de mort, pp 16–24.
53. Francis W. Kelsey (trans.), Hugo Grotius, De Jure Belli Ac Pacis Libri Tres, Oxford: Clarendon Press, 1925; Raffaele
Garofalo, Criminology, Montclair, N.J.: Patterson Smith, 1968, pp 51–53.
54. R. Zaller, The Debate on Capital Punishment during the English Revolution, (1987) 31 American J. Legal History 126,
pp 3–4.
55. Article 3 (see Appendix 1, p 311).
56. OAS Doc. OEA/Ser.L./V.1.4, Article 1 (hereinafter, the American Declaration) (See Appendix 11, p 343).
57. (1976) 999 UNTS 171, Article 6 (hereinafter, the Civil Rights Covenant or Covenant) (see Appendix 2, p 312).
58. (1955) 213 UNTS 221, ETS May Article 21 (hereinafter the European Convention) See Appendix 9, p 337).
Page 407 of 467
59. See Appendix 12, p 344.
60. Geneva Convention of August 12, 1949 relating to the Treatment of Prisoners of War, (1950) 75 UNTS 135.
61. Protocol Additional I to the 1949 Geneva Conventions and relating to the Protection of Victims of International Armed
Conflicts, (1979) 1125 UNTS 3.
62. General comment 6(16), UN Doc. CCPR/C/21/Add.1 also published as UN Doc. A/37/40, Annex V. UN Doc.
CCPR/3/Add.1 at pp 382–83 (see Appendix 4, p 324). See also, de Guerrero v Colombia (No. 45/1979), UN Doc.
C/CCPR/OP/1, p 112, at p 117.
63. Stewart v UK, (App. No. 10044/82), (1985) 7 EHRR 453 .
64. Theo C. Van Boven, “The Need to Stop Deliberate Violations of the Right to Life” in Daniel Premont, (edited), Essais
sur le concept de “droit de vivre” en memoire de Yougindra Khushalani, Brussels: Bruylant, 1988, pp 285–92, p 285.
65. Betrant G. Ramcharan, “The Concept and Dimensions of the Right to Life” in Bettrant G Ramcharan, (edited), The
Right to Life in International Law, Dordrecht/Boston/Lancaster: Martinus Nijhoff, 1985, pp 1–32, p 12; Rene Brunet, La
garantie internationale des droits de I’hommed’apres la Charte de- San Francisco, Geneva: Grasset, 1947, p 211.
66. Diez Anos de Actividades, Inter-American Commission of Human Rights, 1971–81, Washington D.C. Organization of
American States, 1982, p 339; Annual Report of the Inter-American Commission on Human Rights, 1986–87, OAS
Doc. OEA/Ser.L./V/II/71 Doc. 9 rev, 1 at p 271.
67. A.C. Kiss, J.B. Marie, Le droit a la vie, (1974) 7 HRJ 338, p 340.
68. Initial Report of Uruguay, UN Doc. CCPR/C/1/Add.57.
69. General Comment 14 (23) UN Doc. A/40/40, Annex XX, UN Doc. CCPR/C/SR. 563, $1.
70. Frederic Sudre, La Convention europeenne, pp 87–88.
71. Yoram Dinstein, “The Right to Life, Physical Integrity, and Liberty” in Louis Henkin, (edited), The International Bill of
Rights: The Covenant on Civil and Political Rights, New York: Columbia University Press, 1981, pp 114–37, p 115;
J.E.W. Fawcett, The Application of the European Convention on Human Rights, 2nd Edn, Oxford: Clarendon Press,
1987, p 37; F. Przetacnik, “The Right to Life as a Basic Human Right”, (1976) 9 HRJ 585.
72. Bertrant G. Ramcharan, “The Right to Life” (1983) 30 NILR 297; Ramcharan, “The Concept”, p 6; Hector Gross
ESpiell, “The Right to Life and the Right to Live” Premont, (edited)., Essais, pp 45–53; Mikuin Leliel Balanda, “Le Droit
de vivre”, Premont, ibid., pp 31–41; Yougindra Khushalani, “Right to Live”, Premont, ibid., p 283; Thomas Desch, “The
Concept and Dimensions of the Right to Life–As defined in International Standards and in International and
Comparative Jurisprudence”, (1985–86) 36 Osterreichische Zeitschrift fur Offentliches Recht und Volkerrecht 77.
73. General Comment 6(16); General Comment 14(23).
74. 6 Halsbury’s Statutes, 3rd Edn, p 401.
75. Richard L. Perry, John C. Cooper, Sources of Our Liberties, Washington D.C.: American Bar Association, 1952 at p
148 (para 6–9)
76. OAU Doc. CAB/LEG/24-9-49 (1990) Articles 5 $3, 30(e).

Page 408 of 467
77. Ibid, Article 46.
78. Universal Islamic Declaration of Rights, (1982) 4 EHRR 433 .
79. Reynaldo Galindo Pohl, special rapporteur of the Commission on Human Rights on Iran, has observed that “there are
groups of Islamic legal scholars and practitioners who recommend the abolition of the death penalty for political crimes
on the ground that it is contrary to Islamic Law. They state that the number of crimes punishable by death is limited”:
UN Doc. E/CN.4/1989/26, $36.
80. Organization of the Islamic Conference, Secretary General, Doc. OIC/POL/MD/82-83/7, Djeddah, 25 April 1982.
81. Charte Arabe des droitis de I’homme, (1995) 7 RUDH 212.
82. For example, during debate at the 1994 session of the General Assembly, the Sudanese delegate noted that “capital
punishment was a divine right according to some religions, in particular Islam … Capital punishment was enshrined in
the Koran and millions of inhabitants of the Muslim world believed that it was a teaching of God” (UN Doc.
A/BUR/49/SR.5, $13). On capital punishment in Islamic Law, see, Frederic Sudre, Droit international et europeen des
droits de I’homme, Paris, Presses Universitaires de France, 1989, pp 85–87; A. Wazir, Quelques aspects de la peine
de mort en droit penal islamique, 1987, 58 Revue internationale de droit penal 421; Centre des etudes de securite
(Arabie Saoudite), Legalite et commodite de la peine de mort en droit musulman, 1987, 58 Revue internationale de
droit penal 431; N. Hosni, La Peine de mort en droit egyptien et en droit islamique, 1987, 58 Revue internationale de
droit penal 407.
83. This was the specific example given during debates surrounding adoption of Article 68$2 of the Fourth Geneva
Convention: Final Record of the Diplomatic Conference of Geneva of 1949 Vol III Berne: Federal Political Department,
pp 140–41 (Annex 301)
84. Initial Report of Morocco; UN Doc. CCPR/C/10/Add.10; UN Doc. CCPR/C/SR.327, $8 (consideration of the Initial
Report of Mali)
85. United States v Rosenberg, 195 F.2d 583 (2d Cir.) Cert. Denied, 344 US 838 (1952). Two boys under five were
orphaned by the simultaneous execution of their parents.
86. Nigel Rodley, The Treatment of Prisoners under International Law, Paris: UNESCO, Oxford: Clarendon Press, 1987 at
p 186.
87. United State of America: The Death Penalty and Juvenile Offenders, London, Amnesty International, 1991, p 13.
88. Convention on the Rights of the Child, GA Res. 44/25, Article 37$(a).
89. Fourth Geneva Convention Articles 68$5. Civil Rights Covenant Article 6$5 Safeguards Article 3; Convention on the
Rights of the Child Article 37$(a).
90. General Comment 24(52) UN Doc. CCPR/C/21 Rev.1/Add.6 (1994) 15 HRLJ 464 $8.
91. Consideration of reports submitted by States parties under Article 40 of the Covenant, COMMENTS OF HUMAN
RIGHTS COMMITTEE, UNITED STATES–Initial Report, UN Doc. CCPR/C/79/Add.50 (1995) $ 14.
92. Roach and Pinkerton v United States (Case No: 9467) Resolution No. 3/87, OAS Doc. OEA/Ser.L/V/II.71 Doc. 9 Rev.
1, p 147; Inter-American Yearbook on Human Rights, 1987, Dordrecht/Boston/London: Martinus Nijhoff, 1990, p 328, 8
HRLJ 345.
Page 409 of 467
93. Anglo-Norwegian Fisheries Case (UK v Norway), [1951] ICJ Reports 116, p 138.
94. Ian Brownlie, Principles of Public International Law, Oxford: Clarendon Press, 1979, pp 10–11; Anglo Norwegian
Fisheries Case (UK v Norway), ibid, p 131; North Sea Continental Shelf Cases (Fedral Republic of Germany v
Denmark and Netherland), [1969] ICJ Reports 3, p 46: Nuclear Tests Case (Australia v France), 1974 ICJ Reports 253,
pp 286–89.
95. Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit International Public, 3rd Edn, Paris: Labraire generale de droit et
de jurisprudence, 1987, p 302.
96. Theodor Meron, The Geneva Conventions as Customary Law, (1987) 81 AJIL 348, p 361.
1. William A. Schabas, Execution of the Insane, A Customary Norm of International Law?, (1987) 81 AJIL 348 at p 361.
2. Also see, the Article by A.R. Blacksheild (Professor of Law and Chairman, Department of Legal Studies La Trobe
University, Victoria, Australia),“Capital Punishment in India”, Journal of the Indian Law Institute, Vol 21, 1979, p 137.
3. Cf. Article 6(2), International Convenant on Civil and Political Rights, 1966.
4. Vide D.D. Basu, Select Constitutions of the World; see also Trop v Dulles, (1958) 356 US 86; Furman v Georgia,
(1972) 408 US 238 (Part II).
5. (1947) 329 US 459; see also Trop v Dulless, (1958) 356 US 86.
6. Furman v Georgia, (1972) 408 US 238.
7. Francis v Resweber, (1947) 329 US 459; McGautha v California, (1971) 402 US 183 (Black, J.).
8. Furman v Georgia, (1972) 408 US 238 (Douglas, Brennan, Stewart, White & Marshall, JJ.).
10. D.D. Basu, Comparative Constitutional Law, 2nd Edn, 2008, pp 68–69.
11. Supra.
12. See Proffitt v Florida, (1976) 428 US 242; Godfrey v Georgia, (1980) 446 US 420; Robert v Louisiana, (197) 428 US
325; Beck v Alabama, (1980) 446 US 392; Bullington v Missouri, (1981) 451 US 430; Gregg v Georgia, (1976) 428 US
153; Coker v Georgia, (1977) 433 US 584; Adams v Texas, (1980) 448 US 38.
13. Gregg v Georgia, (1976) 428 US 153; Coker v Georgia, (1977) 433 US 584; Adams v Texas, (1980) 448 US 38.
14. Gregg v Georgia, (supra).

Page 410 of 467
15. Furman v Georgia, (1972) 408 US 238 (supra).
16. Woodson v North Carolina, (1976) 428 US 280; Robert v Louisiana, (197) 428 US 325; Gardner v Florida, (1977) 430
US 349.
18. Jerry Lane v State of Texas, (1977) 49 L Ed 2d 929. [Even public opinion polls have not totally condemned it as yet:
see f.n. 34 in Woodson v N. Carolina, (1977) 49 L Ed 944; reprints of these two cases in (1977) Cr LJ 976 and 1082].
19. Gregg v Georgia, (1976) 428 US 153.
20. See also Barefoot v Estelle, (1983) 463 US 880; Mc Cleskey v Kemp, (1987) 481 US 279; Stanford v Kentucky, (1989)
492 US 361, sustained the constitutionality of capital punishment on individuals for crimes they have committed at 16 or
17 years of age.
21. Coker v Georgia, (1977) 433 US 584.
22. Godfrey v Georgia, (1980) 446 US 420.
23. Thompson v Oklahoma, (1988) 487 US 815.
24. Atkins v Virginia, (2002) 122 S Ct 2242.
25. Ford v Wainwright, (1986) 477 US 379.
26. Lockett v Ohio, (1978) 438 US 586.
see f.n. 34 in Woodson v N. Carolina, (1977) 49 L Ed. 944; reprints of these two cases in (1977) Cr LJ 976 and 1082].
see f.n. 34 in Woodson v N. Carolina, (1977) 49 L Ed. 944; reprints of these two cases in (1977) Cr LJ 976 and 1082].
29. Woodson v N. Carolina, (1977) 49 L Ed 2d 944.
see f.n. 34 in Woodson v N. Carolina, (1977) 49 LEd 944; reprints of these two cases in (1977) Cr LJ 976 and 1082];
Woodson v N. Carolina, (1977) 49 LEd 2d 944. See also Sumner v Shuman, (1987) 48 3 US 677.
31. Runyowa v R, (1966) 1 All ER 633 (PC).

Page 411 of 467
32. Jagmohan v State of U.P., AIR 1973 SC 947 [LNIND 1972 SC 477]: (1973) 2 SCR 541 [LNIND 1972 SC 477] : (1973)
1 SCC 20 [LNIND 1972 SC 477] (Sikri, C.J., Ray, Dua, Palekar& Beg, JJ.).
33. Budhan v State of Bihar, (1955)1 SCR 1045 [LNIND 1954 SC 166] (1054) : AIR 1955 SC 191 [LNIND 1954 SC 166] .
35. AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] : (1980) Cr LJ 636 .
36. McGautha v California, (1971) 402 US 183.
37. McGautha v California, (1971) 402 US 183.
38. Though there is nothing in the Indian Constitution corresponding to the Eighth Amendment of the American
Constitution, the question whether Article 14, read with Article 15(l), could invalidate a discriminatory death penalty was
not discussed in Jagmohan’s case, [ AIR 1973 SC 947 [LNIND 1972 SC 477]: (1973) 2 SCR 541 [LNIND 1972 SC
477] : (1973) 1 SCC 20 [LNIND 1972 SC 477]].
39. McGautha v California, (1971) 402 US 183. Though there is nothing in the Indian Constitution corresponding to the
Eighth Amendment of the American Constitution, the question whether Article 14, read with Article 15(l), could
invalidate a discriminatory death penalty was not discussed in Jagmohan’s case, [ AIR 1973 SC 947 [LNIND 1972 SC
477] : (1973) 2 SCR 541 [LNIND 1972 SC 477] : (1973) 1 SCC 20 [LNIND 1972 SC 477] ].
see f.n. 34 in Woodson v N. Carolina, (1977) 49 L Ed 944; reprints of these two cases in (1977) Cr LJ 976 and 1082];
Woodson v N. Carolina, (1977) 49 L Ed 2d 944.
41. Budhan v State of Bihar, (1955) 1 SCR 1045 [LNIND 1954 SC 166] (1054) : AIR 1955 SC 191 [LNIND 1954 SC 166].
42. A.K. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22].
43. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89](para 11) : (1983) 2 SCR 582 [LNIND 1983 SC
89] : (1983) 2 SCC 344 [LNIND 1983 SC 89].
44. Jagmohan v State of U.P., AIR 1973 SC 947 [LNIND 1972 SC 477]: (1973) 2 SCR 541 [LNIND 1972 SC 477] : (1973)
1 SCC 20 [LNIND 1972 SC 477] (Sikri, C.J., Ray, Dua, Palekar, & Beg, JJ.).
Page 412 of 467
45. Bachan, v State of Punjab, (1980) 2 SCC 684 [LNIND 1980 SC 261] : AIR 1980 SC 898 [LNIND 1980 SC 260]: 1980
Cr LJ 636 (majority); Sher Singh v State of Punjab, (1983) 2 SCC 344 [LNIND 1983 SC 89]; Triveniben v State of
Gujarat, (1989)1 SCC 678 [LNIND 1989 SC 885] : AIR 1989 SC 1335 [LNIND 1989 SC 885]: (1989) 1 SCR 509
[LNIND 1989 SC 885]; Alauddin v State of Bihar, (1989) 3 SCC 5 [LNIND 1989 SC 236] (para 9) : AIR 1989 SC 1456
[LNIND 1989 SC 236]: (1989) 2 SCR 498; Jumman v State of U.P., (1991) Cr LJ 439 (paras 14–15).
46. Bachan v State of Punjab, (1980) 2 SCC 684 [LNIND 1980 SC 261] (majority).
47. AIR 1980 SC 898 [LNIND 1980 SC 260]: (1980) 2 SCC 684 [LNIND 1980 SC 261] : (1980) Cr LJ 636 (supra).
48. AIR 1983 SC 947 : (1983) 3 SCC 470 [LNIND 1983 SC 170].
49. See also Munawar Harun Shah v State of Maharashtra, AIR 1983 SC 535 : (1983) 3 SCC 354 [LNIND 1983 SC 113];
Amruta v State of Maharashtra, AIR 1983 SC 629 : (1983) 3 SCC 50; Bishan Singh v State of Punjab, AIR 1983 SC
748; Shiv Ram v State of UP, AIR 1998 SC 49 : (1998) 1 SCC 521; Surja Ram v State of Rajasthan, AIR 1997 SC 18
[LNIND 1996 SC 1548]: (1996) 6 SCC 271 [LNIND 1996 SC 1548].
50. AIR 1986 Mad 204 [LNIND 1985 MAD 317].
51. 1986 Ker LT 598 : 1986 KLJ 663.
52. 1992 Cr LJ 514 (SC). See also Rajesh Kumar v State, (2011) 13 SCC 706 [LNIND 2011 SC 2734]; Dara Singh v
Republic of India, (2011) 2 SCC 490 [LNIND 2011 SC 92]; Mohd. Ajmal Amir Kasab v State of Maharashtra, AIR 2012
SC 3565 [LNIND 2012 SC 1215]: (2012) 9 SCC 1 [LNIND 2012 SC 1215]; Rajendra Prahladrao Wasnik v State of
Maharashtra, AIR 2012 SC 1377 [LNIND 2012 SC 158]: (2012) 4 SCC 37 [LNIND 2012 SC 158].
53. Anshad v State of Karnataka, (1994) 4 SCC 381 [LNIND 1994 SC 1456] : [1994] 3 SCR 642 [LNIND 1994 SC 1456];
Mohd. Chaman v State (NCT of Delhi), AIR 2001 SC 2231 [LNIND 2001 SC 1233]: (2001) 5 SCC 714 [LNIND 2001
SC 1233]; Surja Ram v State of Rajasthan, AIR 1997 SC 18 [LNIND 1996 SC 1548]: (1996) 6 SCC 271 [LNIND 1996
SC 1548]; Ajmer Singh v State of Punjab, AIR 1977 SC 1078 : (1977) 1 SCC 659; State of UP v Bhoora, AIR 1998 SC
254 [LNIND 1997 SC 1353]: (1998) 1 SCC 128 [LNIND 1997 SC 1353]; Balraj v State of UP, AIR 1995 SC 1935
[LNIND 1994 SC 408]: (1994) 4 SCC 29 [LNIND 1994 SC 408]; Shankar Alias Gauri Shankar v State of Tamil Nadu,
(1994) 4 SCC 478 [LNIND 1994 SC 377] : 1994 Cr LJ 3071; Ramnaresh v State of Chattisgarh, (2012) 4 SCC 257
[LNINDORD 2012 SC 404] : AIR 2012 SC 1357 [LNINDORD 2012 SC 404]; Brajendra Singh v State of MP, (2012) 4
SCC 289 [LNIND 2012 SC 159] : AIR 2012 SC 1552 [LNIND 2012 SC 159].
Page 413 of 467
54. Shankar Kisanrao Khad v State of Maharashtra, (2013) 5 SCC 546 [LNIND 2013 SC 429] : AIR 2013 SCW 2668 :
(2013) Cr LJ 2595; see also Ashok Debbarma v State of Tripura, (2014) 4 SCC 747 [LNIND 2014 SC 348] : 2014 Cr LJ
1830.
55. Rajendra Prasad v State of U.P., AIR 1979 SC 916 [LNIND 1979 SC 107]: (1979) 3 SCC 646 [LNIND 1979 SC 107].
56. Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260]: (1980) 2 SCC 684 [LNIND 1980 SC 261].
See also Jumman Khan v State of U.P., AIR 1991 SC 345 [LNIND 1990 SC 750]: (1991) 1 SCC 752 [LNIND 1990 SC
750].
57. Machhi Singh v State of Punjab, (1983) 3 SCC 470 [LNIND 1983 SC 170] : AIR 1983 SC 957 [LNIND 1983 SC 170].
58. See also State of U.P. v Satish, AIR 2005 SC 1000 [LNIND 2005 SC 124]: (2005) 3 SCC 114 [LNIND 2005 SC 124];
Koran Singh v State of U.P., (2005) 6 SCC 342.
59. State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580].
60. See H.M. Seervai, Constitutional Law of India, 4th Edn, Vol (2), pp 1033–34. Also see the Articles, (1) Death Penalty
with reference to Machi Singh and Deena contributed by United Lawyers’ Association, New Delhi, (1984) 1 SCC
Journal (22); (2) Murder Most Foul; Though not Rarest of the Rare by B.B. Pande, Faculty of Law, University of Delhi,
(1996) 5 SCC Journal (1); (3) Death Sentence - As Effective deterrent by Justice Easwara Prasad, Journal of Indian
Law Institute, 2004, Vol 46, p 443.
61. Mithu v UOI, AIR 1983 SC 473 [LNIND 1983 SC 105]: (1983) 2 SCC 277 [LNIND 1983 SC 105].
62. Fali S. Nariman, India’s Legal System : Can it be saved?, 2006 Edn, p 76.
63. Jumman v State of U.P., (1991) Cr LJ 439 (paras 14–15). Also see the article “Face to Face With Death Sentence :
Supreme Court Legal and Constitutional Dilemmas” by B.B. Pande, Reader in Law, Faculty of Law, University of Delhi,
(1979) 4 SCC Journal (39).
64. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678 [LNIND 1989 SC 885]
(paras 2, 3) (CB).
65. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCR 582 [LNIND 1983 SC 89] : (1983)
2 SCC 344 [LNIND 1983 SC 89] (para 11).
Page 414 of 467
66. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCR 582 [LNIND 1983 SC 89] : (1983)
2 SCC 344 [LNIND 1983 SC 89] (para 11); Javed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310]
(para 3) : (1985) 2 SCR 8 [LNIND 1984 SC 310] : (1985) 1 SCC 275 [LNIND 1984 SC 310] .
67. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989)1 SCC 678 [LNIND 1989 SC 885]
(paras 2, 3) (CB).
68. Vatheeswaran v State of T.N., AIR 1982 SC 361 (para 1).
69. Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCC 344 [LNIND 1983 SC 89] .
70. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678 [LNIND 1989 SC 885] ;
Madhu Mehta v UOI, AIR 1989 SC 2299 [LNIND 1989 SC 390] : (1989) 4 SCC 62 [LNIND 1989 SC 390] ; Shivaji
Jaising Babar v State of Maharashtra, AIR 1991 SC 2147 : (1991) 4 SCC 375 [LNIND 1991 SC 351] ; Javed Ahmed v
State of Maharashtra, (1985) 1 SCC 275 [LNIND 1984 SC 310] .
71. EdigaAnamma v State of A.P., AIR 1974 SC 799 [LNIND 1974 SC 34] : (1974) 4 SCC 443 [LNIND 1974 SC 34] .
72. Furman v Georgia, (1972) 408 US 238 : 33 L Ed 2d 346.
73. Riley v A.G. of Jamaica, (1982) 3 All ER 469 .
74. Pratt v A.G. of Jamaica, (1993) 4 All ER 769 .
75. See V. Sridharan Alias Murugan v UOI, (2014) 4 SCC 242 [LNIND 2014 SC 134] : AIR 2014 SC 1368 [LNIND 2014 SC
134] .
77. (2014) 3 SCC 1 [LNIND 2014 SC 40] : 2014 Cr LJ 1327 : (2014) 1 Scale 437 [LNIND 2014 SC 40] .
78. AIR 1983 SC 361 [LNIND 1983 SC 43] (2) : (1983) 2 SCC 68 [LNIND 1983 SC 58] (supra).
Page 415 of 467
79. AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] : (1980) Cr LJ 636 (supra).
80. (2013) 6 SCC 195 [LNIND 2008 SC 2975] : AIR (2013) SCW 2939 .
81. Furman v Georgia, (1972) 408 US 238 : 33 L Ed 2d 346.
82. People v Chessman, (1959) 34 P 2d 679; see also People v Anderson, (1972) 493 P 2d 880.
83. Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678 [LNIND 1989 SC 885]
(paras 2, 3) (CB).
(1975) 3 SCC 185 [LNIND 1974 SC 269] ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1
SCR 392 [LNIND 1978 SC 215] : (1978) 4 SCC 494 [LNIND 1978 SC 215] .
(1975) 3 SCC 185 [LNIND 1974 SC 269] .
86. State of Gujarat v Hon’ble High Court of Gujarat, AIR 1998 SC 3164 [LNIND 1998 SC 920] : (1998) 7 SCC 392 [LNIND
1998 SC 920] . See also Prison Reforms Enforcement of Wages of Prisoners Re, 1983 Ker LT 512 ; Jail Reforms
Committee v State of Gujarat, (1985) Cri Ref. No. 2 of 1984, dated 31-1-1985 (FB).
: 1966 Cr LJ 311 . See also Francis Coralic Mullin v The Administrator, Union Territory of Delhi, AIR 1981 SC 746
[LNIND 1981 SC 27] ; R. Rajagopal v State of Tamil Nadu, AIR 1975 SC 264 ; Giovine v Italy, (2003) 36 EHRR 8 (on
censorship of correspondence); Domemichini v Italy, (2001) 32 EHRR 4 (mail intrception).
88. Sunil v Delhi Admn. (II), AIR 1980 SC 1579 (paras 31, 42) : (1980) 2 SCR 557 [LNIND 1978 SC 215] : (1980) 3 SCC
488 [LNIND 1978 SC 215] .
(1975) 3 SCC 185 [LNIND 1974 SC 269] ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1
Page 416 of 467
90. State of A.P. v Challa Ramakrishna Reddy, (2000) 5 SCC 712 [LNIND 2000 SC 741] .
91. Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1979) 1 SCR 392 [LNIND 1978 SC 215] : (1978) 4
SCC 494 [LNIND 1978 SC 215] .
488 [LNIND 1978 SC 215] ; Javed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310] (paras 3, 4) :
(1985) 2 SCR 8 [LNIND 1984 SC 310] : (1985) 1 SCC 275 [LNIND 1984 SC 310] .
94. See Justice J.S. Verma, The New Universe of Human Rights, 2004 Edn, p 132.
488 [LNIND 1978 SC 215] ; Sheela v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57] (para 1) : (1983) 2
2177] .
1. Also see, D.K. Basu v State of W.B., (2002) 10 SCC 741 ; D.K. Basu v State of W.B., (2003) 11 SCC 723 and 925.
2. Kartar Singh v State of Punjab, (1994) 3 SCC 569 . See also State of Gujarat v Govindbhai, Jakhubhai, AIR 1999 Guj
316 [LNIND 1998 GUJ 658] .
3. See also R.V. Isequilla, (1975) 1 All ER 77 ; R.V. Prager, (1972) 1 All ER 114 ; R.V. Richard, (1967) 1 All ER 829 .
4. State of M.P. v Shyamsunder Trivedi, (1995) 4 SCC 262 [LNIND 1995 SC 644] .
5. See also Shakila Abdul Gafar Khan v Vasanth Raghunath Dhoble, (2003) 7 SCC 749 [LNIND 2003 SC 653] .
6. See Hussainara Khatoon (III) v Home Secretary, State of Bihar, (1980) 1 SCC 93 [LNIND 1979 SC 155] .
7. Ram Narain v State, (1953) SCR 652 [LNIND 1953 SC 28] .
8. Ram Narain v State–supra.

Page 417 of 467
9. Kishori Mohan Bera v State of WB, AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31] ;
Niranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) SCR 395 [LNIND 1952 SC 3] ; Maqbool
Hussain v State of Bombay, AIR 1953 SC 325 [LNIND 1953 SC 51] : (1953) SCR 730 [LNIND 1953 SC 51] ; Mamoo
Mazumdar v State of Bihar, AIR 1980 SC 847 [LNIND 1980 SC 91] : (1980) 2 SCC 406 [LNIND 1980 SC 91] ; Daulat
Ram v State of Haryana, (1996) 11 SCC 711 : AIR 1995 SC 1998 ; Krishna Murari Agarwala v UOI, AIR 1975 SC 1877
[LNIND 1975 SC 211] : (1975) 4 SCC 481 [LNIND 1975 SC 211] ; Sher Mohammed v State of WB, AIR 1975 SC 2049
[LNIND 1975 SC 1] : (1975) 2 SCC 1 ; Saleem S.K. v State of W.B., AIR 1975 SC 602 [LNIND 1975 SC 37] : (1975) 1
SCC 653 [LNIND 1975 SC 37] .
10. State of Andhra Pradesh v Chella Ramakrishna Reddy, (2000) 5 SCC 712 [LNIND 2000 SC 741] .
11. Nilbati Behera v State of Orissa, (1993) 2 SCC 746 [LNIND 1993 SC 1167] : (1993) 2 SCR 581 [LNIND 1993 SC 1167]
: AIR 1993 SC 1960 [LNIND 1993 SC 1167] : AIR (1993) SCW 2366 ); Re: Death of Sawinder Singh Grover, (1995)
(Supp-4) SCC 450 : (1992) 6 JT (SC) 271 : 1992 (3) Scale 34 (2); and D.K. Basu v State of W.B., (1997) 1 SCC 416
[LNIND 1996 SC 2177] : AIR 1997 SC 610 [LNIND 1996 SC 2177] : AIR 1997 SCW 233 .
12. Madhu Limaye, Re: AIR 1969 SC 1014 : (1969) 1 SCC 191 ; see also Jecins v Lithuania, (2002) 35 EHRR 16 .
13. State of Haryana v Darshana Devi, AIR 1979 SC 855 [LNIND 1979 SC 114] : (1979) 2 SCC 236 [LNIND 1979 SC 114]
; Hoskot Madhav Haya Wadan Ras v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] ; Wyne v U.K.,
(1995) 19 EHRR 333 ; Weeks v U.K., (1988) 10 EHRR 293 ; Hussain v U.K., (1996) 22 EHRR 1 .
14. Supreme Court Advocates on Record Assn v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 ;
State of Punjab v Ajaib Singh, AIR 1995 SC 957 : (1995) 1 SCC 486 .
15. Supreme Court Legal Aid Committee v UOI, (1994) 6 SCC 731 [LNIND 1994 SC 955] applied in Supreme Court Legal
Aid Committee (under-trial prisoners) v UOI, (1995) 4 SCC 695 ; Shaheen Welfare Assn v UOI, AIR 1996 SC 2057
[LNIND 1996 SC 958] : (1996) 2 SCC 616 [LNIND 1996 SC 2747] ; R.D. Upadhyaya v State of AP, (1996) 3 SCC 422
[LNIND 2000 SC 1693] and (1998) 5 SCC 696 ; Common Cause, a registered society v UOI, AIR 1996 SC 1619
[LNIND 1996 SC 897] : (1996) 4 SCC 33 [LNIND 1996 SC 897] ; Sunil K. Sinha v State of Bihar, (1998) 5 SCC 607 ;
A.R. Antulay v R.S. Nayak, (1992) 1 SCC 255 .
16. Mahendra Lal Das v State of Bihar, (2002) 1 SCC 149 [LNIND 2001 SC 2324] : AIR 2001 SC 2989 [LNIND 2001 SC
2324] ; see also Dharmendra Kirthal v State of UP, AIR 2013 SC 2569 [LNIND 2013 SC 695] : (2013) 8 SCC 368
[LNIND 2013 SC 695] ; Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2013 SC 3648 [LNIND 2013 SC 1400] :
(2013) 9 SCC 500 [LNIND 2013 SC 1400] ; Lalu Prasad v State of Jharkhand, (2013) 8 SCC 593 [LNIND 2013 SC 752]
Page 418 of 467
; Hardeep Singh v State of MP, AIR 2012 SC 1751 [LNINDU 2011 SC 18] : (2012) 1 SCC 748 [LNINDU 2011 SC 18] ;
Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579] : (2012) 8 SCC 495 [LNIND 2012 SC 1579] .
17. Sheela Barse v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57] .
18. Watch Dogs International v UOI, (1998) 8 SCC 338 : JT (1998) 9 SC 181 .
19. Citizen for Democracy v State of Assam, (1995) 3 SCC 743 [LNIND 1995 SC 602] ; Keval Pati (Smt) v State of U.P.,
(1995) 3 SCC 321 ; R.D. Upadhyay v State of A.P., (2001) 1 SCC 437 [LNIND 2000 SC 1693] ; State of Haryana v
Ghasita Ram, (1997) 3 SCC 766 [LNIND 1997 SC 362] ; State of Maharashtra v Ravi Gandhi, (1991) 2 SCC 373
[LNIND 1991 SC 158] ; State of M.P. v Mohan Singh, (1995) 6 SCC 321 [LNIND 1995 SC 943] ; State of Punjab v
Joginder Singh, (1990) 2 SCC 661 [LNIND 1990 SC 181] ; T.N. Mathur v State of U.P., 1993 (Supp-1) SCC 722.
20. Satish Kumar v State of Haryana, 1995 (Supp-3) SCC 661; Shyama Murthy v State of Karnataka, (1997) 2 SCC 642 .
21. Sunil v State of M.P., (1990) 2 SCJ 409 . See also Hardeep Singh v State of MP, AIR 2012 SC 1751 [LNINDU 2011
SC 18] : (2012) 1 SCC 748 [LNINDU 2011 SC 18] .
22. Prem v Delhi Admn., (1980) 3 SCC 526 [LNIND 1980 SC 215] : AIR 1980 SC 1535 [LNIND 1980 SC 215] : (1980) 3
SCR 855 [LNIND 1980 SC 215] . See also State of Maharashtra v Ravikant S. Patel, (1991) 2 SCC 373 [LNIND 1991
SC 158] ; Sunil Gupta v State of M.P., (1990) 3 SCC 119 [LNIND 1990 SC 292] ; Citizen for Democracy v State of
Assam, (1995) 3 SCC 743 [LNIND 1995 SC 602] (when direction was given to the police as mandatory guidelines
regarding hand-cuffing)
23. Sunil v State of M.P., (1990) 2 SCJ 409 . See also Hardeep Singh v State of MP, AIR 2012 SC 1751 [LNINDU 2011
SC 18] : (2012) 1 SCC 748 [LNINDU 2011 SC 18] .
24. Khedat Mazdoor Chetna Sangath v State of M.P., AIR 1995 SC 31 [LNIND 1994 SC 1253] ; President, Citizen for
Democracy v State of Assam, AIR 1996 Sc 2193 [LNIND 1995 SC 602] ; Ghanshyam Raj Narayan Dubey v UOI, 1998
AIHC 1961 (All).
25. Sunil v Delhi Admn. (II), AIR 1980 SC 1579 : (1980) 2 SCR 557 [LNIND 1978 SC 215] : (1980) 3 SCC 488 [LNIND
1978 SC 215] (paras 31, 42); Sheela v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983 SC 57] : (1983) 2 SCR
337 [LNIND 1983 SC 57] : (1983) 2 SCC 96 [LNIND 1983 SC 57] (para 1).
Page 419 of 467
26. Javed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310] : (1985) 2 SCR 8 [LNIND 1984 SC 310] :
(1985) 1 SCC 275 [LNIND 1984 SC 310] (paras 3, 4); Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983
SC 89] : (1983) 2 SCR 582 [LNIND 1983 SC 89] : (1983) 2 SCC 344 [LNIND 1983 SC 89] (para 11).
27. Watchdogs International v UOI, (1998) 8 SCC 338 : AIR 1999 SC 22 [LNIND 1998 SC 970] .
28. Raninen v Finland, (1998) 26 EHRR 563 .
(1985) 1 SCC 275 [LNIND 1984 SC 310] (paras 3, 4); Sheela v State of Maharashtra, AIR 1983 SC 378 [LNIND 1983
SC 57] : (1983) 2 SCR 337 [LNIND 1983 SC 57] : (1983) 2 SCC 96 [LNIND 1983 SC 57] (para 1); Sunil v State of M.P.,
(1990) 2 SCJ 409 ; Prem v Delhi Admn., (1980) 3 SCC 526 [LNIND 1980 SC 215] : AIR 1980 SC 1535 [LNIND 1980
SC 215] : (1980) 3 SCR 855 [LNIND 1980 SC 215] ; Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC
89] : (1983) 2 SCR 582 [LNIND 1983 SC 89] : (1983) 2 SCC 344 [LNIND 1983 SC 89] (para 11). See also V. Sridharan
Alias Murugan v UOI, AIR 2014 SC 1368 [LNIND 2014 SC 134] : (2014) 4 SCC 242 [LNIND 2014 SC 134] ;
Shatrughan Chauhan v UOI, (2014) 3 SCC 1 [LNIND 2014 SC 40] : (2014) 1 Scale 437 [LNIND 2014 SC 40] .
30. State of Maharashtra v Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424 [LNIND 1965 SC 214] : (1966) 1 SCR 702
[LNIND 1965 SC 214] .
31. Khare v State of Delhi, (1950) SCR 519 [LNIND 1950 SC 30] .
608 [LNIND 1981 SC 27] : (1981) 1 SCR 516 .
33. R. Rajagopal Alias R.R. Gopal v State of Tamil Nadu, AIR 1975 SC 264 ; see also Giovine v Italy, (2003) 36 EHRR 8
(on censorship of correspondence); Domenichini v Italy, (2001) 32 EHRR 4 (mail interception).
SCC 141 [LNIND 1983 SC 181] (para 6).
35. Veena v State of Bihar, AIR 1983 SC 339 .
36. Mathew v State of Bihar, AIR 1984 SC 1854 [LNIND 1984 SC 253] : (1985) 2 SCC 102 [LNIND 1984 SC 253] ; Kamala
Devi Chattopadhyaya v State of Punjab, AIR 1984 SC 1895 : (1985) 1 SCC 41 .
Page 420 of 467
188] ; see also Hussainara Khatoon v State of Bihar, AIR 1979 SC 1377 [LNIND 1979 SC 241] : (1980) 1 SCC 108
[LNIND 1979 SC 241] .
(1985) 1 SCC 275 [LNIND 1984 SC 310] (paras 3, 4).
39. Nawal v Brahmu, (1985) Cr LJ 244 (para 4) (HP).
40. R.D. Upadhyay v State of A.P., (2001) 1 SCC 437 [LNIND 2000 SC 1693] : 2000 (Supp-5) SCR 167.
41. Leech v Deputy Governor, (1988) 1 All ER 485 ; Hague v Deputy Governor, (1991) 3 All ER 733 ; Raymond v Honey,
(1982) 1 All ER 756 .
42. See D.D. Basu, Human Rights in Constitutional Law, 3rd Edn, 2008 at pp 447–448.
43. In R v Secretary of State for the Home Department – ex parte Leech, (1993) 4 All ER 539 .
44. Campbell v U.K., (1993) 15 EHRR 137 .
45. See also Golden v U.K., (1979–80) 1 EHRR 524.
46. Mohd. Shahabuddin v State of Bihar, (2010) 4 SCC 653 [LNIND 2010 SC 277] : (2010) 3 Scale 204 [LNIND 2010 SC
277] .
47. Re Oliver, (1947) 333 US 257.
48. Ester v Texas, (1965) 381 US 532.
49. Chandler v Florida, (1981) 449 US 560.
50. Murphy v Florida, (1975) 421 US 794; Nebraska Press v Stuart, (1976) 427 US 539.
51. Scott v Scott, (1913) AC 417 ; Re. Agricultural Industries, (1952) 1 All ER 1188 ; Hinds v R, (1976) 1 All ER 353 .
52. Kehar Singh v State (Delhi Admn.), AIR 1988 SC 1883 [LNIND 1988 SC 887] : (1988) 3 SCC 609 [LNIND 1988 SC
887] .
53. Ranjit Singh v Chief Justice, (1986) Cr LJ 632 (Del).
54. Antulay v Nayak, AIR 1988 SC 1531 [LNIND 1988 SC 264] : 1988 (Supp-1) SCR 1 : (1988) 2 SCC 602 [LNIND 1988
SC 264] .
55. Hussainara v Home Secy. (I), AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81 ; Kadra v State of Bihar, AIR
1981 SC 939 [LNIND 1980 SC 493] (para 2) : (1981) 3 SCC 671 [LNIND 1980 SC 493] .
SC 264] (paras 38, 40, 41, 43, 57, 61, 62, 80–83, 144) per Mukharji, Oza, Natarajan, Ray, JJ.; Maruti Ltd, Chandigarh v
PAN India Plastic Pvt Ltd, New Delhi, AIR 1993 P&H. 215 . See also Dilip S. Dahanukar v Kotak Mahindra Co Ltd,
(2007) 6 SCC 528 [LNIND 2007 SC 451] .
Page 421 of 467
SC 264] (paras 38, 40, 41, 43, 57, 61, 62, 80–83, 144) per Mukharji, Oza, Natarajan, Ray, JJ.; Maruti Ltd, Chandigarh v
PAN India Plastic Pvt Ltd, New Delhi, AIR 1993 P&H. 215 . See also Dilip S. Dahanukar v Kotak Mahindra Co Ltd,
(2007) 6 SCC 528 [LNIND 2007 SC 451] .
58. State of Maharashtra v Public Concern for Governance Trust, AIR 2007 SC 777 [LNIND 2007 SC 5] : (2007) 3 SCC
587 [LNIND 2007 SC 5] ; Reliance Energy Ltd v Maharashtra State Road Transport Corpn. Ltd, (2007) 8 SCC 1 [LNIND
2007 SC 1052] .
59. Thippeswamy v State of Karnataka, (1983) Cr LJ 1271 (1272) : AIR 1983 SC 747 [LNIND 1982 SC 179] : (1983) 1
SCC 194 [LNIND 1982 SC 179] . See also State of U.P. v Chandrika, AIR 2000 SC 164 [LNIND 1999 SC 1469] :
(1999) 8 SCC 638 [LNIND 1999 SC 1469] , wherein it was held that the concept of “plea bargaining” is not recognised
and is against public policy under criminal system. See also Stanly Blackledge v Allison, 1978 Cr LJ 615 (USSC).
60. (2000) 10 SCC 336 .
62. Ram Narayan v State of Delhi, (1953) SCR 652 [LNIND 1953 SC 28] : AIR 1953 SC 277 [LNIND 1953 SC 28] .
63. Maqbool Hossain v State of Bombay, (1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] ;
Naranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : 1952 SCR 395 [LNIND 1952 SC 3] . See also Ram
Narain Singh v State of Delhi, AIR 1953 SC 277 [LNIND 1953 SC 28] .
64. Kishori v State, AIR 1972 SC 1749 : (1972) 3 SCC 845 .
65. Basanta Chandra Ghosh v King Emperor, AIR 1945 PC 18 : (1945) FCR 81 ; see also Naranjan Singh Nathawan v
State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3] .
66. B. Ramachandra Rao v State of Orissa, AIR 1971 SC 2197 : (1972) 3 SCC 256 .
67. A.K. Gopalan v Govt of India, AIR 1966 SC 256 : (1966) 2 SCR 427 [LNIND 1965 SC 574] .
68. Talib Hussain v State of J&K, AIR 1971 SC 62 [LNIND 1970 SC 279] : (1971) 3 SCC 118 .
69. Kanu Sanyal v District Magistrate, AIR 1974 SC 510 [LNIND 1974 SC 27] : (1974) 4 SCC 141 [LNIND 1974 SC 27] .
SC 264] (paras 38, 40, 41, 43, 57, 61, 62, 80–83, 144) per Mukharji, Oza, Natarajan, Ray, JJ.
71. Maqbool Hossain v State of Bombay, (1953) SCR 730 [LNIND 1953 SC 51] : AIR 1953 SC 325 [LNIND 1953 SC 51] ;
Naranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : 1952 SCR 395 [LNIND 1952 SC 3] . See also Ram
Narain Singh v State of Delhi, AIR 1953 SC 277 [LNIND 1953 SC 28] .
72. Anil v State of Bihar, AIR 1982 SC 1008 [LNIND 1982 SC 72] : (1982) 3 SCR 533 [LNIND 1982 SC 72] : (1982) 2 SCC
195 [LNIND 1982 SC 72] .
73. Kadra v State of Bihar, AIR 1981 SC 939 [LNIND 1980 SC 493] (para 3) : (1981) 3 SCC 671 [LNIND 1980 SC 493] .
74. State of Maharashtra v Ravikant, (1991) 2 SCJ 54 (para 3); Sunil v State of M.P., (1990) 2 SCJ 409 .
Page 422 of 467
75. (1945) 325 US 887.
76. AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] : (1980) 2 SCR 557 [LNIND 1978 SC 215] .
77. Mantoo v State of Bihar, AIR1980 SC 847 : (1980) 2 SCR 1105 [LNIND 1980 SC 91] : (1980) 2 SCC 406 [LNIND 1980
SC 91] .
188] .
80. State of UP v Parshotham, 1991 (Supp-2) SCC 124.
81. R v Gray JJ, (1982) 3 All ER 653 .
82. Thippeswamy v State of Karnataka, AIR 1983 SC 747 [LNIND 1982 SC 179] (para 1) : (1983) 1 SCC 194 [LNIND
1982 SC 179] .
83. Bhim v State of J&K, (1985) 4 SCC 677 [LNIND 1985 SC 350] (685) : AIR 1986 SC 494 [LNIND 1985 SC 350] .
84. Francis v Administrator, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 2 SCR 516 [LNIND 1981 SC 27] : (1981) 1
SCC 608 [LNIND 1981 SC 27] . See also N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594]
: (2013) 4 LW 558 ; Bhut Nath Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND
1974 SC 31] ; S.R. Venketaraman v UOI, (1979) 2 SCC 49 ; Yumman Ongbi Lembi Leima v State of Manipur, AIR
85. State of Bombay v Atmaram, (1951) SCR 167 [LNIND 1951 SC 5] : AIR 1951 SC 157 [LNIND 1951 SC 5] ; Alam v
State of W.B., AIR 1974 SC 917 [LNIND 1974 SC 42] (921) : (1974) 3 SCR 379 [LNIND 1974 SC 42] : (1974) 4 SCC
463 [LNIND 1974 SC 42] .
86. Francis v Administrator, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND 1981 SC 27] .
87. See also Kamla v State of Maharashtra, AIR 1981 SC 814 [LNIND 1981 SC 1] .
88. Krishna Murari v Unionof India, AIR 1975 SC 1877 [LNIND 1975 SC 211] : (1976) 1 SCR 16 [LNIND 1975 SC 211] :
(1975) 4 SCC 481 [LNIND 1975 SC 211] .
89. Sher Md v State of W.B., AIR 1975 SC 2049 [LNIND 1975 SC 1] : (1975) 3 SCR 154 [LNIND 1975 SC 1] : (1975) 2
SCC 2 [LNIND 1975 SC 1] ; Salim v State of W.B., AIR 1975 SC 602 [LNIND 1975 SC 37] (para 16) : (1975) 3 SCR
90. Kanyalal v State of Maharashtra, (1981)1 SCC 748 [LNIND 1981 SC 1] : AIR 1981 SC 814 [LNIND 1981 SC 1] : (1981)
2 SCR 459 [LNIND 1981 SC 1] . See also Chowdarapu Raghunandan v State of T.N., (2002) 3 SCC 754 [LNIND 2002
SC 211] : AIR 2002 SC 1460 [LNIND 2002 SC 211] ; V.C. Mohan v UOI, AIR 2002 SC 1205 [LNIND 2002 SC 160] :
(2002) 3 SCC 451 [LNIND 2002 SC 160] ; State of T.N. v Kadal Kani, (2002) 9 SCC 611 [LNINDORD 2000 SC 1] : AIR
2003 SC 4388 [LNINDORD 2000 SC 1] ; K. Vardharaj v State of T.N., AIR 2002 SC 2953 [LNIND 2002 SC 507] :
(2002) 6 SCC 735 [LNIND 2002 SC 507] . Similar is the case where the ground supplied are vague. Ram v State of
Bihar, AIR 1975 SC 223 [LNIND 1974 SC 361] ; Priyanka Pandit Fulore v State of Maharashtra, (2002) 9 SCC 714 : JT
Page 423 of 467
(2001) 9 SC 26 . See also Sophia Gulam Mohd. Bhan v State of Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC
693] : (1999) 6 SCC 593 [LNIND 1999 SC 693] ; Abdul Nasar Ismail v State of Maharashtra, AIR 2013 SC 1376
91. See Ichhu Devi v UOI, AIR 1980 SC 1983 [LNIND 1980 SC 372] : (1980) 4 SCC 531 [LNIND 1980 SC 372] ;
Ramachandra A. Kamat v UOI, AIR 1980 SC 760 : (1980) 2 SCC 270 [LNIND 1980 SC 80] ; Kamla Kanyalal
Kushalam v State of Maharashtra, AIR 1981 SC 814 [LNIND 1981 SC 1] : (1981) 2 SCC 436 ; Sunil Dutt v UOI, AIR
1982 SC 53 : (1982) 3 SCC 405 ; Kirtikumar v UOI, AIR 1981 SC 1621 [LNIND 1981 SC 56] : (1981) 2 SCC 436 ;
Haridas Amarchand Shah v K.L. Verma, AIR 1989 SC 497 [LNIND 1988 SC 578] : (1989) 1 SCC 250 [LNIND 1988 SC
578] ; G. Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] ; Yuman Ongbi Lembi Leima v State of
Manipur, (2012) 2 SCC 176 [LNIND 2012 SC 888] ; Thahira Haris v Govt. of Karnataka, AIR 2009 SC 2184 [LNIND
2009 SC 834] : (2009) 11 SCC 438 [LNIND 2009 SC 834] ; UOI v Ranu Bhandari, (2008) 17 SCC 348 [LNIND 2008 SC
1852] : 2008 Cr LJ 4567 .
92. Ibrahim v State of Maharashtra, (1987) SCC (Cr) 630.
93. Sheik Ibrahim v State of WB, AIR 1974 SC 736 [LNIND 1973 SC 408] : (1975) 3 SCC 13 [LNIND 1973 SC 408] :
(1974) 2 SCR 803 [LNIND 1973 SC 408] ; see also Chagir Ram v State of J&K, AIR 1971 SC 263 [LNIND 1970 SC 97]
: (1970) 1 SCC 536 [LNIND 1970 SC 97] : (1970) 3 SCR 872 [LNIND 1970 SC 97] .
1. Pebam Ningol Mikoi Devi v State of Manipur, (2010) 9 SCC 618 [LNIND 2010 SC 926] : AIR 2010 SC 3477 [LNIND
2010 SC 726] .
2. Rekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] :
(2011) 4 Scale 387 [LNIND 2011 SC 371] .
3. Maulana Shamshinnisa v Additional Chief Secretary, AIR 2011 SC 1422 [LNIND 2010 SC 1226] : (2010) 15 SCC 72
[LNIND 2010 SC 1226] .
4. Abdul Nasar Adam Ismail v State of Maharashtra, AIR 2013 SC 1376 [LNIND 2013 SC 256] : (2013) 4 SCC 435
[LNIND 2013 SC 256] .
5. Khatri v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] : (1981) 1 SCC 6735 ; Gunpati v Nafisul Hassan, AIR
1954 SC 636 [LNIND 1952 SC 155] : (1954) Cr LJ 1704 .
6. Kiran Pasha v Govt. of A.P., (1990) 1 SCC 328 [LNIND 1989 SC 553] (paras 13–15) : (1989) 4 JT 366 [LNIND 1989 SC
553] .
7. Cf. Kochunni v State of Madras, AIR 1959 SC 725 [LNIND 1959 SC 27] : 1959 (Supp-2) SCR 316.
8. Kiran Pasha v Govt. of A.P., (1990) 1 SCC 328 [LNIND 1989 SC 553] (paras 13–15) : (1989) 4 JT 366 [LNIND 1989
SC 553] .
9. Krishna v Dir. of Enforcement, (1992) Cr LJ 1888 (para 23) (AP).

Page 424 of 467
10. State of Punjab v Baldev Singh, AIR 1999 SC 2378 [LNIND 1999 SC 596] : (1999) 6 SCC 172 [LNIND 1999 SC 596] .
11. Addl. Secy v Alka, (1990) SC dated 20-12-1990 [Cr. 440–41 of 1989] : 1992 (Supp-1) SCC 496. See also State of
Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547] : (2008) 3 SCC 613 [LNIND
2008 SC 547] ; Kiran Pasha v Govt. of AP, (1990) 1 SCC 328 [LNIND 1989 SC 553] ; N.K. Bapna v UOI, (1992) 3 SCC
512 [LNIND 1992 SC 407] ; Subhash Popatlal Dave v UOI, AIR 2012 SC 3370 [LNIND 2013 SC 676] : (2012) 7 SCC
533 [LNIND 2013 SC 676] .
12. See also State of T.N. v P.K. Shamsuddeen, AIR 1992 SC 1937 [LNIND 1992 SC 440] : (1992) 3 SCC 523 [LNIND
1992 SC 440] ; Subhash Mulgimal Gandhi v L. Himingliana, (1994) 6 SCC 14 [LNIND 1994 SC 755] ; Administrator of
the National Capital of Delhi v Prem Singh, 1995 (Supp-4) SCC 252; UOI v Muneesh Suneja, AIR 2001 SC 854
[LNIND 2001 SC 258] : (2001) 3 SCC 92 [LNIND 2001 SC 258] : (2001) 1 SCR 683 .
13. Deepak Bajaj v State of Maharashtra, AIR 2009 SC 628 [LNIND 2008 SC 2223] : (2008) 16 SCC 14 [LNIND 2008 SC
2223] .
14. Maqsood Yusuf Merchant v UOI, (2008) 16 SCC 31 .
15. UOI v Atam Prakash, (2009) 1 SCC 585 [LNIND 2008 SC 2299] : (2008) 15 Scale 138 [LNIND 2008 SC 2299] .
16. State of Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547] : (2008) 3 SCC 613
[LNIND 2008 SC 547] .
17. Dropti Devi v UOI, AIR 2012 SC 2550 [LNIND 2012 SC 369] : (2012) 7 SCC 499 [LNIND 2012 SC 369] ; Govt. of India
v Alka Subhash Godia, 1992 (Supp-1) SCC 496 (supra).
18. Naresh v of India, (1992) Cr LJ 1129 (para 15) (Bom).
also State of Gujarat v Govindbhai Jakhubhai, AIR 1999 Guj 316 [LNIND 1998 GUJ 658] ; Dharmvir Kataria v UOI, AIR
1999 Del 291 [LNIND 1999 DEL 305] . Ranchi Bar Association, Ranchi v State of Bihar, AIR 1999 Pat. 169 ; Shyam
Devi v National Capital Territory of Delhi, AIR 1999 Del 264 [LNIND 1999 DEL 206] .
Page 425 of 467
20. See Charanjit Kaur v UOI, AIR 1994 SC 1491 [LNIND 1994 SC 93] : (1994) 2 SCC 1 [LNIND 1994 SC 93] ; see also
Consumer Education and Research Centre v UOI, AIR 1995 SC 922 [LNIND 1995 SC 166] : (1995) 3 SCC 42 [LNIND
1995 SC 166] .
22. 1993 (2) SCC 746 [LNIND 1993 SC 1167] : AIR 1993 SC 1960 [LNIND 1993 SC 1167] . See also Rohtash Kumar v
State of Haryana, (2013) 14 SCC 290 [LNIND 2013 SC 105] : (2013) Cr LJ 1518 : (2013) 2 Scale 482 [LNIND 2013 SC
105] .
23. R.D. Upadhyay v State of A.P., AIR 2000 SC 1756 [LNIND 2000 SC 1693] : (2001) 1 SCC 437 [LNIND 2000 SC 1693]
.
24. Sebastian M. Hongrary v UOI, (1984) 3 SCC 82 [LNIND 1984 SC 120] : AIR 1984 SC 1026 [LNIND 1984 SC 120] ;
Bhim Singh v State of J&K, (1985) 4 SCC 677 [LNIND 1985 SC 350] : AIR 1986 SC 494 [LNIND 1985 SC 350] ;
Peoples Union for Democratic Rights v Police Commissioner, (1989) 4 SCC 730 : JT (1989) (Supp-1 ) SC 1; State of
Maharashtra v Ravikant S. Patil, (1991) 2 SCC 373 [LNIND 1991 SC 158] : JT (1991) 5 SC 442 [LNIND 1991 SC 158] ;
Peoples Union for Democratic Rights v State of Bihar, (1987) 1 SCC 265 [LNIND 1986 SC 531] : AIR 1987 SC 355
[LNIND 1986 SC 531] ; A Women’s Resource Centre v Commissioner of Police, (1990) 1 SCC 422 [LNIND 1989 SC
622] : AIR 1990 SC 513 [LNIND 1989 SC 622] ; Arvinder Singh Bagga v State of U.P., (1994) 6 SCC 565 [LNIND 1994
SC 952] : AIR 1995 SC 117 [LNIND 1994 SC 929] ; P. Rathinam v UOI, 1989 (Supp-2) SCC 716; Death of Sawinder
Singh Grover, Re 1995 (Supp-4) SCC 450; Inder Singh v State of Punjab, (1995) 3 SCC 702 [LNIND 1995 SC 1381] :
AIR 1995 SC 1949 [LNIND 1995 SC 1381] ; Chairman, Railway Board v Chandrima Das, (2000) 2 SCC 465 [LNIND
2000 SC 182] : AIR 2000 SC 988 [LNIND 2000 SC 182] .
25. Rajender Singh Pathania v State (NCT of Delhi), (2011) 13 SCC 329 [LNIND 2011 SC 769] : (2011) 9 Scale 124
[LNIND 2011 SC 769] .
26. Parasnath Tiwari v CRPF, AIR 2010 SC 693 [LNIND 2010 SC 45] : (2010) 3 SCC 111 [LNIND 2010 SC 45] .
27. Bharath Amratlal Kothari v Dosukhan Samad Khan Sindhi, AIR 2010 SC 475 [LNIND 2009 SC 1949] : (2010) 1 SCC
475 .
28. M.C. Mehta v UOI, AIR 1987 SC 1087 : (1987) 1 SCC 395 [LNIND 1986 SC 539] .
29. Bhajan Kaur v Delhi Administration, 1996 AIHC 5644 .
30. State of M.P. v Shyam Sunder Trivedi, (1995) 4 SCC 262 [LNIND 1995 SC 644] : JT 1995 4 SC 445 [LNIND 1995 SC
644] .
32. Chairman, Railway Board v Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182] : (2000) 2 SCC 465 [LNIND
2000 SC 182] .
34. Common Cause, a Registered Society v UOI, AIR 1999 SC 2979 [LNIND 1999 SC 637] : (1999) 6 SCC 667 [LNIND
1999 SC 637] .
Page 426 of 467
36. See Bhim Singh v State of J&K, AIR 1986 SC 494 [LNIND 1985 SC 350] : (1985) 4 SCC 677 [LNIND 1985 SC 350] ;
Rudal Shah v State of Bihar, (supra); Peoples’ Union for Democratic Rights v State of Bihar, AIR 1987 SC 355 [LNIND
1986 SC 531] : (1987) 1 SCC 265 [LNIND 1986 SC 531] ; Aravinder Singh Bagga v State of UP, AIR 1995 SC 117
[LNIND 1994 SC 929] : (1994) 6 SCC 565 [LNIND 1994 SC 952] ; (2) police atrocities (D.K. Basu v State of WB, AIR
1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND 1996 SC 2177] ; Commr v Shivakka, (2) : (2011) 12
SCC 419 : (2011) 2 Scale 422 ; Commr v Shivakka, (1), (2011) 12 SCC 427 : (2012) 1 SCC (Cr) 595; Rohtash Kumar v
State of Haryana, (2013) 14 SCC 290 [LNIND 2013 SC 105] : (2013) Cr LJ 1518 ; Jaywant P. Sankpal v Suman
Gholop, (2010) 11 SCC 208 [LNIND 2010 SC 672] : [2010] 9 SCR 102 .
37. Rababbuddin Sheikh v State of Gujarat, (2009) 17 SCC 653 [LNIND 2009 SC 1667] : (2009) 13 Scale 63 ; see also
Peoples’ Union for Democratic Rights v State of Bihar, AIR 1997 SC 1203 [LNIND 2003 SC 1103] : (1997) 3 SCC 433
[LNIND 2003 SC 1103] .
38. Raghuvansh Dewanchand Bhasin v State of Maharashtra, AIR 2011 SC 3393 [LNIND 2011 SC 892] : (2012) 9 SCC
791 [LNIND 2011 SC 892] ; see also Ramlila Maidan Incident v Home Secretary, UOI, (2012) 5 SCC 1 : (2012) 2 Scale
682 ; Municipal Corpn. of Delhi v Uphaar Tragedy Victims Assn., AIR 2012 SC 100 [LNIND 2011 SC 1147] : (2011) 14
SCC 481 [LNIND 2011 SC 1147] : (2012) 1 LW 593 .
39. Municipal Corpn. of Delhi v Uphar Tragedy Victims Assn., AIR 2012 SC 100 [LNIND 2011 SC 1147] : (2011) 14 SCC
481 [LNIND 2011 SC 1147] .
40. D.K. Basu v State of WB, AIR 1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND 1996 SC 2177] .
41. Nilabati Behra v State of Orissa, AIR 1993 SC 1960 [LNIND 1993 SC 1167] : (1993) 2 SCC 746 [LNIND 1993 SC
1167] (supra); Peoples’ Union for Democratic Rights v UOI, AIR 1997 SC 1203 [LNIND 2003 SC 1103] : (1997) 3 SCC
433 [LNIND 2003 SC 1103] ; Ajab Singh v State of UP, AIR 2000 SC 342 : (2000) 3 SCC 521 [LNIND 2000 SC 2011] .
42. Paschim Banga Khet Mazdoor Samiti v State of WB, AIR 1996 SC 2426 [LNIND 1996 SC 914] : (1996) 4 SCC 37
[LNIND 1996 SC 914] .
43. See M.C. Mehta v UOI, (2001) 9 SCC 520 .
46. Municipal Corpn.of Delhi v Uphaar Tragedy Victims Assn., AIR 2012 SC 100 [LNIND 2011 SC 1147] : (2011) 14 SCC
481 [LNIND 2011 SC 1147] .
47. See NilabatiBehera v State of Orissa (supra); SPS Rathore v State of Haryana, (2005) 10 SCC 1 [LNIND 2005 SC
478] . See also Sube Singh v State of Haryana, (2006) 3 SCC 178 [LNIND 2006 SC 78] .
48. Masooda Praveen v UOI, AIR 2007 SC 1840 [LNIND 2007 SC 583] .
49. R. (Greenfield) v Secretary of State for Home Department, (2005) 2 All ER 240 . See also R. Clayton “Damages
Limitation: The court and HRD damages”, (2005) PL 429.
50. Brogan v UK, (1988) 11 EHRR 117 .
51. Union of Civil Liberties v UOI, AIR 1997 SC 1203 [LNIND 2003 SC 1103] : (1997) 3 SCC 433 [LNIND 2003 SC 1103] .
Page 427 of 467
52. Chairman, Railway Board v Chandrima Das, (2000) 2 SCC 465 [LNIND 2000 SC 182] . See also Murari Lal
Jhunjhunwala v State of Bihar, AIR 1991 SC 515 ; Bhim Singh v State of J&K, (1985) 4 SCC 677 [LNIND 1985 SC 350]
.
53. Ellianda Fernandez v Chethan Sanghi, 1997 AIHC 144 .
54. State of Gujarat v Govindbhai Jakhubhai, AIR 1999 Guj 316 [LNIND 1998 GUJ 658] . See also Ameeta Patel v Corp of
city of Bangalore, AIR 1999 Kant. 441 [LNIND 1999 KANT 26] ; Aheibam Ongbi Leihano Devi v State of Manipur, AIR
1999 Gau 9 [LNIND 1998 GAU 14] .
55. Poonam Sharma v UOI, AIR 2003 Del 50 [LNIND 2002 DEL 1551] .
56. See Brogan v U.K., (1988) 11 EHRR 117 , Article 5(5) or under the “just satisfaction” of Article 50.
57. See Edwin Shorts and Claire de Than, Civil Liberties – Legal Principles of Individual Freedom, Sweet & Maxwell
Publications, 1998, pp 475–76.
58. Rookes v Barnard, (1964) AC1129: Brooms v Cassel & Co, (1972) AC 1027 .
59. Arora v Bradford Metropolitan Council, (1991) 2 WLR 1377 .
60. Holden v Chief Constable of Lauchshire, (1987) QB 380 . See also Clive Lewis, Judicial Remedies in Public Law, 3rd
Edn, p 534.
SCC 141 [LNIND 1983 SC 181] (paras, 9–10); Saheli v C.P., AIR 1990 SC 513 [LNIND 1989 SC 622] : (1990) 1 SCC
422 [LNIND 1989 SC 622] (paras 10, 15); P.U.D.R. v. C.P., (1989) 4 SCC 730 (para 4).
62. Ega v Govt. of. A.P., (1993) Cr LJ 691 (para 25) (AP); Golakha v D.G.P., (1992) Cr LJ 2901 (para 13); Kapoor v
Unionof India, (1992) Cr LJ 128 (paras 68, 77) (Del).
SCC 141 [LNIND 1983 SC 181] (paras 9–10).
64. Saheli v C.P., AIR 1990 SC 513 [LNIND 1989 SC 622] : (1990) 1 SCC 422 [LNIND 1989 SC 622] (paras 10, 15).
65. P.U.D.R. v. C.P., (1989) 4 SCC 730 (para 4).
66. Saheli v C.P., AIR 1990 SC 513 [LNIND 1989 SC 622] : (1990) 1 SCC 422 [LNIND 1989 SC 622] (paras 10, 15);
P.U.D.R. v C.P., (1989) 4 SCC 730 (para 4).
67. Ega v Govt. of A.P., (1993) Cr LJ 691 (para 25) (AP).

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68. Golakha v D.G.P., (1992) Cr LJ 2901 (para 13).
69. Re: Death of Sawinder Singh Grover, (1995) (Supp-4) SCC 450 : (1992) 3 Scale 34 (2) – the victim died while in
custody of Directorate of Enforcement.
70. Rudul v State of Bihar, AIR 1983 SC 1086 [LNIND 1983 SC 181] : (1983) 3 SCR 508 : (1983) 4 SCC 141 [LNIND
1983 SC 181] (paras 9–10).
71. Bhim v State of J.&K., (1985) 4 SCC 677 [LNIND 1985 SC 350] : AIR 1986 SC 494 [LNIND 1985 SC 350] ; Antulay
A.R. v R.S. Nayak, AIR 1988 SC 1531 [LNIND 1988 SC 264] : 1988 (Supp-1) SCR 1 : (1988) 2 SCC 602 [LNIND 1988
SC 264] .
72. State of Maharashtra v Ravikant S. Patil, (1991) 2 SCC 373 [LNIND 1991 SC 158] .
73. Mohd. Sahid v Govt of NCT of Delhi, AIR 1998 SC 2023 [LNIND 1998 SC 557] : (1998) 5 SCC 419 [LNIND 1998 SC
557] .
74. Inder Singh v State of Punjab, (1995) 3 SCC 702 [LNIND 1995 SC 1381] .
75. Watchdogs International v UOI, (1998) 8 SCC 338 .
76. R.D. Upadhyay v State of A.P., AIR 2000 SC 1756 [LNIND 2000 SC 1693] : (2001) 1 SCC 437 [LNIND 2000 SC 1693]
.
77. Murti Devi v State of Delhi, (1998) 9 SCC 604 .
78. P.A. Narayanan v UOI, (1998) 3 SCC 67 .
79. People’s Union for Civil Liberties v UOI, (1998) 8 SCC 485 .
80. N. Nagendra Rao v State of A.P., AIR 1994 SC 2663 [LNIND 1994 SC 789] : (1994) 6 SCC 205 [LNIND 1994 SC 789]
. See also A.V. Janaki Amma v UOI, AIR 2004 (NOC) 82 (AP).
Page 429 of 467
81. Hardeep Singh v State of MP, AIR 2012 SC 1751 [LNINDU 2011 SC 18] : (2012) 1 SCC 748 [LNINDU 2011 SC 18] .
82. Mehmood Nayyar Azam v State of Chattisgarh, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND
2012 SC 456] ; see also Sube Singh v State of Haryana, AIR 2006 SC 1117 [LNIND 2006 SC 78] : (2006) 3 SCC 178
[LNIND 2006 SC 78] ; D.K. Basu v State of WB, AIR 1997 SC 610 [LNIND 1996 SC 2177] : (1997) 1 SCC 416 [LNIND
1996 SC 2177] (supra).
83. Kumari v State of T.N., AIR 1992 SC 2069 : (1992) 2 SCC 223 .
84. Delhi Jal Board v National Campaign for Dignity & Rights of Sewerage and Allied Workers, (2011) 8 SCC 568 [LNIND
2011 SC 641] : (2011) 7 Scale 489 [LNIND 2011 SC 641] .
85. Lucknow Development Authority v M.K. Gupta, AIR 1994 SC 787 [LNIND 1993 SC 946] : (1994) 1 SCC 243 [LNIND
1993 SC 946] .
86. Arvinder Singh Bagga v State of U.P., 1995 (Supp-3) SCC 716 for illegal detention, compensation was awarded in DG
and IG of Police v Prem Sagar, (1999) 5 SCC 700 .
87. A.S. Mohammed Rafi v State of Tamil Nadu, AIR 2011 SC 308 [LNIND 2010 SC 1609] : (2011) 1 SCC 688 [LNIND
2010 SC 1609] .
88. P.P.M. Thangiah Nadar Firm v Govt of Tamil Nadu, (2006) 5 CTC 97 [LNIND 2006 MAD 2314] (FB)(Mad).
89. Dilip v State, (1991) Cr LJ 2171 (para 5) (Cal).
90. Naresh v State of Maharashtra, AIR 1967 SC 1 [LNIND 1966 SC 74] : (1966) 3 SCR 744 [LNIND 1966 SC 74] .
91. Cf. Ex parte Virginia, (1880) 100 US 339 (347), and other cases cited under Article 14 of the Commentary.
92. Bhim v State of J&K, (1985) 4 SCC 677 [LNIND 1985 SC 350] : AIR 1986 SC 494 [LNIND 1985 SC 350] ; Antulay A.R.
v R.S. Nayak, AIR 1988 SC 1531 [LNIND 1988 SC 264] : 1988 (Supp-1) SCR 1 : (1988) 2 SCC 602 [LNIND 1988 SC
264] .
93. Naresh v State of Maharashtra, AIR 1967 SC 1 [LNIND 1966 SC 74] : (1966) 3 SCR 744 [LNIND 1966 SC 74] .
Page 430 of 467
94. Hussain v State of Kerala, (2000) 8 SCC 139 [LNIND 1999 SC 1257] .
95. Hardeep Singh v State of MP, AIR 2012 SC 1751 [LNINDU 2011 SC 18] : (2012) 1 SCC 748 [LNINDU 2011 SC 18]
(supra); see also Mehmood Nayyar Azam v State of Chattisgarh, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8
SCC 1 [LNIND 2012 SC 456] .
1. Maxwell, Interpretation of Statutes, 9th Edn, pp 267, 289.
2. R. v Halliday, (1917) AC 260 (291); Marshall v Blackpool Corpn., (1932) 1 KB 688 ; Druce v Beaumont Trust, (1935)
2 KB 257.
3. Kartar Singh v State of Punjab, (1994) 3 SCC 569 : JT (1994) 2 SC 432; Surajmani Stella Kujur (Dr) v Durgacharan
Hansdah, AIR 2001 SC 938 [LNIND 2001 SC 412]: (2001) 3 SCC 13 [LNIND 2001 SC 412], where it was declared that
no custom create an offence. See also R v Horseferry Road Magistrate’s Court, (1986) 2 All ER 660 (QBD).
5. L.&N.E. Rly v Berriman, (1946) 1 All ER 268 (HL); Behram Khurshed v State of Bombay, (1955)1 SCR 613 [LNIND
1954 SC 116] : AIR 1955 SC 123 [LNIND 1954 SC 116]; Shaonandan v State of Bihar, AIR 1983 SC 194 [LNIND 1982
SC 205]: (1983) 2 SCR 61 [LNIND 1982 SC 205] : (1983) 1 SCC 438 [LNIND 1982 SC 205]. See also Tolaram v State
of Bombay, AIR 1954 SC 496 [LNIND 1954 SC 91]: (1955) 1 SCR 158 [LNIND 1954 SC 91]; State of MP v Azad
Bharat Finance Co, AIR 1967 SC 276 [LNIND 1966 SC 144]: 1966 (Supp) SCR 473; Sanjay Dutt v State through CBI,
(1994) 5 SCC 410 [LNIND 1994 SC 1304] : (1994) 3 Scale 1004 [LNIND 1994 SC 1304] (supra).
6. See Rosenbaum v Burgoyne, (1964) 2 All ER 988 (HL); DPP v Schildkamp, (1969) 3 All ER 1640; Dilip Kumar Sharma
v State of MP, AIR 1976 SC 133 [LNIND 1975 SC 412]: (1976) 1 SCC 586; State of WB v Swapan Kumar, AIR 1982
SC 949 [LNIND 1982 SC 34]: (1982) 1 SCC 561 [LNIND 1982 SC 34].
7. Spicer v Holt, (1976) 3 All ER 71 (HL).
8. Sanjay Dutt v State through CBI, Bombay, (1994) 5 SCC 410 [LNIND 1994 SC 1304] : (1994) 3 Scale 1004 [LNIND
1994 SC 1304]; Aslam Babalal Desai v State of Maharashtra, AIR 1993 SC 1 [LNIND 1992 SC 445]; Bijaya Kumar
Agarwala v State of Orissa, AIR 1996 SC 2531 [LNIND 1996 SC 1159]: (1996) 5 SCC 1 [LNIND 1996 SC 1159].
Page 431 of 467
9. RPF Commissioner v Hoogly Mills Co Ltd, (2012) 2 SCC 489 [LNIND 2012 SC 44] : (2012) 2 LW 596; Govind Impex
Pvt Ltd v Income Tax Dept, (2011) 1 SCC 529 [LNIND 2010 SC 1189] : (2011) 13 Scale 124.
10. Ram Chandra Bhagat v State of Jharkhand, (2010) 13 SCC 780 [LNIND 2010 SC 1138] : (2010) 12 Scale 463 [LNIND
2010 SC 1138].
11. Howell v Falmouth Boat Construction, (1951) 2 All ER 278 (281) (HL).
12. Dilip Kumar Sharma v State of M.P., AIR 1976 SC 133 [LNIND 1975 SC 412]: (1976) 1 SCC 586; State of W.B. v
Swapan Kumar, AIR 1982 SC 949 [LNIND 1982 SC 34]: (1982) 1 SCC 561 [LNIND 1982 SC 34].
13. DPP v Goodchild, (1978) 2 All ER 161 (HL).
14. Seksaria Cotton Mills v State of Bombay, AIR 1953 SC 278 [LNIND 1953 SC 41]: (1953) SCR 825 [LNIND 1953 SC
41]; State of Bihar v Bhagirath, AIR 1973 SC 2198 [LNIND 1973 SC 120]: (1973) 2 SCC 257 [LNIND 1973 SC 120].
15. See also Avais v Hartford Social Club Ltd, (1969) 1 All ER 130 (HL).
16. Freidman, Law on Changing Society, 2nd Edn, pp 82–83.
17. Aslam Babalal Desai v State of Maharashtra, AIR 1993 SC 1 [LNIND 1992 SC 445]: (1992) 4 SCC 272 [LNIND 1992
SC 609].
18. Attorney General’s Reference, (No 3 of 199) (2001) 1 All ER 577; R. v Sargent, (2002) 1 All ER 161 (HL). See also
Justice G.P. Singh, Principles of Statutory Interpretation, 9th Edn, pp 762–63.
19. Ashok Kumar v State of Haryana, AIR 2010 SC 2839 [LNIND 2010 SC 582]: (2010) 12 SCC 350 [LNIND 2010 SC
582].
20. Seksaria Cotton Mills v State of Bombay, AIR 1953 SC 278 [LNIND 1953 SC 41] (282) : 1953 SCR 825 [LNIND 1953
SC 41] .
21. Hildesheimer v Faulknar, (1901) 2 ChD 552 .

Page 432 of 467
22. London & North Eastern Railway v Berriman, (1946) 1 All ER 255 (HL); Sanjay Dutt v State through CBI, Bombay,
(1994) 5 SCC 410 [LNIND 1994 SC 1304] : (1994) 3 Scale 1004 [LNIND 1994 SC 1304] (supra).
23. Crawford v Spooner, (1847) 6 Moo. PC 1; Maxwell, 8th Edn 239.
24. London County Council v Aylesbury Co, (1898) 1 QB 106; R. v Chapman, (1931) 2 KB 606.
25. Eshugbayi v Govt. of Nigeria, (1931) AC 662.
26. R. v Halliday, (1917) AC 260 (291); Marshall v Blackpool Corpn., (1932) 1 KB 688 ; Druce v Beaumont Trust, (1935)
2 KB 257.
27. Chester v Bateson, (1920)1 KB 82.
28. Paul v Wheat Commrs., (1937) AC 139 (153–55).
30. A.G. for Canada v Hallet, (1952) AC 427 (450).
31. Dyke v Elliot, (1872) LR 4 (PC) 184.
32. M. Narayanan Nambiar v State of Kerala, AIR 1963 SC 1116 [LNIND 1962 SC 403]: 1963 (Supp-2) SCR 724; Suman
Sethi v Ajay K. Churiwal, AIR 2000 SC 828 [LNIND 2000 SC 218]: (2000) 2 SCC 380 [LNIND 2000 SC 218]; R.S.
Nayak v A.R. Autulay, (1986) 2 SCC 716 [LNIND 1987 SC 215] : AIR 1986 SC 2045; R.S. Nayak v A.R. Autulay, AIR
1984 SC 684 [LNIND 1984 SC 43]: (1984) 2SCC 183; State of M.P. v Shri Ram Singh, AIR 2000 SC 870 [LNIND
2000 SC 206]: (2000) 5 SCC 88 [LNIND 2000 SC 206]; Government of A.P. v P. Venbu Reddy, AIR 2002 SC 3346 :
(2002) 7 SCC 631.
33. Murlidhar Megharaj Loya v State of Maharashtra, AIR 1976 SC 1929 [LNIND 1976 SC 234]: (1976) 3 SCC 684
[LNIND 1976 SC 234]; Kisan Trimbak Kothula v State of Maharashtra, AIR 1977 SC 435 [LNIND 1976 SC 435]: (1977)
1 SCC 300 [LNIND 1976 SC 435].
Page 433 of 467
34. K. Prema Rao v Yadla Srinivasa Rao, (2003) 1 SCC 217 [LNIND 2002 SC 662].
35. Ram Narayan v State of Delhi, (1953) SCA 399 [LNIND 1953 SC 28]; A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND
1976 SC 196](para 66) : 1976 Supp SCR 172 : (1976) 2 SCC 521 [LNIND 1976 SC 196].
36. R. v Milan, (1974) 1 All ER 1110 (1116) (CA), affirmed by (1974) 2 All ER 377 (379) (HL).
37. R. v Chief Investigation Officer, (1976) 3 All ER 843 (847, 848) (CA).
38. R. v Secy. of State, (1975) 2 All ER 1081 (1083) (CA).
39. Cf. Govind v State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124](part, 29) : (1975) 3 SCR 946 [LNIND 1975 SC
124] : (1975) 2 SCC 148 [LNIND 1975 SC 124]; Satwant v A.P.O, AIR 1967 SC 1836 [LNIND 1967 SC 126](para 63) :
(1967) 3 SCR 525 [LNIND 1967 SC 427]; A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196](paras 152, 170) :
1976 Supp SCR 172 : (1976) 2 SCC 521 [LNIND 1976 SC 196]; Kesavanainda v State of Kerala, AIR 1973 SC 1461
[LNIND 1973 SC 154](paras, 153–5) : (1973) 4 SCC 225 [LNIND 1973 SC 154].
40. Apparel Export Promotion Council v A.K. Chopra, (1999) 1 SCC 759 [LNIND 1999 SC 33] : AIR 1999 SC 625 [LNIND
1999 SC 33].
41. See also Prem Shankar Shukla v Delhi Administration, (1980) 3 SCC 526 [LNIND 1980 SC 215] : AIR 1980 SC 1535
[LNIND 1980 SC 215]; Mackinnon Mackenzie & Co Ltd v Audray D’Costa, (1987) 2 SCC 469 : AIR 1987 SC 1281;
Sheela Barse v Secretary, Children Aid Society, (1987) 3 SCC 50 [LNIND 1986 SC 536]; Vishaka v State of Rajasthan,
(1997) 6 SCC 241 [LNIND 1997 SC 1081]; People’s Union for Civil Liberties v UOI, (1997) 3 SCC 433 [LNIND 2003 SC
1103] : AIR 1997 SC 1203 [LNIND 2003 SC 1103]; D.K. Basu v State of W.B., (1997) 1 SCC 416 [LNIND 1996 SC
2177] : AIR 1997 SC 610 [LNIND 1996 SC 2177].
42. Peoples’ Union for Civil Liberties v UOI, AIR 1997 SC 568 [LNIND 1996 SC 2173]: (1997) 1 SCC 301.
43. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25]: (1978) 1 SCC 248 [LNIND 1978 SC 25].
44. Jolly George Vargheese v Bank of Cochin, AIR 1980 SC 470 [LNIND 1980 SC 48]: (1980) 2 SCC 360 [LNIND 1980
SC 48].
Page 434 of 467
46. See also Delhi Jal Board v National Campaign for Dignity & Rights of Sewerage and Allied Workers, (2011) 8 SCC 568
[LNIND 2011 SC 641] : (2011) 7 Scale 489 [LNIND 2011 SC 641]; Dayaram v Sudhir Batham, AIR 2012 SC (Supp) 678
: (2012) 1 SCC 333 [LNIND 2011 SC 1111].
47. Liversidge v Anderson, (1942) AC 206 (218–9).
48. Liversidge v Anderson, (1942) AC 206 (257), per LORD MACMILLAN quoting R. v Halliday, (1917) AC 260, per LORD
ATKINSON.
49. Hudson Bay v Maclay, (1920) 36 TLR 469 (475).
50. A.G. v Reynolds, (1979) 3 All ER 129.
51. R. v Halliday, (1917) AC 260.
52. R. v Halliday, (1917) AC 260 .
53. Liversidge v Anderson, (1942) AC 206 (257), per LORD MACMILLAN quoting R. v Halliday, (1917) AC 260, per LORD
ATKINSON.
54. Liversidge v Anderson, (1942) AC 206 (218–9).
55. R. v Halliday, (1917) AC 260.
56. A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196](paras 17, 27, 330-1) : 1976 Supp SCR 172 : (1976) 2 SCC
521 [LNIND 1976 SC 196].
57. R. v I.R.C., (1980) 1 All ER 80 (93, 104) (HL); Khawaja v Home Secy., (1983) 1 All ER 765 (781) (HL); A.G. v
Reynolds, (1979) 3 All LR 129 (137) (PC).
58. (1961) 1 EHRR 15.

Page 435 of 467
59. See also Branningan v UK, (1993) 17 EHRR 539; Arkosy v Turkey, (1996) 23 EHRR 396.
60. Peters v Hobby, (1955) 350 US 551.
61. Yungstown Sheet & Tube Co v Sawyer, (1952) 343 US 579.
62. Eshugbayi v Govt. of Nigeria, (1928) AC 459.
63. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] (187) : AIR 1950 SC 27 [LNIND 1950 SC 22]:
(1950) 1 SCR 88 [LNIND 1950 SC 22]; Makhan Singh v State of Punjab, (1950) SCR 88 [LNIND 1950 SC 22] : AIR
1950 SC 27 [LNIND 1950 SC 22]; Naranjan v State of Punjab, (1952) SCR 395 [LNIND 1952 SC 3] : AIR 1952 SC 106
[LNIND 1952 SC 3].
64. (1928) AC 459 (supra).
65. See also Cox v Hakes, (1890) 15 App Cases 506 (HL); Home Secretary v O’Brein, (1923) AC 603). But Re. Hastings
(No.1), (1958) 1 WLR 372; (No.2) (1959) 1 QB 358; (No.3) (1959) 1 All ER 698.
66. See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn, Chapter XXIV, para 24 at p 559.
67. UOI v SanbalchandHimatlal Shah, AIR 1977 SC 2328 [LNIND 1977 SC 268]: (1977) 4 SCC 193 [LNIND 1977 SC
268].
68. Romesh Thappar v State of Madras, AIR 1950 SC 124 [LNIND 1950 SC 27]: (1950) SCR 594 [LNIND 1950 SC 27].
69. Daryo v State of U.P., AIR 1961 SC 1457 [LNIND 1961 SC 133]: (1962) 1 SCR 574 [LNIND 1961 SC 133].
70. See also Prem Chand Garg v Excise Commissioner U.P., AIR 1963 SC 996 [LNIND 1962 SC 356]: 1963 (Supp-1)
SCR 885.
71. Sunil Batra v Delhi Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215].
Page 436 of 467
72. AIR 1963 SC 996 [LNIND 1962 SC 356]: 1963 (Supp-1) SCR 855.
73. Romesh Thappar v State of Madras, AIR 1950 SC 124 [LNIND 1950 SC 27]: (1950) SCR 594 [LNIND 1950 SC 27].
74. Rustom Cavasjee Cooper v UOI (Bank Nationalization case), AIR 1970 SC 564 [LNIND 1970 SC 40] : (1970) 1 SCC
248 [LNIND 1970 SC 40] ; Haradhan Saha v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 2 SCC
81 [LNIND 1974 SC 386] ; A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981
SC 469] .
75. State of Maharashtra v Sushila Mafatlal, AIR 1986 SC 2090 [LNIND 1986 SC 359] : (1988) 4 SCC 490 [LNIND 1988
SC 591] .
76. Mohinuddin v District Magistrate, Beed, AIR 1987 SC 1977 [LNIND 1987 SC 524] : (1987) 4 SCC 58 [LNIND 1987 SC
524] .
78. Smt. Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] . See
also N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 .
79. Jay Singh v State of J&K, AIR 1985 SC 764 : (1985) 1 SCC 561 . See also Rushikesh Tanaji Bhoite v State of
Maharashtra, (2012) 2 SCC 72 [LNIND 2012 SC 1531] : AIR 2012 SC 890 [LNIND 2012 SC 1531] ; Rekha v State of
Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 4 Scale 387 [LNIND 2011 SC 371] ; Vijay Narain Singh v
State of Bihar, (1984) 3 SCC 14 [LNIND 1984 SC 110] .
81. See also Huidrom Kanungjao Singh v State of Manipur, AIR 2012 SC 2002 [LNIND 2012 SC 329] : (2012) 7 SCC 181
[LNIND 2012 SC 329] ; Yumman Ongbi Lembi Leima v State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888] :
(2012) 2 SCC 176 [LNIND 2012 SC 888] ; UOI v Paul Manickam, (2003) 8 SCC 342 [LNIND 2003 SC 869] : AIR 2003
SC 4622 [LNIND 2003 SC 869] ; Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975
SC 2154 .
82. G. Reddeiah v State of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2011) 10 Scale 224 [LNIND 2011 SC 893] .
83. Ummu Sabeena v State of Kerala, (2011) 10 SCC 781 [LNIND 2011 SC 1167].
84. See also K.M. Abdulla Kunhi v UOI, (1991) 1 SCC 476 [LNIND 1991 SC 42]; Rajammal v State of TN, (1999) 1 SCC
417 [LNIND 1998 SC 1101]; Kundanbhai Dulabhai Shaik v Dt. Magistrate, Ahmedabad, (1996) 3 SCC 194 [LNIND
1996 SC 2225].
85. State of Nagaland v Rattan, AIR 1967 SC 212 [LNIND 1966 SC 77](224) : (1966) 3 SCR 830 [LNIND 1966 SC 77] :
1967 Cr LJ 265.
Page 437 of 467
86. Shibban Lal v State of U.P., (1954) SCR 418 [LNIND 1979 SC 400] : AIR 1954 SC 179 [LNIND 1953 SC 110];
Ramanarayan v State of Delhi, (1953) SCR 652 [LNIND 1953 SC 28] : AIR 1953 SC 277 [LNIND 1953 SC 28].
87. Makhan Singh v State of Punjab, (1950) SCR 88 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22] .
88. Naranjan v State of Punjab, (1952) SCR 395 [LNIND 1952 SC 3] : AIR 1952 SC 106 [LNIND 1952 SC 3] .
89. Shibban Lal v State of U.P., (1954) SCR 418 [LNIND 1979 SC 400] : AIR 1954 SC 179 [LNIND 1953 SC 110] ;
Ramanarayan v State of Delhi, (1953) SCR 652 [LNIND 1953 SC 28] : AIR 1953 SC 277 [LNIND 1953 SC 28] ;
Prabhakar v State of Maharashtra, AIR 1966 SC 424 [LNIND 1965 SC 214] (427–28) : (1966) 1 SCR 702 [LNIND 1965
SC 214] : 1966 Cr LJ 311 .
90. Thomas Dale’s case, (1871) 6 QB 376 .
91. In Re, Banwarilal, (1944) 48 Cal WN 766 (119); Narayanaswami v Inspector of Police, AIR 1949 Mad. 307 (FB). See
also Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] : 1952 SCR 756 [LNIND 1951 SC 13] ;
Ajaib Singh v Gurbachan Singh, AIR 1965 SC 1619 [LNIND 1965 SC 21] ; Krishna Murari v UOI, AIR 1975 SC 1877
[LNIND 1975 SC 211] : (1975) 4 SCC 481 [LNIND 1975 SC 211] ; Krishna Lal v State of W.B., AIR 1974 SC 955
92. Makkan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 [LNIND 1963 SC 234] .
1. Enraght’s Case, (1881) 6 QBD 376 .
2. In Re Rajadhar, AIR 1948 Bom 334 (FB); Murat v Prov. of Bihar, AIR 1948 Pat. 135 (FB); Mani v Dt Magistrate, AIR
1950 Mad. 162 [LNIND 1949 MAD 28] (164).
3. A.G. for Canada v Hallet, (1952) AC 427 (445).
4. Makhan Singh v State of Punjab, (1950) SCR 88 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22] ;
Naranjan v State of Punjab, (1952) SCR 395 [LNIND 1952 SC 3] : AIR 1952 SC 106 [LNIND 1952 SC 3] ; State of
Nagaland v Rattan, AIR 1967 SC 212 [LNIND 1966 SC 77] (224) : (1966) 3 SCR 830 [LNIND 1966 SC 77] : 1967 Cr
LJ 265 ; Shibban Lal v State of U.P., (1954) SCR 418 [LNIND 1979 SC 400] : AIR 1954 SC 179 [LNIND 1953 SC 110] ;
Ramanarayan v State of Delhi, (1953) SCR 652 [LNIND 1953 SC 28] : AIR 1953 SC 277 [LNIND 1953 SC 28] ;
Prabhakar v State of Maharashtra, AIR 1966 SC 424 [LNIND 1965 SC 214] (427–8) : (1966) 1 SCR 702 [LNIND 1965
SC 214] : 1966 Cr LJ 311 ; Re Banwarilal, (1944) 48 Cal WN 766 (119); Narayanaswam v Inspector of Police, AIR
1949 Mad. 307 (FB); Enraght’s Case, (1881) 6 QBD 376 ; Re Rajadhar, AIR 1948 Bom 334 (FB); Murat v Prov. of
Bihar, AIR 1948 Pat. 135 (FB); Mani v Dt Magistrate, AIR 1950 Mad. 162 [LNIND 1949 MAD 28] (164); A.G. for
Canada v Hallet, (1952) AC 427 (445); Pushkar v State of W.B., AIR 1970 SC 852 [LNIND 1968 SC 332] : (1969) 2
SCR 635 [LNIND 1968 SC 332] : (1969) 1 SCC 10 [LNIND 1968 SC 332] : 1970 Cr LJ 852 ; Barium Chemical v Co Law
Board, AIR 1967 SC 295 [LNIND 1966 SC 132] : 1966 Supp SCR 311; Khagen v State of W.B., AIR 1971 SC 2051 :
1971 Cr LJ 1456 : (1972) 4 SCC(N) 2.
5. Ross-Clunis v Papadopoullos, (1958) 2 All ER 23 (33) (PC). See also Pushkar v State of W.B., AIR 1970 SC 852
[LNIND 1968 SC 332] : (1969) 2 SCC 635 ; Naresh v State of W.B., AIR 1959 SC 1335 [LNIND 1959 SC 131] : (1960)
Page 438 of 467
1 SCR 412 ; Krishna Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211] : (1975) 4 SCC 481 [LNIND 1975 SC
211] ; Dwarka Das v State of J.& K., AIR 1957 SC 164 [LNIND 1956 SC 89] : (1956) SCR 948 [LNIND 1956 SC 89] ;
Ram Manohar Lohia v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] ; Manu Bhushan v State of W.B., AIR
1973 SC 295 [LNIND 1972 SC 520] : (1973) 3 SCC 663 [LNIND 1972 SC 520] ; Biram Chand v State of U.P., AIR
1974 SC 1161 [LNIND 1974 SC 125] : (1974) 4 SCC 573 [LNIND 1974 SC 125] ; Mohd. Yusuf v State of J& K, AIR
6. Rajesh Gulati v Govt. of NCT of Delhi, (2002) 6 Scale 142 [LNIND 2002 SC 532] : AIR 2002 SC 3094 [LNIND 2002
SC 532] : (2002) 7 SCC 129 [LNIND 2002 SC 532] .
7. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 ; see also Bhut Nath
Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND 1974 SC 31] ; S.R.
Venketaraman v UOI, (1979) 2 SCC 49 .
8. See K. Nageswara Rao v Collector & Dt. Magistrate, (2012) 13 SCC 585 ; Rekha v State of Tamil Nadu, (2011) 5 SCC
244 [LNIND 2011 SC 371] ; Yumman Ongbi Lembi Leima v State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888]
: (2012) 2 SCC 176 [LNIND 2012 SC 888] ; Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] :
AIR 1975 SC 2154 ; Munagala Yadamma v State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] : 2012 Cr LJ 1662 .
9. Maulana Shamshunnisa v Addl. Chief Secretary, AIR 2011 SC 1422 [LNIND 2010 SC 1226] : (2010) 15 SCC 72
[LNIND 2010 SC 1226] .
10. Rekha v State of Tamil Nadu, (2011) 5 SCC 244 : (2011) 3 CTC 222 [LNIND 2011 SC 371] : (2011) 4 Scale 389 .
11. See also Bhut Nath Mete v State of WB, AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC
31] ; Vijay Narain Singh v State of Bihar, (1984) 3 SCC 14 [LNIND 1984 SC 110] ; Ram Bali v State of WB, AIR 1975
SC 623 [LNIND 1974 SC 426] : (1975) 4 SCC 47 [LNIND 1974 SC 426] ; Biram Chand v State of UP, AIR 1974 SC
12. Srilal Shaw v State of WB, AIR 1975 SC 393 [LNIND 1974 SC 402] : (1975) 1 SCC 336 [LNIND 1974 SC 402] ; see
also Pebam Ningol Mikoi Devi v State of Manipur, (2010) 9 SCC 618 [LNIND 2010 SC 926] : (2010) 10 Scale 248
[LNIND 2010 SC 926] .
13. Howell v Falmouth Boat Construction, (1951) 2 All ER 278 (281) (HL).
14. State of Punjab v Ajaib Singh, AIR 1953 SC 10 [LNIND 1952 SC 68] : (1953) SCR 254 [LNIND 1952 SC 68] .
15. R. v Halliday, (1917) AC 260 ; Liversidge v Anderson, (1942) AC 206 ; K. Emp v Sibnath, (1945) 8 FLJ 203 (PC); Emp
v Vimlabai, AIR 1946 PC 123 .
16. Cf. Ashutosh Lahiri v State of Delhi, (1950) SCJ 433 (435) : AIR 1953 SC 451 [LNIND 1950 SC 23] , Mukherjee, J.
17. Ram Narayan v State of Delhi, AIR 1953 SC 277 [LNIND 1953 SC 28] : (1953) SCR 652 [LNIND 1953 SC 28] ; State
of Punjab v Ajaib Singh, AIR 1953 SC 10 [LNIND 1952 SC 68] : (1953) SCR 254 [LNIND 1952 SC 68] .
18. Ram Manohar Lohia v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] : (1966) 1 SCR 709 [LNIND 1965 SC
215] .
19. Noor Chand v State of WB, AIR 1974 SC 2120 : (1975) 3 SCC 306 ; Maulana Shamshunnisa v Addl. Chief Secretary,
AIR 2011 SC 1422 [LNIND 2010 SC 1226] : (2010) 15 SCC 72 [LNIND 2010 SC 1226] ; Yumman Ongbi Lembi Leima
v State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888] : (2012) 2 SCC 176 [LNIND 2012 SC 888] ; N. Sengodan
Page 439 of 467
v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 ; see also Anil Dey v State of WB,
AIR 1974 SC 832 : (1974) 4 SCC 54 ; DhurusKanu v State of WB, AIR 1975 SC 571 : (1975) 3 SCC 527 [LNIND 1986
SC 149] ; Khudiram Das v State of WB, AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC
386] .
20. SK. Nizamuddin v State of WB, AIR 1974 SC 2353 [LNIND 1974 SC 345] ; Suresh Mahato v Dt. Magistrate, AIR 1975
SC 728 : (1975) 3 SCC 554 .
21. See Subhash Popatlal Dave v UOI, (2014) 1 SCC 280 [LNIND 2013 SC 676] : 2013 Cr LJ 4166 ; see also Dropti Devi
v UOI, AIR 2012 SC 2550 [LNIND 2012 SC 369] : (2012) 7 SCC 499 [LNIND 2012 SC 369] .
22. R. v Brixton Prison, (1916) 2 KB 742 .
23. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] (187) : (1950) 1 SCR 88 [LNIND 1950 SC 22] : AIR
1950 SC 27 [LNIND 1950 SC 22].
25. Mukerjee v State of W.B, AIR 1970 SC 852 [LNIND 1968 SC 332]: (1969) 1 SCC 10 [LNIND 1968 SC 332]; Sodhi
Samsher Singh v State of Punjab, AIR 1954 SC 276; Godaveri Parulekar v State of Maharashtra, AIR 1966 SC 1404
[LNIND 1966 SC 321]: (1966) 3 SCR 314 [LNIND 1966 SC 321]; P.L. Lakhanpal v UOI, AIR 1967 SC 908 [LNIND
1966 SC 197]: (1967) 1 SCR 433 [LNIND 1966 SC 197]. See also Pebam Ningol Mikoi Devi v State of Manipur, (2010)
9 SCC 618 [LNIND 2010 SC 926] : (2010) 10 Scale 248 [LNIND 2010 SC 926].
26. See A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22]: (1950) 1 SCR 88 [LNIND 1950 SC 22];
see also Godavari v State of Maharashtra, AIR 1966 SC 1404 [LNIND 1966 SC 321]: (1966) 3 SCR 314 [LNIND 1966
SC 321]; Imam Sheik v State of WB, AIR 1974 SC 2131 : (1975) 3 SCC 298.
27. Subramaniam v State of T.N., (2012) 4 SCC 699 [LNIND 2012 SC 135] : (2012) 2 Scale 613; see G. Reddeaih v Govt.
of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893].
28. Mukherjee v State of W.B., AIR 1970 SC 892 : (1969) 1 SCC 10 [LNIND 1968 SC 332].
29. See Saghir Ahmed v State of U.P. AIR 1954 SC 728 [LNIND 1954 SC 128] : (1955) 1 SCR 707 [LNIND 1954 SC 128]
; Mohammed Faruk v State of M.P., AIR 1970 SC 93 [LNIND 1969 SC 148] : (1969) 1 SCC 853 [LNIND 1969 SC 148]
: (1970) 1 SCR 156 [LNIND 1969 SC 148] .
30. Deena v UOI, AIR 1983 SC 1155 [LNIND 1983 SC 265] : (1983) 4 SCC 540 — Observation to the contrary in B.
Banerjee v Anita Pan, AIR 1975 SC 1146 [LNIND 1974 SC 376] : (1975) 1 SCC 166 [LNIND 1974 SC 376] and
Page 440 of 467
Pattumma v State of Kerala, AIR 1978 SC 771 [LNIND 1978 SC 11] : (1978) 2 SCC 1 [LNIND 1978 SC 11] , was
dissented in that case.
31. Gimik Piotr v State of TN, AIR 2010 SC 924 [LNIND 2009 SC 1992] : (2010) 1 SCC 609 [LNIND 2009 SC 1992] .
32. Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] ;
as well as in AIR 1982 SC 1325 [LNIND 1982 SC 117] : (1982) 3 SCC 24 [LNIND 1982 SC 117]
33. See also Liverside v Anderson, (1942) AC 206 .
34. R. v Secretary of State for the Home Department, (1984) AC 74 .
35. R. v Halliday, (1917) AC 260 .
36. Alam v State of W.B., AIR 1974 SC 917 [LNIND 1974 SC 42] (para 15) : (1974) 3 SCR 379 [LNIND 1974 SC 42] :
(1974) 4 SCC 463 [LNIND 1974 SC 42] ; Sadanandan v Stateof Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] :
(1966) 3 SCR 590 [LNIND 1966 SC 52] .
37. Alam v State of W.B., AIR 1974 SC 917 [LNIND 1974 SC 42] (para 15) : (1974) 3 SCR 379 : (1974) 4 SCC 463
[LNIND 1974 SC 42] .
38. Niranjan Singh v State of MP, AIR 1972 SC 2215 [LNIND 1972 SC 319] : (1972) 2 SCC 542 [LNIND 1972 SC 319] ;
Shaik Hanif v State of WB, AIR 1974 SC 679 [LNIND 1974 SC 24] : (1974) 1 SCC 637 [LNIND 1974 SC 24] ; Bhut
Nath Mete v State of WB, AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31] ; Dulab Roy
v Dt. Magistrate, AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 1 SCC 837 [LNIND 1975 SC 9] ; Gulab Mehra v State
of UP, AIR 1987 SC 2332 [LNIND 1987 SC 650] ; State of Gujarat v Sunil Fulchand Shah, AIR 1988 SC 723 [LNIND
1988 SC 94] ; Madan Lal Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND 1989 SC
536] ; Gazi Khan v State of Rajasthan, AIR 1990 SC 1361 [LNIND 1990 SC 285] : (1990) 3 SCC 459 [LNIND 1990 SC
285] ; MunnaTuin v Dt. Magistrate, AIR 1982 SC 878 [LNIND 1982 SC 35] : (1982) 3 SCC 320 [LNIND 1982 SC 35] .
39. Shearer v Shields, (1914) AC 808 .
40. Puranlal v UOI, (1958) SCR 460 : AIR 1958 SC 163 [LNIND 1957 SC 70] .
42. AIR 1974 SC 816 : (1974) 4 SCC 135 .
43. See L.K. Das v State of WB, AIR 1975 SC 753 : (1975) 4 SCC 62 ; Noor Chand v State of WB, AIR 1974 SC 2120 :
(1975) 3 SCC 306 .
44. Yumman Ongbi Lembi Leima v State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888] : (2012) 2 SCC 176 [LNIND
2012 SC 888] ; see also Rekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222
[LNIND 2011 SC 371] : (2011) 4 Scale 389 (supra); UOI v Paul Manickam, (2003) 8 SCC 342 [LNIND 2003 SC 869] :
AIR 2003 SC 4622 [LNIND 2003 SC 869] : 2003 Cr LJ 4561 ; Haradhan Saha v State of WB, (1975) 3 SCC 198
[LNIND 1974 SC 243] : AIR 1975 SC 2154 .
45. Anil v State of Bihar, AIR 1982 SC 1008 [LNIND 1982 SC 72] : (1982) 3 SCR 533 [LNIND 1982 SC 72] : (1982) 2 SCC
195 [LNIND 1982 SC 72] .
46. R. v Brixton Prison, (1916) 2 KB 742 .
47. State of Bombay v Atmaram, (1951) SCR 167 [LNIND 1951 SC 5] : AIR 1951 SC 157 [LNIND 1951 SC 5] .
Page 441 of 467
48. Tarapada v State of West Bengal, (1951) SCR 212 [LNIND 1951 SC 4] : AIR 1951 SC 174 [LNIND 1951 SC 4] .
49. State of Bombay v Atmaram, (1951) SCR 167 [LNIND 1951 SC 5] : AIR 1951 SC 157 [LNIND 1951 SC 5] . See also
Ashutosh Labry v State of Delhi, AIR 1953 SC 451 [LNIND 1950 SC 23] : (1953) Cr LJ 192 .
50. Rajesh Gulati v Govt. of NCT of Delhi, AIR 2002 SC 3094 [LNIND 2002 SC 532] : (2002) 7 SCC 129 [LNIND 2002 SC
532] .
51. Ramkrishna Paul v State of WB, AIR 1972 SC 863 [LNIND 1972 SC 84] : (1972) 1 SCC 570 [LNIND 1972 SC 84] :
(1972) 3 SCR 401 [LNIND 1972 SC 84] ; Smt. Pushpa v UOI, AIR 1979 SC 1953 [LNIND 1979 SC 282] : (1979) SCC
(Crl.) 1075; Mahboob Khan Nawab Khan Karwaria v State of UP, AIR 1990 SC 1272 [LNIND 1990 SC 190] : (1990) 2
SCC 629 [LNIND 1990 SC 190] .
[LNIND 2010 SC 1226] .
53. Abdul Nasar Adam Ismail v State of Maharashtra, AIR 2013 SC 1376 [LNIND 2013 SC 256] : (2013) 4 SCC 435
[LNIND 2013 SC 256] .
54. Pebam Ningol Mikoi Devi v State of Manipur, (2010) 9 SCC 618 [LNIND 2010 SC 926] : (2010) 10 Scale 248 [LNIND
2010 SC 926] .
55. A.G. v Reynolds, (1979) 3 All ER 128 (PC).
56. Ex parte Greene, (1942) AC 284 ; Ram Singh v State of Delhi, (1951) SCJ 374 (380) : AIR 1951 SC 270 [LNIND 1951
SC 24] .
57. Basanta v King-Emp., AIR 1945 FC 18.
58. Emp v Sibnath, AIR 1945 PC 156 ; A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196] (para 124) : 1976
Supp. SCR 172 : (1976) 2 SCC 521 [LNIND 1976 SC 196] .
59. Jainal v D.M, AIR 1975 SC 229 : (1975) 3 SCC 321 ; Suresh v State of W.B., AIR 1975 SC 728 : (1975) 3 SCC 554
(para 4).
60. D’Souza v State of Bombay, (1956) SCR 382 (387) : AIR 1956 SC 531 [LNIND 1956 SC 36] : 1956 SCJ 559 ; Dwarika
v Stateof Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702 [LNIND 1974 SC 359] : (1975) 3 SCC 722
[LNIND 1974 SC 359] (para 7); Sadanandan v State of Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] : (1966) 3 SCR
590 [LNIND 1966 SC 52] (para 14).
61. D’Souza v State of Bombay, (1956) SCR 382 (387) : AIR 1956 SC 531 [LNIND 1956 SC 36] : 1956 SCJ 559 ; Dwarika
v Stateof Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702 : (1975) 3 SCC 722 [LNIND 1974 SC 359]
(para 7); Sadanandan v State of Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] : (1966) 3 SCR 590 [LNIND 1966 SC
52] (para 14); Cf. Ram Krishan v State of Delhi, (1953)SCR 708 : AIR 1953 SC 318 [LNIND 1953 SC 49] : 1953 Cr LJ
1241 : 1953 SCJ 444 .
62. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] ; Shibanlal v State of H.P., (1954) SCR 418 [LNIND
1979 SC 400] ; Bhim Sen v State of Punjab, (1952) SCR 18 . See also G. Sadanandan v State of Kerala, AIR 1966 SC
1925 [LNIND 1966 SC 52] : (1966) 3 SCR 590 [LNIND 1966 SC 52] : (1966) Cr LJ 1533 .
Page 442 of 467
63. Jaichand v State of W.B., AIR 1967 SC 483 [LNIND 1966 SC 142] ; Khudiram v State of W.B., AIR 1975 SC 550
[LNIND 1974 SC 386] , to the relevant consideration, Jagannath v State of Orissa, AIR 1966 SC 1140 [LNIND 1965 SC
396] , e.g., where the order mentions all the grounds specified in the Act, and in the affidavit of the authority, only two of
them are relied upon.
64. (1984) 3 SCC 14 [LNIND 1984 SC 110] .
65. Sita Ram v State of Rajasthan, AIR 1986 SC 1072 [LNIND 1986 SC 33] : (1986) 2 SCC 86 [LNIND 1986 SC 33] ;
Pushpa Devi v Wadhawan, AIR 1987 SC 1748 [LNIND 1987 SC 444] : (1987) 3 SCC 367 [LNIND 1987 SC 444] ;
Anant Sakharam Raw v State of Maharashtra, AIR 1987 SC 137 [LNIND 1986 SC 450] : (1986) 4 SCC 771 [LNIND
1986 SC 450] ; see also Rushikesh Tanaji Bhoite v State of Maharashtra, AIR 2012 SC 890 [LNIND 2012 SC 1531] :
(2012) 2 SCC 72 [LNIND 2012 SC 1531] .
66. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 (supra); see also
Srilal Shaw v State of WB, AIR 1975 SC 393 [LNIND 1974 SC 402] : (1975) 1 SCC 336 [LNIND 1974 SC 402] ; Noor
Chand v State of WB, AIR 1974 SC 2120 : (1975) 3 SCC 306 ; Jaya Mala v Home Secretary, State of J&K, AIR 1982
SC 1297 [LNIND 1982 SC 109] : (1982) 2 SCC 538 [LNIND 1982 SC 109] .
67. Kanchanlal v State of Gujarat, AIR 1979 SC 1945 [LNIND 1979 SC 289] : (1979) 4 SCC 14 [LNIND 1979 SC 289] ; K.
Nageswara Rao v Collector & District Magistrate, (2012) 13 SCC 585 : (2012) 11 Scale 409 ; MunagalaYadamma v
State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] : (2012) Cr LJ 1662 ; see also Rekha v State of Tamil Nadu,
(2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] : (2011) 4 Scale 387 [LNIND 2011
SC 371] .
68. Pooja Batra v UOI, AIR 2009 SC 2256 [LNIND 2009 SC 2429] : (2009) 5 SCC 296 [LNIND 2009 SC 2429] .
69. Sayed Abdul Ala v UOI, (2007) 15 SCC 208 [LNIND 2007 SC 1131] : (2007) 12 Scale 345 .
70. Rameshwar v D.M., AIR 1964 SC 334 [LNIND 1963 SC 214] : (1964) 4 SCR 921 [LNIND 1963 SC 214] ; Ram
Manohar Lohia v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] .
71. State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] ; Minerva Mills v UOI, AIR 1980 SC 1789 [LNIND
1980 SC 257] ; Malwa Shah v State of W.B., AIR 1974 SC 357 : (1974) 4 SCC 127 .
72. Sk. Nizammuddin v State of W.B., AIR 1974 SC 2353 [LNIND 1974 SC 345] : (1975) 3 SCC 395 [LNIND 1974 SC
345] . See also Kanchanlal v State of Gujarat, AIR 1979 SC 1945 [LNIND 1979 SC 289] : (1979) 4 SCC 14 [LNIND
1979 SC 289] ; Madan Lal Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND 1989 SC
536] ; Satyanarayana Subudhi v UOI, AIR 1991 SC 1375 : 1991 (Supp-2) SCC 153; Asha Devi v K. Shivaraj, AIR 1979
SC 4470 : (1979) 1 SCC 222 [LNIND 1978 SC 315] .
73. FazalGhari v State of U.P., AIR 1987 SC 1877 [LNIND 1987 SC 445] : (1987) 3 SCC 502 [LNIND 1987 SC 445] .
74. Kameshwar v R, AIR 1948 All 440 ; Jhala v State, AIR 1952 All 12 .
75. Cf. Ram Krishan v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] : AIR 1953 SC 318 [LNIND 1953 SC 49] :
1953 Cr LJ 1241 : 1953 SCJ 444 .
76. Cf. Ram Krishan v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] : AIR 1953 SC 318 [LNIND 1953 SC 49] :
1953 Cr LJ 1241 : 1953 SCJ 444 .
77. Tandon Brothers v State of W.B., (2001) 5 SCC 664 [LNIND 2001 SC 881] .
Page 443 of 467
78. Narayanaswami v Inspector of Police, (1948) 11 FLJ 43 (62).
79. Puranlal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] (172) : 1958 SCR 460 .
80. Smt. Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] .
81. Ashutosh Lahiri v State of Delhi, AIR 1953 SC 451 [LNIND 1950 SC 23] ; see Pushkar Mukherjee v State of W.B.,
(1969) 1 SCC 10 [LNIND 1968 SC 332] : AIR 1970 SC 852 [LNIND 1968 SC 332] . See also Rekha v State of Tamil
Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] : (2011) 4 Scale 387 [LNIND
2011 SC 371] ; Yumman Ongbi Lembi Leima v State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888] : (2012) 2
SCC 176 [LNIND 2012 SC 888] ; Munagala Yadamma v State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] : 2012 Cr
LJ 1662 : (2012) 1 Scale 132 [LNIND 2012 SC 13] ; K. Nageswara Rao v Collector & Dt. Magistrate, (2012) 13 SCC
585 : (2012) 11 Scale 409 .
82. Suraj Pal Sahu v State of Maharashtra, AIR 1986 SC 2177 [LNIND 1986 SC 351] : (1986) 4 SCC 378 [LNIND 1986
SC 351] .
83. Tarapada v State of West Bengal, (1951) SCJ 233 [LNIND 1951 SC 5] (238) : AIR 1951 SC 174 [LNIND 1951 SC 4] :
1951 SCR 212 [LNIND 1951 SC 4] .
84. Bhut Nath Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND 1974 SC 31] :
(1974) 3 SCR 315 [LNIND 1974 SC 31] .
85. (1914) AC 808 .
86. See also Bhut Nath Mete v State of WB, AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC
31] ; ADM v Shivakant Shukla, (1976) 2 SCC 521 [LNIND 1976 SC 196] – by Justice Khanna.
87. Bhut Nath Mete v State of WB, AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31] ;
Asgar Ali v Dt. Magistrate, AIR 1974 SC 1814 : (1974) 4 SCC 527 ; Noor Chand v State of WB, AIR 1974 SC 2120 :
(1975) 3 SCC 306 ; Merugu Satyanarayana v State of AP, AIR 1982 SC 1543 [LNIND 1982 SC 148] : (1982) 3 SCC
301 [LNIND 1982 SC 148] : (1982) Cr LJ 2357 .
88. Puranlal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] (172) : 1958 SCR 460 .
89. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] (197) : AIR 1950 SC 27 [LNIND 1950 SC 22] :
(1950) 1 SCR 88 [LNIND 1950 SC 22] .
90. Cf. Naresh v State of W.B., AIR 1951 SC 1335 (1340) : (1960) 1 SCR 412 : 1960 SCJ 303 [LNIND 1959 SC 131] .
91. Mohd. Subrati v State of WB, AIR 1973 SC 207 [LNIND 1972 SC 544] : (1973) 2 SCC 250 .
92. Francis Coralie Mullin v W.C Khambra, AIR 1980 SC 849 [LNIND 1980 SC 97] : (1980) 2 SCC 406 [LNIND 1980 SC
91] : (1980) 2 SCR 1095 [LNIND 1980 SC 97] .
93. State of Punjab v Jagdev Singh, AIR 1984 SC 444 [LNIND 1983 SC 377] : (1984) 1 SCC 596 [LNIND 1983 SC 377] :
(1984) 2 SCR 50 [LNIND 1983 SC 377] .
1. Narayanaswami v Inspector of Police, (1948) 11 FLJ 43 (62).
(1964) 1 Crimes 269 ; Ram Manohar v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] : (1966) 1 SCR 709
Page 444 of 467
[LNIND 1965 SC 215] ; Biren Dutta v Chief Co, (1965) 1 SCA 32 : AIR 1965 SC 596 [LNIND 1964 SC 186] : (1964) 8
SCR 295 [LNIND 1964 SC 186] .
3. Godavari v State of Maharashtra, AIR 1964 SC 1128 [LNIND 1964 SC 19] (1131) : (1964) 6 SCR 446 [LNIND 1964
SC 527] ; Durgadas v UOI, AIR 1966 SC 1078 [LNIND 1965 SC 307] : (1966) 2 SCR 573 [LNIND 1965 SC 307] ;
Sadanandan v State of Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] : (1966) 3 SCR 590 [LNIND 1966 SC 52] ;
Jaichand v State of W.B., AIR 1967 SC 483 [LNIND 1966 SC 142] : 1966 Supp SCR 464.
4. Bhutanath Mate v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31] .
5. S. Pratap Singh v State of Punjab, AIR 1964 SC 72 [LNIND 1963 SC 211] : (1964) 4 SCR 733 [LNIND 1963 SC 211] .
(1964) 1 Crimes 269 ; Ram Manohar v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] : (1966) 1 SCR 709
[LNIND 1965 SC 215] ; Biren Dutta v Chief Commr., (1965) 1 SCA 32 : AIR 1965 SC 596 [LNIND 1964 SC 186] :
(1964) 8 SCR 295 [LNIND 1964 SC 186] ; Godavari v State of Maharashtra, AIR 1964 SC 1128 [LNIND 1964 SC 19]
(1131) : (1964) 6 SCR 446 [LNIND 1964 SC 527] ; Durgadas v UOI, AIR 1966 SC 1078 [LNIND 1965 SC 307] : (1966)
2 SCR 573 [LNIND 1965 SC 307] ; Sadanandan v State of Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] : (1966) 3
SCR 590 [LNIND 1966 SC 52] ; Jaichand v State of W.B., AIR 1967 SC 483 [LNIND 1966 SC 142] : 1966 Supp SCR
464.
7. A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196] (paras 65, 127) : 1976 Supp SCR 172 : (1976) 2 SCC 521
[LNIND 1976 SC 196] .
8. See H.M. Seervai, Constitutional Law of India, Vol II, 4th Edn, Appendix at p 2229.
[LNIND 1976 SC 196] .
10. AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 [LNIND 1963 SC 234] : (1964) Cr LJ 217 .
11. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] .
12. For the texts of the two Orders of 1962 and 1975, see paras 343–44 of AIR 1976 SC 1207 [LNIND 1976 SC 196] .
13. See Article by Justice V.S. Deshpande, Indian Legal System, Chapter, Constitutional Law – Civil and Political Rights
2nd Edn, p 54.
[LNIND 1976 SC 196] .
15. Author’s Constitution Amendment Acts, 7th Edn.
16. Kishore v State of Rajasthan, AIR 1981 SC 625 [LNIND 1980 SC 436] : (1981) 1 SCC 503 [LNIND 1980 SC 436] ;
Sunil v Delhi Administration (II), AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] .
17. See UOI v Bhanudas, AIR 1977 SC 1027 [LNIND 1977 SC 49] (paras 9, 23 –24, 30) : (1977) 2 SCR 719 [LNIND 1977
SC 49] : (1977) 1 SCC 834 [LNIND 1977 SC 49] .
18. The 1978-amendment, thus, affirms the view taken in Ghatate v UOI, (1975) Cr LJ 1828 (para 15) (Bom) and Shiv
Kant v A.D.M, (1975) Cr LJ 1809 (para 15) M.P. and that taken in A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976
SC 196] : 1976 Supp SCR 172 : (1976) 2 SCC 521 [LNIND 1976 SC 196] is rejected.
Page 445 of 467
19. Ashing Dane v U.K., (1985) 7 EHRR 528 applied in Ebert v Official Receiver, (2002) 1 WLR 320 .
20. Tolstoy Miloslavasky v U.K., (1995) 20 EHRR 442 .
21. Axen v Germany, (1983) EHRR 195 .
22. See D.D. Basu, Commentary on the Constitution of India, Vol 1, Introduction.
23. Ex parte Young, (1908) 209 US 123.
24. Griffin v Illinois, (1956) 351 US 12 : 100 L Ed 891.
25. Premchand Garg v Excise Commissioner, AIR 1963 SC 996 [LNIND 1962 SC 356]: 1963 (Supp-1) SCR 885.
26. See State of W.B. v Anwar Ali Sarkar, AIR 1952 SC 75 [LNIND 1952 SC 1]: (1952) SCR 284 [LNIND 1952 SC 1];
Hamdard Dawakhana v UOI, AIR 1960 SC 554 [LNIND 1959 SC 230]: (1960) 2 SCR 671 [LNIND 1959 SC 230]; A.R.
Antulay v R.S. Nayak, (1988) 2 SCC 602 [LNIND 1988 SC 264]; ReSpecial Courts Bill 1978, (1979) 1 SCC 380 [LNIND
1978 SC 661] : (1979) 2 SCR 476 [LNIND 1978 SC 661]; A.N. Parasuraman v State of T.N., (1989) 4 SCC 683 [LNIND
1989 SC 492]; Kartar Singh v State of Punjab, AIR 1952 SC 235 [LNIND 1952 SC 35]: (1952) SCR 710 [LNIND 1952
SC 35]; J. Jayalalitha v UOI, AIR 1999 SC 1912 [LNIND 1999 SC 553]: (1999) 5 SCC 138 [LNIND 1999 SC 553].
27. Patton v U.S., (1930) 281 US 276.
28. Duncan v Louisiana, (1968) 391 US 145 (159); Baldwin v N.Y., (1969) 399 US 66 (68).
29. Lachmandas v State of Bombay, AIR 1952 SC 235 [LNIND 1952 SC 35] (244) : 1952 SCR 710 [LNIND 1952 SC 35] ;
Dhirendra v L.R., (1955) 1 SCR 224 [LNIND 1954 SC 72] : AIR 1954 SC 424 [LNIND 1954 SC 72] .
30. See Author’s New Code of Criminal Procedure, (1975), Vol I, p 2.
31. Davies v U.S., (1917) 247 Fed 394.
32. Oliver, (1948) 333 US 257.
33. T.M. Cooley, A Treatise on Constitutional Limitation 1st Indian Reprint, 2005, “Constitutional protection to Personal
Liberty”, p 312.
34. Richmond Newspapers Inc v Virginia, (1980) 448 US555 : 65 L Ed 2d 973.

Page 446 of 467
35. See also Globe Newspaper Co v Superior Court, (1982) 457 US 596.
36. Kehar Singh v State of Delhi Administration, AIR 1988 SC 1883 [LNIND 1988 SC 887]: (1988) 3 SCC 609 [LNIND
1988 SC 887].
37. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 1 SCC 271 [LNIND 1981 SC 469] : (1982) 2 SCR
272 [LNIND 1981 SC 469].
38. See Mohd. Shahabuddin v State of Bihar, (2010) 4 SCC 653 [LNIND 2010 SC 277] : (2010) 3 Scale 204 [LNIND 2010
SC 277].
39. (1988) 3 SCC 609 [LNIND 1988 SC 887].
40. Naresh Shridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1 [LNIND 1966 SC 74]: (1966) 3 SCR 744 [LNIND
1966 SC 74].
41. See also Superintendent of Remembrancer of Legal affairs v Satyen Bhowmick, AIR 1981 SC 917 [LNIND 1981 SC
34]: (1981) 2 SCC 109 [LNIND 1981 SC 34]; Commissioner of Police v Registrar, Delhi High Court, (1996) 6 SCC 323
[LNIND 1996 SC 1687] : AIR 1997 SC 95 [LNIND 1996 SC 1687].
42. Zulfikar Ali Bhutto v State, PLD 1979 SC 53.
43. Mehram Ali v Federation of Pakistan, PLD 1998 SC 1445.
44. Cf. Stephen’s Commentaries, 1938, Vol I, p 58.
45. Hinds v R., (1976) 1 All ER 353. See also R v Denbigh JJ exparte Williams, (1974) QB 759.
46. Scott v Scott, (1913) AC 427 .
47. Scott v Scott, (1913) AC 417.

Page 447 of 467
48. Home Office v Harman, (1981) QB 534.
49. (1984) 2 QB 227.
50. Barritt v Att. General, (1971) 1 WLR 1713.
51. See D.D. Basu, Human Rights in Constitutional Law.
52. Cf. Klopfer v N. Carolina, (1967) 386 US 213 (223).
53. Beavers v Haubert, (1905) 198 US 77 (87). See also Pollard v U.S., (1957) 352 US 354 : 77 S Ct 481; Smith v Hooey,
(1969) 393 US 374 L 89 S Ct 575.
54. Black’s Law Dictionary, 7th Edn, 1999.
55. R. v Jones, (2002) 2 All ER 113 (HC).
56. U.S. v Provoo, (1955) 215 F 2d 531.
57. Pollard v U.S., (1956) 352 US, 354 (361).
58. Commonwealth v Hanley, 358 US 850 : 79 S Ct 79, relied on in Motilal Saraf v State of J&K, AIR 2007 SC 56 [LNIND
2006 SC 784].
59. Mallory v U.S., (1957) 354 US 449.
60. Stogmiller v Austria, (1979) 1 EHRR 155.
61. Neumeister v Austria (No.1), (1980) 1 EHRR 91.
62. See Edwin Shorts & Claire de Than, Civil Liberties – Legal Principles of Individual Freedom, 1998 Edn, p 482.
Page 448 of 467
63. Vernillo v France, 12 HRLJ 199 – where 7½ years in respect of civil proceedings was not found too long due to the
special responsibilities of the parties.
64. See Helen Fenwick, Civil Liberties, 2004 Edn, pp 49–50.
65. Hussainara v Home Secy. (I), AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; Kadra v State of Bihar, AIR
1981 SC 939 [LNIND 1980 SC 493](para 2) : (1981) 3 SCC 671 [LNIND 1980 SC 493]; 11 Sh. pp 187 ff.; D.D. Basu,
Human Rights in Constitutional Law. But, in the absence of Prejudice, a conviction made on a fair trial, less would not
be quashed only on the ground of delayed trial [State of Maharashtra v Champaklal, AIR 1981 SC 1675 [LNIND 1981
SC 340](para 2) : (1982) 1 SCR 299 [LNIND 1981 SC 340] : (1981) 3 SCC 610 [LNIND 1981 SC 340]—3 Judges].
66. Salem Advocate Bar Association v UOI, (2005) 6 SCC 344 [LNIND 2005 SC 573] : AIR 2005 SC 3353 [LNIND 2005
SC 573].
67. P. Ramchandra Rao v State of Karnataka, AIR 2002 SC 1856 [LNIND 2002 SC 296]; Rajendra Singh v State of U.P.,
2004 AIHC 2379 (All).
68. Naresh Kumar Yadav v Ravindra Kumar, (2008) 1 SCC 632 [LNIND 2007 SC 1262]; S. Rama Krishna v Rami Reddy,
(2008) 5 SCC 535 [LNIND 2008 SC 992].
69. Hussainara v Home Secretary (III), (1980) 1 SCC 93 [LNIND 1979 SC 155].
70. Hussainara Khatoon v Home Secretary, State of Bihar, Patna, (1980) 1 SCC 98 [LNIND 1979 SC 188] : AIR 1979 SC
1369 [LNIND 1979 SC 188].
71. Hussainara Khatoon v Home Secretary, State of Bihar, (1980) 1 SCC 115 : AIR 1979 SC 1819.
72. Hussainara Khatoon v Home Secretary, State of Bihar, Patna, (1980) 1 SCC 108 [LNIND 1979 SC 241] : AIR 1979 SC
1377 [LNIND 1979 SC 241].
73. Rattiram v State of MP, AIR 2012 SC 1485 [LNIND 2012 SC 129]: (2012) 4 SCC 516 [LNIND 2012 SC 129] : (2012)
Cr LJ 1769. In Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579]: (2012) 8 SCC 495 [LNIND 2012 SC
1579].
Page 449 of 467
74. See also R.D. Upadhyaya v State of AP, (2009) 17 SCC 561 : (2007) 7 Scale 596 [LNIND 2007 SC 656].
75. AIR 2012 SC 1751 [LNINDU 2011 SC 18]: (2012) 1 SCC 748 [LNINDU 2011 SC 18].
76. P. Ramachandra Rao v State of Karnataka, (2012) 9 SCC 430 [LNIND 2002 SC 296] : (2001) 4 Scale 226(2); see also
Sudarshanacharya v Purushottamacharya, (2012) 9 SCC 241 [LNIND 2012 SC 530] : (2012) Cr LJ 4559; P.
SC 296]; Vakil Prasad Singh v State of Bihar, (2009) 3 SCC 355 [LNIND 2009 SC 163] : AIR 2009 SC 1822 [LNIND
2009 SC 163]: 2009 Cr LJ 1731; A.R. Antulay v R.S. Nayak, (1992) 1 SCC 225 [LNIND 1991 SC 673].
77. Niranjan Hemachandra Sashittal v State of Maharashtra, AIR 2013 SC 1682 [LNIND 2013 SC 1217]: (2013) 4 SCC
642 [LNIND 2013 SC 1217]; see also A.R. Antulay v R.S. Nayak, (1992) 1 SCC 225 [LNIND 1991 SC 673]; P.
SC 296].
78. Kadra Pahadiya v State of Bihar, AIR 1981 SC 939 [LNIND 1980 SC 493]: (1981) 3 SCC 671 [LNIND 1980 SC 493].
See also Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2013 SC 3648 [LNIND 2013 SC 1400]: (2013) 9 SCC
500 [LNIND 2013 SC 1400].
79. See also State of Maharashtra v Champlal Panjaji Shah, AIR 1981 SC 1675 [LNIND 1981 SC 340]: (1981) 3 SCC 610
[LNIND 1981 SC 340] : (1982) 1 SCR 299 [LNIND 1981 SC 340].
81. See also Abdul Rahman Antulay v R.S. Nayak, AIR 1992 SC 1701 [LNIND 1991 SC 673]: (1992) 1 SCC 225 [LNIND
1991 SC 673], where various directions were given for expeditious disposal of cases; Raj Deo Sharma v State of Bihar
(I), AIR 1998 SC 3281 [LNIND 1998 SC 940]— further classified in Raj Deo Sharma v State of Bihar(II), (1999) 7 SCC
604 [LNIND 1999 SC 856]; Santosh De v ArchanaGuha, AIR 1994 SC 1229 [LNIND 1994 SC 148]: 1994 (Supp-3)
SCC 735. In case there is delay in disposal of appeal for no fault of the accused, he may be released on bail. Aktari Bai
v State of M.P., AIR 2001 SC 1528 [LNIND 2001 SC 773]: (2001) 4 SCC 355 [LNIND 2001 SC 765], where
proceedings were quashed due to laches of Government. See also Mansukhdas Vithaldas Chauhan v State of Gujarat,
AIR 1997 SC 3400 [LNIND 1997 SC 1158]: (1997) 7 SCC 622 [LNIND 1997 SC 1158]; Mahendra Das Lal v State of
Bihar, AIR 2002 SC 2989 [LNIND 2002 SC 520]: (2002) 1 SCC149; Ramanand Choudhary v State of Bihar, AIR 1994
SC 948; Rajiv Gupta v State of H.P., (2000) 10 SCC 68; State of Andhra Pradesh v Hanumantha Santa Rao, (2000) 10
SCC 603; R.D. Upadhayay v State of Andhra Pradesh, AIR 2000 SC 1756 [LNIND 2000 SC 1693]. See also Vineet
Narain v UOI, AIR 1998 SC 889 [LNIND 1997 SC 1657].
Page 450 of 467
82. Nathu @ Paras Ram v State of Rajasthan, AIR 2007 SC 1 [LNIND 2006 SC 879].
83. Lallan Chaudhary v State of Bihar, AIR 2006 SC 3376 [LNIND 2006 SC 817]: (2006) 12 SCC 229 [LNIND 2006 SC
817].
84. A.R. Antulay v R.S. Nayak, AIR 1992 SC 1701 [LNIND 1991 SC 673]: (1992) 1 SCC 225 [LNIND 1991 SC 673]; see
also P. Ramachandra Rao v State of Karnataka, (2002) 4 SCC 578 [LNIND 2002 SC 296]; State of Rajasthan v Ikbal
Hussen, (2004) 12 SCC 499 [LNIND 2004 SC 905]; Hemachandra Shashittal v State of Maharashtra, AIR 2001 SC
1246 [LNIND 2001 SC 403]: (2001) 4 SCC 525 [LNIND 2001 SC 403]. See also Rattiram v State of MP, AIR 2012 SC
1485 [LNIND 2012 SC 129]: (2012) 4 SCC 516 [LNIND 2012 SC 129] : (2012) Cr LJ 1769 (supra); Ranjan Dwivedi v
CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579]: (2012) 8 SCC 495 [LNIND 2012 SC 1579].
85. Vakil Prasad Singh v State of Bihar, AIR 2009 SC 1822 [LNIND 2009 SC 163]: (2009) 3 SCC 355 [LNIND 2009 SC
163].
87. Zahira Habibullah H. Sheikh v State of Gujarat, (2004) 4 SCC 158 [LNIND 2004 SC 471]; see also (2006) 3 SCC 374
[LNIND 2006 SC 168].
88. K. Ambazhagan v Superintendent of Police, AIR 2004 SC 524 [LNIND 2003 SC 991]: (2004) 3 SCC 767 [LNIND 2003
SC 991].
89. Moore v Dempsey, (1923) 261 US 86; Wainwright v Greenfield, (1986) 474 US 284; Doyle v Ohio, (1976) 426 US 610.
90. U.S. v Atkinson, (1936) 297 US 157.
91. See De Cubber v Belgium, (1985) 7 EHRR 236.
92. Public Utilities Commission of District of Colombia v Pollak, (1951) 345 US 451.
93. Luson v General Council, (1889) 43 ChD 366.

Page 451 of 467
94. R. v Sussex Justices, (1924) 1 KB 256; Franklin v Minister of Town Planning, (1947) 2 All ER 289 (HL); see also
Kumaon Mondal Vikas Nigam Ltd v Girija Shanker Pant, AIR 2001 SC 24 [LNIND 2000 SC 1362]: (2001) 1 SCC 182
[LNIND 2000 SC 1362]; G.N. Nayak v Goa University, (2002) 2 SCC 712 [LNIND 2002 SC 958] : AIR 2002 SC 790
[LNIND 2002 SC 958].
1. R.C. Chandel v High Court of MP, AIR 2012 SC 2962 [LNIND 2012 SC 464]: (2012) 8 SCC 58 [LNIND 2012 SC 464].
2. Narinder Singh Arora v State (NCT of Delhi), AIR 2012 SC 1642 [LNIND 2011 SC 1208]: (2012) 1 SCC 561 [LNIND
2011 SC 1208].
3. Brij Mohan Lal v UOI, (2012) 6 SCC 502 [LNIND 2012 SC 1201] : (2012) 4 Scale 450 [LNIND 2012 SC 1201].
4. Varkey Joseph v State of Kerala, AIR 1993 SC 1892 [LNIND 1993 SC 403]: 1993 (Supp-3) SCC 745. See also
Girdhari v State (NCT of Delhi), AIR 2011 SC (Supp) 43 : (2011) 15 SCC 373 [LNINDORD 2011 SC 160] : (2012) Cr LJ
984.
5. Manu Sharma v State (NCT of Delhi), AIR 2010 SC 2352 [LNIND 2010 SC 367]: (2010) 6 SCC 1 [LNIND 2010 SC
367].
6. State of Maharashtra v Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 [LNIND 1997 SC 1203] : AIR 1997 SC 3986
[LNIND 1997 SC 1203].
7. In Re., AIR 1970 SC 1821 [LNIND 1968 SC 333]: (1969) 2 SCR 649.
8. (1988) 4 SCC 592 [LNIND 1988 SC 613].
10. (2009) 8 SCC 106 [LNIND 2009 SC 1544] : (2009) 10 JT (SC) 1.
11. (2005) 2 SCC 686 [LNIND 2005 SC 112].
12. See Anukul Chandra Pradhan v UOI, (1996) 6 SCC 354 [LNIND 1996 SC 1622].
Page 452 of 467
13. State of Maharashtra v Praful B. Desai, (2003) 4 SCC 601 [LNIND 2003 SC 380] : AIR 2003 SC 2053 [LNIND 2003 SC
380].
14. Harish Uppal (Ex. Capt) v UOI, AIR 2003 SC 739 [LNIND 2002 SC 809]: (2003) 2 SCC 45 [LNIND 2002 SC 809]; U.P.
Sales Tax Service Assn v Taxation Bar Assn., (1995) 5 SCC 716 [LNIND 1995 SC 861]; Supreme Court Bar
Association v UOI, (1998) 4 SCC 409 [LNIND 1998 SC 455] : AIR 1998 SC 1895 [LNIND 1998 SC 455]. See also
Ranjan Dwivedi v CBI, AIR 2012 SC 3217 [LNIND 2012 SC 1579]: (2012) 8 SCC 495 [LNIND 2012 SC 1579].
15. State of Punjab v Sarwan Singh, AIR 1981 SC 1054 [LNIND 1981 SC 201]: (1981) 3 SCC 34 [LNIND 1981 SC 201].
16. U.S. v Lattimore, (1954) 125 F Supp 295.
17. Cole v Arkansas, (1948) 333 US 196 (201).
18. Brinkertoff Trust v Hill, (1930) 281 US 673.
19. Moore v Dempsey, (1923) 261 US 86; Brown v Mississippi, (1936) 297 US 278; Mooney v Holoham, (1935) 294 US
103. See also Chambers v Florida, (1940) 309 US 227.
20. Lehand v Oregon, (1952) 343 US 790.
21. (1966) 384 US 436.
22. (1994) 512 US 452.
23. (2000) 530 US 428.
24. But see Harris v New York, (1971) 401 US 222; Oregon v Hass, (1975) 420 US 714; Nix v Williams, (1984) 467 US
431; New York v Quarles, (1984) 467 US 649; Duckworth v Eagon, (1989) 492 US 195 wherein the strict view of
admissibility of confession has been modified. See Ralph A Rossum & G. Alan Tarr, American Constitutional Law – The
Bill of Rights and Subsequent Amendments, Vol II at pp 292–293.
Page 453 of 467
25. See Eckle v Federal Repubic of Germany, (1982) 5 EHRR 1; see also Foti v Italy, (1982) 5 EHRR 313.
26. Nielson v Denmark, (IV YBEC (Year Book of European Convention) pp 494 and 548. See D.D. Basu, Human Rights in
Constitutional Law, 3rd Edn, 2008 at p 486.
27. (1959) 2 YBEC 412; Madhu Limaye, Re., AIR 1969 SC 1014.
28. Gopal v Matilal, (1926) 54 Cal 359; see, further, D.D. Basu, Human Rights in Constitutional Law (supra).
30. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22]: (1950) 1 SCR 88 [LNIND 1950 SC 22].
31. UOI v W.N. Chadha, AIR 1993 SC 1082 : 1993 (Supp-4) SCC 260.
32. Prithipal Singh Bedi v UOI, AIR 1982 SC 1413 [LNIND 1982 SC 123]: (1982) 3 SCC 140 [LNIND 1982 SC 123].
33. Pointer v Texas, (1965) 380 US 400; Turner v Louisiana, (1965) 379 US 466; Parker v Gladden, (1966) 385 US 363.
34. Faretta v California, (1975) 422 US 806.
35. (1965) 380 US 400 (supra).
36. Coy v Iowa, (1988) 487 US 1012.
37. (1990) 497 US 836.
38. Varkey Joseph v State of Kerala, AIR 1993 SC 1892 [LNIND 1993 SC 403]: 1993 (Supp-3) SCC 745.
39. State of Punjab v Dewan Chemical, AIR 1970 SC 2086 [LNIND 1970 SC 50]: (1970) 1 SCC 479 [LNIND 1970 SC 50].
Page 454 of 467
40. Sunil Mehta v State of Gujarat, (2013) 9 SCC 209 [LNIND 2013 SC 139] : (2013) 2 Scale 686 [LNIND 2013 SC 139].
41. See also Harinarayanan G. Bajaj v State of Maharashtra, (2010) 11 SCC 520 [LNIND 2010 SC 23] : (2010) 1 Scale 46
[LNIND 2010 SC 23]; Ajay Kumar Ghose v State of Jharkhand, (2009) 14 SCC 115 [LNIND 2009 SC 597] : AIR 2009
SC 2282 [LNIND 2009 SC 597].
42. See X v U.K., 15 EHRR (CD) 113.
43. See Kostovski v Netherlands, (1989) 12 EHRR 434; Windisch v Austria, (1990) 13 EHRR 281.
44. Zahira Habibullah Sheikh (5) v State of Gujarat, (2006) 3 SCC 374 [LNIND 2006 SC 168]; it was earlier held that trial
will be vitiated if witness are incapacitated and they must be provided with necessary protection. Zahira Habibullah
Sheikh v State of Gujarat, (2004) 4 SCC 158 [LNIND 2004 SC 471]. See also Himanshu Singh Sabharwal v State of
MP, (2008) 3 SCC 602 [LNIND 2008 SC 654] : (2008) 4 SCR 783.
45. State of UP v Ram Sajivan, AIR 2010 SC 1738 [LNIND 2009 SC 2071]: (2010) 1 SCC 529 [LNIND 2009 SC 2071].
46. See Vikas Kumar Roorkewal v State of Uttarakhand, (2011) 2 SCC 178 [LNIND 2011 SC 43] : AIR 2011 SC 726
[LNIND 2011 SC 43].
47. (2008) 3 SCC 602 : (2008) 4 SCR 783.
48. Cf. Khem, Chand v UOI, AIR 1958 SC 300 [LNIND 1957 SC 138]State of M.P. v Chintaman, AIR 1961 SC 1623;
Kapur Singh v UOI, (1960) 2 SCR 569 [LNIND 1959 SC 227] (590) : AIR 1960 SC 493 [LNIND 1959 SC 227].
49. Anil Rai v State of Bihar, (2001) 7 SCC 318 [LNIND 2001 SC 1606] : AIR 2001 SC 3173 [LNIND 2001 SC 1606]: 2001
(Supp-1) SCR 298.
50. See also Madhav Hayawadan Rao Hosket v State of Maharashtra, (1978) 3 SCC 544 [LNIND 1978 SC 199] : AIR
1978 SC 1548 [LNIND 1978 SC 199]; Surendra Nath Sarkar v Emperor, AIR 1942 Cal 225; Jaganath Singh v Francis
Kharia, AIR 1948 Pat. 414; R.C. Sharma v UOI, (1976) 3 SCC 574 [LNIND 1976 SC 217]; Bhagwandas Fatehchand
Daswani v A.P.A. International, (2000) 2 SCC 13 [LNIND 2000 SC 88] : AIR 2000 SC 775 [LNIND 2000 SC 88].
Page 455 of 467
51. See also MadhavHayawadan Rao Hosket v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199]: (1978) 3
SCC 544 [LNIND 1978 SC 199].
52. Delhi Domestic Working Women’s Forum v UOI, (1995) 1 SCC 14 [LNIND 1994 SC 1582] : JT (1994) 7 SC 183;
Bodhisattwa Gautam v Subhra Chakrobarthy, AIR 1996 SC 922 [LNIND 1995 SC 1314]: (1995) 1 SCC 490; State of
Punjab v Ramdev Singh, (2004) 1 SCC 421 [LNIND 2003 SC 1106].
53. Chairman, Rly. Board v Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182]: (2000) 2 SCC 465 [LNIND 2000 SC
182].
54. See also Chief Secretary v Students of APAU, (2005) 12 SCC 448.
55. Stack v Boyle, (1951) 342 US 1.
56. Carlson v London, (1952) 342 US 524.
57. Babu Singh v State of U.P., AIR 1978 SC 527 [LNIND 1978 SC 29]: (1978) 1 SCC 579 [LNIND 1978 SC 29].
58. Ashraf Khan v State of Gujarat, AIR 2013 SC 217 [LNIND 2012 SC 582]: (2012) 11 SCC 606 [LNIND 2012 SC 582].
59. AIR (2013) SCW 5947 (a case of anticipatory bail).
60. State of MP v Ram Krishna Balothia, AIR 1995 SC 1198 [LNIND 1995 SC 201]: (1995) 3 SCC 221 [LNIND 1995 SC
201]; Kartar Singh v State of Punjab, (1994) 2 JT (SC) 423 : (1994) 3 SCC 569 : (1994) Cr LJ 3139. See also Jai
Prakash Singh v State of Bihar, AIR 2012 SC 1676 [LNIND 2012 SC 202]: (2012) 4 SCC 379 [LNIND 2012 SC 202].
61. See American Constitutional Law – Bill of Rights and Subsequent Amendments, Vol II, p 301.
62. Moti Ram v State of M.P., (1979) SCR 335 : AIR 1978 SC 1594 [LNIND 1978 SC 206]: (1978) 4 SCC 47 [LNIND 1978
SC 206].
63. See also Gudikanti v P.P. Sinzari High Court of Andhra Pradesh, AIR 1981 SC 747.
Page 456 of 467
64. Keshab Narayan v State of Bihar, AIR 1985 SC 1666.
65. Rajesh Ranjan Yadav v CBI, AIR 2007 SC 451 [LNIND 2006 SC 981]: (2007) 1 SCC 80 [LNIND 2006 SC 887].
66. Louisiana v Resweber, (1947) 329 US 459.
67. Wilkerson v Utah, (1879) 99 US 130 (135).
68. Re. Kemmler, (1890) 136 US 436 (446).
69. Weems v U.S., (1910) 217 US 349 (371).
70. Trop v Dulles, (1957) 356 US 86.
71. Powell v Texas, (1968) 392 US 514; Robinson v California, (1962) 370 US 660.
72. Supra.
73. See also Gregg v Georgia, (1976) 428 US 153.
75. Gregg v Georgia, (1976) 428 US 153.
77. Smith v Queen, 40 DLR (4th) 435.
78. Ireland v U.K., (1988) 2 EHRR 25.
79. Wilkerson v Utah, (1879) 99 US 130 (135).

Page 457 of 467
80. Re. Kemmler, (1890) 136 US 436 (446).
81. Louisiana v Resweber, (1947) 329 US 459.
82. (1978) 2 EHRR 1.
83. See also Y v UK, (1992) 17 EHRR 238; the dissenting judgment in Costello Roberts v UK, (1993) 19 EHRR 112.
84. Campbell and Cozam v UK, (1982) 2 EHRR 293.
86. State v Murakami, (1948) 2 Sup Ct Rep 191.
87. Furman v Georgia, (1972) 408 US 238 (supra).
88. Proffitt v Florida, (1976) 428 US 242; Godfrey v Georgia, (1980) 446 US 420; Robert v Louisiana (II), (1977) 428 US
325; Gregg v Georgia, (supra); Coker v Georgia, (1977) 433 US 584; Adam v Texas, (1980) 448 US 38.
89. This safeguard was included in the American Constitution to prevent resort to the English practice which attained
notoriety during the time of the Stuarts but which has since become obsolete (see Keith, Constitutional Law, 1939, p
24, 5).
90. U.S. v Lovett, (1946) 328 US 303.
91. See T.M. Cooley, A Treatise on the Constitutional Limitation, 1st Indian Reprint, p 259.
1. See P. Ramanatha Aiyar, Advanced Law Lexican, 3rd Edn, Vol I, p 531.
2. See Ram Prasad v State of Bihar, (1953) SCR 1129 [LNIND 1953 SC 18] : AIR 1953 SC 215 [LNIND 1953 SC 18].
Page 458 of 467
3. Stefanelli v Minard, (1951) 342 US 117.
4. Olmstead v US, (1928) 277 US 438; Katz v US, (1967) 389 US 347.
5. Roe v Wade, (1973) 410 US 113.
6. See D.D. Basu, Comparative Constitutional Law, 2nd Edn, 2008, under the caption “The right to be let alone or
privacy” at p 283.
7. Griswold v Connecticut, (1965) 381 US 479 (494–5).
8. Gopal v Matilal, (1926) 54 Cal 359.
9. Mapp v Ohio, (1961) 367 US 616 (630); Wolf v Colorado, (1949) 338 US 50.
10. Union Pacific Railway Co v Botsford, 141 US 250.
11. X and Y v The Netherlands, (1986) EHRR 235.
12. X v U.K., (1979–80) 3 EHRR 63.
13. Dudgeon v U.K., (1982) 4 EHRR 149.
14. See also Rees v U.K., (1986) EHRR 56; Cossey v U.K., (1991) 13 EHRR 622.
15. Powell and Rayner v U.K., (1990) 12 EHRR 355.
16. Niemietz v Germany, (1993) 16 EHRR 97.
17. Marckx v Belgium, (1979–80) 2 EHRR 330. See also Johnston v Ireland, (1987) 9 EHRR 203.
Page 459 of 467
18. Golder v U.K., (1979–80) 1 EHRR 524.
19. Wolf v Colorado, (1949) 338 US 50.
20. Breard v Alexandria, (1951) 341 US 622.
21. State v Murakami, (1948) 2 Sup. Ct. Rep. 191.
22. Kovacs v Cooper, (1949) 336 US 77.
23. Loving v Virginia, (1967) 388 US 1 (12) : 18 L Ed 2d 1010.
24. Paris Adult Theatre v Slaton, (1973) 413 US 49.
25. Griswold v Connecticut, (1965) 381 US 479 (494–95).
26. Roe v Wade, (1973) 410 US 113.
27. Jacobellis v Ohio, (1964) 378 US 184 (199).
28. Palko v Connecticut, (1937) 302 US 319 (325) : 82 L Ed 288.
29. Loving v Virginia, 388 US 1 : 18 L Ed 2d 1010.
30. Pierce v Society of Sisters, (268) US 510 : (1925) 69 L Ed 1070; Mayer v Nebraska, (262) US 390 : (1923) 67 L Ed
1042.
31. Paris Adult Theatre v Lewis R. Slaton, District Attorney, Atlanta Judicial Circuit, 413 US 49 : 37 L Ed 2d 446.
32. See also Roth v United States, 354 US 476 : 1 L Ed 2d 1498.
33. Mayer v Nebraska, 262 US 390 : (1923) 67 L Ed 1042.

Page 460 of 467
34. Stanley v Georgia, (1969) 394 US 557.
36. U.S. v Reidel, (1971) 402 US 351 (355); U.S. v Thirty-seven Photographs, (1971) 402 US 363 (376–77).
38. Jacobellis v Ohio, (1964) 378 US 184 (199).
39. Kharak Singh v State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436]: (1964) 1 SCR 332 [LNIND 1962 SC 436] :
(1963) 2 Crimes 329 : (1964) 2 SCJ 107; Govinda v State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124]: (1975) 3
40. District Registrar and Collector v Canara Bank, AIR 2005 SC 186 [LNIND 2004 SC 1478]: (2005) 1 SCC 496 [LNIND
2004 SC 1478]. See also Director of Revenue v Mohammad Nisar Holia, (2008) 2 SCC 370 [LNIND 2007 SC 1414];
Sharda v Dharampal, (2003) 5 SCC 493.
41. See in the connection the following cases also. (1) People’s Union for Civil Liberties v UOI, (1997) 1 SCC 301 : AIR
1997 SCC 568; “X” v Hospital “Z”, (1998) 8 SCC 296 [LNIND 1998 SC 1239] : AIR 1999 SC 495 [LNIND 1998 SC
1239]; People’s Union for Civil Liberties v UOI, (2003) 4 SCC 399 [LNIND 2003 SC 342] : AIR 2003 SC 2363 [LNIND
2003 SC 342]; Sharda v Dharmpal, (2003) 4 SCC 493 [LNIND 2003 SC 366] : AIR 2003 SC 3450 [LNIND 2003 SC
366]; R. Rajagopal @ R.R. Gopal v State of T.N., (1994) 6 SCC 632 [LNIND 1994 SC 958] : AIR 1995 SC 264 [LNIND
1994 SC 958]; R. Rajagopal @ R.R. Gopal v J. Jayalalitha, (2006) 2 LW 377(Mad); “X” v “Z”, AIR 2002 Del 217 [LNIND
2001 DEL 1771].
42. Noise Pollution v Re, AIR 2005 SC 3136 : (2005) 5 SCC 733.
43. See Selvi v State of Karnataka, (2010) 7 SCC 263 [LNIND 2010 SC 438] : AIR 2010 SC 1974 [LNINDORD 2010 SC
207].
44. BOI v O. P. Swarankar, AIR 2003 SC 858 [LNIND 2002 SC 817] : (2003) 2 SCC 722 .
45. People’s Union for Civil Liberties v UOI, (1998) 8 SCC 485
Page 461 of 467
46. M.C. Mehta v UOI, AIR 1998 SC 2340 [LNINDORD 1998 SC 2] : (1998) 6 SCC 60 [LNINDORD 1998 SC 2] : AIR
1998 SC 2963 [LNIND 1998 SC 1128] : (1998) 6 SCC 63 [LNIND 1998 SC 1128] ; Almitra H. Patel v UOI, (1998) 2
SCC 416 [LNIND 1998 SC 73] : AIR 1998 SC 933 .
47. State of Punjab v Ram Lubhaya Bagga, AIR 1998 SC 1703 [LNIND 1998 SC 245] : (1998) 4 SCC 177 [LNIND 1998
SC 245] .
48. Francis Coralie Mullin v Administration, Union Territory of Delhi, (1981) 1 SCC 618
49. Bandhua Mukti Morcha v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564] .
50. Salal Hydro Project v State of J&K, AIR 1984 SC 177 [LNIND 1983 SC 75] .
51. See also Shrinivas Gupta, Rights of Child and Child Labour—Notes and Comments, Vol 37, Journal of Indian Law
Institute, p 531.
52. Philips Alfred Malvin v Y.J. Gansalvas, AIR 1999 Ker. 187 [LNIND 1999 KER 2] .
53. (1979–80) 1 EHRR 524.
54. (1983) 5 EHRR 347.
55. Campbell v UK, (1993) 5 EHRR 137; Campbell and Fell v UK, (1984) 7 EHRR 165.
56. See R v Secretary of State for Home Dept. exparte Anderson, (1984) 2 WLR 725; see also Raymond v Honey, (1982)
1 All ER 756 (HL) : (1982) 1 AC 1 .
57. (1994) QB 198.
58. Lee v Washington, (1968) 390 US 333; Cruz v Beto, (1972) 405 US 319.
59. Wolf v McDonnell, (1974) 418 US 539.
60. Coffin v Reichard, (1994) 143 F 2d 443—6th Circuit 1944.
61. Procunier v Martinez, (1974) 416 US 396.
62. (1987) 482 US 78.

Page 462 of 467
63. See also O’Lone v Shabazz, (1987) 482 US 342.
64. See Jones v North Carolina Prisoners’ Union, (1977) 433 US 119.
65. Wolf v McDonnell, (supra).
66. (1984) 459 US 460.
67. (1985) 472 US 445.
68. Moody v Dagget, (1976) 429 US l78.
69. McKune v Lile, (2002) 122 S.Ct. 2017.
70. Lee v Washington, (1968) 390 US 333.
71. Cruz v Beto, (1972) 405 US 319.
72. Cruz v Beto, (1972) 405 US 319; Cooper v Pate, (1965) 378 US 546.
73. Ross v Moffitt, (1973) 417 US 600 (617).
74. Griffin v Illinois, (1956) 351 US 12; Draper v Washington, (1963) 372 US 487; Smith v Bennett, (1961) 365 US 708;
Burns v Ohio, (1959) 360 US 252.
75. Youngey v Gilmore, (1971) 404 US 15. See also Bounds v Smith, (1977) 430 US 817; Lewis v Casey, (1996) 518 US
343.
76. (1977) 430 US 817 – supra.
77. (1996) 518 US 343.

Page 463 of 467
78. Pell v Procunier, (1974) 417 US 817 (824).
79. Procunier v Martinez, (1974) 416 US 396 (416).
80. Sandin v Conner, (1995) 515 US 472.
81. (2002) 536 US 730.
82. Grayned v City of Rockford, (1972) 408 US 104 (115).
83. Pell v Procunier, (1974) 417 US 817 (824); Saxbe v Washington Post, (1974) 417 US 843.
84. Ex Parte Hull, (1941) 312 US 543.
85. Johnson v Avery, (1969) 393 US 483 (488). But see Shaw v Murphyey, (2001) 532 US 223; Porter v Nussle, (2002)
534 US 516.
86. Wolff v McDonnell, (1974) 418 US 539 (577).
87. See Turner v Safley, (1987) 482 US 78; O’Lone v Shabaaz, (1987) 482 US 342. See also Sandin v Conner, (1995)
515 US 472.
88. Jones v North Corolina Prisoners’ Union, (1977) 433 US 119.
89. Hewitt v Helms, (1983) 459 US 460; Superintendent v Hill, (1985) 472 US 445.
90. Sandin v Conner, (1995) 515 US472 : 115 S Ct 2293.
91. Turner v Safley, (1987) 482 US 78.
1. R. v Secretary for the Home Department Ex parte Leech, (1993) 4 All ER 539.
Page 464 of 467
2. Raymond v Honey, (1983) AC 1 ; Leech v Parkhurst Prison Deputy Governor, (1988) 2 WLR 290.
3. Golder v UK, (1979–80) 1 EHRR 524.
4. See also Illinois v Allen, 397 US 337 : 25 L Ed 2d 353; Charles Clarence Hamilton v Alabama, 368 US 52 : 7 L Ed 2d
114.
5. Yearbook on Human Rights, 1967, pp 103, 107, 125.
6. (1974) US 418 and 539.
7. Costello v Wainuright, 397 (F Supp 20).
8. (1944) 143 F 2nd 443 (6th Cirent – 1944).
9. (1974) 416 US 396.
10. Yearbook on Human Rights, 1967, pp 103, 107, 125.
11. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] (320) : AIR 1950 SC 27 [LNIND 1950 SC 22].
12. Pell v Procunier, (1973) 417 US 817 (822); Wolff v McDonnell, (1974) 418 US 539 (555).
13. Cruz v Beto, (1972) 405 US 319 (321); Price v Johnston, (1948) 334 US 266 (285).
14. Pell v Procunier, (1973) 417 US 817 (822); Wolff v McDonnell, (1974) 418 US 539 (555).
: 1966 Cr LJ 311.
: 1966 Cr LJ 311.
Page 465 of 467
17. AIR 1981 SC 2041 [LNIND 1981 SC 388].
18. See Addl. Secretary v Gadia, 1992 (Supp-1) SCC 496.
19. See T.V. Vatheeswaran v State of Tamil Nadu, AIR 1983 SC 361 [LNIND 1983 SC 43](2) : (1983) 2 SCC 68 [LNIND
1983 SC 58].
20. Kalyan Chandra Sarkar v Rajesh Ranjan, AIR 2005 SC 972 [LNIND 2005 SC 141]: (2005) 3 SCC 284 [LNIND 2005
SC 141].
21. A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196]: 1976 Supp SCR 172 : (1976) 2 SCC 521 [LNIND 1976
SC 196].
22. A virtual result of this decision was the Article 32 would cease to operate even though that Article had not been
specifically suspended under Article 359. There are also other points on which this decision is vulnerable. Its criticism
would be taken up under Article 32, post.
: 1966 Cr LJ 311.
24. UOI v Bhanudas, (1977) UJ SC 73 (74–5), reversing the decisions of the Maharashtra and Karnataka High Courts.
25. Satya v State of U.P., (1977) Cr LJ 115 (All).
26. See Article 359; see also DD Basu, Constitutional Law of India, 6th Edn, p 406.
28. State of Maharashtra v Saeed Sohail Sheik, AIR 2013 SC 168 [LNINDORD 2012 SC 393]: (2012) 13 SCC 192
[LNIND 2012 SC 1107] : (2013) Cr LJ 214.
Page 466 of 467
30. State of Gujarat v Honourable High Court of Gujarat, AIR 1998 SC 3164 [LNIND 1998 SC 920]: (1998) 7 SCC 392
[LNIND 1998 SC 920].
31. See also Prison Reforms Enhancement of Wages of Prisoners, Re, AIR 1983 Ker. 261 [LNIND 1983 KER 100]; Jail
Reforms Committee v State of Gujarat, (1985) Criminal Reference of 1984 (FB).
32. Jayendra Vishnu Thakur v State of Maharashtra, (2009) 7 SCC 104 [LNIND 2009 SC 1244].
34. See Babu Singh’s case (supra).
35. Hussainara Khatoon v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188]: (1980) 1 SCC 98 [LNIND 1979 SC
188].
36. Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1819 : (1980) 1 SCC 115; see also Veena Sethi v
State of Bihar, AIR 1983 SC 339 : (1982) 2 SCC 583; Satya Brat Jain v State of Bihar, AIR 2000 SC 1925 : (2000) 9
SCC 398; Common Cause v UOI, (1996) 4 SCC 33 [LNIND 1996 SC 897] : AIR 1996 SC 1619 [LNIND 1996 SC 897];
Common Cause v UOI, (1996) 6 SCC 775 [LNIND 1996 SC 2015] : AIR 1997 SC 1539 [LNINDORD 1996 SC 47]:
1997 Cr LJ 195.
37. Masroor v State of UP, (2009) 14 SCC 286 [LNIND 2009 SC 1006] : (2009) 3 SCC 90 [LNIND 2009 SC 66] (SC).
38. Gurbaksh Singh v State of Punjab, AIR 1980 SC 1632 [LNIND 1980 SC 168]: (1980) 2 SCC 565 [LNIND 1980 SC
168] : (1980) 2 SCR 383.
39. Narasimhalu v Public Prosecutor, AIR 1978 SC 429 [LNIND 1977 SC 336]: (1978) 1 SCC 240 [LNIND 1977 SC 336] :
(1978) 2 SCR 371 [LNIND 1977 SC 336].
40. AIR 1979 SC 1360 : (1980) 1 SCC 81.
41. Neumeister v Austria, (1968) 1 EHRR 91.

Page 467 of 467
End of Document
[Art. 21-A. Right to Education.-
42.[Art. 21-A. Right to Education.-
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine.]
[Art 21-A.1] Statement of Objects and Reasons.—
(1) “The Constitution of India in a Directive Principle contained in Article 45, has made a provision for free and
compulsory education for all children upto the age of 14 years within 10 years of promulgation of the
Constitution. We would not achieve this goal even after 50 years of adoption of the provision. The task of
providing education to all children in this age group gained momentum after National Policy of Education (NPE)
was announced in 1986. The Government of India, in partnership with the State Government has made
strenuous efforts to fulfil the mandate and though significant improvements were seen in various educational
indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfil
this goal, it is felt that an explicit provisions should be made in the part relating to Fundamental Rights of the
Constitution.
(2) With a view to making right to free and compulsory education a fundamental right, the Constitution (83rd
Amendment) Bill 1997 was introduced in Parliament to insert a new Article, namely Article 21-A, conferring on
all children in the age group of 6 to 14 years to right to free and compulsory education. The said Bill was
scrutinized by the Parliamentary Standing Committee on Human Resources Development and the subject was
also dealt with its 165th Report by the Law Commission of India.
Page 2 of 16
(3) After taking into consideration the report of the Law Commission of India, and the recommendation of the
Standing Committee of Parliament, the proposed amendments in Pt III, Pt IV and Pt IV-A of the Constitution are
being made which are as follows:—
(a) To provide for free and compulsory education to children in the age group of 6 to 14 years and for this
purpose, a legislation would be introduced in Parliament after the Constitution (93rd Amendment) Bill
2001 is enacted.
(b) To provide in Article 45 of the Constitution that the State shall endeavour to provide early childhood
care and education to children below the age of six years; and
(c) To amend Article 51A of the Constitution with a view to providing that it shall be the obligation of the
parents to provide opportunities for education to their children.
(4) The bill seeks to achieve the above objects.”
Right to education under this articles would cover primary as well as secondary education and petitioner can
claim the benefit of Pt III as well.43.
Right to education till children complete the age of 14 years being a fundamental right, the aided private Middle
Schools are entitled to full grants-in-aid from the State Government. So far as High Schools and Senior
Secondary Schools are concerned, the State Government is again under an obligation to provide education to
children studying in these schools who are fourteen years of age or less. The net result is that even in High
Schools and Senior Secondary Schools, upto 8th/9th class—the students being 14 or below—the State
Government is bound to provide free education and bound to meet total expenditure of the schools to that
extent. Financial constraint is not an answer for the constitutional duty.44. But see Maria Grace Rural Middle
School v Govt of T.N.,45. wherein it was held that the right to receive grant-in-aid for establishment and
administration of schools is not a right. Grant-in-aid in an economic concept that would always depend upon
subjective satisfaction, financial stability and resources as well as the discretion of the State Government. It is
also a matter of policy decision within the domain of the executive and not a matter of principle to be laid down
by the Legislature. See also Unni Krishnan K.P. v State of Andhra Pradesh,46. wherein it was held that free
education until the child completes 14 years is a fundamental right and after the child completes 14 years, his
Page 3 of 16
right to education is circumscribed by the limits of the economic capacity of the State and its development. In a
2005 judgment it was held that to improve education, various State Government grant aid to educational
institutions and by and large teachers of aided private schools deserve to be treated on a par with teachers of
Government Institution to the extent possible especially when Article 21-A makes education a fundamental
right.47.
Parliament has enacted “Right of Chldren to free and compulsory Education Act 2009”. Section3 of the Act
provides that every child of the age of six to fourteen years shall have a right to free and compulsory education
in a neighbourhood school till completion of the elementary education and it also provides that “no child shall be
compelled to pay any kind of fees or charges or expense which may prevent him or her from pursuing and
completing the elementary education”. An educational institution is charitable. Advancement of education is a
recognised head of charity. The Act has been enacted with the object of removing financial barriers which
prevent a child from accessing education. The Act is also enacted to prevent educational institution from
charging Capitation fees resulting in the creation of financial barriers which prevent a child from accessing or
exercising its right to education which is now provided far wide in Article 21A. The Act provides that no child
shall be liable to pay any kind of fees for pursuing or completing the elementary education.
Article 21A read with Article 19(1)(a) has been construed as giving all children the right to have primary
education in a medium of instruction of their choice.48. The article has been construed as the fundamental right
of each and every child to receive education free from fear of security and safety, so that children have a right
to receive education in a sound and safe building.49. In Ashok Thakur v UOI,50. court directed the Union of
India to set a time-limit within which this article (Article 21A) is going to be completely implemented. This time-
limit must be set within six months. In case the Union of India fails to fix the time-limit, then perhaps this work
will also have to be done by the court. The new legislation i.e., Right of Children to Free and Compulsory
Education Act will have to provide free and compulsory education upto a specified percentage of the total
number of children admitted. Charging of Capitation fees is prohibited, nor can a child or her family be
subjected to any screening procedure by a school. Keeping in view Article 51A, the Act casts a duty on every
parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to elementary
education in the neighbourhood school. (See section 10 of the legislation). Article 21A imposes a duty on the
State, while Article 51A(k) places the burden on the parents to provide free and compulsory education to
children at the age of 6 to 14 years.51. In Society for Unaided Private School of Rajasthan v UOI,52. it was held
that the provision to reserve 25% seats to economic or financial backwardness of students is valid. The Act was
held to apply to (1) schools established, owned, controlled by appropriate Government or local authority; (2) an
aided school including aided minority schools receiving aid or grant to meet whole or part of the expenses from
the appropriate Government or local authority; (3) the school belonging to specified category; and (4) an
Page 4 of 16
unaided non-minority receiving any kind of aid to meet the expenses from appropriate Government or local
authority. However, the law was held inapplicable in regard to unaided minority schools.
The above decision was held not applicable to minority aided or unaided schools covered by Article 30(1) of the
Constitution and to that extent the decision in Society for Unaided Private Schools of Rajasthan v UOI53. was
overruled and insertion of Article 21A by Constitution Amendment does not affect the basic structure of the
Constitution.54.
In a locality, where the inhabitual are mostly Scheduled caste and Schedule tribes and was educationally
socially and economically backward, refusal to grant permission to start a school on the ground that no policy
decision is taken by the Government in violation of this Article.55. Providing facilities for mid-day meal scheme
in schools is part of right to education. Hungry stomach cannot be expected to good education with
attention.56.
In respect of establishment of High School, to educate children beyond 14 years, though it may not be a
constitutional obligation or duty, yet education is part of human development and hence indisputably a human
right.57.
In Unnikrishnan’s case (supra) it was observed that though Article 41 which speaks of financial constraints,
Article 45 which provide for compulsory education upto the age of 14 years does not speak of the limits of its
economic capacity and development.
Increase of tax for educational institutions vehicles by multiples does not defeat the constitutional objection of
free and compulsory education under Article 21-A of the Constitution. Merely because institution are imparting
education, does not mean that they are not liable to pay vehicle tax towards cost and maintenance of road.58.
Under Articles 21 and 21A of the Constitution, a child has a fundamental right to claim from the State free
education upto the age of fourteen years. The language of Article 21A of the Constitution further makes it clear
that such free education which a child can claim from the Stale will be in a manner, as the State may, by law
determine. If, therefore, the State determines by law that in schools where free education is provided under
Article 21A of the Constitution, the medium of instruction would be in mother tongue or in any language, the
child cannot claim as of right under Articles 21 and 21A of the Constitution that he has a right to choose the
Page 5 of 16
medium of instruction in which education should be imparted to him by the State. Therefore, a child and on his
behalf his parent or guardian has the right to choose the medium of instruction at the primary school stage
under Article 19(1) (a) and not under Articles 21 and 21A.59. Court also held that State has no power under
Article 350A of the Constitution to compel the linguistic minorities to choose their mother tongue only as a
medium of instruction in primary school.
Keeping the objective of Article 21A in mind, its provision has been liberally construed allowing teachers60. and
educational institution61. to obtain benefits thereunder. The underlying logic is that the grants or benefits to
those involved in the process of education would also indirectly benefit those for whom the Article was primarily
intended. The same logic persuaded the court to hold that the services of the teachers may not be requisitioned
on the days on which school reopens.62. However, claims based on Article 21A to compel the State to give
grant,63. to control fees charged by private unaided school or to challenge conditions for grant of recognition
have been negatived by the High Court.
Article 21A has been described as the most important fundamental right and stands above other rights “as
one’s ability to enforce one’s fundamental right flows from one’s education”.64. In Rifahul Muslimeen Education
Trust, Mysore v State of Karnataka,65. it was held that implementation of mid-day meal scheme to minority
institution receiving grant-in-aid was not improper. Articles 29 and 30 could not be invoked by minority
institution. Payment of Rs 1.30 towards expenditure incurred on every student by the State was sufficient
enough to meet the requirement of mid-day meal. Courts will not interfere in such welfare measures and
deprive hungry stomach of the food. A hungry stomach cannot be expected to get good education with attention
and it was for this reason that Government has chosen to introduce the welfare measure.
Right to compulsory education to children aged six to 14 years, court has declared that State is obliged to
provide all basic requirements for running the school.66. Court has also said that right to education is not
limited only to learners of how to read and write or get information, but means acquiring knowledge and wisdom
to lead better life, become better citizens and serve the nation in a better way. Court said that for the above
purpose, there is necessity to have qualified teachers for imparting qualitative elementary or basic
education.67.
The obligation cast by Article 21A requires the State to expand substantially its network of school, so that a
child can go to a school which is within accessible distance. It also implies that education provided in these
schools must be of an acceptable or reasonable standard. Much needs to be done to make the right to
education available to all children between the age of six and fourteen. In the case of Super Star Education
Page 6 of 16
Society v State of Maharashtra,68. court observed that it was the duty of the State Government to provide
access to education and unless new schools in the private sector are permitted, it will not be possible for the
State to discharge its constitutional obligation.
Under Article 21A, it is mandatory obligation of the State to provide free and compulsory education to all
children aged six to fourteen. In order to achieve this constitutional mandate, the State has to place much
greater emphasis on allocation of more funds for primary and secondary education. There is no corresponding
constitutional right to higher education. The entire nation’s progress virtually depends upon the proper and
effective implementation of Article 21A.69.
In Ashok Kumar Thakur’s case, court also said that the Government is on the right track with regard to
improving the infrastructure of our system, books, building only go so far. They are necessary, but not sufficient
for achieving the ultimate goal of: (1) keeping children in school; (2) ensuring that they learn how to think
critically: and (3) ensuring that they learn skills that will help them secure gainful employment. When you lack a
school building, teacher, books and proper facilities, your schooling might be “free”, but it is not education in
proper sense. Adequate number of schools must be established with proper infrastructure without any delay. In
order to achieve the constitutional goal of free and compulsory education, we have to appreciate the reality on
the ground. A sizable section of the community is still so poor that many parents are compelled to send their
children to work. The State has to carve out innovative policies to ensure that parents send their children to
school. The Mid-day Meal Scheme will go a long way to achieve this goal. But, apart from mid-day meal,
Government should provide financial help to extremely poor parents. Ultimately this is the most important
aspect of implementing Article 21A, incentive should be provided to parents so that they are persuaded to send
their children to school. More than punishment, creative incentives programme will go a long way in the
implementation of fundamental right enshrined under Article 21A. Court also said that in essence, a citizen is
only free when he can make a meaningful challenge to his fellow citizens or Government’s attempt to curtail his
natural freedom. For this to happen, he needs a certain degree of education. This is why Article 21A may be the
most important fundamental right. Without it, a citizen may never come to know of his other rights, nor would he
have the resources to adequately enforce them. Without Article 21A, the other fundamental rights are
effectively rendered meaningless. Education stands above other rights, as no one’s ability to enforce one’s
fundamental rights flow from one’s education. This is ultimately why the judiciary must oversee the
Government’s spending on free and compulsory education. At the same time, it involves spending in an area in
which the judiciary must not overstep its constitutional mandate. The power of the purse is found in Part V,
Chapter II of the Constitution, which is dedicated to Parliament. Nevertheless it remains within the judiciary’s
scope to ensure that the fundamental right under Article 21A of Pt III is upheld.
Page 7 of 16
Education remains essential to the life of the individual, as much as health and dignity and the State must
provide it, comprehensively and completely, in order to satisfy its highest duty to citizens. Educating a child
requires more than a teacher and blackboard or a classroom and book. The right to education requires that a
child should study in a quality school and a quality school certainly should pose no threat to a child’s safety.
The Constitution likewise provides meaning to the word “education” beyond its dictionary meaning. Parents
should not be compelled to send their children to dangerous schools, nor should children suffer compulsory
education in unsound buildings. Likewise, the State’s reciprocal duty to parents begins with the provision of a
free education, and it extends to the State’s regulatory power. No matter where a family seeks to educate its
children, the State must ensure that children suffer no harm in exercising their fundamental right and civic duty.
States thus bears an additional burden of regulation, ensuring that schools provide safe facilities as part of
compulsory education.
Unlike other fundamental rights, the right to education places a burden not only on the State, but also on the
parent or guardian of the child, and on the child himself/herself. Article 21A places obligation, primarily on the
State. By contrast, Article 51A(k) places the burden squarely on the parents. The Constitution directs both
burdens to achieve one end i.e., compulsory education of children, free from the fetters of cost, parental
obstruction, or State’s inaction. The two articles also balance the relative burdens on parents and the State.
Parents sacrifice for the education of their children, by sending them to school for hours of the day, but only
with a commensurate sacrifice of the State’s resources. The right to education then, is more than a human or
fundamental right. It is a reciprocal agreement between the State and the family and it places an affirmative
burden on all participants in our civil society.70.
Article 2 of the European Convention on Human Rights provides that “no person shall be denied the right to
education. In the exercise of any functions which it assumes in relation to education and to teaching, the State
shall respect the right of parents to ensure such education and teaching in conformity with their own religious
and philosophical conviction”. In Belgian Linguistic case,71. it was held that Article 2 does not require the
contracting State to provide a particular type of education, it implies that the right of persons to “avail
themselves of the means of instruction existing at a given time”.
Constitutional validity of Article 21A was considered by the Supreme Court in Pramati Educational and Cultural
Trust v UOI.72. Court held that the above article which was inserted consequent to the Constitution (86th
Amendment) Act 2002 does not alter the basic structure of Constitution or framework of the Constitution and it
is constitutionally valid. Court also held that the legislation “Right of Children to Free and Compulsory Education
Act, 2009 in so far as it applies to minority schools, aided or unaided offends, Article 30(1) is not valid being
Page 8 of 16
ultra vires the Constitution. In the above case, court overruled an earlier decision in society for Unaided Private
Schools of Rajasthan v UOI73. which held that the legislation (i.e., Right of Children to Free and Compulsory
Education Act 2009) to the extent that the Act applies to minority schools, aided or unaided, is violative of
Article 30 of the Constitution was ultra vires. It held that 2009 Act will not apply to aided minority schools and
decision to the contrary in Rajasthan case is not correct. In that case, court further held that Article 21A casts
an obligation only on the State and its instrumentalities and not on private unaided educational institutions. A
new power, other than under Article 19(6) has been vested in the State to enable it to discharge its obligation
by making a law under Article 21A and there is nothing in Article 21A which conflicts with either the right of
private unaided schools under Article 19(1)(g) or the right of minority schools under Article 30(1) of the
Constitution, but law made under Article 21A may affect these rights under Articles 19(1)(g) and 30(1). The
power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will
abrogate the right of minorities to establish and administer schools of their choice.
In view of Article 21A, children upto the age of fourteen years have a fundamental right to free education. It is
State’s obligation to grant aid to recognised educational institution imparting basic primary education.74.
In Maharishi Mahesh Yogi Vedic Vishwa Vidyalaya v State of MP,75. court said that our nation is under an
obligation to implement Article 26 of Universal Declaration of Human Rights (i.e., right to education) to which
India is also a consenting party. As a corollary, from human rights perspective, Constitutional rights in regard to
education are to be automatically ensured. Right to education is a fundamental right under Article 21. The right
to education springs from right to life. The right to life under Article 21 and the dignity of individual cannot be
fully appreciated without enjoyment of right to education. The right to education will be meaningful only and only
if all the levels of education reach to all sections of people; otherwise, it will fail to achieve the target set out by
our Founding Fathers who intended to make the Indian society an egalitarian society.
Even before Article 21A was inserted in our Constitution, court has held that every citizen has a “right to
education” and the State is under an obligation to establish educational institution to enable the citizens to enjoy
the said right. The State may discharge its obligation through State-owned or State recognised educational
institutions. When the State Government grants recognition to the private educational institution, it creates an
agency to fulfil its obligation under the Constitution. The students are given admission to educational institution
– whether State owned or State recognised in recognition of their right to education under the Constitution.
Charging Capitation fees in consideration of admission to educational institution is a patent denial of a citizens’
right to education under the Constitution.76. In University of Delhi v Ram Nath,77. court said: “Education seeks
to build up the personality of the pupil by assisting physical, intellectual, moral and emotional development”.
Page 9 of 16
In Miss Mohini Jain’s case, the court accepted that Constitution does not expressly guarantee the right to
education, as such as a fundamental right. But reading Article 21 along with Directive Principles contained in
Articles 38, 39, 41 and 45, court held that it becomes clear that framers of the Constitution made it obligatory for
the State to provide education for its citizens.
The court said that without making the right to education under Article 41 a reality the Fundamental Rights
would remain beyond the reach of a large majority which is illiterate; the Fundamental Rights including the
freedom of speech and expression and other rights guaranteed under Article 19 cannot be fully appreciated and
fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. Further, life, in Article 21
means right to live with human dignity. “Right to life” is the compendious expression for all these rights which
are basic to the dignified enjoyment of life. Court said that right to education flows directly from the right to life
and the right to education being concomitant to fundamental right, the State is under a constitutional mandate
to provide educational institution at all levels for the benefit of citizens. While holding that charging of capitation
fee as wholly arbitrary and violative of Article 14 of the Constitution, the court said that the character of
capitation fee is nothing but a price for selling education and amounts to discrimination on a class basis and is
thus a denial of Article 14 because a poor meritorious student is denied admission to these institutions because
he has no money whereas a rich can purchase education. Court said: “Restricting admission to non-meritorious
candidates belonging to the richer section of society and denying the same to poor meritorious is wholly
arbitrary against constitutional scheme and as such cannot be legally permitted. Capitation fee in any form
cannot be sustained in the eye of law. The only method of admission to the medical colleges in consonance
with fair play and equity is by way of merit and merit alone. Court said that every citizen has a right to education
under the Constitution. The State is under an obligation to establish educational institution to enable the citizens
to enjoy the said right. The State may discharge its obligation through State owned or State recognised
educational institutions. Charging Capitation fee in consideration of admission to educational institution is a
patent denial of a citizen’s right to education under the Constitution. In the decision in Mohini Jain’s case, the
court took an extremely expansive view of State obligation to education to every one at all levels. Such an
approach was hardly viable, feasible and tenable in the present day economic situation of the country, for, no
State has financial wherewithal to meet public demand for professional colleges and it placed an impossible
financial burden on the State Government to provide education to all.
The matter whether State could permit private professional educational institution to charge Capitation fee for
admission came to be reconsidered in J.P. Unnikrishnan v State of AP.78. Court reiterated the proposition that
having regard to the fundamental significance of education to the life of an individual and the nation, the right to
education is implicit and flows from the right to life guaranteed under Article 21. Court said that parameters of
this right, which is not absolute, have to be determined in the light of Directive Principles contained in Articles
Page 10 of 16
41, 45 and 46. The court limited the State’s obligation to provide education facilities as follows:—(1) Every
citizen has a right to free education until he completes the age of fourteen years; (2) Beyond that stage, the
State’s obligation to provide education is subject to the limits of the economic capacity and development of the
State. Court observed that obligation created by Articles 41, 45 and 46 can be discharged by the State either by
establishing institutions of its own or by aiding, recognising and/or giving affiliation to private educational
institutions. Taking note of the inadequate outlay on education and limited economic capacity of the State to
finance education, court ruled that private educational institution both aided and unaided are a necessity in
India, but commercialisation of education cannot be and should not be permitted. While denouncing capitation
fee, court recognised and accepted that unaided private educational institution can charge higher tuition fee,
but not exceeding the ceiling limit. Court said that policy of admission in private institutions should not be based
on money consideration, but must be based only on merit and merit alone. Meritorious, but poor students
should not be excluded by unmeritorious but rich students. Merit alone should be a consideration for admission
in private colleges. In that case, court evolved a scheme as regards the level of fees chargeable by private
educational institutions as well as policy of admission.
The Scheme prepared by Court in Unnikrishnan’s case was held to be unreasonable restriction under Article
19(6) of the Constitution in T.M.A. Pai Foundation v State of Karnataka.79. Court said that the Scheme in effect
amounts to nationalisation of education in respect of important features viz., the right of a private unaided
institution to give admission and to fix the fee. The decision in T.M.A. Pai Foundation was explained and
elaborated in Islamic Academy of Education v State of Karnataka.80. In that case court recognised that in the
matter of determination of the fee structure, the unaided institution can exercise a greater autonomy. They, like
any other citizen carrying on an occupation, must be held to be entitled to a reasonable surplus for
development of education and expansion of the institution. Reasonable surplus doctrine can be given effect to
only if the institution makes profit out of their investments. The provision that Government would regulate the
fee would not constitute a reasonable restriction within the meaning of clause (6) of Article 19. Once it is so
held, such a provision would not also satisfy the test of permissible regulation within the meaning of Article 30
thereof.
In Ashok Kumar Thakur v UOI,81. court said that total compliance with Article 21A means that good quality
education is imparted and all children aged six to fourteen regularly attend schools. In that case court said that
education implies the idea that it will be quality education. The ultimate goal to be achieved under Article 21A
would be: (1) keeping children in school; (2) ensuring that they learn how to think critically and ensuring that
they learn skills that will help them secure gainful employment. Court also observed that root cause of social
and educational backwardness is poverty. Court said that education stands above other rights and without
properly implementing Article 21A, the other fundamental rights are effectively rendered meaningless.
Education stands above all other rights as one’s ability to enforce one’s fundamental right flows from one’s
Page 11 of 16
education. Education should be compulsory because in essence a citizen is free only when he can make
meaningful challenge to his fellow citizens or Government’s attempt to curtail his natural freedom and without
education a citizen may never come to know of his other rights. Court said that State is under a mandatory
obligation to implement Article 21A on a priority basis. Financial constraint cannot be a ground to deny
fundamental rights. Giving of financial incentives for ensuring school attendance is the most important aspect of
implementing Article 21A. Court said that though the power of public purse is vested in Parliament,
nevertheless it remains within the judiciary’s scope to ensure that fundamental right under Article 21A is upheld.
Supreme Court will not ignore the right under Article 21A when a dearth of quality schooling puts it in jeopardy.
Though the Government has a large area of discretion in choosing priorities, the fundamental stress has to be
on primary and secondary education so that a proper foundation for higher education can be effectively laid.
Court reminded that it is not merely the existence of a scheme, but the effective implementation thereof that is
important.
Education remains essential to the life of the individual as much as health and dignity and the State must
provide it comprehensively and completely in order to satisfy its highest duty to citizens. Educating a child
requires more than a teacher and blackboard or a classroom or a book. The right to education requires that a
child should study in a quality school and a quality school certainly should pose no threat to a child’s safety.
The Constitution likewise provides meaning to the word “education” beyond dictionary meaning. Parents should
not be compelled to send their children to dangerous schools, nor should children suffer compulsory education
in unsound buildings. Likewise, the State’s reciprocal duty to parents begins with the provision of free
education, and it extends to the State’s regulatory power. No matter where a family seeks to educate its
children, the State must ensure that children suffer no harm in exercising their fundamental right and civic duty.
States thus bear an additional burden of regulation, ensuring that schools provide safe facilities as part of
compulsory education.82. In that case, court further said that Article 21A imposes a burden on State to provide
free and compulsory education while Article 51A places burden entirely on parents. Right to education is more
than a human or fundamental right and it places an affirmative burden on all participants in civil society. The
aim of Article 21A is to provide compulsory education to children free from fetters of cost, parental obstruction
or State’s inaction.
Article 21A contemplates free and compulsory education. Court said that education is not limited only to
learning how to read and write or get information, but means acquiring knowledge and wisdom to lead better
life, become better citizens and serve the nation in a better way. Hence there is necessity to have qualified
teachers for imparting qualitative elementary or basic education. Strict compliance with eligibility conditions
prescribed for appointment of teachers must be fully satisfied.83. Right to education also contemplates right to
basic necessities/facilities and infrastructure.84. Court also took note of the fact that absence of toilet facilities
in schools being one of the main reasons for parents not sending their children (particularly girls) to school is
Page 12 of 16
violation of right to primary education under Article 21A. Direction was given to all States and Union Territories
to provide toilet facilities in schools.85. In Adarsh Shiksha Mahavidyalaya v Subash Rahangdale,86. court
pointed out the necessity of appointing properly trained teachers and filling the vacancies in various schools.87.
Children upto the age of fourteen years have a fundamental right to free education. Hence it is the duty or State
obligation to grant aid to recognised educational institutions imparting basic or primary education corresponding
to students of 6 to 14 years.88.
While implementing free and compulsory education under Article 21A, it is the parent or guardian to decide the
mother tongue, the language in which the child has to be taught. State cannot impose a particular languageas
medium of instruction.89.
42. Ins. by the Constitution (Eighty-sixth Amendment) Act, 2002, section 2, (w.e.f. 1-4-2010).
43. State of Maharashtra v Sant Dnyaneshwar Shikshan Shastri Mahavidyalaya, (2006) 9 SCC 1 [LNIND 2006 SC 231] .
44. State of H.P. v H.P. State Recognized and Aided Schools Managing Committee, (1995) 4 SCC 507 : JT (1995) 8 SC
406 .
45. Maria Grace Rural Middle School v Govt of T.N., (2006) 5 CTC 193 [LNIND 2006 MAD 1480] (Mad).
46. Unnikrishnan K.P. v State of Andhra Pradesh, AIR 1993 SC 2178 [LNIND 1993 SC 1110] : (1993) 1 SCC 645 [LNIND
1993 SC 1110] .
47. State of Rajasthan v Senior Higher Secondary School, (2005) 10 SCC 346 .
48. Associated Management of Primary and Secondary Schools in Karnataka v The State of Karnataka, ILR 2008
Karnataka 2895 [LNIND 2008 KANT 308] : (2008) 4 KLJ 593 .
Page 13 of 16
49. Avinash Mehrotra v UOI, (2009) 6 SCC 398 [LNIND 2009 SC 811] : (2009) 5 Scale 354 [LNIND 2009 SC 811] .
51. See Avinash Mehrotra v UOI, (2009) 6 SCC 398 [LNIND 2009 SC 811] : (2009) 5 Scale 354 [LNIND 2009 SC 811]
(supra).
52. (2012) 6 SCC 1 [LNIND 2012 SC 236] : 2009 Cr LJ 3012 .
53. (2012) 6 SCC 1 [LNIND 2012 SC 236] : 2009 Cr LJ 3012 (supra).
54. Pragmatic Educational & Cultural Trust v UOI, (2014) 8 SCC 1 [LNIND 2014 SC 166] : AIR 2014 SC 2114 [LNIND 2014
SC 166] .
55. State of Kerala v SC/ST Welfare Society of Kerala, AIR 2007 Ker. 158 .
56. Rifahul Muslim Education Trust v State of Karnataka, AIR 2005 Kant. 203 [LNIND 2005 KANT 34] .
57. State of Bihar v Project Uchcha Vidya Sikshak Sangh, (2006) 2 SCC 545 [LNIND 2006 SC 5] .
58. Association of Management of Nursery, Primary & Matriculation Schools v Govt. of Tamil Nadu, AIR 2007 Mad. 92
[LNIND 2006 MAD 2705] .
59. See State of Karnataka v Associated Management of (Govt. Recognised and Unaided English Medium) Primary &
Secondary Schools, AIR 2014 SC 2094 [LNIND 2014 SC 713] : (2014) 9 SCC 485 [LNIND 2014 SC 713] .
60. See State of Rajasthan v Senior Higher Secondary School, AIR 2005 SC 3543 : (2005) 10 SCC 346 .
61. State of Maharashtra v Sant Devaneshar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 [LNIND 2006 SC 231] .
Page 14 of 16
62. Election Commission of India v St. Mary’s School, AIR 2008 SC 655 [LNIND 2007 SC 1423] : (2008) 2 SCC 390
[LNIND 2007 SC 1423] .
63. Keraleeya Samajam v State of Maharashtra, (2004) 3 Bom (R 723).
64. Ashok Kumar Thakur v UOI, (2008) 6 SCC 1 [LNIND 2008 SC 873] : (2008) 5 Scale 1 [LNIND 2008 SC 873] .
65. AIR 2005 Kant. 203 [LNIND 2005 KANT 34] .
66. See Society for Unaided Private Schools of Rajasthan v UOI, AIR 2012 SC 3445 [LNIND 2012 SC 236] : (2012) 6 SCC
1 [LNIND 2012 SC 236] . See also Manohar Joshi v State of Maharashtra, AIR 2012 SC 2043 [LNIND 2011 SC 1130] :
(2012) 3 SCC 619 ; Environment and Consumer Protection Foundation v Delhi Admn., (2012) 10 SCC 206 : (2011) 11
Scale 12 .
67. See Bharatiya Seva Samaj Trust v Yogeshbhai Ambalal Patel, AIR 2012 SC 3285 [LNIND 2012 SC 549] : (2012) 9
SCC 310 [LNIND 2012 SC 549] ; see also State of UP v Bhupendra Nath Tripati, AIR 2010 SC 63 : (2010) 15 SCC 203
; Environment & Consumer Protection Foundation v Delhi Admn., (2011) 13 SCC 48 . See also between same parties
(2011) 13 SCC 1 : (2011) 13 SCC 1 6 : (2011) 7 SCC 57 .
69. See Ashok Kumar Thakur v UOI, (2008) 6 SCC 1 [LNIND 2008 SC 873] : (2008) 5 Scale 1 [LNIND 2008 SC 873] .
71. (1968) 1 EHRR 252 .
72. (2014) 8 SCC 1 [LNIND 2014 SC 166] : 2014 Cr LJ 784 : AIR 2014 SC 563 [LNIND 2013 SC 1059] (supra).
73. (2012) 6 SCC 1 [LNIND 2012 SC 236] : AIR 2012 SC 3445 [LNIND 2012 SC 236] (supra).
Page 15 of 16
74. State of UP v Pawan Kumar Dwivedi, (2014) 9 SCC 692 [LNIND 2014 SC 776] : (2014) 10 Scale 27 [LNIND 2014 SC
776] .
75. AIR 2013 SC (Supp) 744 : (2013) 15 SCC 677 [LNIND 2013 SC 587] .
76. See Miss Mohini Jain v State of Karnataka, AIR 1992 SC 1858 [LNIND 1992 SC 465] : (1992) 3 SCC 666 [LNIND 1992
SC 465] .
77. (1964) 2 SCR 703 .
83. Bharatiya Seva Samaj Trust v Yogeshbhai Ambalal Patel, AIR 2012 SC 3285 [LNIND 2012 SC 549] : (2012) 9 SCC
310 [LNIND 2012 SC 549] .
84. Environment and Consumer Protection Foundation v Delhi Admn., (2012) 10 SCC 206 : (2011) 11 Scale 12 .
85. Environment and Consumer Protection Foundation v Delhi Admn., (2012) 10 SCC 211 ; see also Environment and
Consumer Protection Foundation v Delhi Admn., (2012) 10 SCC 197 [LNIND 2012 SC 1067] : (2012) 10 SCC 212
(drinking water) : (2012) 10 SCC 204 ; Manohar Joshi v State of Maharashtra, AIR 2012 SC 2043 [LNIND 2011 SC
1130] : (2012) 3 SCC 619 .
Page 16 of 16
87. See also Environment and Consumer Protection Foundation v Delhi Admn., (2012) 12 SCC 287 : (2011) 13 SCC 48 :
(2011) 13 SCC 1 : (2011) 13 SCC 1 6 : (2011) 7 SCC 5 : (2011) 13 SCC 22 : (2011) 7 SCC 55 .
88. State of UP v Pawan Kumar Dwivedi, (2014) 9 SCC 692 [LNIND 2014 SC 776] .
89. State of Karnataka v Associated Management of English Medium Primary & Secondary Schools, AIR 2014 SC 2094
End of Document
Art.22 . Protection against arrest and detention in certain cases.-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate
within a period of twenty-four hours of such arrest excluding the time necessary for the journey from
the place of arrest to the court of the magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
1.(4) No law providing for preventive detention shall authorise the detention of a person for a longer
period than three months unless—
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed
as, Judges of a High Court has reported before the expiration of the said period of three months
that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the
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maximum period prescribed by any law made by Parliament under sub-clause (b) of Clause
(7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under
sub-clauses (a) and (b) of Clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the earliest opportunity of making a
representation against the order.
(6) Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause
to disclose facts which such authority considers to be against the public interest to disclose
2.(7) Parliament may by law prescribe—
(a) the circumstances under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause
(a) of Clause (4).
(b) the maximum period for which any person may in any class or classes of cases be detained under
any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
[Art. 22.1] Articles 21 and 22
1. Article 22 provides a limitation upon the power of the Legislature conferred by Article 21 to make any law as
to deprivation of personal liberty. Any such law must not contravene the conditions or limits imposed by the
present Article 22. The proper mode of construction as between Articles 21 and 22 is that—
to the extent the procedure is prescribed by Art. 22, the same is to be observed: otherwise Art. 21 will apply....If the
Legislature prescribes a procedure by a validly enacted law and such procedure in the case of Preventive Detention
does not come in conflict with the express provisions of Part III or Art. 22(4) to (7), the Preventive Detention Act must
be held valid notwithstanding that the court may not fully approve of the procedure prescribed under such Act.1.
In other words—
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The Constitution of India has given legislative powers to the States and the Central Government to pass laws
permitting preventive detention. In order that a legislation permitting preventive detention may not be contended to be
an infringement of the Fundamental Rights provided in Part III of the Constitution, Art. 22 lays down the permissible
limits of legislation empowering preventive detention. Art. 22 prescribes the minimum procedure that must be included
in any law permitting preventive detention and as such requirements are not observed the detention, even if valid ab
initio, ceases to be “in accordance with procedure established by law” and infringes the fundamental right of the detenu
guaranteed under Arts. 21 and 22(5) of the Constitution.1
2. Article 22 does not form a complete code of constitutional safeguards relating to preventive detention. To the
extent that provision is made in Article 22 it cannot be controlled by Article 21; but on points which expressly or
by necessary implication are not dealt with in Article 22, Article 21 will apply.2.
Consequently, in a case of preventive detention, the procedure prescribed by the law under which the detention
is made must be strictly followed, and if this is not done, the person detained is entitled to be released by the
court.2
3. The object behind including preventive detention in Pt III is to lay down certain limitations upon the power of
the Legislature to provide for preventive detention, e.g., those contained in Clauses (4)-(7) of Article 22.3.
4. Even though a detention may be valid ab initio, it may become illegal if the provisions of Article 21 or 22 are
violated subsequently.4.
5. The widening of the dimension of Article 21 in Maneka’s case5. extends also to cases of preventive detention
under Article 22.6. In the result, the procedure prescribed by a law of preventive detention as well as the
conditions of detention thereunder must be reasonable, fair and just,7. irrespective of any applicability of Article
19.
6. It is now settled that a law or order of preventive detention, in order to be valid, must comply with the
requirements of Articles 14, 19 and 21 as well.8.Article 22 was initially taken to be the only safeguard against
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the Legislature in respect of laws relating to deprivation of life and liberty protected by Article 21.9. That position
has been clearly changed since the decision in Maneka Gandhi v UOI.10. Now, Art, 21 itself has become an
almost inexhaustible source of restraint upon the Legislature. Consequently, the relationship between Articles
21 and 22 has drastically changed, rather reversed. Earlier, the procedure established by law for depriving a
person of his life or liberty under Article 21 drew its minimum contents from Article 22. But Article 21 had
nothing to offer to Article 22. Now Article 21 also contributes to Article 22. The matter on which Article 22 is
silent now draws their contents from Article 21. This is particularly true in respect of laws relating to preventive
detention which in addition to Article 22 have also to conform to the requirements of Article 21 at least to the
extent to which such requirements are not inconsistent with the express provisions of Article 22.11.
Individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by the
Constitution to the citizens of the country. In India, the utmost importance is given to life and personal liberty of
an individual since personal liberty is the paramount essential to human dignity and human happiness.
Constitution of India protects the liberty of an individual. Article 21 provides that no person shall be deprived of
his life and personal liberty except according to procedure established by law. In matters of preventive
detention, as there is deprivation of liberty without trial and subsequent arrest, safeguards are provided in
Article 22 of the Constitution. The Constitutional framework envisages protection of liberty as essential and
provides the circumstances under which it can be deprived.12. While considering the validity of a preventive
detention order, the court should keep in mind that although right to personal liberty is guaranteed under Article
21, yet at the same time, Article 22 of the Constitution permit preventive detention.13. While the ordinary law of
the land (Penal Code) is sufficient to deal with the situation, invoking the law of preventive detention amounts to
abuse of judicial process, which violates Articles 21 and 22 of the Constitution.14.
Article 22 cannot be read in isolation, but must be read in conjunction with Articles 19 and 21. Article 22(3)(b)
which permits preventive detention is not itself a fundamental right, but only an exception to Article 21. An
exception can apply only in rare and exceptional cases and it cannot override the main rule. Article 21 is the
most important of the fundamental rights guaranteed by the Constitution. Right to liberty guaranteed by Article
21 implies that before a person is imprisoned, a trial must ordinarily be held giving him full opportunity of
hearing and that too through a lawyer. Since Clause (3) of Article 22 specifically excludes the applicability of
Clauses (1) and (2) of Article 22, the detenu is not entitled to a lawyer or the right to be produced before a
magistrate.15.
Since Article 14 is applicable to a law made under Article 21 or 22, the procedure prescribed by such law must
be reasonable and not arbitrary.16. Arbitrariness is the very antithesis of Article 14.17.
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After considering the case-law on preventive detention which falls within Article 22, the Supreme Court put a
seal to the controversy on the scope of preventive detention law and held that it must also meet the
requirements of Articles 14 and 19.18. In A.K. Gopalan v State of Madras,19. the view was that the Articles 14,
19 and 21 were mutually exclusive and Article 19 would have no application to a law dealing with preventive
detention. While Article 21 provides that no person shall be deprived of his personal liberty except according to
procedure established by law, Article 22(4) to (7) lays down constitutional safeguards for the protection of a
citizen whose personal liberty may be affected by an order of detention passed against him.20. The principles
underlying Article 21 have been kept in view while drafting Article 22. A law properly made under Article 22 and
which is valid on this subject will fully satisfy the requirements of Article 21. There is conflict between these
articles.21. The permission given to the State by Article 21 to deprive a person of his liberty according to the
procedure established by law is expressly controlled by Article 22 in cases of both punitive and preventive
detention. In the case of arrest (punitive detention), safeguards are set out in Article 22(1) and (2), for
preventive detention the limitations are placed in sub-clauses (4) to (7) of Article 22.22.
[Art. 22.4] Scope of Article 22: Safeguards against Arbitrary Arrest and Detention
This article has two parts: One part deals with persons arrested under the ordinary law of crimes and another
deals with persons detained under a law of “preventive detention” (para 9).23.
(A) Ordinary law:
Clauses (1)-(2) provide certain constitutional limitations upon the Union and State Legislatures to make any law
of procedure (under Entry 2 of List III, read with Article 21) for depriving a person of his personal liberty. These
are: (i) The arrested person must, as soon as may be after arrest, be informed of the grounds of his arrest. (ii)
He must be produced before a Magistrate, within 24 hours of his arrest (excluding the time necessary for the
journey from the place of arrest to the court of the Magistrate) and then an order of the Magistrate confirming
the arrest must be obtained. (iii) The arrested person must be given the opportunity to consult a legal
practitioner and to defend himself.24.
(B) Law of preventive detention:
Clauses (4)-(6) provide certain limitations upon the Union and State Legislatures to make any law providing for
“preventive detention”, e.g., detention without trial, under Entries 9 of List I and 3 of List III,—to prevent
“arbitrary arrests” by the Executive under cover of such laws. These limitations are: (i) Government is ordinarily
entitled to detain person in custody only for 3 months. But Parliament is entitled to make a general law laying
down in what classes of cases, the detention may exceed three months. (ii) Apart from such law of Parliament
[Clause (7)(a)], Government may detain a person beyond 3 months, without trial, only if it obtains the report of
an Advisory Board that there is sufficient cause for such detention [Clause (4)(a)]. (iii) The authority making the
detention shall, as soon as may be, communicate to the detenu the grounds of his detention and offer him an
earliest opportunity to make representation against such order of detention [Clause (5)]. But the authority will
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not be bound to disclose facts which may be considered by itself to be against the public interest to disclose
[Clause (6)]. Persons detained under a law of preventive detention shall not be entitled to the protection of
Clauses (1)-(2). [Clause (3)(b)].25.
It is for the courts to jealously guard that the above limitations are not violated by the Executive or the
Legislature for,
Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has
provided against the improper exercise of the power must be jealously watched and enforced by the court.
[ART. 22.5] CLAUSE (1) OTHER CONSTITUTIONS (A) U.S.A.—
The 6th Amendment to the Constitution provides—
U.S.A.
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, and to be informed of the
nature and cause of the accusation, to be confronted with the witness against him; to have compulsory process for
obtaining witnesses in his favour, and to have the assistance of counsel for his defence.
As to the right to be informed of the cause of accusation, see ante.
The “right to counsel” implies not merely that the accused shall have the right to engage a lawyer where he has
the means to do so, but also a right to have a lawyer engaged by the court, where the accused is not in a
position to pay for the legal advice.26. This right, under the Sixth Amendment, extends to all criminal
proceedings in a federal court, irrespective of the nature of the offence involved, unless, of course, the accused
clearly27. waives his right 26 (see post). Any indirect infringement of the right is not tolerated, e.g., where one
counsel is assigned to represent more than one accused whose interests are not identical.28.
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The 6th Amendment is addressed to the Federal Government. In the case of State Courts, the right to counsel
has been deduced from the “Due Process” requirement of the Fourteenth Amendment.29. But whether the 6th
or the 14th Amendment applies, the standard is the same, viz., that of a fair trial.30. In Gideon’s case, the court
unanimously concluded that an indigent defendant’s right to court appointed counsel is fundamental and
essential to a fair trial in State as well as Federal felony prosecution. It was declared that precedent, reason and
reflection “require us to recognise that in our adversary system of criminal justice, any person hauled into court,
who is poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. Court said that
lawyers in criminal courts are necessities, not luxuries. In Argersinger v Hamlin,31. the court unanimously held
that “absent a knowing and intelligent waiver, no person may be imprisoned for any offence, whether classified
as petty, misdemeanour, or felony unless he was represented by a counsel at his trial”. In US v Wade,32. it was
held: “ … .it is central to the principle that in addition to counsel’s presence at trial, the accused is guaranteed
that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or
out, where counsel’s absence might derogate from the accused’s right to fair trial. On the basis of the above
principle, court has held that the accused has the right to counsel at such “critical stages” as in custody police
interrogation following arrest;33. the police line-up held for eye witness identification34.; the preliminary
hearing;35. the arraignment;36. the appeal;37. and even at a post-trial proceeding for the revocation of
probation and parole.38.
Nine years later, the court further extended the 6th Amendment guarantee of counsel to any defendant whose
sentence included a jail term. The indigent defendant’s right to have counsel provided for him at trial extended
to all but petty offences at the State level.39. It was held that the “requirement of counsel may well be
necessary for a fair trial even in a petty offence prosecution. We are by no means convinced that legal and
constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any
less complex than when a person can be sent off for six months or more.” The earlier decision in Duncan v
Lousiana,40. which held “that the right to court-appointed counsel extends only to trails for non-petty offences
punishable by more than six months imprisonment” was reversed.
Ambiguity remained on the decision in Arger Singer (supra) as to whether the appointment of counsel to an
indigent was triggered only in instances, where the defendant was in fact sentenced to a term of confinement or
whether the guarantee of counsel extended to trial of all offenses that carried a possible penalty of confinement,
even if the defendant was not ultimately sentenced to jail, but ordered to pay fine instead. In Scott v Illinois,41.
the court selected the first alienation as the proper interpretation of its Arger Singer holding. So if a judge
wanted to hold open the option of sentencing a defendant to jail, he would have to appoint a counsel at the
outset of legal proceedings; if he failed to appoint a counsel, any sentence of confinement would be foreclosed:
even if an indigent defendant, tried without counsel, convicted of a misdemeanour, and given a suspended
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sentence, later violates the terms of his probation.42. An indigent defendant’s right to have counsel provided for
him at trial thus extends to all but offenses at the State level.43.
In Chaplin & Drysdale Charterd v US,44. facts of the case posed a question regarding right to counsel in cases
where the accused is being charge-sheeted for offences in relation to federal Government’s ongoing war
against drugs. Can the Government constitutionally enforce a statute authorising forfeiture to the Government
of assets acquired as a result of drug law violation, if the criminal defendant intends to use these assets to pay
legal fees for his defence? Court said that a defendant in a drug case has no more Sixth Amendment right to
use funds obtained from illegal drug enterprise to pay for his defence than a robbery suspect has to use funds
he has stolen from a bank.45. In Ake v Oklahoma,46. the court said that where a defendant has made a
preliminary showing that his sanity at the time the crime was committed is likely to be a significant issue at trial,
the State must, as a matter of constitutional law, provide the aid of a psychiatrist on this matter, if the defendant
cannot otherwise afford such assistance.
The requirement of fair trial involves two things—(a) an opportunity to the accused to secure a counsel of his
own choice; (b) the duty of the State to provide a counsel to the accused in certain cases. These two rights of
the accused may be dealt with separately:
(a) In every case, irrespective of the gravity of the offence, the courts47. must offer the prisoner
reasonable time and opportunity to secure a counsel of his own.48. This right is unqualified49. and any
violation of this right vitiates the trial.50.
(b) As to the right to have a counsel appointed by the court at the cost of the State, a distinction was
previously made, under the “Due Process” Clause, between cases involving capital punishment and
other cases. But this distinction has been abolished.51. In all criminal cases, therefore, the accused
has the right to have a counsel appointed by the State, irrespective of any “special circumstances”.52.
The constitutional guarantee has been held to include not only the right to have a fair opportunity to secure a
counsel of his own choice53. but also the right to consult him privately and any violation of this right vitiates the
trial without proof of actual prejudice resulting from denial of the right.54. Thus, the presence of an agent of the
prosecution at the pre-trial conference of the accused with his counsel was held sufficient for quashing trial.55.
The right which is guaranteed by the Constitution is the right to have “effective” counsel,56. and the question
whether the right has been denied is one of substance. Assistance of counsel is effective only where the
accused is afforded a reasonable opportunity to consult with the counsel and counsel is afforded such
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opportunity to consult with the accused and to prepare his defence.56 The right is not complied with where the
counsel offered by the court is not devoted to the interests of the accused, e.g., where he is a Government
representative57. or also represents a co-accused whose defence is in conflict with that of the accused.55 The
right to counsel entails the right to “effective” counsel springs from the assumption that competent advocacy is
essential to the truth-finding process of the adversary system. Where an attorney’s representation of a
defendant has been so deficient as to undermine the “meaningful adverserial testing” of facts and the
presentation of argument in a criminal trail, the “reliability of the trial process” has been jeopardised as has the
prospect that justice has been done.58. Conviction was set aside on the ground that the defence counsel slept
during trial for periods of upto ten minutes and consequently “effective assistance of counsel” has been denied
and Sixth Amendment violated.59.
The Supreme Court of America has enunciated the view that provision of counsel only in nominal sense is
constitutionally inadequate because the Sixth Amendment necessarily includes “the guarantee of effective
assistance” of counsel. In U.S. v Cronic,60. the precept that the right to counsel entails the right to “effective”
counsel springs from the assumption that competent advocacy is essential to the truth-finding process of the
adversary system. Where an attorney’s representation of a defendant has been so deficient as to undermine
the “meaningful adversarial testing” of facts and the presentation of argument in a criminal trial “the reliability of
the trial process” has been jeopardized as has the prospect that justice has been done.61.
When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must
show that counsel’s representation fell below an objective standard of reasonableness. More specific guidelines
are not appropriate. Sixth Amendment refers simply to “counsel”, not specifying particular requirements of the
effective assistance. It relies instead on the legal profession, maintenance of standards sufficient to justify the
law’s presumption that counsel will fulfil the role in the adversary process that America envisions. The proper
measure of attorney performance remains simply reasonableness under prevailing professional norms.62.
But the right to counsel may be expressly waived by the accused, provided he does it voluntarily,63.
competently, with full comprehension of all the facts and circumstances which are essential to a proper
understanding of his right and its waiver, e.g., the nature of the charges, the range of punishment prescribed for
the offence and the like,64. and with the approval of the court which has the duty to satisfy itself that all the
foregoing conditions have been satisfied.65. Waiver is not dependent upon a plea of guilty or not guilty.66.
Pleading guilty of one charge does not constitute waiver of the right to counsel as regards other charges.67.
The failure of an insane person without counsel to raise the question of his insanity on appeal does not operate
as waiver of his constitutional right to counsel.68. Where right to counsel is found to be an element of “due
process” a finding of waiver of the right is not be lightly made.69.
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The right to assistance of counsel exists at every stage of the trial, from the arraignments70. up to the
sentence,71. and the right subsists whether the accused requests for counsel or not.72. A denial of this right
even in the pre-trial proceedings,73. violates due process if the accused is so prejudiced that his subsequent
trial is infected with an absence of “that fundamental fairness (which is) essential to the very concept of
Justice.”74.
The right to counsel at pre-trial stage which was recognised in Escobedo v Illinois,75. was extended “to post-
indictment line up” in United State v Wade.76. But in Kirby v Illinois,77. it was held that a person’s Sixth and
Fourteenth Amendments right to counsel attach only at or after the time that adversarial judicial proceedings
have been initiated against him.
Striving to maintain the integrity of the adversary system outside the court room as well as within, the court has
expanded the right to counsel in another direction as well, i.e., to include the critical investigation phases of the
criminal justice process. In Escobedo v Illinois,78. the court held that the right to counsel would become
applicable at the beginning of custodial interrogation or whenever the investigation is no longer a general
enquiry into an involved crime but has began to focus on a particular aspect. It was observed that since most
confessions are obtained during the period between arrest and indictment, its critical nature as a stage when
legal aid and advice are surely needed. The right to counsel would indeed be hallow if it began at a period
when few confessions were obtained.79. The principle has been applied when police line up held for
eyewitness identification,80. at preliminary hearing stage.81.
A Federal Rule of Criminal Procedure requires that an arrested person must be taken before a committing
Magistrate without “unnecessary delay”. Any confession made by an arrested person who is detained in
violation of this rule, shall be inadmissible at the trial.82.
In Douglas v California,83. the court held unconstitutional a California rule requiring State appellete courts on
the request of an indigent criminal defendant for counsel on appeal, to make “an independent investigation of
this record” and to appoint counsel “only” if in their opinion it would be helpful to the defendant or court. It was
held that when an indigent is forced to run gaunlet of a preliminary showing of merit, the right of appeal does
not comport with fair procedure. The “discrimination is not between “possibly good and bad cases”, but between
cases where rich men can require the court to listen to argument of counsel before deciding the case on merits,
but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich
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man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law,
and marshalling of arguments’ on his behalf, while the indigent, already burdened by a preliminary
determination that his case is without merit, is forced to shift for himself. The indigent, where the record is
unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful
appeal.”
In Murray v Giarratano,84. it was held that neither the Eighth Amendment nor the Due Process clause of the
Fourteenth Amendment requires States to appoint counsel for indigent death row inmates attacking their
conviction or sentence by petitioning for habeas corpus of the losing a direct relief.85.
(B) England.—
U.K.
(a) It is a fundamental principle of English common law86. that a citizen who is prima facie entitled to personal
freedom is also entitled to know why for the time being his freedom is interfered with. The object of the right to
be informed of the cause of arrest is to enable the person to take immediate steps for regaining his freedom.86
In that case,87. Liverpool Police had purported to exercise power of arrest contained in a local Act when they
knew that condition for this was not met. When the officers concerned were later sued for wrongful arrest and
false imprisonment, it was argued that the arrest was lawful because at the time they had information about
Leachinsky’s wrongful acts, which would have justified his arrest for another offence. The House of Lords held
that the arrest was unlawful, since it was a condition of a lawful arrest that the person arrested should be
entitled to know the reason for it. The actual charge need not be formulated at the time of arrest, but the
arrested man is entitled to be told what is the act for which he is arrested”. Indeed it has been said that giving
the correct information of the reason for an arrest was of the utmost constitutional guarantee.88. In Alderson v
Booth,89. the accused had given a positive breathalyzer test to a police officer who then said to the accused, “I
shall have to ask you to come to the police station for further tests”. He went and subsequently was acquitted at
his trial for drunk driving on the ground that he had not been arrested before going to the police station, a lawful
arrest being a condition precedent for a conviction under drink/driving legislation. On appeal, the acquittal was
upheld, the court taking the view that compulsion is a necessary element of arrest and police officer should use
clear words to bring home to a person that he or she is under arrest such as the words “I arrest you”.
Section 28(3) of the Police and Criminal Evidence Act, 1984 provides that “no arrest shall be lawful unless the
person arrested is informed of the ground of his arrest at the time of, or as soon as practicable after the arrest.
Whilst it is true to state this person should be informed of the grounds of his arrest, as soon as was practicable,
this does not retrospectively make the arrest unlawful. It was held “ … that does not mean that acts, which were
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previously done and were, when done, done in the execution of this duty, because retrospectively, acts which
were not done in the execution of duty”.90. Even if the reasons are somewhat imprecise, but nevertheless the
suspect understands why he was arrested, the arrest will be valid.91.
Article 9 of the Universal Declaration of Human Rights also provides that all prisoners have got a right to be
informed of the ground of arrest and also a right to be brought before court promptly on arrest.92.
(i) If the arrest was authorised by a magisterial warrant or if proceedings were instituted by the issue of a
summons, the warrant or summons must specify the offence and, in normal cases, the warrant has to
be read to the person arrested.93. But when national security is at stake, Courts would modify the rules
of natural justice for the protection of the realm or treat the question of security measures as not open
to judicial review.94. This principle is now embodied also in the Criminal Justice Act, 1967.
(ii) The same principle applies when a policeman or a private person arrests another person on suspicion
(where the law authorises such arrest) in all such cases, the person who makes the arrest must, as a
rule, inform the arrested person of the true ground of his arrest and, in default of such information, the
person who makes the arrest is liable for false imprisonment 93 except where the person arrested
himself produces a situation which makes it practically impossible to inform him, e.g., by immediate
counter-attack or by running away,93 or where the circumstances of the arrest are such that the person
must know the reason already, e.g., where he is caught red-handed. It is not necessary to
communicate a formal charge, clothed in any technical language,93 but the arrested person is entitled
to know the substance of the alleged offence for which he is arrested.93 In Taylor v Chief Constable of
the Thames Valley,95. Court of Appeal stressed the fundamental principle that a policeman must give
clear reasons for arresting someone, basing this on the value of human dignity. In Hill v Chief
Constable of South Yorkshire,96. the court said that arrest must also be executed in a proper manner,
which means that the arrested person must be told of the fact of arrest (i.e., that he or she is under
arrest) and also of the reason for arrest.
(b) At common law, a prisoner had no right to be defended by a counsel. Exceptions have, however, been
engrafted by statutes. Thus, in 1695, a statute permitted one accused of treason to be defended by a counsel,
and in 1836, the right was extended to persons accused of summary offences and charges of felony. Next, the
Poor Prisoners’ Defence Act, 1930, provided for the supply at public expense of legal aid to poor persons
accused of crime. Finally came the Legal Aid and Advice Acts, 1949–74, which have been already noted.
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See Home v Maze Prison Board of Visitors,97. if the accused is an indigent person, he may obtain for legal
representation at Government cost, by applying under the Legal Aid Act, where an indigent person applies for
legal aid, but is denied free legal representation for no fault on his part, the conviction is liable to be
quashed.98.
Litigants are entitled not just access to justice, but to effective access. It may sometimes be impossible without
legal representation. Where this is so, the State has an obligation under ECHR Article 6 to provide legal
representation at public expense. Where no fair trial can take place without legal representation, the person
who approches the court must be provided with legal assistance. “The test is whether a court is put in a position
that it cannot really do justice in the case, because it has no confidence in its ability to group the facts and
principles of the matter on which it has to decide. In such a case, it may well be said that a litigant is deprived of
effective access; deprived of effective access because although he can present his case in person, he cannot
do so in a way which will enable the court to fulfil its paramount and overarching function of reaching a just
decision.1. The decision must now be read in the light of European Court on Human Rights judgment in Steel
and Morris v U.K.2. In Murray v U.K.,3. the court held that Article 6 of the European Convention on Human
Rights confers a right to fair trial by an impartial tribunal of a person’s civil right and obligation and/or criminal
charge against him or her including the right to presume innoncence of criminal charge until proved guilty and
the right to be defended by a lawyer and to have free legal assistance when the interest of justice requires.
(C) Japan.—
Article XXXIV of the Japanese Constitution, 1946, says:
Japan
No person shall be arrested or detained without being at once informed of the charges against him or without the
immediate privilege of counsel; nor shall be detained without adequate cause; and upon demand of any person such
cause must be immediately shown in open court in his presence and the presence of his counsel.
Article XXXVII further provides:

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At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure
the same by his own efforts, be assigned to his use by the State.
(D) West Germany.—
Article 104 of the West Germany Constitution (1949) provides:
West Germany
(2) only the judge shall decide on the admissibility and continued duration of a deprivation of liberty. If such deprivation
is not based on the order of a judge, a court decision must be obtained without delay. The police may, on its own
authority, hold no one in custody beyond the end of the day following the arrest. Details shall be regulated by
legislation.
(3) Any person temporarily detained on suspicion of having committed a punishable act must, at the latest on the day
following the arrest, be brought before a judge who shall inform him of the reasons for the arrest, interrogate him, and
give him an opportunity to raise objections. Without delay, the judge must either issue warrant of arrest setting out the
reasons thereof, or order his release.
The right to legal advice is not explicitly guaranteed by any provision of the Constitution, but is ensured by the
ordinary law, e.g., the Code of Criminal Procedure. Nevertheless, the Federal Constitutional Court has
interfered on the ground that the guarantee of “equality before the law” [Article 3(1)] has been violated where
owing to poverty or like circumstances, an accused had no legal assistance at a trial.
[ART. 22.6] INTERNATIONAL CHARTERS A. International Covenant on Civil and Political Rights, 1966.—
Article 9(2) of the Covenant on Civil and Political Rights, 1966 says:
International Covenant on Civil and Political Rights, 1966
Anyone who is arrested shall be informed promptly of the reasons for his arrest and of any charges against him.
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Article 9(3) is—
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release….
Article 14(3) provides—
3. In the determination of any criminal charge against him everyone shall be entitled to the following minimum
guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the
charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his
own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence and to defend himself in person or through legal assistance of his own choosing; to
be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him,
in any case where the interests of justice so require, and without payment by him in any such case if he does
not have sufficient means to pay for it.
B. European Convention.—
Articles 5(2)(3) and 6(3) of the Convention are similar as above.4.
European Convention
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Under Article 5(2) the arrested person must be given the reasons for the arrest “promptly”. The reasons
themselves do not have to be exact, but nor can they be too general. It is generally a question of whether the
reasons given for the arrest had sufficient substance, taking into account all the material circumstances of the
arrest, and may seemingly, include any subsequent questioning. In Fox, Campbell and Hartley v UK,5. the
arrestees were merely informed that they were being taken into custody on the suspicion of being terrorists.
This, by itself, would not normally constitute “sufficient reasons”. However, the questions put to them whilst in
custody were restricted to specific terrorist activities and whether they were members of proscribed
organisation. Under these circumstances, it was reasonable to suppose that the applicant realised the reason
for their arrest. It was held there was no breach of Article 5(2).
However, the word “promptly” would indicate that the reasons for the arrest need to be conveyed,
circumstances permitting “at once” or at least within a short time. But there may be circumstances which
prevent reasons for the arrest being given immediately e.g., the suspect at the time of arrest resisted it or was
not in a fit condition i.e., drunk, injured, mentally disadvantaged or was devoid of understanding, etc. But
questioning later at the police station should only be relevant as to the reasons why the individual was arrested
in the first place, and not to substantiate an arrest. After all, deprivation of liberty begins from the moment of
arrest.
Article 5(3) of the European Convention says that once the suspect is not released, then he must be brought
“promptly” before a competent legal authority. The reason why the word “promptly” in this context is given such
importance lies in safeguarding an individual’s right to liberty against any arbitrary interference by the national
authorities. Once his liberty has been forfeited, whether there was a lack of “promptness” involved such that the
suspect suffered an unduly lengthy detention before his court appearance will depend upon all the
circumstances of the case. Judicial control of interference by the Executive with the individual’s right to liberty is
an essential feature of the guarantee embodied in Article 5(3) which is intended to minimise the risk of
arbitrariness.6.
[ART. 22.7] INDIA [Art. 22.7.1] Scope of Clauses (1)-(2)
1. Article 21 guarantees that no person is to be deprived of his personal liberty except according to “procedure
established by law”. Clauses (1)-(2) of Article 22 prescribed the minimum that the procedure established by law
must provide when a person is arrested except in the case of an enemy alien or under a law of preventive
detention.7.
2. These clauses lay down the procedure and safeguards which are to be followed when a person is arrested.8.
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What is an arrest? Normally it constitutes a loss of liberty on the part of the arrestee—freedom to move about is
restricted or removed and ultimately, it involves the suspect being taken to custody. The act of arrest consists of
the touching or seizure of a person’s body in order to facilitate his restraint, or words may suffice if the arrestee
submits voluntarily.9. The word “arrest” when used in its ordinary and natural sense, means the apprehension
or restraint or the deprivation of one’s personal liberty. The question whether the person is under arrest or not,
depends not on the legality of arrest, but on whether he has been deprived of his personal liberty to go
wherever he pleases. When used in the legal sense in connection with criminal offences, an arrest consists in
the taking into custody of another person under authority empowered by law, for the purpose of holding or
detaining him to answer criminal charge or of preventing the commission of a criminal offence. The essential
elements to constitute an arrest in the above sense are that there must be an intent to arrest under the
authority, accompanied by seizure or detention of the person in the manner known to law which is so
understood by the person arrested.10. When a police constable says to a man, “come along with me. I am
taking you to the station; that is an arrest.”11.
The word “arrest” is derived from the French word “Arreter” meaning “to stop or stay” and signifies a restraint of
the person. Lexicologically, the meaning of “arrest” is given in various dictionaries depending upon
circumstances in which the said expression is used. In every arrest there is custody, but not vice versa and
both the words “custody” and “arrest” are not synonymous terms. Custody may amount to an arrest in certain
circumstances, but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing
but an ultra legalist interpretation which if under all circumstances accepted and adopted would lead to a
startling anomaly resulting in serious consequences.12. The expression “arrest” appearing in Article 22 of
Constitution of India is a comprehensive term which is designed to cover all cases in which a person is
apprehended by legal authority and is not confined to cases in which a person is apprehended by or under the
order of a civil or criminal court. It covers not only cases of punitive and preventive detention, but also cases of
what may, for convenience, be called protective detention.13. Arrest signifies a restraint of a person. Arrest is
thus a restraint of a man’s person, obliging him to be obedient to law. “Arrest” thus may be defined as “the
execution of the command of a court of law or of a duly authorised officer”.14. Division Bench of the Kerala
High Court has held that in cases where the accused persons were not arrested by the police, but surrendered
before the Magistrate, the taking into custody of such person by Magistrate will come within the ambit of the
term “arrest”.15.
The significance of the act of arrest is that it is at that moment that an individual loses his or her liberty and if
the arrest is lawful becomes subject to lawful detention.16. Arrest commonly involves actual physical seizure
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(apprehension) of a person using no more force than reasonably necessary, or a token restraint of a person’s
liberty indicating its compulsory nature.17.
The provision of arrest is to compel the attendance for the conduct of a proceeding. In law, the arrest can be
said to be an executive action or enforcement of a legal process requiring the attendance in a proceeding either
suo moto by police or an order of court. Such attendance generally consists of representing or defending. In
other words, the arrest includes taking the person into custody under the authority of law for the purpose of
holding an enquiry or to answer a charge or to prevent commission of an offence.18.
They ensure four rights to the person arrested: (a) right to be informed regarding grounds of arrest; (b) right to
consult and to be defended by a legal practitioner of choice; (c) right to be produced before a Magistrate within
24 hours; (d) freedom from detention beyond the said period except by order of the Magistrate.19.
Information about the grounds of arrest is mandatory under Article 22(1).20. A person’s personal liberty cannot
be curtailed by arrest without informing him, as soon as possible, why he is arrested.21. Failure to inform the
person arrested of the reason for his arrest would entitle him to be released.22.
The right to consult and to be defended by a lawyer of his choice is a mandatory rule. Some railway porters
offered satyagraha at a railway station. They were arrested, tried and convicted under certain provisions of
Railway Act. No information was given to them about the date of trial nor they were told that under Article 22(1)
they had a right to consult and be defended by a legal practitioner. It was held that Article 22(1) had been
violated and the trial was vitiated.23. Personal liberty is invaded by arrest and continues to be restrained during
the period a person is on bail and it matters not whether there is or is not a possibility of imprisonment.24. In
order to effectuate the right to consult a lawyer of his choice properly and reasonably, it is necessary that such
legal practitioner is allowed the facility to consult the accused without the hearing of the police. A court cannot
direct consultation between the accused and the counsel in the presence of police.25. The right to consult a
legal practitioner starts from the day of arrest.26. The right arises as soon as a person is arrested. Article 22(1)
does not mean that a person who is not under arrest or custody can be denied the right to consult an advocate
of his choice. The spirit of Article 22(1) is that it is fundamental to the rule of law that the services of a lawyer
shall be available for consultation to any accused person under “circumstances of near custodial
interrogation”.27. Expeditious disposal of criminal case may be commendable, but the commencing of the trial
at night and hurrying through it when it is not possible for the accused to have any communication with any
lawyer or to procure legal assistance for his defence could not be countenanced in any circumstances.28. State
Government cannot engage a lawyer without ascertaining the wishes of the accused and without giving him any
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choice in selecting his lawyer for the reason that Article 22(1) guarantees that the choice of a lawyer for the
defence can only be of the accused himself. Court cannot thrust a counsel of its choice and make that counsel
to defend the case against the will of the accused. In such cases, it was held that the accused was not allowed
adequate opportunity to defend himself and trial was vitiated.29.
A person arrested on the accusation of a crime has a constitutional right to be defended by a counsel at a
subsequent trial of the crime for which he is arrested before the Nyaya Panchayat or before any court where
the case is subsequently transferred and where a lawyer is not allowed to appear.30.
The right to life of a citizen cannot be put in abeyance on his arrest. The precious right by Article 21 of the
Constitution of India cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except
according to procedure established by law by placing such reasonable restrictions as are permitted by law.31.
Arrest can cause incalculable harm to a person’s reputation and self-esteem. Arrest should be made not merely
on suspicion, but only after a reasonable satisfaction reached after some investigation as to the genuineness
and bona fide of the complaint and a reasonable belief as to the person’s complicity and even as to the need to
effect arrest.
The right of the arrested person to have someone informed upon request and to consult privately with a lawyer
was recognized by section 56(1) of the Police and Criminal Evidence Act, 1984 in England. These rights are
inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected.
Hence, (1) an arrested person being held in custody is entitled, if he so requests to have one friend, relative or
other persons who is known to him or likely to take an interest in his welfare told as far as is practicable that he
has been arrested and where he is being detained; (2) the police officer shall inform the arrested person when
he is brought to the police station of his right; (3) an entry shall be required to be made in the diary as to who
was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22 and
enforced strictly. It shall be the duty of the Magistrate before whom the arrested person is produced, to satisfy
himself that these requirements have been complied with. These requirements were held to be in addition to
the safeguards provided in various police manual.32. In the article “Human Rights in Prisons” by FORMER
CHIEF JUSTICE J.S. VERMA33. it has been stated that statistics reveal that nearly two–third of the arrests
made by the police are arbitrary and unnecessary. In Dilip Kumar Basu v State of W.B.,34. the Supreme Court
took judicial notice of third degree methods adopted by the police during investigation, which was held to be
“totally impermissible” and issued various guidelines to assure transparency and accountability against abuse
of police power. Some of the guidelines are:
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(i) The police personnel carrying out and handling interrogation of the arrestee should bear accurate,
visible and clear identification and name tags with their designation and the particulars of all such
police personnel who handle interrogation of the arrestee must be recorded in the register.
(ii) The police officer carrying out the arrest of arrestee shall prepare a memo of arrest and such memo
shall be attested by atleast one witness, who may either be a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
(iii) A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lockup shall be entitled to have one friend or relative or other person
known to him or having interest in his welfare being informed as soon as practicable that he has been
arrested and is being detained at the particular place, unless the attesting witness of the memo of
arrest is himself such a friend or relative of the arrestee.
(iv) The time, place of arrest and venue of custody of the arrestee must be notified by the police where the
next friend or relative of the arrestee lives outside the District or through the Legal Aid Organization in
the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours
of the arrest.
(v) A person arrested must be made aware of this right to have someone informed of his right or detention
as soon as he is put under arrest or detention.
(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person which
shall also disclose the name of the next friend of the person who has been informed of the arrest and
the names and particulars of the police officials in whose custody the arrestee is.
(vii) The arrestee should, where he so requires to be examined at the time of arrest and major and minor
injuries, if any present on his/her body, must be recorded at the time. The “Inspection Memo” must be
signed both by the arrestee and the police officer affecting the arrest and its copy provided to the
arrestee.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved doctors appointed by Director, Health
Services of the State or Union Territory concerned. Director, Health Services should prepare such a
panel for all the Tehsils and Districts as well. Section 54 CrPC 1973 provides for examination of an
arrested person by a medical practitioner at the request of an arrested person and it is a right conferred
on the arrested person. But very often the arrested person is not aware of this right even though he
may have been tortured or maltreated by the police in police lock up. It is for this reason Supreme
Court in Sheela Barse v State of Maharashtra,35. gave a specific direction requiring the magistrate to
inform the arrested person about this right of medical examination in case he has any complaint of
torture or mal-treatment in police custody. When an accused person sought his medical examination in
case of torture, the procedure adopted by Magistrate in examining the body of the accused person
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himself and dismissing the application for medical examination holding that on his observation that they
were not seen in normal postures, is wholly unwarranted and atrocious. He did not spell out as to how
medical examination would have defeated the ends of justice. Such procedure which is violative of the
statutory provision calls for interference by High Court under section 482 CrPC.36.
(ix) Copies of all documents including memo of arrest should be sent to the Illaque Magistrate for the
record.
(x) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation. Right to fair trial contemplates right to be represented by a lawyer.37. A resolution by Bar
Association that no advocate shall appear to a particular accused was held by the Supreme Court as
violative of Article 22(1) and the resolution was declared as null and void.38.
At the commencement of trial, the Magistrate has a constitutional duty to provide an accused with
a lawyer, even if the accused did not ask for it. Failure to provide a lawyer at trial stage will vitiate
the trial.39. In that case court further said that right to have the assistance of a lawyer arises when
the person arrested in connection with a cognizable offence is first produced before the Magistrate.
It is the duty of the Magistrate to inform the accused and to make the accused aware of his right to
have a counsel.40.
(xi) A police control room should be provided at all District and State Headquarters where information
causing the arrest within twelve hours of effecting the arrest and at the police control room, it should be
displayed on a conspicuous notice board.
It was further directed that the direction made above will be equally applicable to other governmental agencies
like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, CRPF, BSF, CISF, State
Armed Police, Intelligence agencies like Intelligence Bureau, RAW, CBI, CID, Traffic Police, Mounted police
and ITBP.
In so far as the first part of Article 22(1) is concerned, it enacts a very simple safeguard for persons arrested. It
merely says that an arrested person must be told the grounds of his arrest. In other words, a person’s personal
liberty cannot be curtailed by arrest without informing him as soon as possible, why he is arrested,41. where the
State launches false cases against the defence lawyers, it amounts to denial of opportunity to engage a lawyer
and violative of Article 22(1).42. The right guaranteed under Article 22(1) commences from the moment of
arrest and extends throughout the trial even if he is enlarged and bail.43.
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Grounds of arrest should not be vague. It must be clear.44.
3. The language of Clauses (1) and (2) of this article suggests that the fundamental right conferred by this
Article gives protection against such arrests as are effected otherwise than under a warrant issued by a court
on the allegation or accusation that the arrested person has or is suspected to have committed or is about or
likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State
interest. In other words, there is indication in the article that it was designed to give protection against the act of
the Executive or other non-judicial authority.45. In Ajaib Singh’s case, the court said that the taking into custody
of an abducted person by a police officer and delivery of such person by him into the custody of the Officer-in-
charge of the nearest camp under section 4 of the Abducted Persons (Recovery and Restoration) Act, 1949
was held not to constitute “arrest and detention” within the meaning of Article 22(1) and (2) of the Constitution
because there was no allegation or accusation of any actual or apprehended commission by that person of any
offence of a criminal or quasi-criminal nature.
4. Two conditions are necessary for the application of Clauses (1)-(2):
(i) The arrest must have been made without warrant of a court.46.
(ii) The person must have been taken into custody on the allegation or accusation of an actual or suspected or
apprehended commission by that person of any offence of a criminal or quasi-criminal nature or some act
prejudicial to the public interest.46
Clauses (l)-(2) do not apply to arrests made under a warrant of court—for a person arrested under warrant of a
court is made acquainted with the grounds of his arrest before the arrest is actually effected.45
5. It follows that Articles 22(1)-(2) have no application to—
(a) Arrest and detention under section 123 of the CrPC (1898)47. (for failure to give security).
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(b) Arrest and detention ordered by a Panchayati Adalat in default of payment of fine.48. Likewise, an
arrest and detention of a defaulter who fails to pay income-tax does not come within the purview of
clauses (1) and (2) because the purpose of arrest is not to punish him for an offence, but to make him
to pay the arrears.49.
(c) The words “arrest and detention” have been interpreted to mean arrest and detention by a non-judicial
authority upon an accusation of a criminal or quasi-criminal nature,50. so as to exclude from its
purview arrests for the purpose of carrying out the provisions of a statute of a civil nature.51. It will be
emphasised that Article 22(2) is applicable only at a stage when a person has been arrested and is
accused of an offence or other act and it can have no application after such person has been adjudged
guilty of the offence and is detained in pursuance of the conviction by court.52.
Removal of a person from a brothel under the Bengal Suppression of Immoral Traffic Act,53. deportation of an
alien,54. etc., it was held that externment is not detention, for a detention means that the person detained is at
liberty to go nowhere. In externment, the person externed is free to go anywhere save the place from where he
is externed.
6. Clauses (1)-(2) do not apply to imprisonment on conviction by court.55.
Clauses (1) and (2) of Article 22 confer four rights upon a person who has been arrested. Firstly, he shall not be
detained in custody without being informed, as soon as may be, of the grounds of his arrest. If information is
delayed, there must be some reasonable justification.56. Information about grounds of arrest is mandatory
under Article 22(1).57. A person’s personal liberty cannot be curtailed by arrest without informing him, as soon
as possible, why he is arrested.58. Failure to inform the person arrested of the reason for his arrest would
entitle him to be released.59. At the same time, it is not necessary to furnish him with full details of the offence,
but the information should be sufficient to enable him to understand why he has been arrested and to give him
an idea of the offence which he is alleged to have committed. The grounds given to the arrested person should
be intelligible.60. In such cases, the court can go into the question of sufficiency of the information supplied to
the arrested person and if it finds the information to be insufficient, the arrest becomes unlawful. Merely telling a
person that he is being arrested under some section of some enactment does not amount to giving sufficient
information. The need to tell a person as to why he has been arrested does not come to an end by releasing
him on bail. In Hussainara Khatoon v State of Bihar,61. the Supreme Court clearly observed that when an
under-trial prisoner has been in detention for ninety days or sixty days, as the case may be, the Magistrate
before whom he is produced must, before making an order for further detention to judicial custody, point out to
the detenu that he is entitled to be released on bail and if the Magistrate orders further extension without
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informing him of his right, the further extension would be illegal.62. For making extension of time, Public
Prosecutor, after an independent application of his mind to the request of investigating agency, is required to
make a report to the Designated Court indicating justification for keeping the accused in further custody to
enable the investigating agency to complete the investigation and if the application is made without application
of mind and without notice to the accused, such extension is invalid and the accused has to be released on
bail.63.
7. Since Clauses (1)-(2) are excluded by Clause (3), a person arrested under a law of preventive detention is
not entitled to the rights under Clauses (1)-(2).64.
The key words in Article 22(1) and (2) are “arrest and detention”. These words have been interpreted to mean
that the protection applies to such arrests as are effected on an allegation or accusation that the person
arrested is suspected to have committed or is likely to commit an act of a criminal or quasi-criminal nature or
some activity prejudicial to public interest. These articles do not therefore apply inter alia to the following cases
where arrest is not connected with an accusation of an offence: (1) arrest of a defendant before judgment or (2)
arrest of a judgment debtor in execution of a decree under Code of Civil Procedure, where the arrested person
is produced not before a magistrate, but the civil court which made the order; (3) arrest under a revenue
recovery legislation to recover arrears of land revenue.65.; (4) Under the Abducted Persons (Recovery and
Restoration) Act, 1949, whereunder persons abducted from Pakistan were rescued and such persons were
taken into custody and delivered to the custody of an officer-in-charge of a camp for the purpose of return to
Pakistan. In State of Punjab v Ajaib Singh,66. the court said that this was not the kind of arrest contemplated by
Article 22 because there is no allegation or accusation of any actual or apprehended commission by that
person of any offence of a criminal or quasi-criminal nature.
Where a foreigner enters India illegally and is ordered to leave India, but fails to do so, his arrest is for purposes
of deportation which does not fall under Article 22. The foreigner has no right to enter and remain within India.
The constitutional protection against illegal deprivation of personal liberty construed in a practical way cannot
entitle a non-citizen to remain in India to the law governing the foreigners.67.
In the case of preventive detention, the procedure to be followed is laid down in Clauses (4) to (7), below. Since
Clauses (4)-(7) prescribe the minimum procedure that must be included in a law providing for preventive
detention, its requirements are mandatory and if one of these requirements is not complied with, the detention
is rendered illegal.68.
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8. On the other hand, the protection of the clause has been extended to arrest under orders of the Speaker of a
Legislature for contempt.69.
[Art. 22.7.2] “As soon as may be”
1. The words “As soon as may be” mean as nearly as is reasonable in the circumstances of the particular case.
So, no definite period of time can be laid down as reasonable in all cases.70. The words “as soon as may be” in
the context must imply anxious care on the part of the authority concerned to perform its duty in this respect as
early as practicable without avoidable delay.71.
In Tarapada’s case, it was further held that if the information is delayed, there must be some reasonable
grounds justified by circumstances. Failure to explain entitles the person arrested to be released.72.
But according to JUSTICE FAZAL KARIM (Retd. Judge of Pakistan Supreme Court), the words “as soon as
may be” in Clause (1) must be construed in the light of Clause (2), which require the person arrested or
detained to be produced before a Magistrate within a period of twenty-four hours. The object of production
before a Magistrate is to enable the arrested or detained person to have a judicial mind applied to the question
whether there are grounds for arrest. Twenty-four hours is then the maximum period within which the arrested
or detained person must know the grounds. For unless, he knows the grounds, he would not be able to plead
against them when he is produced before the Magistrate. “As soon as may be”, therefore, means that the
arrested or detained person must be informed of the grounds of arrest or detention as soon as may be after he
is arrested or detained, but in any case within a maximum period of twenty-four hours.73.
The expression also occurs in Clause (5) and has been commented upon under that clause.
2. But it will be possible for the court, in a proceeding for habeas corpus, to pronounce whether the arresting
authority has communicated the grounds as soon as reasonable in the circumstances, and, if it finds that a
reasonable time has already passed and the arrested person has not yet been informed of the grounds of his
arrest, the court would order his immediate release.74.
3. Since in habeas corpus proceedings the material date for determining the validity of the detention is the date
of return, where the court finds that a reasonable time for communicating the grounds had expired before the
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date of return, a communication subsequent to the return cannot save the detention of the petitioner from
invalidity,74 for, the detention became invalid as soon as the reasonable time expired.
The words “as soon as may be” in Article 22(5) indicate a positive action on the part of the detaining authority in
supplying the grounds of detention. This means that the detaining authority must communicate the grounds to
the detenu with reasonable dispatch. There should not be any delay on the part of detaining authority in
supplying the grounds on which the order of detention was passed. Failure to communicate the grounds within
a reasonable time vitiates the detention. It is for the court to consider whether in the circumstances of the case,
the time taken to communicate the grounds was “reasonable” or “more than reasonable”.75. There can be no
hard and fast rule as to the measure of reasonable time; each case has to be considered on its own facts as to
whether there was culpable delay in dealing with the representation of the detenu.76.
Under Article 5(2) of European Convention on Human Rights, the detaining authority has to convey the reason
for arrest “promptly. This expression indicates that reasons for the arrest need to be conveyed, circumstances
permitting “at once” or atleast within a very short time. But there may be circumstances which prevent resons
for an arrest being given immediately e.g., the suspect at the time resisted arrest or was not in a good condition
i.e., drunk, injured mentally disadvantageous or was devoid of understanding. In such cases, reasons should be
conveyed to the suspect as soon as normal conditions resume.77.
[Art. 22.7.3] Can the failure to communicate grounds of arrest be condoned under any circumstances?
Though the obligation to inform the grounds of arrest is stated in absolute terms in Article 22(l), our Supreme
Court78. has, on a reference to the House of Lords decision in Christie v Leachinsky,79. acknowledged that
there may be circumstances under which it may not be either necessary or possible to communicate the
grounds of arrest to the person concerned.
It is only proper to extract that portion of the judgment in Madhu Limaye,80. which reads thus:
Article 22(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding
personal liberty in all legal systems where the rule of law prevails. For example, the 6th Amendment to the
Constitution of the USA contains similar provisions and so does Article 34 of the Japanese Constitution of 1946.
In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not
only that he is being arrested but also of the reasons or grounds for the arrest. The House of Lords in Christie v
Leachinsky,81. went into the origin and development of this rule. In the words of VISCOUNT SIMON, if a
policeman who entertained a reasonable suspicion that X had committed a felony was at liberty to arrest him
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and march him off to a police station without giving any explanation of why he was doing this, the prima facie
right to personal liberty would be gravely infringed. VISCOUNT SIMON laid down several propositions which
were not to be exhaustive. For our purposes, we may refer to the first and the third:
“1. If a policeman arrests without a warrant upon reasonable suspicion of felony, or of other crime of a sort
which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true
ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true
reason.
2. * * *
3. The requirement that the person arrested should be informed of the reason why he is seized naturally does
not exist if the circumstances are such that he must know the general nature of the alleged offence for which he
is detained.”
LORD SIMONDS gave an illustration of the circumstances where the accused must know why he is being
arrested.
“There is no need to explain the reasons of arrest if the arrested man is caught red-handed and the crime is
patent to high Heaven.”
The two requirements of Clause(1) of Article 22 are meant to afford the earliest opportunity to the arrested
person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority
and, also, to know exactly what the accusation against him is so that he can exercise the second right, namely,
of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the
next and most material safeguard that the arrested person must be produced before a Magistrate within 24
hours of such arrest so that an independent authority exercising judicial powers may without delay apply its
mind to his case. The Criminal Procedure Code contains analogous provisions in sections 60 and 340 but our
Constitution-makers were anxious to make these safeguards an integral part of fundamental rights. This is what
DR. B.R. AMBEDKAR said while moving for insertion of Article 15-A (as numbered in the Draft Bill of the
Constitution) which corresponded to present Article 22:
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“Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental
principles which every civilized country follows as principles of international justice. It is quite true that these two
provisions contained in Clauses (1) and (2) are already to be found in the Criminal Procedure Code and thereby
probably it might be said that we are really not making any very fundamental change. But we are, as I
contended, making a fundamental change because what we are doing by the introduction of Article 15-A is to
put a limitation upon the authority, both of Parliament as well as of the Provincial Legislature not to abrogate
these two provisions, because they are now introduced in our Constitution itself.”
In the preventive detention law itself, a time period has been fixed to communicate the grounds e.g., section
3(3) of COFEPOSA requires the ground of the detention to be communicated to the detenu as soon as may be,
but “ordinarily” not later than five days and in exceptional circumstances and for reasons to be recorded in
writing not later than fifteen days from the date of detention. This provision shows that it is obligatory on the part
of the detaining authority to communicate to the detenu the grounds on which the order of detention has been
made promptly. Thus, without exceptional circumstances, delay beyond five days would be fatal to the validity
of the order. When the detaining authority takes longer than five days, he has to record reasons as to why the
grounds of detention could not be communicated within five days. The ground has to be satisfactory. If there is
no acceptable or satisfactory explanation for the delay beyond five days, the detention becomes vitiated.82. It
was held that it is not permissible in matters relating to personal liberty and freedom of citizen to take either a
liberal or generous view of the lapses on the part of the officers. In matters where liberty of the citizens is
involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the
mandatory provisions of law. Explaining the significance of the provision, the court has insisted that the
provision has to be interpreted literally. If the original time of five days has to be extended, such extension must
be supported by an order recording reasons. If the reasons are not recorded, the order of detention will
automatically fail, and even if the reasons are recorded, the order of detention will be subject to legal scrutiny. If
the recorded reasons are unsatisfactory, court will quash the order of detention.83. Court has also ruled that
when there are exceptional circumstances for delay, the same must be communicated to the detenu.84.
All the grounds of detention must be communicated in one instalment. Once the grounds have been conveyed
to the detenu, first, new or additional grounds cannot be added thereto later to strengthen the original detention
order.85. The reason is that Article 22(5) requires that all the grounds which operated to create the subjective
satisfaction of the detaining authority to issue the detention order must be communicated to the detenu and
nothing should be held back. Therefore, if the additional grounds were non-existent at the time the detention
order was made, then it should be deemed that these were not the elements to bring about the subjective
satisfaction of the detaining authority to make the detention order in question and hence they are irrelevant. On
the other hand, if these grounds were in existence at the time the detention order was made, their non-
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communication earlier would amount to a breach of Article 22(5) in so far as they were not communicated to the
detenu “as soon as may be”.
The words “as soon as may be” in Article 22(5) indicate a positive action on the part of the detaining authority in
supplying the grounds of detention. This means that the detaining authority must communicate the grounds to
the detenu with reasonable dispatch.86.
The object of communicating the grounds being to enable the detenu to exercise his constitutional rights to
make a representation, the order of detention shall be invalid where the detenu is not supplied with particulars
together with grounds as are necessary to make an effective representation and shall be quashed by court.87.
As stated in Ram Narayan Singh v State of Delhi,88. this court has often reiterated that those who feel called
upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and
scrupulously, observe the norms and rules of law.
Some of these exceptional cases apparent from the House of Lords decision are—
(i) It is not necessary to state the grounds when the party makes resistance before the arresting person
“can speak all his words”.
(ii) Similarly it would be unnecessary, where he must, in the circumstances of the arrest, know the reason
already, e.g., where he is caught red-handed. But under section 28(3) of Police and Criminal Evidence
Act, 1984, it is stated that “no arrest shall be lawful unless the person arrested is informed of the
ground of arrest at the time or as soon as practicable after the arrest”.
(iii) The person cannot complain that he has not been informed of the grounds where he himself produces
a situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by
running away.
This list of exceptional cases, according to the House of Lords may not be complete or
exhaustive.89.
For the purpose of this rule, it is not necessary to furnish him with full details of the offence, but the
information should be sufficient to enable him to understand why he has been arrested and to give
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him an idea of the offence which he is alleged to have committed. The ground given to the arrested
person should be intelligible. The court can go into the question of sufficiency of the information
supplied to the arrested person and if it finds that the information to be insufficient, the arrest
becomes unlawful. Merely telling a person that he is being arrested under some section of some
enactment does not give him sufficient information. The need to tell a person as to why he has
been arrested does not come to an end by releasing him on bail.90. In Christie v Leachnisky,91. it
was held that the reason need not be given to the suspect in technical or precise language.92.
Where the grounds are written in a language which the detenu does not understand, the same
violates Article 22(5).93. In such a case, it does not matter if the grounds were orally explained to
the detenu in the language he understands, because that would not be sufficient to enable the
detenu to make an effective representation.94. But, where the grounds are in the language of the
detenu, but the order is in a foreign language, there is no infirmity unless it is shown how he was
handicapped in making the representation.95.
[Art. 22.7.4] “The right to consult legal practitioner”
The person arrested has a right to consult a legal adviser of his own choice, ever since the moment of his arrest
and also to have effective interview with the lawyer out of the hearing of the police, though it may be within their
presence.96.
The right extends to any person who is arrested, whether under the general law or under a special statute.97.
The right to consult and to be defended by a lawyer of his choice belongs to the person arrested not only at the
pre-trial stage, but also at the trial before the criminal court, or before a special tribunal for the trial of any
offence whether the offence is punishable with death, imprisonment or otherwise.97 The right to be defended
includes not only the defence against the arrest but also against the charge.97 Even if the accused has pleaded
guilty, the Magistrate is duty bound to inform the accused that free legal service is available to him and it is not
conditioned upon the accused himself applying for such legal assistance.1. In every capital punishment case
and in every case of a complicated nature, it is the duty of court to assign a counsel to defend an undefended
accused.2. The Supreme Court has observed that the arrested person has a right, upon a request, to have
someone informed and to consult privately with a lawyer. These rights are inherent in Article 21 and 22(1) of the
Constitution.3. The court has directed that these rights of the arrestee be “recognised and scrupulously
protected”. Certain guidelines were given to the enforcement of these rights.
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Nor is it correct to say that the guarantee offered by this clause is spent if the person undergoing a trial has
already been released on bail.4.
The continuance of the right after arrest at the trial, however, depends upon the nature of the action for which
he is tried. The right ensures if he is tried of an offence; but not so, otherwise, e.g., where he is proceeded
against for recovery of damages for wrongful trespass.4
[Art. 22.7.5] Constitutionality of Statutes barring Appearance of lawyers
A majority of the Supreme Court has held4 that any statute which prohibits the appearance or defence by a
lawyer before any tribunal (e.g., a Panchayat Court) which has the power to try a person of an offence or on a
criminal charge, is void for contravention of Article 22(l) to the extent that it denies the accused of his
fundamental right to be defended by a lawyer of his choice in any trial of the crime for which he was arrested,
even though such tribunal may not have the power to pass a sentence of imprisonment.4
[Art. 22.7.6] Right to be defended by a Legal Practitioner
1. Earlier, Supreme Court had taken a view that there is no violation of Article 22(1) unless the accused made a
request for legal assistance and that as turned down by court or tribunal.5. But after the decision in Maneka
Gandhi v UOI,6. it was held that the right of an indigent person to be provided with a lawyer at State’s expense
is an essential ingredient of Article 21, for no procedure can be just and fair which does not make available
legal services to an accused person who is too poor to pay for a lawyer. Article 39-A was also inserted in the
Constitution as per Constitution (42nd Amendment) Act, 1976. The present view is in accordance with the view
expressed in Gideon v Wainwright,7. wherein it was held: “The Government hires lawyers to prosecute and
defendants who have money hire lawyers to defend are the strongest indications of the widespread belief that
lawyers in criminal courts are necessities, not luxuries”.8. The Supreme Court has further extended the right to
hold, that right to legal practitioner means a right to “effective defence” which means a competent and
experienced lawyer.9. The right to fair trial is one to be enjoyed by the guilty as well as the innocent, for, an
accused is presumed to be innocent until proved to be otherwise in a fairly conducted trial. This right would
include that he be defended by a competent counsel. The provision of an amicus curiae for an accused, in case
the accused is unable to engage an advocate to conduct his defence is to ensure the goal of a fair trial. The
right to be represented by a lawyer must not be an empty formality. It must not be sham or an eyewash. The
appointment of an amicus curiae for the defence of an accused person must be in true letter and spirit with due
regard to the effective opportunity of hearing that is to be afforded to every accused person before being
condemned. The due process of law incorporated in our constitutional system demands that a person should
not only be given an opportunity of being heard before being condemned, but also that such opportunity should
be fair, just and reasonable.10.
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The right to access to legal aid, to consult and to be defended by a legal practitioner arises when the person
arrested in connection with a cognizable offence is first produced before a Magistrate. It is the duty or an
obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced
to make him fully aware that it is his right to consult and be defended by a legal practitioner and in case he has
no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of
the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. Every
accused unrepresented by a lawyer has to be provided with a lawyer at the commencement of the trial engaged
to represent him during the entire course of trial. Even if the accused does not ask for a lawyer or remains
silent, it is the constitutional duty of the court to provide him with a lawyer before commencement of trial. Unless
the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that
he does not want the assistance of a lawyer and would rather defend himself personally, the obligation to
provide him with a lawyer at the commencement of the trial is absolute and failure to do so would vitiate the trial
and the resultant conviction and sentence, if any, given to the accused.
But, failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of
vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary
proceedings or giving the accused a right to claim compensation against the State for failing to provide him
legal aid. But, it would not vitiate the trial unless it is shown that the failure to provide legal assistance at the
pre-trial stage had resulted in some material prejudice to the accused in the course of trial. That would have to
be judged on the facts of each case.11.
In the case of criminal appeal, the case cannot be decided in the absence of the defence counsel and in such
case, the court should appoint an amicus curiae. Any deviation of this rule is violative of Articles 21 and 22(1) of
the Constitution.12.
In 1987, Parliament enacted Legal Services Authorities Act 1987, to implement the newly incorporated Article
39-A. As per section 12 of the said Act, every person who has to file or defend a case shall be entitled to legal
services, if that person is: (1) A member of Schedule Caste or Scheduled Tribe; (2) A victim of trafficking in
human beings or begar as referred to in Article 23 of the Constitution; (3) A woman or a child; (4) A person with
disability as defined in Clause (i) of section 2 of the person with Disability (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995; (5) A person under circumstances of undeserved want such as being a
victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or (6)
An industrial workman; (7) In custody, including custody in a protective home within the meaning of Clause (g)
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of section 2 of the Immoral Traffic (Prevention) Act, 1956, or in a Juvenile home within the meaning of Clause
(j) of section 2 of the Juvenile Justice Act, 1986 or in a psychiatric hospital or psychiatric nursing home within
the meaning of Clause (g) of section 2 of the Mental Health Act, 1987; or (8) In receipt of annual income less
than Rs 9,000 or such other higher amount as may be prescribed by the State Government, if the case is
before a court other than Supreme Court and less than Rs 12,000 or such other higher amount as may be
prescribed by the Central Government, if the case is before the Supreme Court. Persons who satisfy all or any
of the criteria shall be entitled to receive legal services provided that the Authority constituted under the Act is
satisfied that such a person has a prima facie case to be prosecute or to defend.
If the accused is unable to engage a counsel owing to poverty or similar circumstances, the trial would be
vitiated unless the State offers free legal aid for his defence to engage a counsel to whose engagement the
accused does not object.13.
2. The right is violated—
(i) Where the accused is denied the opportunity to engage a lawyer.14.
(ii) Where the trial is held without informing the accused of the date fixed for trial and without giving him an
opportunity of getting into communication with his lawyer.15.
(iii) Where the trial is commenced immediately after a court appointment of a defence lawyer.16.
(iv) Where the lawyer engaged by the accused is not allowed to appear through some fault on the part of
the court, e.g., in preparing the cause list.17. But notice to one of the several lawyers engaged by the
accused would suffice.17
The legal assistance provided by the State must be “effective” for the defence of the accused to whom it is
provided: it will be violated where one counsel is appointed for the joint representation of two or more accused
whose interests are conflicting.18.
But if the defendant has profited from the violation of federal drug laws or engaged in racketeering, he may not
be able to mount a defence staffed by high-priced legal talent. In United States v Monsanto,19. and in Caplin
and Drysdele v United States,20. the American Supreme Court held that there is no denial of the 6th
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Amendment right to counsel or the 5th Amendment right to due process if a defendant is thereby deprived of
sufficient funds to retain the attorney of his choice.
3. The right to be defended by a lawyer is not confined to trials or trials involving capital sentence, but extends
to all criminal trials, including appeals which are a continuation of a trial.21. It was held that if the court is
required to render some assistance or service free of cost, it should be specifically provided in law.22. In K.S.
Panduranga v State of Karnataka,23. the court said that it is not obligatory on the part of appellate court in all
circumstances to engage an amicus curiae in a criminal appeal to argue on behalf of the accused failing which
the judgment rendered by High Court would be unsustainable. The High Court cannot dismiss an appeal for
non-prosecution simpliciter without examining the merits. The court is not bound to adjourn the matter if both
the appellant and his counsel are absent. The court may, as a matter of prudence or indulgence, adjourn the
matter, but it is not bound to do so and it can dispose of the appeal after perusing the records and the judgment
of trial court. If the accused is in jail and cannot, on his own, come to court, though it would be advisable to
adjourn the case and fix another date to facilitate the appearance of the appellant-accused, if his lawyer is not
present; however, if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State
expense to assist it, nothing in law would preclude the court from doing so. Lastly, if the case is decided on
merits in the absence of appellant, the higher court can remedy the situation. Court said that the decision in
Mohd. Sukur Ali,24. is in direct conflict with binding precedent and the dictum in that case is per incurium.25.
The right to have legal assistance to an indigent person does not arise only when the trial commences, but
arises right since the accused is produced before the nearest Magistrate as required by section 57 of Code of
Criminal Procedure and Article 22(1) of the Constitution.26. Where the High Court has decided an appeal in the
absence of the appellants’ counsel who was appointed by court, the decision was set aside and matter
remanded for fresh hearing.27. But in K.S. Panduranga v State of Karnataka,28. the court said that where the
appellate courts have considered all the grounds raised in appeal and heard the counsel (even though the
counsel appeared before court and argued the case, in spite of the fact that the judgment was pronounced
before that) the matter need not be remitted. The Supreme Court heard the appeal on merits.
The right does not extend to cases involving economic offences or offences against law prohibiting prostitution,
or child abuse and the like where social justice required that free services may not be provided by the State.
The right is subject to the qualification that the offence charged against the accused should be such that on
conviction it would result in sentence of imprisonment. Free legal assistance at State cost is a fundamental right
of a person accused of an offence which may involve jeopardy to his life or personal liberty. Right to free
assistance was not meant to be limitless. It is illogical to say that there is jeopardy to personal liberty in the case
of one category of offences, but no such kind of jeopardy in another category of offences, when in both
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category of offences, imprisonment in default of payment of fine may be imposed. Free legal assistance has to
be confined to offences which are punishable with substantive sentence of imprisonment. Such a right does not
extend to offences which are punishable with fine, regardless of whether imprisonment in default of payment of
fine is expressly provided for such offences or not. Any other interpretation would lead to the right being
limitless extending to most trivial offences.29.
The denial of right to counsel at the time of line up (identification) before any charge is framed, is not violative of
6th Amendment.30.
4. In this connection, however, we should note that the provision contained in section 304(1) of the Code of
Criminal Procedure, 1973, which confers a right upon an indigent accused at a sessions trial, to be provided by
the court a defence lawyer at the expense of the State, as follows:
Where, in a trial before the courts of Session, the accused is not represented by a pleader, and where it appears to the
court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at
the expense of the State.31.
Sub-section (3) of the same section empowers the State Government to extend this obligation to courts other
than a Court of Session, by notification.31
[Art. 22.7.7] Article 22(1) of the Constitution and Section 304.
1. This section enjoins a Court of Session to engage a lawyer, at the expense of the State, for the defence of an
accused person who has no means to engage a lawyer. Article 22(1) of the Constitution, on the other hand,
guarantees to the accused his fundamental right to be defended by a “legal practitioner of his own choice”. The
statutory provision in the present section cannot override the constitutional guarantee under Article 22(1).32. In
fact, they are analogous.33. Hence, even where the other conditions of this section are fulfilled, the court
cannot thrust upon the accused a lawyer to whose appointment he objects.34.
2. The conviction would also be quashed where the lawyer appointed by the court is not allowed sufficient time
to consult the accused or to prepare the brief.35.
[Art. 22.7.8] Articles 21 and 22(1): Duty of court to inform accused of his right
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1. Apart from the statutory provision contained in Article 22(1) and section 304 of the Code, the Supreme
Court has deduced a fundamental right to free legal service to every accused person who is unable to
engage a lawyer on account of such circumstances as poverty, indigence or incommunicado situation,
from the “fairness” ingredient of Article 21 of the Constitution.36.
There was a time when the view prevailed that there was no violation of Article 22(1) unless the
accused made a request for legal assistance and that was turned down by court or tribunal. The
view, however, is no longer tenable since 1978, when the Supreme Court has laid down in a
number of cases,37. that the right of an indigent accused to be provided with a lawyer for his
defence at the cost of the State is an essential ingredient of Article 21, for, no procedure can be
just and fair which does not make available legal services to an accused person who is too poor to
pay for a lawyer. The interpretation of Article 21 also follows from Article 39A of the Constitution
which was inserted by the Constitution (42nd Amendment) Act, 1976. In the U.S.A., the right of an
accused to have the assistance of counsel for his defence is specifically guaranteed under 6th
Amendment. Apart from that, it has been deduced from the guarantee of Due Process as well as
Equal Protection where the accused is indigent.38. The Indian law has been brought at par with
American view (as stated in the above cases) viz. that where the court finds that the accused is
unable to pay for a lawyer owing to economic disability, it would be the duty of court to inform him
of his right to have a lawyer engaged by the State and that in the absence of legal representation
owing to poverty the trial would be vitiated and the conviction should be set aside.39.
In India, the Supreme Court has further developed the right to an effective defence as a
fundamental right, reading cumulatively the provisions of Article 39A and Article 21 of the
Constitution.40. This right has now been given a statutory recognition under the Indian Legal
Services Authority Act, 1987.
As per Legal Services Authority Act 1987, every person, who has to file or defend a case, shall be
entitled to legal services if that person is – (1) a member of SC/ST; (2) a victim of trafficking in
human beings or begar as referred to in Article 23 of the Constitution; (3) a woman or child; (4) a
person with disability as defined in Clause (i) of section 2 of the persons with Disability (Equal
Opportunity, Protection of Rights and Full Participation) Act, 1995; (5) a person under
circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence,
caste atrocity, flood, drought, earthquake or industrial disaster; (6) an industrial workman; (7) in
custody including custody in a protective home or within the meaning of Cl. (g) of section 2 of the
Immoral Traffic (Prevention) Act 1956 or in a juvenile home within the meaning of cl. (j) of section 2
of the Juvenile Justice Act 1986 or in a psychiatric hospital or psychiatric nursing home within the
meaning of cl. (g) of section 2 of Mental Health Act 1987, or (8) in receipt of annual income less
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than Rs 9,000 or such other higher amount as may be prescribed by the State Government, if the
case is before a court other than the Supreme Court and less than Rs 12,000 or such other
amount as prescribed by the Central Government if the case is before Supreme Court. Persons
who satisfy all or any of the criteria specified in section 12 of the Act shall be entitled to receive
legal services provided that the concerned Authority is satisfied that such person has a prima facie
case to prosecute or to defend.
The State Government cannot engage a lawyer without ascertaining the wishes of the accused
and without giving him any choice in selecting his lawyer for the reason that Article 22(1) of the
Constitution guarantees that the choice of a lawyer for the defence can only be of the accused
himself. Where the court appoints a lawyer without ascertaining the choice of the accused and
against the will of the accused, it amounts to thrust on the accused to have legal aid against his
wishes, and it amounts to denial of adequate opportunity to defend himself and consequently the
trial stands vitiated.41.
2. This fundamental right arises in every care (before a Magistrate or Sessions Judge) that involves a
jeopardy to the life or personal liberty of the accused person. Hence, it imposes a legal duty42. upon
the court before whom the accused appears, to inform him that if he is unable to engage the services
of a lawyer on account of poverty or indigence, he is entitled to obtain free legal service at the cost of
the State. This fundamental right is not dependent upon an application being made by the accused for
free legal assistance.43. The Magistrate or Sessions Judge (as the case may be) cannot discharge his
obligation by merely observing that no legal representation had been asked for by the accused, and,
hence, none was provided.43 Non-appearance or non-availability of any Government counsel would
also be no excuse for conviction, without legal assistance.44. Where no public counsel has been
appointed by the state nor any scheme for legal aid has been framed, the court must appoint a counsel
for the defence of the accused.44
3. In this context, a difference is to be noted as between Article 21 and section 304 of the Code. Under
Article 21 of the Constitution, as interpreted by the Supreme Court45. the mandatory obligation to
provide free legal aid arise in every criminal case against an indigent accused, whether before a
Magistrate or a Sessions Judge.
Under section 304 of the Code, the imperative duty arises only before the Sessions Court [sub-
section (1)], while in the cases before Magistrates, the duty would arise only if the State
Government issues a notification [sub-section (3)] to that effect. In the absence of such notification,
no conviction by a Magistrate can be quashed for failure to provide free legal assistance to the
indigent accused. This position is inconsistent with Article 21 of the Constitution as interpreted by
the Supreme Court.
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The M.P. High Court (relying on Article 21), set aside a conviction by a Magistrate made upon
evidence taken without offering legal representation to the accused.46. This anomaly should be
removed by the State Government issuing the required notification under sub-section (3) of section
304.46
[Art. 22.8] CLAUSE (2) OTHER CONSTITUTIONS (A) England.—
U.K.
When a person is arrested without warrant, he must be produced before a Magistrate47. as soon as reasonably
possible.48.
(B) Bangladesh.—
Bangladesh
Article 33(2) of the Constitution of Bangladesh, 1972,49. which is identical with Article 22(2) of the Indian
Constitution, says—
Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period
of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of
the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a
Magistrate.
(C) Nigeria.—
Section 32(4) of the Nigerian Constitution, 1979, provides:49
(C) Nigeria
(4) Any person who is arrested or detained in accordance with paragraph (c) of sub-s. (1) of this section shall be
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brought before a court without undue delay and if he is not tried within a reasonable time he shall (without prejudice to
any further proceedings that may be brought against him) be released either unconditionally or upon such conditions
as are reasonably necessary to ensure that he appears for trial at a later date.
(D) Pakistan.—
Article 10(1)
Pakistan
…..Every person who is arrested and detained in custody shall be produced before the Magistrate within a period of 24
hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of nearest
Magistrate, and no such person shall be detained in custody beyond the said period without the authority of the
Magistrate…….
[ART. 22.9] INTERNATIONAL CHARTERS (A) Covenant on Civil and Political Rights, 1966.—
Article 9(3) is relevant in this context:
Covenant, 1966
“3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall
not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution
of the judgment.50.
(B) European Convention on Human Rights, 1953.—
Article 5(3) is substantially to the same effect as Article 9(3) of the Convenant, as produced above.50
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European Convention, 1953
But Article 15 (Right to Derogate) absolves the Government or authorities from the requirement of Article 5(3).
In Brannigan and McBride v UK,51. the court justified the action of the authorities taking into consideration the
peculiar situation in Northern Ireland. In those cases, the arrested persons were kept in custody for more than
six days without producing them before the Magistrate. It was held that derogation requirement had been
achieved in order for the Government to be able to combat terrorism and make further investigation and,
therefore, Article 5(3) was not breached. It was observed that although this would seem to involve, to some
extent, arbitrary intervention which would go against the whole essence of the convention, the court
nevertheless held that the applicants were protected against such arbitrary measures by having at their
disposal offer lawful remedies. (1) The remedy of habeas corpus to ensure the lawfulness of their arrest and
detention. (2) The access to legal advice within 48 hours of their detention. (3) Permitted to institute
proceedings for judicial review, if the request under Clause (2) (i.e. for access to legal advise) was refused or
delayed.
[Art. 22.9.1] American Convention of Human Rights
Article 7(5) says “Any person detained shall be brought “promptly” before a judge or other officer authorized by
law to exercise judicial power … ”. Under this clause, the arrested person must be brought “promptly” before a
competent legal authority. The reason why the word “promptly” in this context is given such importance lies in
safeguarding an individual’s right to liberty against any arbitrary interference by the National authorities. Judicial
control of interference by the Executive with the individuals’ right of liberty is an essential feature of the
guarantee embodied in Article 5(3) which is intended to minimize the risk of arbitrariness.52.
[ART. 22.10] INDIA [Art. 22.10.1] Scope of Clause (2): Right to be produced in court of Magistrate
This clause aims at securing a speedy trial. No person can be deprived of his liberty without the intervention of
a judicial authority at the earliest opportunity. As soon as the arrested person is produced before a Magistrate,
the trial of the arrested person cannot be put off indefinitely.53.
The maximum period allowed by the article is 24 hours, plus the time required for the journey. Under the
ordinary law, section 57 of CrPC, 1973, secures the same object, in all cases of arrest without warrant:
No police-officer shall detain in custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate
under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to
the Magistrate’s Court.54.
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Article 22(2) gives a constitutional guarantee to the above safeguard. The provision inhibiting detention without
remand is a very healthy provision which enables the Magistrate to keep check over the police investigation
and it is necessary that the Magistrate should try to enforce this requirement and where it is found to have been
disobeyed, come down heavily on the police.55. A person was arrested in Bombay on a warrant issued by the
Speaker of the UP Legislative Assembly and was taken to Lucknow in custody to be produced before the
Speaker to answer a charge of breach of privilege of the House. He was not produced before the Magistrate
within twenty four hours of his arrest. The Supreme Court in Gunpati v Nafisul Hassan,56. held that this was a
clear breach of the peremptory provision of Article 22(2) and hence the petitioner was released. The authority of
this decision, even though has shaken some cases, was rehabilitated by the decision in Keshav Singh’s
case.57.
Where an arrestee is detained in police custody beyond 24 hours, the detention clearly violates the mandatory
provisions of Article 22 and section 57 of CrPC, and is illegal.58.
[Art. 22.10.2] Right to be produced before the nearest Magistrate
1. This clause not only affirms but also liberalises the provision contained in Section 61 of the CrPC (1898) by
extending the right to persons arrested in pursuance of a warrant.59. It is also perfectly plain that the language
of Article 22(2) has been practically copied from sections 60 and 61 of CrPC (at present sections 56 and 57)
which admittedly prescribe the procedure to be followed after a person has been arrested without warrant. A
constitutional protection is given to the procedure.60.
2. If 24 hours have passed without compliance with the requirement of the Clause, the arrested person is
entitled to be released forthwith.61. Right under Article 22(2) is available only against detention by police and
does not apply once a person is in judicial custody.62. Where an arrestee is detained in police lock up beyond
twenty four hours, the detention clearly violates the mandatory provision of section 57 CrPC and Article 22 of
the Constitution and is illegal.63. Where an accused is detained for three days without remand order, the
detention is illegal in view of the provisions of section 57 of CrPC and Articles 21 and 22 of the Constitution.
Compensation was awarded against the State.64.
It is evident from the words “within 24 hours of such arrest” that the right to be produced before a magistrate
arises as soon as a person is arrested and, in case of a prolonged detention compliance with the Clause at any
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time afterwards does not satisfy the constitutional requirement.65. The arrested person must be produced
before the Magistrate within twenty four hours and this is a mandatory provision.66. When a person is arrested
by a Magistrate without a warrant, it is not sufficient for the purpose of Article 22(2) to produce the person
arrested before the same Magistrate who arrested him. The reason is that such a Magistrate could not apply his
judicial mind to the facts of the case as he would be a judge in his own cause. The policy of the law is that the
Magistrate before whom a prisoner is produced must be in a position to bring an independent judgment to bear
on the matter.67.
In Bhim Singh v State of J&K,68. the Supreme Court criticized in very strong terms the conduct of a Magistrate
who passed an order remanding the accused to police custody without the accused having been produced
before him personally. Supreme Court observed that the Magistrate acted without any sense of responsibility or
genuine concern for the liberty of the subject. Court said that the police officer acted deliberately and mala fide
and the Magistrate also aided him by colluding with him or by his casual attitude. Compensation was awarded
to the concerned person. The requirement to produce an arrested person before a Magistrate may come to an
end if the person is released on bail.69. When an arrested person is produced before the High Court and
remanded to custody, it is not then necessary to produce him before a Magistrate.70.
If the police does not produce the person arrested before the Magistrate within twenty four hours and
confession of the accused is recorded in that period, the confession would be presumed to be involuntary and
irrelevant.71.
It is a constitutional mandate that no person shall be deprived of his liberty except in accordance with the
procedure established by law. The Constitution further directs that the person so arrested and detained in
custody shall be produced before the nearest Magistrate within 24 hours of such arrest. The only time permitted
to be excluded from the said period of 24 hours is the “time necessary for going from the place of arrest to the
Court of Magistrate”. Only under two contingencies can the said direction be obviated. One is when the person
arrested is an “enemy alien” and the second when the arrest is under any law for preventive detention. In all
other cases, the Constitution has prohibited “peremptorily” that “no such person shall be detained in custody
beyond the said period without the authority of the Magistrate. That the person was already in jail in another
State in another case is not a valid excuse for not producing the accused before the Magistrate within the time
permitted under the Constitution.”72. Even in cases where an arrest is made under section 4 of the Armed
Forces (Special Powers) Act, 1958, the person so arrested has to be made over to the officer-in-charge of the
nearest police station together with a report of the circumstances occasioning the arrest with the least possible
delay, so that the person arrested can be produced before the nearest Magistrate within a period of 24 hours of
such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate
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and that no such person can be detained in custody beyond the said period without the authority of the
Magistrate.73.
Section 57 of CrPC is a pointer to the intendment to uphold personal liberty and to restrict to the minimum
curtailment of liberty. Section 73 of CrPC provides that a person against whom a warrant is issued by
Magistrate is required, without loss of time, to be taken before a Magistrate. These provisions indicate that
police has been given the least powers to detain an accused person without proper authority in that behalf.74. It
is clear from the above decisions read along with section 57 of CrPC that no police officer can detain in custody
a person arrested without warrant for a period longer than twenty four hours besides the time taken for
journey.75. Only under two conditions can the said direction be obviated – (1) when the arrested person is an
“enemy alien”; (2) when the arrest is under any law for preventive detention. In all other cases, the Constitution
has prohibited preemptively that “no person shall be detained in custody beyond the said period without the
authority of Magistrate”.76.
Section 57 of CrPC was held mandatory.77. In Saptawna v State of Assam,78. it was held that it is not
necessary that an under trial should be produced on each occasion before a Magistrate as remand and an
undertrial prisoner need not be arrested separately for every criminal case pending against him. The
subsequent lawful detention is not vitiated by the earlier illegal detention.
3. The “nearest Magistrate” refers to a Magistrate acting under a judicial capacity, as under section 167 of the
CrPC.79.
Hence, when a person is arrested by a Magistrate acting under section 64 of the CrPC, 1898, read with the
U.P. Social Disabilities Act, the arrested person must be produced before another Magistrate, acting under
section 167, CrPC.80. But it has been held that where a person was arrested by a Station Officer on his own
authority and immediately thereafter the City Magistrate (invested with judicial powers) arrived at the spot in his
executive authority, and the person arrested having been produced before such Magistrate, he remanded him
to jail custody, there was sufficient compliance with Article 22(2).81.
Production before the High Court for “suitable orders” has been taken as a sufficient compliance with this
clause 79
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4. The Magistrate before whom the person is produced, must apply his judicial mind to determine whether the
arrest is in accordance with the law.82.
5. But the requirement of this clause has no application—
(a) Where though detained unlawfully, say, by the Armed Forces, the arrested person is subsequently arrested by
the Civil Police and duly produced before a Magistrate or is detained as an under-trial prisoner, in accordance
with the law. In either case the initial illegality cannot invalidate the subsequent valid detention.83.
(b) Where the person is arrested under a law of preventive detention. [see under Cl. (3)(b), post].
[Art. 22.10.3] Whether the rights in Article 21(1)-(2) extend to Arrests under Warrant
Though the question appears to be concluded by the observations of the Supreme Court in State of Punjab v
Ajaib Singh,84. there are ample reasons for a fuller consideration of the question by the Supreme Court in
some subsequent decision. Before proceeding further, it would be useful to quote the observations of the court,
speaking through Das, J.:84
Broadly speaking, arrest may be classified into two categories, namely, arrests under warrants issued by a court and
arrests otherwise than under such warrants....
Turning now to Art. 22(1) and (2), we have to ascertain whether its protection extends to both categories of arrests
mentioned above, and, if not, then which one of them comes within its protection. There can be no manner of doubt
that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The
provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly
desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate
application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure
adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already been applied to
the case when the warrant was issued and, therefore, there is less reason for making such production in the case a
matter of a substantive fundamental right. It is also perfectly plain that the language of Art. 22(2) has been practically
copied front Secs. 60 and 61, Criminal P.C. which admittedly prescribe the procedure to be followed after a person has
been arrested without warrant. The requirement of Art. 22(1) that no person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really
contemplates an arrest without a warrant of court, for as already noted, a person arrested under a court’s warrant is
made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the
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right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or
sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his
choice postulates that there is an accusation against him against which he has to be defended. The language of Art.
22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected
otherwise than under a warrant issued by a court on the allegation or accusation that the arrested person has, or is
suspected to have, committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some
activity prejudicial to the public or the State interest. In other words, there is indication in the language of Art. 22 (1) and
(2) that it was designed to give protection against the act of the executive or other non-judicial authority.84
The following are the reasons which call for a reconsideration of the pronouncement that the protection under
Clauses (1)-(2) of Article 22 does not extend to arrests under warrant:
Firstly, the above pronouncement is in the nature of an obiter inasmuch as the decision of the court that “arrest”
in Article 22(1)-(2) refers to arrest “upon an allegation or accusation” of a “criminal or quasi-criminal nature” was
sufficient to dispose of the case before the court because no such accusation was involved when an abducted
person was taken into custody under the Abducted Persons (Recovery and Restoration) Act, 1949. Whether
such arrest must be one under warrant or without warrant was a further question which was not necessary to
decide for the purposes of the case.
Secondly, in a later passage, the court itself came to the view that it should not finally decide the scope of
Article 22(1)-(2) beyond what was necessary for the purposes of the case before their Lordships:
It is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the
scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection.
Whatever else may come within the purview of Art. 22(1) and (2), suffice it to say for the purposes of this case, that we
are satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that
person into custody without any allegation or accusation of any actual or suspected or apprehended commission by
that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public
interest, and delivery of that person to the custody of the officer-in-charge of the nearest camp under Sec.4 of the
impugned Act cannot be regarded as arrest and detention within the meaning of Art. 22(1) and (2).85.
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Thirdly, the statement that Article 20(1)-(2) reproduces the language of sections 60-61 of the CrPC, 1898 is not
correct inasmuch as while the latter expressly refer to “arrest without warrant”, Article 20(1)-(2) uses the word
“arrested” generally, and without referring to warrant at all. The question is whether the omission of the words
“without warrant” is deliberate or unintentional. Merely because in the existing law, the protection is confined to
arrests without warrant, is no ground for concluding that the framers of the Constitution did not intend to
improve upon the existing law. In fact, Clause (1) itself shows that the Constitution makers intended to go
further than the existing law, for, the right to consult and to be defended by a lawyer was not to be found in
sections 60-61 of the CrPC, 1898. Previous legislation is, no doubt, a guide in interpreting a statute, but not
where the context indicates an intention to depart from the previous legislation.
Fourthly, according to the canons of interpretation (see pp. 4993 to 4996, ante), the intention of a Legislature is
to be gathered from the language actually used by it and not from supposed intentions. The language used
cannot be ignored except where it would lead to absurdity, or anything in the context indicates a contrary
intention.
As to the context, the Court relied upon two arguments: (i) the object of production before a Magistrate is to
ensure the “application of a judicial mind” to the legal authority and regularity of the arrest; in the case of arrest
under warrant, there has already been such application of a judicial mind at the time of issuing the warrant; (ii)
in the case of arrest under warrant, the warrant itself informs the arrested person of the grounds of his arrest,
so that it would be meaningless to insist again that he should be informed of the grounds after arrest. Now, so
far as the first argument is concerned, the previous application of the judicial mind did not take place in the
presence of the arrested person; is there any irresistible reason for denying him an opportunity to challenge the
validity of the warrant itself? Similarly, so far as the second argument is concerned, though the warrant usually
states the grounds of arrest, there may possibly be cases where a warrant is deficient in this respect and the
right of the arrested person to be informed of the grounds of arrest is violated by the defective warrant; why
should such person be denied the opportunity of urging that the warrant under which he has been arrested
violates his constitutional right?
Besides, the mention of the two grounds alone overlooks the fact that the right to consult and be defended by a
legal practitioner is an independent right ensured by Clause (1). The Anglo-American precedents (see ante)
clearly demonstrate that this is a separate and most valuable right. Even though a warrant is issued by a
judicial authority, that is done ex parte and the person to be arrested has no opportunity of consulting a lawyer
at that stage. If we hold that Clause (1) does not extend to arrests under warrant, the arrested person shall
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have no constitutional right to consult or to be defended by a lawyer all the time that he is detained under the
warrant.
Lastly, there is no absurdity involved in the requirement of producing the arrested person before the nearest
judicial Magistrate after a person has been arrested under a warrant; for, apart from the contingency that the
warrant itself may be defective, there may be illegality in the execution of that warrant which the arrested
person may urge if he is produced before a court and afforded opportunity to consult a legal practitioner.
It is submitted, with respect, that there is no irresistible case to cut down the plain language of Article 22(1)-(2)
and to exclude cases of arrests under warrant from its purview. An Allahabad decision86. has relied upon the
language of the Article notwithstanding the observations of the Supreme Court.
Eminent Jurist H.M. SEERVAI has also supported the opinion of the author on other grounds and has stated
thus: “ … . the right conferred by Article 22(2) on the person arrested to be produced before a Magistrate within
twenty four hours, ought not to be limited to an arrest without a warrant. For the fact that a judicial mind has not
been applied is not crucial, where it has been applied ex parte and without hearing the person arrested. Where
a person arrested without a warrant is brought before a Magistrate, the order made by the Magistrate is “after
hearing him”; and there is no reason why a person arrested on a warrant should be denied a right to be heard
before an order of detention is made. It is submitted that it is not a safe basis for constitutional provisions to
assume continued existence of existing law like the CrPC, for such a law can be repealed or amended and the
rights conferred by it withdrawn. It is submitted that to the extent that the observations in Ajaib Singh’s case are
based on this assumption, they are not well founded”.87.
[ART. 22.11] CLAUSE (3) OTHER CONSTITUTIONS (A) England.—
In times of war, Parliament may provide for preventive detention in the interests of national safety.
U.K.
But even then, these powers are derived from Parliament. Until World War I, Parliament used to help the
Executive in proper prosecution of the War, by passing a Habeas Corpus Suspension Act, followed by an Act of
Indemnity at the cessation of the War.
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Since World War I, however, the practice of directly suspending the writ of habeas corpus has been
abandoned. Instead Parliament now passes an Act [e.g., the Defence of the Realm Act, 1914, or the
Emergency Powers (Defence) Act, 1939], authorizing the Executive to make Regulations for the public safety or
the defence of the realm, including a power to detain without trial. And the House of Lords has laid down that
the Courts would uphold such detention in the interest of national safety, except where there has been an
abuse or mala fide, use of the power or where there has been a prima facie wrong application of the power, as
in a case of mistaken identity.88. It was held that the Secretary of State’s power to order of detention of any
person whom he had “reasonable cause to believe” to be of hostile origin or association and over whom it was,
therefore, necessary to exercise control, was validly exercised unless it was shown that he had not honestly
considered that he had reasonable cause for his belief. The majority decision in this case cannot now be relied
on as an authority, either on the point of construction or in its declaration of legal principles in view of later
decision in R. v Secretary Ex parte Khawaja.89. In spite of a powerful dissenting judgment by LORD ATKIN, the
House took the view that power to detain could not be controlled by courts, if only because consideration of
security forbade proof of the evidence on which detention was ordered. The words “had reasonable cause to
believe” only meant that Home Secretary must have a belief which in his mind was reasonable. The courts
would not inquire into the grounds for his belief, although apparently they might examine positive evidence of
mala fides or mistaken identity. Stress was laid on the responsibility of Home Secretary to Parliament.
However, the courts would not interfere with the Executive power to detain without trial, except in cases of
wrong use of the power. It is to be noted that the right of access to the courts has never been barred.90. In
Chester v Bateson it was held that so extreme a disability could only be imposed by express enactment, and
the provision that no one might sue for possession of ammunition worker’s house without permission of the
Minister was invalid.
In this context, one may mention the Prevention of Terrorism (Temporary Provision) Act, 1989, under which the
police has got the power to detain a person, without any charge and without production before any court for a
total period of seven days, of a person who is suspected of being involved in terrorism, i.e., use of violence for
political ends. Though the Act was originally meant to face terrorism in Northern Ireland and is a temporary
enactment, which has to be renewed from year-to-year, it is applicable to the whole of UK and “irrespective of
any emergency”. The position is now governed by the Terrorism Act, 2000 which replaces Prevention of
Terrorism (Temporary Provisions) Act, 1989 and Northern Ireland (Emergency Provisions) Act, 1996.
Subsequent to the terrorist attack in United States in September 2001, a new legislation was passed, namely,
“Anti-Terrorism, Crime and Security Act, 2001”. This legislation extends by some way what were already wide
and far-reaching powers, most controversial being to allow detention without trial of suspected international
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terrorists. It also reintroduced powers of detention without trial, though admittedly not for use in specific context
of Northern Ireland.
Notwithstanding this general principle, however, it has been judicially laid down91. that an emergency statute
does not come to an end by the declaration by an order in Council that the Emergency has come to an end,
unless such declaration relates to the particular statute specifically, and the Executive is competent to fix
different dates of termination of the same emergency for the purpose of different emergency laws.
(B) Australia.—
Australia
Power to detain without trial persons engaged in activities prejudicial to the safety of the realm has been
deduced from the “defence” power;92. or the power relating to immigration [section 51(vi), (xxvii)].93.
(C) Eire.—
The validity of a law providing for preventive detention in a period of emergency under Article 28(3)(c) has been
upheld.94.
Eire
Under this provision,94 the Irish Parliament passed the Emergency Powers Acts, 1939 and 1940, by virtue of
the above provision of the Constitution. These Acts empowered the Government—
(a) to control any of the supplies or services essential to the State;
(b) to detain persons (including Irish citizens) where such detention is, in the opinion of the minister,
necessary or expedient in the interests of the public safety or preservation of the State.95.
(D) U.S.A.—
Until 1950, it could be said that an American citizen could not be detained unless convicted by a court of law of
an offence.96. Though this still holds good as regards times of peace, a system in the nature of preventive
detention was introduced, as regards times of emergency, by the Internal Security Act, 1950 (otherwise known
as the McCarran Act). This Act was amended in 1968, doing away with its obnoxious features.
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U.S.A.
Section 103 of this Act provided that in the event of any one of the following – (a) invasion of the territory; (b)
declaration of war by the Congress; (c) insurrection within the United States in aid of a foreign enemy,
President may make a proclamation of “Internal Security Emergency”. During the continuance of such
emergency, the President is authorised to apprehend and by order detain “each person as to whom there is
reasonable ground to believe that such person probably” engaged in or “probably” will conspire with others, and
engage in acts of espionage or sabotage. This Act provided for the detention (for an indefinite period and
without bail),97. subject to the procedure prescribed by the Act, of a person against whom the Attorney General
had a reasonable ground to believe that he will probably engage in acts of espionage or sabotage. The
Attorney General is empowered to issue a warrant for the arrest of any person whom he believes to be
dangerous. The arrested person is brought before a preliminary hearing officer who issues a detention order if
he finds that there is a probable cause for detention. Against the order of detention, the detenu may appeal to
Detention Review Board. From the decision of the Board, the detenu may have a judicial review by way of
appeal to the federal Court of Appeal, but the findings of the Board as to facts, if supported by “reliable,
substantial and probative evidence” are conclusive. At the hearing before preliminary hearing officer, the detenu
is to be told the grounds of his detention, is allowed to be represented by counsel and to introduce evidence on
his behalf as well as to cross-examine witnesses except those whom the Attorney General withholds from
cross-examination on the ground of national security.
(E) Constitution of Malaysia, 1957.—
Malaysia
Section 151 of the Malaysian Constitution authorises preventive detention during a period of Emergency, to
combat organised violence, promoting disaffection against the Government or between different classes or any
activity prejudicial to the security of the Federation or any part thereof. In exercise of the power conferred by
Article 149, read with Article 151, the Parliament had enacted the Internal Security Act, 1960. The powers
conferred by it are available only during an “Emergency” as defined in Article 150;1. but the subjective
satisfaction of the President is not justiciable on any ground.1 Section 8(1) of the Internal Security Act, 1960
provides, “If the Minister is satisfied that the detention of any person is necessary with a view to preventing him
from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of
essential services therein or to the economic life thereof, he may make an order directing that the person be
detained for any period not exceeding two years”. The application of the Internal Security Act is not dependent
upon the existence of a state of emergency.2.
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(F) Constitution of Nigeria, 1979.—
Nigeria
Article 11(4) of this Constitution provides that when, on account of any situation, the House of Assembly of any
State is unable to perform its functions, the National Assembly may make any law which may be deemed
necessary or expedient for the peace, order and good governance of that State, which would include a law of
preventive detention.3.
(G) Constitution of Zimbabwe, 1979.—
Zimbabwe
Para 1(2) of Sch. II to the Constitution of Zimbabwe, 1979, empowers the Legislature to enact a law providing
for preventive detention, during a period of public emergency, subject to the safeguards laid down in that
Para.4.
(H) Constitution of Uganda, 1967.—
Uganda
Section 13 of the Constitution of Uganda, 1967, provides for preventive detention during Emergency.5.
(I) Constitution of Zambia, 1973.—
Zambia
Similar provision is made in this Constitution (Articles 24 and 26).6.

(J) Constitution of Kenya, 1969.—
Kenya
Section 83 of the Constitution of Kenya empowers the Legislature to provide for preventive detention during
War.7.
[Art. 22.12] INTERNATIONAL CHARTERS (A) Universal Declaration, 1948.—
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Preventive Detention would be violative of Articles 9-10 which say:
“ Article 10 .—Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights and obligations and of any criminal charge against him.”
“Article 9.—No one shall be subjected to arbitrary arrest, detention or exile.”
(B) Covenant on Civil and Political Rights, 1966.—
Article 9(1) says:
Article 9 .—I. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by law.
This provision only bans such detention as is ordered by the Executive without authority of law. It is no
guarantee against legislation providing for preventive detention, particularly, in Emergency, for which specific
exception is made in Article 4(l):
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the
State Parties to the present Covenant may take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of the situation.
(C) European Convention on Human Rights, 1950.—
Preventive detention in times of war or other public emergency is permissible under Article 15(l) of this
Covenant in derogation of the obligations otherwise imposed by it and the Secretary-General of the Council of
Europe must be informed of the measures taken and the reason for the same.8.
Before the commission or court would regard the derogation as justified, there are four main requirements
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which must be adhered to—(1) It must be in time of war or other public emergency threatening the life of the
nation. (2) The action taken by the State did not exceed that which was strictly required by the exigencies of the
situation. (3) Those actions were not in variance to existing obligations under international law. (4) If the State
has already declared its derogation, that derogation should end when the emergency situation itself has
subsided.
There is absolute right to derogate from all the Articles under the convention; thus, no derogation is permitted
under Article 2 (i.e. Right to Life); Article 3 (Protection Against Ill-treatment); Article 4(1) (Guarantee against
slavery or servitude) and Article 7 (The Principle of Non-Retroactivity in Criminal Trials).
As regards times of peace, Article 5(l) enumerates certain grounds to apprehend a suspect for trial or of a
minor, addict, lunatic, and the like for specific purposes or for the purpose of deporting an illegal immigrant. But
these exceptional clauses would not authorise anything like the preventive detention without trial, in the Indian
sense.
But the expression “other public emergency” in Article 15(1) has been interpreted by the European Court9. to
embrace measures considered “necessary to prevent the commission of offences against public peace and
order.” It was held in that case, that the expression “other public emergency” refers to “an exceptional situation
of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the
community of which the State is composed.” Of course, such emergency must “threaten the life of the nation”
and the measures taken would be lawful “to the extent strictly required by the exigencies of the situation”. The
court will have to consider, whether such an action was necessary under the circumstances or whether the
action taken is disproportionate such that the measures taken outweighed the seriousness of the situation?10.
It would include both a potential and immediate threat. But the court has held that though the Government
concerned must be allowed some discretion in the determination as to the existence of a “public emergency,
threatening the life of the nation”, it is not final and the court has the competence and duty to examine whether
in a given case the requirements of Article 15(l) have been fulfilled.11.
[ART. 22.13] INDIA [Art. 22.13.1] Enemy Aliens and Detenus
This clause constitutes an exception to Clauses (1)-(2). The result is that enemy aliens as well as persons
detained under the law of preventive detention have neither the right to consult nor to be defended by any legal
practitioner. In the case of detenus, there is a right of representation to the detaining authority [Clause (5)], and
a provision for consideration of that representation by the Advisory Board. But in neither case shall the detenu
have any right to be heard in person12. or to appear by any lawyer13. or to cross-examine witness,14. in the
absence of a statutory provision.
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The other right which enemy aliens and detenus lose by reason of Clause (3) is the right not to be detained in
custody beyond 24 hours without the authority of a Magistrate [Clause (2)].
[Art. 22.13.2] Enemy Aliens
Enemy alien is a citizen or subject of a country at war with the country in which the citizen or subject is living or
travelling.15. Alien enemies of the country are those foreigners whose country is at war with it; a person owing
allegiance to an adverse belligerant State; a person owing allegiance to a country which is at war with India;16.
a person who by reason of owing a permanent or temporary allegiance to a hostile power becomes in time of
war impressed with the character of an enemy.17. An enemy alien is not entitled to the protection of Clauses
(1)-(2) of Article 22. This is an accord with the English law, under which an enemy alien may be detained
without a right of habeas corpus, under the royal prerogative as well as under statute.18. In the event of a war
being declared against a foreign State, citizens of that State who are within the UK are liable to be detained as
enemy aliens and an attempt to secure their release in the British Court may be not with a plea of act of State
or by the defense of lawful action under the prerogative.19. Where war has not been declared by the UK
against the foreign State, but military action is undertaken, nationals of that State resident in the UK are entitled
to the protection of court against unlawful detention,20. just as other friendly aliens within the jurisdiction are
entitled to be protected against unlawful action.21. But under ourConstitution, even enemy aliens may, subject
to legislation by Parliament, be entitled to the protection of Clauses (4)-(5) of Article 22, in case they are
arrested under a law of preventive detention.
An enemy alien cannot bring an action in the British Courts, nor if he was the plaintiff in an action begun before
the War, can he appeal during the war, for, the enemy cannot be given the advantage of enforcing his rights by
the assistance of the Sovereign with whom he is at war. On the other hand, an enemy alien can be sued during
the war as that permits British subjects or friendly aliens to enforce their right with the assistance of the
Sovereign against the enemy, and if he is sued, justice demands that he be allowed to appear and defend.
Further, if he is unsuccessful as defendant, he may appeal, for, he is entitled to have the case decided
according to law and, therefore, to have the error of a court of first instance rectified.22. The Crown has the
prerogative of confiscating enemy property, but if it is taken, it is usually handed over to Custodian during the
war.23.
With regard to the control of aliens for the security of the realm in time of war, the original distinction between
enemy and friendly aliens is commonly used. War time legislation and emergency powers during both the two
world wars gave the Crown very extensive powers of control over enemy aliens in this sense. The legislation
expressly preserved the Crown’s prerogative in relation to enemy aliens. At common law their licence to remain
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at large may be revoked at any time at the complete discretion of the Crown and they can be interned or
deported. The internment of an enemy alien is an Act of State and he has no right to apply for a writ of habeas
corpus against the Executive to challenge the Crown’s power to intern or deport.24.
Friendly aliens i.e., citizens of countries with which the Crown is not at war have long had the right to contract,
to own and dispose of personal property and to bring and defend actions. They may own and dispose of real
property. Resident aliens owe allegiance to the Crown and are subject to the general civil and criminal law.
They do not enjoy the parliamentary or local government franchise, they may not sit in either House of
Parliament or hold any public office; but they may be employed in any civil capacity under the Crown (a) outside
the UK or (b) under a certificate issued by a Minister with Treasury approval. Aliens are subject to restriction
with regard to employment in the armed forces, the Civil Service in the country and the merchant navy, jury
service; the ownership of British ships, holding a pilot’s certificate; change of name and taking part in certain
industrial activities.25.
[Art. 22.13.3] The place of Preventive Detention in a Chapter guaranteeing Fundamental Rights
Prima facie, the provision for preventive detention is rather anomalous in a chapter of the Constitution which
guarantees fundamental rights. The preventive detention law by its very nature has always posed a challenge
before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly
threatened interest of society and security of the State particularly during times of peace. It is as much a
deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to
prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of
the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is
not justiciable. The risk of the liberty of the individual under our detention law as it exists is all the more
aggravated because the authority entrusted with the power to detain is not directly accountable to the
Legislature and the people.26. Preventive detention is, by nature, repugnant to democratic ideas, and no such
laws exist in the U.S.A.27. or in England,28. in times of peace. OurConstitution, however, empowers the
Legislatures to make laws for preventive detention for reasons connected with several matters (enumerated in
Entry 9, List I and Entry 3 of List III), irrespective of any war or emergency. It has adopted preventive detention
as a subject matter of peace-time legislation as distinct from emergency legislation.28 In short, preventive
detention is a normal of ourConstitution.
The object of the framers of the Constitution in giving a constitutional status to preventive detention was to
prevent anti-social and subversive elements from imperilling the welfare of the infant Republic:
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The primary reason for the enactment of this legislation was the necessity to protect the country against violent
activities organised in secrecy and intended to produce chaos.29.
The entire scheme of preventive detention is based on the bounden duty of the State to protect the interest of
the country and welfare of the people from the canker of the anti-social activities by anti-social elements
affecting maintenance of public order, economic welfare of the country etc. Placing the interests of the nation
above the individual liberty of the anti-social and dangerous elements who constitute grave menace to society
by their individual acts, the preventive detention laws have been made for effectively keeping out of circulation
the detenus during a prescribed period by means of preventive detention.30. The Constitutional philosophy of
personal liberty is an idealistic view. The curtailment of liberty for reasons of States’ security, public order,
maintenance of national economic discipline, etc. is envisaged as a necessary evil administered under strict
constitutional restriction.31. It is a necessary evil in modern society.32.
So long as the preventive detention law is made within legislative power arising out of a legislative entry and
does not violate any of the conditions or restrictions on that power, such law cannot be struck down on the
specious ground that it is calculated to interfere with the liberties of the people. What is provided by the
Constitution itself cannot be judged as unconstitutional by importing courts’ notion of what is right and wrong.
One cannot, therefore, contend that preventive detention is basically impermissible under the Indian
Constitution. Though it is now well settled that the rights in Pt II of the Constitution are not mutually exclusive
and, therefore, a law of preventive detention under Article 22 must also satisfy Articles 14, 19 and 21, it is also
equally settled that a law of preventive detention cannot be held unconstitutional for the reason that it violates
Articles 14, 19, 21 and 22.33. When the Constitution itself sanctions laws providing for preventive detention, no
question of reasonableness could arise in view of the language of Article 21.34.
One practical result following from the adoption of preventive detention as a permanent feature of
ourConstitution has been that even in peace-time, the courts cannot question the sufficiency of reasons for
depriving a person of his liberty.35.
No lover of liberty can commend preventive detention as a permanent and peace time measure. The object of
the present work, however, is not to discuss the justifiability of preventive detention as a legal norm, but to
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comment upon the constitutional safeguards which have been provided in the present Article of ourConstitution,
by reason of which “preventive detention” has found a place, along with Article 21, in Pt III of the Constitution.
While the framers of ourConstitution considered the institution of preventive detention as indispensible for
maintaining the existence of the infant Republic, they also provided certain safeguards 35 to mitigate its
harshness by placing fetters on the legislative power conferred for this subject under Article 22. These are—
“(1) That no law can provide for detention for a period of more than three months unless the sufficiency for
the cause of the detention is investigated by an Advisory Board within the said period of three months
....
(2) That a State law cannot authorize detention beyond the maximum period prescribed by Parliament
under the powers given to it under Clause (7).
(3) That Parliament also cannot make a law authorizing detention beyond 3 months without the
intervention of an Advisory Board unless the law conforms to the conditions laid down in Clause (7).
(4) Provision has been also made to enable Parliament to prescribe the procedure to be followed by
Advisory Boards, as a safeguard against any arbitrary procedure....
(5) Apart from these enabling and disabling provisions certain procedural rights have been expressly
safeguarded by Clause (5) of Article 22. A person detained under a law of preventive detention has a
right to obtain information as to the grounds of his detention and has also the right to make a
representation protesting against on order of preventive detention. This right has been guaranteed
independently of the duration of the period of detention … … .”36.
[Art. 22.13.4] Preventive detention
“Preventive detention” means the detention of a person without trial in such circumstances that the evidence in
possession of the authority is not sufficient to make a legal charge or to secure the conviction of the detenu by
legal proof,37. but may still be sufficient to justify his detention, for any of the reasons specified in Entry 9 of List
I and Entry 3 of List III of Sch. VII (Defence, foreign affairs, security of India or of a State, maintenance of public
order or of supplies and services essential to the community).
The expression “preventive detention” is not defined in the Constitution; it has therefore, to be interpreted
according to the established rule of interpretation that words should be construed in their ordinary sense unless
they have acquired a technical sense.... The expression means “detention”, the object of which is to prevent the
doing of an act. Whatever the circumstances under which the detention is ordered and whatever the act which
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is sought to be prevented, if the detention is not a punishment for what the person concerned has already done
but a means of preventing an act, it is preventive detention.38. It means detention of a person without trial;
resorted to for the purpose of preventing a person from committing certain specified offences; a person held
under preventive detention in such circumstances that the detaining authority may not have sufficient evidence
to make a legal change, but may still be sufficient to justify his detention (Constitutional and Parliamentary
Terms). In the case of punitive detention, the person concerned is detained by way of punishment after he is
found guilty of wrong doing as a result of a trial, where he has the fullest opportunity to defend himself, while
“preventive detention” is not by way of punishment at all, but is intended to pre-empt a person from indulging in
any conduct injurious to the society.
Preventive detention is not punitive, but a precautionary measure. The object is not to punish a person, but to
intercept or prevent him from doing any illegal activity. Its purpose is to prevent a person from indulging in
activities such as smuggling and such other anti-social activities as provided under the preventive detention
law.39. Preventive detention is an anticipatory measure and does not relate to an offence while criminal
proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The
object of the law of preventive detention is not punitive, but only preventive. It is resorted to when the Executive
is convinced on the materials available and placed before it that such detention is necessary in order to prevent
the person detained from acting in a matter prejudicial to certain objects which are specified by law. The action
of the Executive in detaining a person being only precautionary, the matter has necessarily to be left to the
discretion of the executive authority.40.
There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a
criminal offence and does not provide for punishment. An act may not be declared an offence under law, but
still for such an act, which is illegal activity, the law can provide for preventive detention if such act is prejudicial
to State security.41.
Article 22(3)(b) is an exception to Article 21 and is not in itself a fundamental right. Hence, it cannot override
Article 21 which is the most important fundamental right.42.
The phrase “preventive detention” involves some species of custody or arrest which may be wanted in an order
of internment. An order restricting a person’s movement may amount to a detention order, if under the law the
person so restricted, if he leaves that place, can be brought by physical force or if he can be punished for so
leaving, for in that case the place to which his movements are restricted will constitute a sort of prison.43.
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In the case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing
harm in future and the opportunity he has for contesting the action of the Executive is very limited.44. Laws that
provide for preventive detention posit that the individual’s conduct prejudicial to the maintenance of public order
or to the security of the State or corroding financial base provides grounds for satisfaction for a reasonable
prognostication of possible future manifestation of similar propensities on the part of the offender. The
jurisdiction is called a jurisdiction of suspicion.45. Preventive detention is not to punish an individual for any
wrong done by him, but aims at curtailing his liberty with a view to prevent him from committing certain injurious
activities.46. In the case of preventive detention no offence is proved and justification of such detention is
“suspicion” or “reasonable probability” and there is no conviction which can only be warranted by legal
evidence. Preventive detention is often described as a “jurisdiction of suspicion”.47. The detaining authority
passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the
applicability of Clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a
Magistrate within twenty four hours of arrest. To prevent misuse of potentially dangerous power, the law of
preventive detention has to be strictly construed and meticulous compliance with procedural safeguards,
however technical, is mandatory and vital.48.
Preventive detention essentially deals with the curtailment of a person’s liberty and is therefore a potential
weapon for human rights’ abuses. In the U.S., some States’ statutes authorise preventive detention, where
there is clear and convincing evidence that the defendant is a danger to another person or to the community
and that no condition or combination of conditions of pre-trial release can reasonably protect against that
danger. It has been noted that pre-trial detention is not to be employed as a device to punish a defendant
before guilt has been determined nor to express outrage at a defendant’s evident wrongdoing, but its sole
purpose is to ensure public safety and the defendant’s future appearance in court when the Government proves
that conditions of release cannot achieve those goals. In the U.K., preventive detention is more or less
employed in counter-terrorism measures.49.
In case of preventive detention no offence is proved, nor any charge is formulated and the justification for such
detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal
evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But
at the same time, a person’s greatest of human freedoms, i.e., personal liberty is deprived and, therefore, the
law of preventive detention is to be strictly construed, and a meticulous compliance with the procedural
safeguard, however technical, is mandatory. The compulsion of the primordial need to maintain order in society
without which enjoyment of all rights, including the right of personal liberty would lose all their meaning, are the
true justifications for the laws of preventive detention. This jurisdiction has been described as “jurisdiction of
suspicion” and is motivated by the compulsions to preserve the value of freedom of a democratic society and
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social order merit, for which the individual liberty may be curtailed. To lose our country by a scruplous
adherance to the written law, said THOMAS JEFFERSON, would be to lose the law, absurdly sacrificing the
end to the means. No law is an end in itself and the curtailment of liberty for reasons of State’s security and
national economic discipline as a necessary evil has to be administered under strict constitutional restrictions.
No carte blanche is given to any organ of the State to be the sole arbiter in such matters.50.
1. While the object of punitive detention is to punish a person for what he has done, the object to preventive
detention is to prevent him from doing something,51. which comes within the above entries. While punitive
detention comes after the illegal act is actually committed, preventive detention has reference to the
apprehension of wrong doing.52. The object of preventive detention is to prevent the individual not merely from
acting in a particular way, but from achieving a particular object.53.
A person is punitively detained only after a trial for committing a crime and after his guilt has been established in a
competent court of justice .... Preventive detention, on the other hand, is not a punitive but a precautionary measure.
The object is not to punish a man for having done something but to intercept him before he does it and to prevent him
from doing it. No offence is proved, nor any charge formulated; and the justification is suspicion or reasonable
probability and not criminal conviction which only can be warranted by legal evidence.54.
A preventive detention order is passed on the basis of subjective satisfaction of detaining authority without trial,
without lawyer’s assistance and without being produced before the Magistrate within twenty four hours after
arrest. It is repugnant to democratic ideas and rule of law. But, since Article 22(3) of the Constitution permits
preventive detention, it cannot be held to be illegal. To control this potentially dangerous power, law of
preventive detention should be strictly construed and confined to narrow limits of rare and exceptional cases
and meticulous compliance with procedural safeguards should be made mandatory. In substance, preventive
detention also amounts to punishment by way of imprisonment for a period. It is a jurisdiction of suspicion.55. In
Rekha v State of TN, the court said that if recourse to criminal proceedings would be sufficient to deal with
alleged prejudicial activities, then the detention order will be illegal. To order preventive detention, though it is
based on subjective satisfaction of detaining au thority, such subjective satisfaction must be based on some
material. Mere likelihood or speculation cannot form the basis of curtailment of liberty.56.
2. The object being to prevent the person from acting in a manner prejudicial to public order, the security of the
State or the like, his past conduct and antecedents may form the basis of an order of detention if they reveal a
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tendency to do such acts; and it is not necessary for the State to establish actual breach of public order etc.
having been caused by his acts.57.
3. It has been provided for by the Constitution itself in the public interest and it cannot be defeated on the
ground of abridging the liberties of the people or the doctrine of “due process”.58.
4. When a law of preventive detention is challenged before the court, the court has got to decide on a
consideration of the true nature and character of the legislation whether it is really on the subject of preventive
detention or not.59. But once the legislation is held to be really on the subject of preventive detention and within
the powers assigned to the Legislature in question, the courts have nothing to do with the reasonableness or
unreasonableness of the legislation. If a particular piece of legislation be within the ambit of the Legislature’s
authority, there can be nothing arbitrary in it, so far as a court of law is concerned.60.
When the acts alleged against a person can be dealt with under ordinary law of the land, taking recourse to
preventive detention is contrary to the constitutional guarantee enshrined in Articles 19 and 21.61.
[Art. 22.13.5] Grounds for Preventive detention (A) England.—
U.K.
Preventive detention for reasons connected with war has come to stay in England since World War I. We have
seen (p. 4910) that it was provided by Regulations framed under the Defence of the Realm Act, 1914. Reg. 18B
of the Defence (General) Regulations framed under the Emergency Powers (Defence) Act, 1939, similarly
provided:
If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations.... and that
by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that
he be detained.
The House of Lords held that the expression “if he has reasonable cause to believe” meant nothing more than
“if he thinks he has reasonable cause”. The courts could not, therefore, interfere with an order of detention
except where it had been made without good faith, the onus to prove which was on the person who challenged
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the order.62. LORD ATKIN in a dissenting opinion said, whether the Secretary of State had “reasonable cause
to believe” was an objective question, subject to judicial review. The majority of House of Lords held that the
aforesaid expression in Regulation simply meant – if the Secretary thinks that “he has reasonable cause to
believe”, such that it was his subjective opinion which was not open to judicial review (except only on ground of
absence of good faith) – which was impossible for the detenu to establish. LORD ATKIN’S dissenting judgment
has been followed by the House of Lords in subsequent cases.63. The certificate of the Foreign Secretary
given on behalf of the Crown as to the existence of a state of war involving the King of England was conclusive
and binding on the court and habeas corpus would not lie in such cases,64. where the Home Secretary had
passed an order of detention of a certain person under Defence (General) Regulation, 1939, as the Home
Secretary had “reasonable cause to believe” that the person was a member or was active in furtherance of the
objects of a certain organisation, and the court could not compel him to produce the confidential reports on the
basis of which he had come to his belief.65.
The traditional theory of “personal liberty” as Dicey understood it, has thus undergone a revolutionary change.
According to him, personal liberty meant that “(i) Physical restraint of an individual may be justified only on the
ground that he has been accused of some offence and must be brought before the court to stand his trial, or (ii)
that he has been convicted of some offence and must suffer punishment for it.” But since the decisions in R. v
Halliday66. and Liversidge v Anderson,67. it is now settled that Parliament may empower the Executive to
make regulations for the detention without trial of persons whose detention appears to be expedient “in the
interest of the public safety or the defence of the realm.”
At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give
up his life and all that he possesses for his country’s cause it may well be no matter for surprise that there should be
confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention.68.
But never so far has the English Parliament authorised detention without trial except in times of war or beyond
the duration of such exigency. It is to be noted that while the Emergency Powers Act, 1920, empowers the
Executive to take extraordinary action, in time of peace, to secure the essentials of life to the community, and
even provides for summary trial of offences against the regulations so made, the Act specially prohibits the
alteration of the rules of criminal procedure and there is, accordingly, no provision for preventive detention in
the interests of public order, general safety or essentials of life, apart from a war or emergency.
Anti-terrorism, Crime and Disorder Act, 2001, authorised new powers of detention without trial. The Act
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authorised the Secretary of State to issue a certificate in respect of an individual whose presence in U.K. is
reasonably believed to present a risk to national security and who is reasonably suspected of being a terrorist.
In A v Secretary for the Home Department69. the House of Lords held that the provision in primary and
secondary legislation conferring the power to detain without trial foreigners who were “suspected international
terrorists” did not rationally address the threat to security and constituted a disproportionate response, and were
not strictly required by the exigencies of this situation. Accordingly, the secondary legislation was quashed and
the primary legislation was declared incompatible with the European Convention of Human Rights. This
decision declares that the courts have a responsibility to ensure ministerial compliance with the role of law.70.
In Brogan v U.K.,71. it was held that a system of detention dependent on authorisation by the Executive
amounts to breach of Article 5(3) of the European Convention.72.
(B) Australia.—
See ante.
(C) U.S.A.—
As has been already pointed out (p. 5029, ante), there is no provision for preventive detention in time of peace.
U.S.A.
But provision for preventive detention in an “emergency” was made by sections 102-3 of the Internal Security
Act, 1950. In the event of any one of the following—(a) invasion of the territory, (b) declaration of war by
Congress, (c) insurrection within the United States in aid to a foreign enemy, the President may make a
proclamation of an “Internal Security Emergency”. During the continuance of such emergency, the President is
authorised to apprehend and by order detain “each person as to whom there is reasonable ground to believe
that such person probably will engage in, or probably will conspire with others to engage in acts of espionage or
sabotage”.
This provision introduced a new era in the constitutional history of the United States. It is worthy of notice that
Congress gave a legislative determination of clear and present danger in the Preamble in support of this
legislation, as follows:
As a result of evidence adduced before various committees .... the Congress hereby finds that—
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The experience of many countries in World War II and thereafter with so-called ‘fifth columns’ which employed
espionage and sabotage to weaken the internal security and defence of nations resisting totalitarian dictatorships
demonstrated the grave dangers and fatal effectiveness of such internal espionage and sabotage……
Due to the wide distribution and complex interrelation of facilities which are essential to national defence and due to the
increased effectiveness and technical development in espionage and sabotage activities, the free and unrestrained
movement in such emergencies of members or agents of such organizations…would make adequate surveillance to
prevent espionage and sabotage impossible and would, therefore, constitute a clear and present danger to the public
peace and safety of the United States……
The detention of persons who there is reasonable ground to believe probably will commit or conspire with others to
commit espionage or sabotage is, in a time of internal security, emergency, essential to the common defence and to
the safety and security of the territory, the people and the Constitution of the United States.
Though there is no direct decision as yet upholding the validity of an order of detention under this Act, there are
decisions which suggest its constitutionality.73.
The Act provided for the detention (for an indefinite period and without bail)74. subject to the procedure
prescribed by the Act, of a person against whom the Attorney General had “a reasonable ground to believe”
that he will probably engage in acts of espionage or sabotage.
The Bail Reforms Act, 1984, empowers federal courts to detain prior to trial individuals who have been arrested
and charged with crimes of violence, offences for which the punishment was life imprisonment or death or
serious drug offences or who are certain repeat offenders if the government demonstrates by clear and
convincing evidence in an adversary hearing that no condition of release “will reasonably assure” the safety of
any other person and the community. In addition, the court has to give written reasons for denying bail and the
decision is reviewable immediately.The validity of the Act was upheld in U.S. v Salerno.75. In that case, the
court sustained the preventive detention authorised by the Bail Reforms Act, 1984.
(D) Ghana.—
Ghana
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Ghana is one of the few countries where preventive detention may be lawful not only in times of war but also in
times of peace “to prevent a person acting in a manner prejudicial to the security of the State”. This is provided
by section 2(1) of the Preventive Detention Act, 1958, which has been held not to be inconsistent with the
Republican Constitution of Ghana, 1960 (by reason of section 40 thereof), as held by the Supreme Court.76.
India
The Act authorises the President to order detention of any person on his “subjective satisfaction”. It would not
be unreasonable to think that the framers of this Act had seen the Indian Preventive Detention Act, 1950. But
there is no provision for scrutiny by any Advisory Board or Tribunal under the Ghana Act.
(E) India.—
Under the Constitution of India , the Legislature has been empowered to provide for preventive detention even
in times of peace. Entry 9 of List I, of course, relates to reasons connected with war or the external security of
India; but Entry 3 of List III authorises the Union and State Legislatures to provide for preventive detention to
maintain internal security, public order and the essentials of life, apart from any condition of war. This is
undoubtedly an extraordinary departure from the English ideal of personal liberty. And this is why courts have to
take particular care and caution in applying a law passed under this power even though they may not be
competent to question the wisdom or propriety of the provision itself.
Section 3(1)(a) of the National Security Act, 1980 which has been enacted by the Parliament in exercise of the
power conferred by Entry 9 of List I says – (1) The Central Government or the State Government may – (a) if
satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the
defence of India, the relation of India with foreign powers, of the security of India or … . it is necessary so to do,
make an order directing that such person be detained.
The above view has been expressed ante, and our Supreme Court has observed:
Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has
provided against the improper exercise of the power must be jealously watched and enforced by the court.77.
But while even in Burma the courts have held that preventive detention cannot be resorted to in cases
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punishable under the ordinary criminal law,78.our courts79. have held that there is nothing wrong in it, provided
they relate to a ground specified in the relevant legislative Entry, e.g., public order or maintenance of essential
supplies. This aspect has been bitterly criticised by a section of public opinion in India, particularly because the
power may be abused for purposes of discrimination on political grounds.
In Subhash Popatlal Dave v UOI,80. CHIEF JUSTICE KABIR said that the authorities should not exercise the
power to order preventive detention as an alternative to ordinary laws. When ordinary law of the land (IPC and
other penal statutes) is sufficient to deal with a situation, recourse to preventive detention law is illegal.81.
Merely because there is difficulty in procuring evidence to sustain conviction in criminal cases against the
detenu, that is no ground to invoke preventive detention law. Difficulty in procuring evidence is not a reason to
detain a person under preventive detention law.82.
[Art. 22.13.6] History of the Law of Preventive Detention in India Pre-Constitution India
Detention without trial was not a new idea introduced by the makers of ourConstitution. It was in existence
since the early days of British India, under the notorious Bengal Regulation III of 1818 (the Bengal State
Prisoners Regulation) and similar enactments in Madras and Bombay which laid no fetters upon the powers of
the Government to detain a person on suspicion. Thereafter, the Rowlett Act 1918 was brought into force which
is known as “Black Law”. It was the most oppressive and draconian enactment to overcome every opposition to
British Raj.
Government of India Act, 1935 too contained provisions for preventive detention. Under the said Act, preventive
detention was not a subject matter of concurrent legislative power. Preventive detention under Entry I List I was
in respect of matters over which federal legislature had exclusive jurisdiction and preventive detention under
Entry I List II was in respect of matters over which provincial legislatures had exclusive legislative power. Then
came Rule 26 of the Rules framed under the Defence of India Act, 1939, which authorised the Government to
detain a person whenever it was “satisfied with respect to that particular person that such detention was
necessary to prevent him from acting in any manner prejudicial” to the defence and safety of the country and
the like.83. This was, of course, a war time measure modelled on similar legislation in England, during World
War II, the validity of which had been upheld by the House of Lords.84. But even after the cessation of the war,
preventive detention was continued in India as an instrument to suppress apprehended breach of public order,
public safety and the like, by the Provincial Maintenance of Public Order Act, under which there was a spate of
litigation. The framers of ourConstitution simply made it possible for such legislation to be continued under the
Constitution, subject to certain safeguards laid down therein, because they painfully visualised that the
circumstances which had necessitated such abnormal legislation in the past had not disappeared at the birth of
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India’s independence. It is common knowledge that the Republic had its birth amidst anti-social and subversive
forces and the ravages of communal madness involving colossal loss of lives and property. In order to save the
infant Republic from the inroads of any such subversive elements, therefore, this power had to be conferred
upon the State.
The inclusion of the provision for preventive detention was justified by the Founding Fathers of Indian
Constitution on the ground of safeguarding the hard won freedom of the country which could be jeopardized by
the anti-national and anti-social elements. DR. B.R. AMBEDKAR addressing the Constituent Assembly on Sept
15, 1949 said that there might be such cases as tampering either with public order or with Defence Services in
the country and people who are impatient in reaching their objectives and for that purpose resort to
unconstitutional methods. It is also on record that the inclusion of this provision generated lot of heated debates
and criticism in the Constituent Assembly.85.
Preventive detention was discussed in the Constituent Assembly against the background of violence which had
erupted on the partition of India and of a revolutionary movement in Telengana. Therefore, in spite of grave
misgivings, the provisions relating to preventive detention were passed, all the more so because leaders of the
stature of Jawaharlal Nehru and Sardar Patel thought them necessary. At that time, it seemed reasonable to
believe that freedom fighters who had suffered from preventive detention themselves were not likely to abuse
the powers entrusted to them after freedom had been won.86.
Under the Constitution
The framers of the Constitution improved upon the existing law by subjecting the power of preventive detention
to certain constitutional safeguards upon the violation of which the individual could have a right to approach the
Supreme Court or the High Courts because these safeguards are fundamental rights, for the enforcement of
which the constitutional remedies would lie. There have been a number of cases in which the courts have
nullified orders of preventive detention in proceedings for habeas corpus.
The above provisions of the Constitution are not self-executory but require a law to be made by the Legislature
[Article 22(3)(b)], conforming to the conditions laid down in the article, and preventive detention can subsist only
so long as the Legislature permits.
P. D. Act
I. The first Act of Preventive Detention which was passed by Parliament under the above powers conferred by
the Constitution was Act IV of 1950, which came into force on the 25 February 1950 and was to cease to have
effect on 1 April 1951. On 19 May 1950, the Supreme Court pronounced its decision in Gopalan v State of
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Madras,87. declaring section 14 of the Act, as ultra vires. This led to the passing of the Preventive Detention
(Amendment) Act (L) of 1950, by which section 14 of Act IV of 1950 was omitted and some other changes
effected. Subsequently, by the Preventive Detention (Amendment) Act (IV) of 1951, the duration of Act IV of
1950 was extended up to the 1 April 1952, and some other provisions were inserted. The Amendment Act (IV)
of 1951 was declared valid by the Supreme Court in Krishnan v State of Madras.88.
Next came the P. D. (Second Amendment) Act (LXI of 1952). It not only extended the life of the original Act
upto the 31 December 1954, but also introduced substantial provisions, such as s. IIA, to prescribe the
maximum duration of an order of detention. In the case of Godavari v State of Bombay,89. the Supreme Court
upheld the validity of section 11A(2), as inserted by the Second Amendment Act, 1952, holding that the sub-
section did not offend Article 14 by differentiating between detention orders which were confirmed before 30
September 1952 and those which were confirmed thereafter.
The P.D. Act was a temporary Act, originally passed for one year only. Several times since then the term of the
Act was extended until it expired at the end of 1969. After the expiry of this Act in 1969, the Maintenance of
Internal Security Act (MISA) was enacted in 1971 followed by its economic adjunct the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 and Terrorist and Disruptive Activities (Prevention)
Act, 1987. Though MISA and TADA have been repealed, COFEPOSA continues to be operative along with
other similar laws such as the National Security Act, 1980 and the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act, 1980.90.
II. The revival of anarchist forces obliged the Parliament to enact a new Act, named the Maintenance of Internal
Security Act.
In July, 1971, the Parliament enacted the Maintenance of Internal Security Act, 1971 (a permanent statute) to
combat the violent activities of some Leftist forces in different parts of the country. This Act (popularly known as
the MISA) fell under bitter criticism when it was utilised for political purposes, after expanding its scope,
immediately after the Proclamation of Internal Emergency by Mrs. Gandhi’s Government.
MISA
After the Proclamation of Emergency in 1975, the powers conferred by this Act were used against political
leaders on the ground of inciting “internal disturbance”, so that the number of persons detained under the MISA
went up to 6847 in March, 1977. The Janata Government, headed by Sri Desai, adopted the policy of releasing
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persons detained on political grounds, including persons under trial or convicted of offences punishable under
the general law, so that the number of detained persons came down to 592 on 13 August 1977.91.
Closely following the declaration of internal Emergency, MISA was amended several times to make its
provisions more rigorous. Thus, section 16A was inserted into the Act to prohibit the disclosure of the grounds
of detention under this Act by any person, so that it virtually excluded judicial review.
On the eve of coming to power, the Janata Party promised to abolish detention without trial. It took about a year
to take effective steps in this behalf, because after coming to power, the Janata Government came to realise
the reality of the problem. Eventually, in April, 1978, the MISA was repealed by Parliament.
III. Side by side with the MISA should be mentioned another Act for preventive detention, which was enacted by
Parliament on December 13, 1974, to provide specifically for “preventive detention for the purposes of
conservation of foreign exchange and prevention of smuggling activities”, which is popularly referred to as
COFEPOSA. The said legislation was passed with the avowed purpose to check foreign exchange violation,
but smuggling still continues and the Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 is still in force. The Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 is in existence as an effective measure to check illicit traffic in narcotic drugs and
psychotropic substances, one of the greatest hazards of health in modern society. National Security Act, 1980
was passed by the Parliament to deal with communal disharmony, social tension, industrial unrest and
extremist activities.
Two cases decided by the House of Lords provide the complete picture of preventive detention in common
law.92. The first case was decided during the First World War and the second case was decided during the
Second World War. Jurist H.M. SEERVAI has set out important features of preventive detention in England –
(1) The order of detention could not be passed by any minor official but by Secretary of State who is
responsible for his action in Parliament; (2) In many cases, the Home Secretary would act on information which
would be confidential; (3) Those who are responsible for national security must be the sole judges of national
security. It would be obviously undesirable that such matters should be made subject to evidence in court of
law, or be otherwise discussed in public; (4) The Secretary of State was provided with one or more Advisory
Committee and he had to report once a month to Parliament on what action he had taken and the orders he
had made and the number of cases in which he had decided to follow the advice of the Advisory Committee; (5)
Person aggrieved by detention may make representation to the Advisory Committee. The duty is imposed on
the Chairman to inform the aggrieved of the grounds on which the detention order has been made and to
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furnish him with such particulars as are in the Chairman’s opinion sufficient to enable him to state his case; (6)
A challenge to the order would be open if it was not made in good faith or in a case of mistaken identity; (7) But,
if the sense of the country was outraged by the system or practice of making detention orders or indeed by any
particular order, it could make itself sufficiently felt in the Press and in Parliament to put an end to an abuse and
Parliament can always amend the regulation.93.
COFEPOSA
From 1974 onwards, India had two all-India Acts authorising preventive detention in place of the P.D. Act of
1950, namely, the MISA and the COFEPOSA. The provisions of the COFEPOSA are parallel to those of the
MISA. Section 3 authorises an order of preventive detention to be made to prevent a person from smuggling
goods, dealing in them and the like. This Act was amended in August, 1975, to insert section 12A, of the same
nature as section 16A of the MISA. Of course, both the extraordinary provisions expired on the lifting of the
Emergencies declared in 1971 and 1975, and in March, 1977 on the eve of the Janata Government coming to
power.
It is to be noted that with the termination of the Emergency, the order under Article 359, suspending Articles 19,
21 and 2294. also expired, so there was no longer any bar against any petition under Articles 32 or 226 being
brought by a detenu under any of these Acts.95.
IV. While the Janata Government repealed the MISA, they refused to repeal the COFEPOSA because while the
former related to political detention, the latter was aimed at social offences which required extra power to check
when inflation, blackmarketing, smuggling and the like were rampant.
The provisions in Clauses (2)-(7) of Article 22 could not be altogether omitted, so long as preventive detention
was authorised by COFEPOSA. The Janata Government, therefore, sought to alleviate the rigours of the
procedure for preventive detention, by effecting changes in Clauses (4) and (7), by enacting the Constitution
(44th Amendment) Act, 1978. But the relevant provisions of this Amendment Act could not be brought into
effect immediately since some changes in the machinery of the Advisory Boards had to be made. Hence, the
Amendment Act of 1978 empowered the Central Government to bring into force these provisions by issuing
notifications. Paradoxically, however, before any such notification could be issued, the Janata Government had
its fall and Mrs. Gandhi returned to power in January, 1980. The Government, in her second regime, refused to
issue any such notification notwithstanding adverse comments by the Supreme Court in view of the inordinate
delay.96. In the result, the original clauses relating to preventive detention in Article 22 subsist till today and the
relevant provisions of the Amendment Act of 1978, solemnly passed by Parliament, remain a dead-letter.
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V. The COFEPOSA thus remains in force. On the other hand, subsequent Governments have added to the
list1. of all-India enactments providing for preventive detention in the sphere covered by Entry 9 of List I of the
VIIth Sch. These are—
1. National Security Act, 1980.2.
2. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
3. Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
4. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
State Acts
Together with the above, some States, e.g., Jammu and Kashmir and Madhya Pradesh, Tamil Nadu,
Maharashtra, Gujarat, Bihar, Andhra Pradesh, etc. have enacted State laws, authorising preventive detention3.
which recall the old Preventive Detention Act of 1950. It should be pointed out in this context that the legislative
power to enact law of preventive detention is divided by the Constitution between the Union and the States. The
Union has exclusive power [Entry 9 of List I, VIIth Sch.] only when such law is required for reasons connected
with Defence, Foreign Affairs or the Security of India. A State has power, concurrently with the Union, to
provide for preventive detention for reasons connected with security of the State, maintenance of public order,
or the maintenance of supplies and services essential to the community [Entry 3 of List III]. A State has,
therefore, a say in the matter of abolishing preventive detention on these grounds because it is a responsibility
of the State to maintain public order [Entry 1 of List III] and for production, supply and distribution of goods
[Entry 27 of List II].
Some of the State legislations are Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, First Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982; the Gujarat
Prevention of Anti-Social Activities Act, 1985; the Bihar Control of Crimes Act, 1981, the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Activities of
Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986; the
Jammu & Kashmir Public Safety Act, 1978; the Karnataka Prevention of Dangerous Activities of Bootleggers,
Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985; and the UP
Gangsters and Anti-Social Activities (Prevention) Act, 1986, etc.
[Art. 22.13.7] Preventive Detention and Criminal Prosecution
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1. A criminal proceeding and preventive detention are not parallel proceedings.4. The object of a criminal
prosecution is to punish a person for an offence committed by him, while preventive detention is an anticipatory
measure and may not relate to an offence.4 Preventive Detention is not punitive, but a precautionary measure.
The object is not to punish a person, but to intercept or prevent him from doing any illegal activity. Its purpose is
to prevent a person from indulging in activities such as smuggling and such other anti-social activities as
provided under preventive detention law. Preventive detention essentially deals with the curtailment of a
person’s liberty and is therefore a potential weapon for human rights’ abuses. In U.S., some State statutes
authorise preventive detention, where there is clear and convincing evidence that the defendant is a danger to
another person or to the community and that no condition or combination of conditions of pre-trial release can
reasonably protect against that danger. It has been noted that pre-trial detention is not to be employed as a
device to punish a defendant before guilt has been determined, nor to express outrage at a defendant’s evident
wrongdoing, but its sole purpose is to ensure public safety and the defendant’s future appearance in court when
the government proves that condition of release cannot be achieved those goals. In the U.K., preventive
detention is more or less employed in counter-terrorism measures.5.
2. It follows that the pendency of a prosecution is no bar to an order of preventive detention, nor is an order of
preventive detention a bar to prosecution.6. An order of preventive detention may be made in anticipation of or
simultaneously7. with a prosecution or after discharge or even acquittal in a criminal proceedings,7 and, may
be made relying on the same facts for when prosecution may be or may have been launched.6 An order of
preventive detention can be made even after a criminal proceeding is withdrawn8. for want of sufficient
evidence.9. It is for the detaining authority to determine, in his subjective satisfaction, whether, even in such a
case there are sufficient materials to place the person under preventive detention in order to prevent him from
acting in a manner prejudicial to public order or the like, in future.9 There is no constitutional mandate that
preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for
punishment. An act may not be declared as an offence under law, but still for such an act which is an illegal
activity, the law can provide for preventive detention if such an act is prejudicial to State security. After all, the
essential concept of preventive detention is not to punish a person for what he has done, but to prevent him
from doing an illegal activitity prejudicial to the security of the State. Strictly speaking, preventive detention is
not regulation, it is something much more serious as it takes away the liberty of a person, but it is accepted as a
necessary evil to prevent danger to the community. The law of preventive detention arms the State with
precautionary action and must be seen as such. The Constitution recognises preventive detention though it
takes away the liberty of a person without any inquiry or trial. Preventive detention results in negation of
personal liberty of an individual; it deprives an individual of his freedom and is not seen as compatible with the
rule of law, yet the framers of the Constitution placed the same in Pt III of the Constitution. The court has, time
and again, given the expression “personal liberty” its full significance and asserted how valuable, cherished,
sacrosanct and important the right of liberty given to an individual in the Constitution was and yet the legislative
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power to enact preventive detention laws has been upheld in the larger interests of the State security.10. The
safeguards that the Constitution and preventive detention laws provide must be strictly insisted upon whenever
the court is called upon to examine the legality and validity of an order of preventive detention.11.
3. The vesting of such discretionary power in the authority to prosecute or to make an order of detention is not
4. There are some cases where it was held that where the facts alleged are so simple that a criminal
prosecution could have been successfully maintained, but the authority resorts to preventive detention after
dropping criminal proceedings, sufficient reason should be disclosed (by proper counter-affidavit) to satisfy the
court why criminal prosecution could not be resorted to or pursued to its successful termination,13.e.g., (i) that
witnesses were afraid of deposing in court; (ii) that though the evidence in Court was deficient, the detaining
authority was satisfied from credible information that the charges against the detenu were true.13
Where the activities of a person or offences complained of against a person are of the nature which can be
dealt with under ordinary law of the land, resort to preventive detention is not proper.14. In Rekha v State of
Tamil Nadu,15. the court said that if a person is liable to be tried or is actually being tried for a criminal offence,
but the ordinary criminal law will not be able to deal with the situation, “then and only then” can recourse be
taken to the preventive detention law. If recourse to criminal proceedings would be sufficient to deal with
alleged prejudicial activities, then detention order would be illegal. Court said that preventive detention is, by
nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the U.S.A. and
in England (except during war time). Since, however Article 22(3)(b) of the Constitution of India permits
preventive detention, it cannot be held illegal, but exercise of power of preventive detention must be within
narrow limits, otherwise it will result in taking away the great right to liberty guaranteed by Article 21 of the
Constitution.
But they 13 must have lost their authority 12 since the unqualified statements of the Constitution Bench in
Haradhon’s case.16.
5. After reviewing the cases subsequent to Haradhon,17. the law on the point has been summarised in 199018.
as follows:
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i. The possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention
(para 8).18
ii. The justification for such detention is suspicion or reasonable probability and not criminal conviction which
can only be warranted by legal evidence. Therefore, the question is whether a particular person is disposed to
commit the prejudicial acts. The duty of deciding this question is thrown upon the State. The justification is
suspicion or reasonable probability and not criminal charge. Unless it clearly appears that preventive detention
is being resorted to as the line of least resistance where criminal prosecution would be the usual course, no
fault can be found with it. What is to be seen is whether the detaining authority has applied its mind or not to the
question whether it was necessary to make preventive detention.18
In Rekha’s case,19. court took into consideration the decision in Haradhan Saha v State of WB,20. wherein it
was held that even if a person is liable to be tried in criminal court for commission of a criminal offence or is
actually being so tried, that does not debar the authorities from passing a detention order under a preventive
detention law. In Rekha’s case, the court explained that the above dictum to be understood correctly must be
construed in the background of the constitutional scheme in Article 21 of the Constitution. Court said that Article
22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central
to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a
person to prison, a trial must ordinarily be held giving him an opportunity of placing his defence through his
lawyer. It follows that if a person is liable to be tried or is actually being tried for a criminal offence, but the
ordinary criminal law will not be able to deal with the situation, then, and only then can the preventive detention
law be taken recourse to.
Preventive detention is an anticipatory measure and does not relate to an offence, while criminal proceedings
are to punish a person for an offence committed by him. They are not parallel proceedings … Laws that provide
for preventive detention posit that an individual’s conduct is prejudicial to the maintenance of public order or to
the security of State or corroding financial base provides grounds for satisfaction for a reasonable
prognostication of possible future manifestation of similar propensities on the part of the offender. The
jurisdiction has been called a jurisdiction of suspicion.21.
Past activities
iii. The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances
may provide sufficient ground for detention. In preventive detention, the past act is merely the material for
inference about the future course of probable conduct on the part of the detenu. The past conduct or
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antecedent history of a person can be taken into account when making a detention order and as a matter of fact
it is largely from prior events showing the tendencies or inclination of the man that an inference could be drawn
whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.22. But
such conduct should be reasonably proximate and should have a rational connection with the conclusion that
the detention of the person is necessary. The question of relation of the activities to the detention order must be
carefully considered. Where the detaining authority is satisfied that it would not be possible to control the habit
of the detenu in continuing the criminal activities except by passing an order of preventive detention, the same
cannot be held as illegal.23. In such cases, the detenu cannot contend that taking steps under ordinary law of
the land are sufficient and not preventive detention.
The past conduct of a person can appropriately be taken into account in making the detention order, for, it is
largely from past tendencies of a person that an inference can be drawn whether he is likely to act in future in a
prejudicial manner. But such an inference is justifiable only if the past conduct is proximate in point of time and
has a rational connection with the conclusion that the detention of the person is necessary.24. In the case of a
person who was habitually indulging and was the mastermind behind various illegal activities resulting in
destruction of forest wealth and the detaining authority is unable to control him by invoking the provisions of
ordinary criminal law, a detention order could be validly made.25.
iv. When a grievous crime against the community was committed it would surely be subject to the penal law
and stringent sentences, but at the same time it could be considered unsafe to allow him the opportunities to
repeat the prejudicial acts during the period which the penal process was likely to take to punish him.
v. It cannot be said that the satisfaction of the detaining authority on the basis of his past terrorist and disruptive
activities that if the detenu were to be left at large he would indulge in similar activities in future and thus act in a
manner prejudicial to the maintenance of public order etc. would not be based on adequate materials.26.
In preventive detention (as distinguished from a criminal prosecution), the past act is merely the material for inference
about the future course of conduct on the part of the detenu.27.
[Art. 22.13.8] Safeguards relating to Preventive Detention
The object of the framers of the Constitution in giving a constitutional status to preventive detention was to
prevent anti-social and subversive elements from imperilling the welfare of the infant Republic.28. But though
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they recognised the necessity of laws for preventive detention, they also provided certain safeguards to mitigate
their harshness, placing fetters on the legislative power conferred on this subject under Articles 21-22.
(i) By reason of Article 21—
(a) Preventive detention cannot be ordered by the Executive without the authority of a law and unless
in conformity with the procedure laid down therein.29.
(b) The law must be valid law, i.e., within the legislative competence of the Legislature which is
enacting it.30.
Article 9(1) of International Convention, Article 9 of Universal Declaration and Article 5(1) of
European Convention guarantees this proposition. A person cannot be deprived of his liberty
by the fist of the Executive or the police, but only under the authority of law. It guarantees that
no one should be subjected to “arbitrary” detention, but also from the principle of “Rule of law”
which is assured by the Universal Declaration, so that no detention which is arbitrary can be
regarded as lawful.31.
(ii) Article 22 next imposes the following restrictions upon the power of the Legislature itself to enact a law
of preventive detention,—
(a) Making it obligatory to constitute an Advisory Board to recommend confirmation of the detention
where it is sought to continue beyond three months. [See under Clause (4), below.] Under Article
22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds
that in its opinion there is sufficient cause for such detention. The Board must report before the
expiry of three months. If the report is not made within the said period from the date of detention,
the detention would become illegal.
The constitutional validity of the Preventive Detention Act was upheld by the Supreme Court in
terms of Parliamentary power to enact such a law in A.K. Gopalan v State of Madras.32. But,
in that case, some of the learned judges observed that the preventive detention laws are
repugnant to a democratic constitution and such a law does not exist in democratic countries.
In Ram Krishna Bhardwaj v State of Delhi,33. the court said: “Preventive detention is a serious
invasion of personal liberty and such meager safeguards as the Constitution has provided
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against improper exercise of the power must be zealously watched and safeguarded by
Supreme Court”.
(b) A State law cannot authorize detention beyond the maximum period prescribed by Parliament
under the powers given to it under Clause (7).
(c) Parliament also cannot make a law authorizing detention beyond three months without the
intervention of an Advisory Board unless the law conforms to the conditions laid down in Clause
(7).
(d) Provision has also been made to enable Parliament to prescribe the procedure. The procedural
rights are also available to a person subjected to preventive detention.34. If the procedure is not
strictly followed, the person detained is entitled to be released by court.35. It is also declared that
the procedure so prescribed must also be fair and reasonable.36.
(e) Apart from these enabling and disabling provisions, certain procedural rights have been expressly
safeguarded by Clause (5) of Article 22. A person detained under a law of preventive detention has
a right to obtain information as to the grounds of his detention and has also the right to make a
representation protesting against an order of preventive detention. This right has been guaranteed
independently of the duration of the period of detention....37.
In the case of preventive detention, the detenu is to be told about the grounds on which the order of
detention is made against him, but he has no right to consult a lawyer or to defend himself before a
court of law. He has a right to make a representation.38. In that case, the court explained preventive
detention as detention of a person without trial in such circumstances that the evidence in possession
of the authority is not sufficient to make a legal charge or to secure the conviction of the detenu by legal
proof, but may still be sufficient to justify his detention. The object of preventive detention is to prevent
the detenu from doing something or to prevent the individual from achieving a particular object. The
satisfaction of the authority concerned is a subjective satisfaction. The object of the framers of the
Constitution in giving a constitutional status to preventive detention was to prevent anti-social and
subversive elements from imperilling the welfare of the republic.
In A.C. Razia v Govt of Kerala,39. it was reiterated that the dual rights of a detenu are: (1) the right to
be informed as soon as may be of the ground on which the order is made, that is to say, the grounds
on which the subjective satisfaction has been formed by the detaining authority; (2) the right to be
offered the earliest opportunity of making a representation against the order of detention.
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Article 22(5) says, “When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, “as soon as may be”,
communicate to such person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order.” The said provisions are the rights
granted to detenu by Article 22(5) and if any of these rights is violated, the detention order would
become bad. In Abdul Karim v State of W.B.,40. the court said that the right to representation under
Article 22(5) is a valuable constitutional right and is not a mere formality. By judicial craftsmanship,
certain ancilliary and concomitant rights have been read into this article, so as to effectuate the
guarantee or safeguards envisaged by the Constitution. It was held that the ground of detention
together with supporting documents should be made available to the detenu in a language known to
him. The duty to apprise the detenu of the right to make representation to one or more authorities who
have power to reconsider or revoke the detention have been cast on the detaining authority. So also
the duty of the detaining authority to consider the representation of the detenu with reasonable
expedition. The copies of relevant documents supplied to the detenu should also legible and in case
where legible copies are not supplied even after a request, the detention would be vitiated.41.
Communication of grounds means communication to the detenu of all basic facts and materials which
went into subjective satisfaction of the authority to detain him. The detention order becomes bad if any
factual component constituting the real grounds for detention is not fairly and fully put across to the
detenu, the reason being that if some facts are held back from him, his right to make a representation
against his detention is infringed.42. Court said that Article 22(5) vests a real and not an imaginary or
illusory right in the detenu. The communication of facts is the cornerstone of his right of representation
and, therefore, an order of detention passed with uncommmunicated material is unfair and illegal.43.
(iii) Following Cooper’s case,44. it has also been held in some cases that a law under Article 22 must also
pass the test of reasonableness under Article 19(l)(d).45.
[Art. 22.13.9] Ambit of the court’s jurisdiction in cases of Detention
1. The court can pronounce upon the validity of an order of preventive detention on any of the following
grounds:
[Art. 22.13.10] A. Validity of the law Against the law
(i) The court may examine the validity of the law authorising such detention itself: (a) on the ground of
competence of the Legislature, i.e., whether the subject-matter of the legislation is covered by the legislative
Entry relating to preventive detention under which it is purported to have been made. The order of detention will
be set aside if the grounds are outside the competence of the relevant legislation under which the order
purports to have been made.46. In short, it relates to ultra vires, i.e., whether the grounds are within the scope
of the Act. The court will interfere where the connection between the ground supplied and the legislative
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authority granted by the Constitution, e.g., public order is remote or extraneous and not reasonable and
proximate.47.
(b) On the ground of contravention of Article 22 of the Constitution,48. i.e., in cases where the condition
precedent to the exercise of the statutory power is not fulfilled,49. or where the authorities have not taken into
consideration relevant materials which should have been taken into account or where the order is passed
taking into account matters which are not relevant, i.e., in cases where order of preventive detention is made on
grounds which are not specified in the Act or when the grounds do not fall within its scope. In such cases, the
order will be set aside on the ground that the authorities were influenced by extraneous considerations.50.
Where preventive detention order is passed on subjective satisfaction of the detaining authority, that subjective
satisfaction must be based on some relevant materials. When an order is passed on mere likelihood or based
on speculation, the order is invalid. Such likelihood or speculation cannot form the basis of curtailment of
liberty.51.
A detention order can be challenged on various grounds e.g., that the act in question related to law and order
and not public order, that there was no relevant material on which the detention order was passed, that there
were mala fides, that the order was not passed by a competent authority, that the subjective satisfaction was
irrational, that there was total non-application of mind, that the grounds were vague, indefinite, irrelevant,
extraneous, non-existent or stale, that there was delay in passing the detention order or delay in executing it or
delay in deciding the representation of the detenu, that the order was not approved by the Government, that
there was failure to refer the case to the Advisory Board or that the reference was belated, etc. Likewise, if
recourse to criminal proceedings would be sufficient to deal with the alleged prejudicial activities, resort to
preventive detention would be illegal.52.
Where the procedural requirements as contemplated by law are not fully complied with, the order will be set
aside. The procedural laws have to be strictly complied with.53. Personal liberty protected under Article 21 is so
sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to
show that the impugned detention meticulously accords with the procedure established by law. Procedural
rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to
coddle criminals or provide technical loopholes through which dangerous persons can escape the
consequences of their acts. They are basically society’s assurances that the authorities will behave properly
within rules distilled from long centuries of concrete experiences.54.
In Abdul Latif Abdul Wahab Sheikh v B.K. Jha,55. the court said that procedural safeguards are the only
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safeguards available to a detenu, since the court is not expected to go behind the subjective satisfaction of the
detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be
attached to the liberty of the subject and the constitutional right guaranteed to him in that regard. It has been
held that history of liberty is the history of procedural safeguards.56. These procedural safeguards are required
to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis
of the nature of the alleged activities of the detenu. In Rattan Singh v State of Punjab,57. the court observed:
“May be the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since
its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of
safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our
democratic set up, it is essential that at least those safeguards are not denied to detenues.”
It may be remembered that in cases of preventive detention, no offence is to be proved and the justification of
such detention is suspicion or reasonable probability and there is no conviction which can only be warranted by
legal evidence. Preventive detention is often called a “jurisdiction of suspicion”.58. The detaining authority
passes an order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the
applicability of Clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a
Magistrate within 24 hours of his arrest. To prevent misuse of this potentially dangerous power, the law of
preventive detention has to be strictly construed and meticulous compliance with procedural safeguards,
however technical, is mandatory and vital.59.
(c) On the ground that it seeks to interfere with the jurisdiction of the Supreme Court under Article 32.60.
(ii) When a law of preventive detention is challenged before the court, the court has got to decide on a
consideration of the true nature and character of the legislation whether it is really on the subject of preventive
detention or not.61.
Article 19
(iii) On the question whether the validity of a law of preventive detention can be challenged on the test of its
reasonableness under Article 19, there is a conflict of decisions and the situation is hazy because the dictum in
Gopalan’s case62. that Article 19 can have no application to a law of deprivation of personal liberty under
Articles 21-22 has not so far been expressly overruled.
2. Nevertheless, a Constitution Bench63. has summarised the law 63 as follows:

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(i) Articles 21 and 22 are not water-tight compartments; hence, a law of preventive detention must also
satisfy the requirements of Articles 14, 19 and 21.64.
(ii) But the reasonableness of preventive detention, as such, cannot be challenged with reference to
Articles 19(2)-(6),65. because the requirements of natural justice, if any, are laid down in Clauses (4)-
(6) of Article 22 itself.66. It was held that Constitution has conferred rights under Article 19 and also
adopted preventive detention to prevent greater evil of elements imperiling the security, the safety of
the State and welfare of the nation. A law which attracts Article 19 must be such as is capable of being
tested to be reasonable under Clauses (2)-(5) of Article 19.
The Author submits that there is open confrontation between propositions (i) and (ii) above, and that the conflict
has not in any way been resolved by the observations in Roy’s case,65 unless it says that—
While the law of preventive detention as a whole cannot be challenged as an unreasonable restriction upon personal
liberty, the unreasonableness of its specific provisions may nevertheless be questioned with reference to Art. 19(2)-(6).
Article 21
3. On the other hand, it has been held that a law of preventive detention must be in consonance with the
concept of “fairness” implicit in Article 21,67. though it cannot be challenged on the ground of violating the
concept of “due process”.67
Personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Pt III.
The State has been granted the power to curb such rights under criminal law as also under the laws of
preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper
appreciation of facts as to whether such acts are in any way prejudicial to the interests and security of the State
and its citizens or seek to disturb public law and order, warranting the issuance of such an order. An individual
incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance
of an order of preventive detention.68.
[Art. 22.13.11] B. Validity of the order Against the order
1. Apart from challenging the constitutionality of the law itself under which the impugned order of detention has
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been issued, the detenu may challenge the validity of the order on the ground of contravention of any of the
fundamental rights under Articles 14, 19, 20, 21 or 22.69.
The theory that Article 22 provides a self-contained code regarding preventive detention has been exploded.69
The fundamental rights under Pt III of the Constitution are to be read as a part of an integrated scheme, so that
a person who has been deprived of his liberty, whether by an order of punitive or preventive detention, is
entitled to complain that his rights under Articles 14, 19, 20, 21 or 22 or any of them have been violated by the
impugned order.67
Every person has the right to carry money. However, such right is subject to verification or seizure by
intelligence authorities to ensure that the said money is not intended for illegal activities. An air passenger,
when he carries with him a large amount of money, can be detained by authorities to verify whether the said
money is not used for illegal activities. When bona fide measures are taken in public interest, to provide public
safety, or to prevent circulation of black money, they are not interference with personal liberty. The right of a
person will have to yield to public interest. When security protocols are in place, certain hardships and
inconveniences are inevitable. In such cases, Articles 19(1)(d), 21 and 22 are not violated.70.
In Ram Singh’s case,71. following Gopalan’s case (supra), it was held that although personal liberty has a
content sufficiently comprehensive to include the freedoms enumerated in Article 19(1) and its deprivation
would result in the extinction of those freedoms the Constitution has treated those civil liberties as district
fundamental rights and made separate provisions in Article 19, and Articles 21 and 22 as to the limitations and
conditions subject to which alone they could be taken away or abridged. But this view does not find support in
Rustom Cavasjee Cooper v UOI.72. It was held therein that all the provisions of the Constitution be read co-
jointly as to the effect and operation of the fundamental rights of the citizens when the State action infringes the
right of the individual.73.
Article 14
(a) Under Article 14, he may urge that the order is discriminatory or arbitrary.
(b) (i). It has been pointed out earlier that though the dictum in Gopalan’s case74. that Article 19 can have no
application where a person is deprived of his personal liberty under Article 21 or 22 has not yet been expressly
overruled, in several cases the Court has assumed the applicability of Article 19 to test the validity of a law of
preventive detention, and held, on the merits, that the impugned provision does not constitute an unreasonable
restriction, e.g.—
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The vesting of the power to make an order of detention on subjective satisfaction of an officer, namely, the District
Magistrate.75.
2. But a contrary tune was again sounded by a unanimous Constitution Bench in Haradhon’s case76. to the
effect that a person who is detained under a law of punitive or preventive detention cannot claim any of the
fundamental rights under Article 19(l), and cannot, therefore, challenge the validity of such law on the score of
either substantive or procedural reasonableness, with reference to Articles 19(2)-(6). The requirements of
natural justice, if any, are laid down in Clauses (4)-(6) of Article 22 itself.77.
In Haradhon v State of W.B. it was held that procedural reasonableness cannot have any abstract standard of
general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restriction
imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition,
the prevailing condition at the time, all provide the basis for considering the reasonableness of a particular
provision. The procedure embodied in the Maintenance of Internal Security Act, 1971 has to be judged in the
context of the urgency and magnitude of the problem, the underlying purpose of the restriction and the
prevailing condition. It was held that Article 14 is inapplicable because preventive detention and prosecution are
not synonymous, as their purpose is different and the authorities are different. The nature of proceedings are
also different. It was further reiterated that principles of natural justice in so far as they are compatible with
detention laws find a place in Article 22 itself and also in the Act (MISA). Even if Article 19 be examined in
regard to preventive detention, it does not increase the content of reasonableness required to the observed in
respect of orders of preventive detention.78.
(c) Under Article 21, the detenu may contend that—

Article 21
(i) There is no valid law to authorise the impugned order;79. or
(ii) The procedure prescribed by such law is arbitrary, or unfair; or

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(iii) The order is ultra vires, having violated the procedural requirements of that law80. or transgressed its
substantive provisions.81. It was held that history of liberty is history of procedural safeguards. These
safeguards are required to be zealously watched and enforced by the court and their rigour cannot be
modulated on the basis of the nature of activities by a particular person and the court could not be influenced by
the nature of the activities of the detenu.82.
The law of preventive detention must also pass the test of “reasonableness” and it is necessary that the
procedure of detention laws should be fair.83.
In A.K. Roy v UOI,84. the procedure laid down in sections10 and 11 of National Security Act, 1980 was
challenged as being not in consonance with natural justice at least on three grounds – (1) the detenu was not
given the right to cross-examine the detaining authority and the person on whose statements the order of
detention was founded; (2) the Act did not give the detenu the right to present before the Advisory Board oral
and documentary evidence in rebuttal of the allegation made against him; (3) the Act did not furnish to the
detenu the right to be represented by a lawyer of his choice before the Advisory Board. The Supreme Court
upheld the Act on all these counts. The court did recognise the importance of these three rights. They
constituted the core of just process because, without them, it is difficult for any persons to disprove the
allegation made against him and establish the truth. But, two important considerations had to be borne in mind
in this regard – (1) There is no prescribed standard of reasonableness and therefore what kind of processual
rights should be made available to a person depends upon the nature of proceeding in relation to which the
rights are claimed; (ii) the question as to what kind of rights are available to the detenu in the proceeding before
the Advisory Board has to be decided in the light of constitutional provisions and statutory provisions to the
extent that they do not offend the Constitution.
The court ruled that a detenu could not claim the right to cross-examination of witnesses in proceedings before
the Advisory Boards. The rules of natural justice are not rigid norms of unchanging content; the ambit of those
rules must vary according to the context and has to be tailored to suit the nature of proceedings in relation to
which the particular right is claimed as a component of natural justice. Cross-examination may be necessary in
proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point.
Cross-examination is a powerful weapon to expose untruthfulness of such evidence. But the question for
consideration of the Advisory Board is not whether the detenu is guilty of any charge, but whether there is
sufficient cause for his detention.
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The detention is based not on facts proved either by applying the test of preponderance of probabilities or
reasonable doubt, but on the subjective satisfaction of the detaining authority. The proceedings of the Advisory
Board have therefore to be structured from proceedings of judicial or quasi-judicial tribunal. In case of
preventive detention, witnesses are either unwilling to come forward or the source of information of the
detaining authority cannot be disclosed without detriment to public interest. Therefore, in the very nature of
things, it is not possible to give the detenu the right of cross-examination of witnesses.
The court saw no objection in granting to the detenu the right to lead evidence in rebuttal before the Advisory
Board. There is no provision in the Constitution or National Security Act denying to the detenu the right to
present his own evidence to rebut the allegation made against him. As the Board is to complete its proceedings
within a limited period, it can regulate its own procedure within the constraints of the Constitution and the
statute and limit the time within which the defence must complete the evidence.85.
(iv) The court may examine the grounds specified in the order of detention to see whether they are relevant to
the circumstances under which preventive detention could be supported86.e.g., security of India or of a State,
maintenance of public order, etc., and set the detenu free if there is no rational connection between the alleged
activity of the detenu and the ground relied upon, say, public order.87. Although the subjective satisfaction of
the detaining authority is not open to objective assessment, nevertheless, satisfaction based on irrelevant
ground is vitiated.88. The court may examine the grounds specified in the order of detention to see whether
they are relevant to the circumstances under which preventive detention can be supported. A detention order
based on no material, but on pure speculation is not valid.89. Where grounds of detention are precise,
pertinent, proximate and relevant, and subjective satisfaction is formed on that basis by the detaining authority
about detenu acting in a manner prejudicial to maintenance of public order and necessity of preventively
detaining him, it is not open to court’s interference.90. If the Government/detaining authority is able to satisfy
the court that a person either by himself or in association with other members of a gang habitually commits or
attempts or abets such commission of offences punishable under Indian Penal Code and State laws which
prohibit such actions of detenu and grounds of detention indicate that detenu was habitually indulging and was
the mastermind behind various illegal activities resulting in destruction of forest wealth and the detaining
authority was unable to control the detenu by invoking provisions of ordinary criminal law, no interference by
court is warranted. A detention order which gives full details of specific instances of illegal acts committed by
detenu and the detaining authority also files an affidavit detailing the circumstances of how the subjective
satisfaction was entered, no interference will be made therein by the court.91.
Even if the activities attributed to the detenu have some connection with the prohibited objective, it should not
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be trivial in substance. Distinction should be made between “public order” and “law and order”. An act affecting
the current community of life is germane to “public order”, whereas an act affecting merely an individual is a law
and order problem. In such cases, the preventive detention law cannot be invoked. A solitary act of assault on
one individual can hardly be said to disturb public order or peace.92. Where the grounds mentioned in the order
of detention have no real nexus with the maintenance of public order, the detention order is not valid.93.
A detention order can be challenged on various grounds e.g., that the act in question related to law and order
and not public order, that there was no relevant material on which the detention order was passed, that there
were mala fides, that the order was not passed by competent authority, that the condition precedent for
exercise of power did not exist, that the subjective satisfaction was irrational, that there was non-application of
mind, that the grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale, that there was delay
in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that
the order was not approved by Government, that there was failure to refer the case to the Advisory Board or
that the reference was belated.1. In Rekha v State of Tamil Nadu the court also said that if the alleged acts
could not be tried by ordinary criminal law, preventive detention should not be ordered. It is, however, not
necessary to establish that there has been an actual breach of the peace or a danger to the security of the
State or the like caused by the activities of the detenu; it is enough if the past conduct and antecedents of the
person concerned reveal a tendency to do an act prejudicial to public order or the like,2.e.g., that he had
previously committed offences under the Explosive Substances Act or the Arms Act.2 The court has
emphasized that the power of preventive detention is to be exercised only if the detaining authority, on the
basis of the past prejudicial conduct of the detenu, is satisfied about the probability of his acting similarly in
future.3. In Attorney General of India v Amratlal Prajivandas,4. it was observed that though ordinarily one act
may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act
is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity
and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that
the person could continue to indulge in similar prejudicial activity. But, generally a single or isolated act will be
considered only as one law and order problem and not as public order.5. But a single instance of exporting
Indian currency was held as a good ground for preventive detention.6. A single incident which may disrupt
supplies and services essential to the community may, coupled with other facts, warrant preventive detention of
such a person. In Anil Dey v State of W.B.,7. the detention was held justified when a single instance of theft of
sophisticated railway equipment was accompanied by the fact that the detenu was a notorious stealer of stores.
In case of smuggling, where an act of smuggling consists of bringing contraband in a concealed manner, the
necessary inference will be that the person is indulging in a prohibited activity with full knowledge and open
eyes of the prohibited nature of the act. If this is so, then that act, though a single one, detected by the
authorities, is indicative of the fact that he is capable of repeating the same in future. If an order of detention is
passed for a single act which shows previous preparation and full knowledge on the part of the person indulging
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in an act of the prohibited nature, it could be said that the order is passed on a reasonable prognosis of the
future behaviour of such person.8.
(v) The court may examine the grounds to see whether the grounds supplied have a relevant connection with
the order. Thus, though the court would not undertake an investigation as to the sufficiency of the materials on
which the satisfaction of the detaining authority was grounded, it would examine the bona fides of the order and
interfere if it was mala fide,9. that is to say, if the law of preventive detention was used for any purpose other
than that for which it was made. Where detention is ordered on non-existent grounds, such an order amounts to
abusing the power and hence is mala fide. Where such an order is passed, it is a grave misuse of power which
affects the reputation of the detenu. Thus, compensation may be awarded to the detenu.10. In Srilal Shaw v
State of W.B.,11. a detention order was passed mainly on the ground that railway property had been stolen. But
the concerned person had documents to show that he had purchased the goods in the open market. The
criminal case filed against him was dropped and a detention order was passed instead. The order was declared
to be bad. Supreme Court observed that it was a typical case where for no apparent reason, a person who
could easily be prosecuted under punitive law, was being preventively detained. The order of detention was
declared invalid since it was based on a non-existent ground.
G. Sadanandan v State of Kerala,12. was a typical case where the court found that detention was ordered at
the instance of a high police official who made false reports about the detenu who was a wholesale kerosene
dealer. The reports were made to eliminate the detenu from the wholesale trade. The court held that it was a
mala fide exercise of power.13. Similarly, detention power cannot be quietly used to subvert, supplant or to
substitute the punitive law, i.e., Penal Code. It was held that merely because it is irksome to undertake the
inconvinence of proving guilt in court is an unfair abuse.14. In cases where facts may clearly indicate that an
ordinary criminal prosecution would suffice, the need to make preventive detention order might not be
reasonably made out.15. If recourse to criminal proceedings would be sufficient to deal with the alleged
prejudicial activities, then the detention order will be illegal.16. In Rekha v State of Tamil Nadu the court said
that whenever an order of preventive detention law is challenged, one of the questions the court must ask in
deciding its legality is, was the ordinary law of land sufficient to deal with the situation. If the answer is in the
affirmative, the detention will be illegal. Court also said that Article 22(3)(b) is only an exception to Article 21
and not itself a fundamental right. If a person is liable to be tried or is actually being tried, for a criminal offence,
but the ordinary criminal law will not be able to deal with the situation, “then and only then” can the preventive
detention law be resorted to.
In Jaya Mala v Home Secretary, J&K Government,17. the court quashed a detention order as grounds related
to minor infraction of law in respect of which an FIR has been lodged. The court emphasized: “If every infraction
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of law having a penal sanction by itself is a ground for detention, danger looms large that normal criminal trials
and criminal courts set up for administering justice will be substituted by detention laws often described as
lawless law.”
Where the authority has not applied his mind at all or has exercised its power dishonestly or for an improper
purpose, the court will intervene and the order will be set aside.18. It was held in Additional Secretary to
Government of India v (Smt.) Alka Subhash Gadia that court will intervene when the order is sought to be
executed or passed for a wrong purpose or is passed on vague, extraneous and irrelevant grounds. The court
will also interfere in cases where the order is passed or is vitiated by ultra vires, i.e., when the same is result of
an abuse or colourable exercise of statutory power.19.
Non-application of mind
(vi) Whether the statutory condition precedent, viz., the requisite subjective satisfaction was really formed (with
due care and caution)20. before making the order.21. The court would strike down the order where the
authority has not applied its mind22. at all to the materials, or has acted under the dictate of some other person
or authority, or where he has applied a wrong test or misconstrued the statute, or relied on grounds or materials
which are extraneous23. to the scope or purpose of the statute or have no rationally probative value in forming
the subjective satisfaction, or the power is applied for a dishonest or improper purpose;24. or the order has
been based on no material whatever,25. or some material which would have influenced the mind of the
detaining authority one way or the other, was not placed before him.26. But the subjective satisfaction of the
detaining authority cannot be said to have been vitiated on the ground that the non-placement of the opinion of
the Advisory Board rendered in the case of another person, whose detention has been revoked amounted to
non-placing of relevant and important document.27. But see Shakeel v State of Maharashtra,28. not considered
by him before making the order.29. In Jagannath Misra v State of Orissa,30. six grounds were mentioned in the
detention order on the basis of which the subjective satisfaction of the government to detain the person
concerned was arrived at. These grounds were reproduced verbatim from the relevant provision in the Act. In
between the various grounds mentioned in the order, instead of using the conjunctive “and”, the disjunctive “or”
had been used. When the order was challenged, the Home Minister in his affidavit filed before the court on
behalf of the government mentioned only two grounds (and not all the six grounds mentioned in the order) on
which personal satisfaction to detain the petitioner was based. Court ruled that the order was bad as the
minister had not applied his mind to all the grounds mentioned in the order though it was necessary that the
detaining authority should be satisfied about each one of the grounds. If the authority did not apply his mind to
all the grounds mentioned in the order, then the order would be bad. The order of detention should specify the
ground or grounds on which the detenu has been detained. It was not permissible to state that he had been
detained for ground (a) or (b). The use of the word “or” instead of “and” indicated casualness or non-application
of the mind by the authority or that the authority was not sure as to which of the grounds was applicable to the
detenu in question and in either case, the order was bad.31. In Abhay Shridhar Ambukar v S.V. Bhave,32. the
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court said: “The use of the disjunctive word “or” in the order only indicates non-application of mind and obscurity
in thought”.
Document relied upon was partly in Tamil and partly in English language. Detaining authority though not
conversant with Tamil language stated that the document was considered by it. It was held that the authority
had proceeded in a casual manner and the detention was vitiated by non-application of mind.33. Document in
Arabic language was placed before the Detaining Authority who did not know that language, still he proceeded
to mention that he had considered the entire material placed before him. Detention was quashed due to casual
or cavalier approach to the matter.34.
In cases where the detaining authority passes an order of detention on the ground that the person who is in
custody is likely to be enlarged on bail under the impression that the co-accused has been enlarged on bail,
which fact is not true, and the person against whom the order of detention is made has no connection with the
person who has been so enlarged and in fact the concerned person has not even moved for bail, the exercise
of power and the order of detention is vitiated due to non-application of mind. When the detenu has not moved
for bail and no other co-accused, if any, has been enlarged on bail, it is sufficient to hold that there is total non-
application of mind.35.
Where the grounds of detention had no probative value and were extraneous in scope, purpose and object of
the National Security Act and none of the documents substantiated the involvement of detenu in unlawful
activities, and there was no pertinent and relevant material on the basis of which detention order could be
passed, the detention order is not valid.36. It was held in Pebam Ningol Mikoi Devi v State of Manipur that if
one of the grounds or reasons which led to the subjective satisfaction of the detaining authority under National
Security Act is non-existent or irrelevant, the order of detention would be invalid. No distinction can be made
between introductory facts, background facts and grounds as such, if the actual allegations were vague and
irrelevant. Hence, detention would be rendered invalid.
How far is the possibility of presenting a person for a crime, a relevant consideration to be taken into account by
the detaining authority, so that if such a possibility is there the person cannot be detained in prevention
detention. The order of preventive detention will be set aside for non-application of mind.37.
Where a State enactment defines a “Goonda” as a person “habitually” committing offenses, but the detention
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order is passed only on this basis of a single incident, which is not sufficient to make the detainee “a habitual
offender”, the order is invalid due to non-application of mind.38.
Where a confession is made by the detenu but later retracted, unless it is recorded that such retraction is
considered and rejected by the detaining authority, the order of detention would be vitiated on the ground of
non-application mind.39.
Where there is no mention of whether the detenu has been remanded or not by the criminal court in the order of
detention, the same is bad for non-application of mind.40.
Where the detaining authority applied his mind in ground case, as to the possibility of release on bail, but such
satisfaction was not recorded in connection with adverse cases, where also the allegations are of serious
nature, the order of detention is bad for non-application of mind.41. Where the detaining authority mechanically
passes an order of detention without proper satisfaction regarding the possibility of the detenu coming out on
bail by taking into account relevant facts, same is an order without application of mind.42. In Thangmani v State
of Tamil Nadu in as much as the detaining authority wrongly indicated the quantity of collection of sample of
arrack without relevance to the capacity of the bottle in which it was collected; the detention order showed non-
application of mind.43. Detention order passed based on incorrect information by the sponsoring authority is
liable to be quashed.44. Where the detention order is based on four adverse cases, and the detaining authority
considers the possibility of detenu coming out on bail only in one case, there is total non-application of mind.45.
Document which was not available with the detaining authority, but relied on by the authority while passing
detention order is liable to be set aside for non-application of mind.46.
Where a person is already in custody for alleged violation of NDPS Act, the authorities under preventive
detention cannot pass an order of detention on the ground that the person is likely to be released on bail since
the court cannot grant bail under the NDPS Act so easily. The statute puts limitation on the power of court in the
grant of bail. The detaining authority should be aware of the facts before alleging that the detenu is likely to be
enlarged on bail. There must be some material to prove the allegation. The detaining authority further more is
required to bear in mind that there exists a distinction between the “likelihood of his moving for bail” and
“likelihood to be released on bail”. The detaining authority has to apply its mind before making such allegation
and invoking the power to detain.47. Likewise, the detaining authority cannot exercise its power to detain a
person on the basis of perfunctory and inchoate material. Court said that use of incomplete material, either
pending or inconclusive, cannot be the basis for detention order. When Custom authorities issued certain
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notices against a person and investigation was going on and it was only at premature stage of inquiry, the same
cannot be the basis of a detention order. Such order of detention is invalid due to non-application of mind.48.
It is absolutely essential for the detaining authority to apply its mind not only at the time of grant of approval to
the proposal for detention, but also when the actual order of detention and grounds theory are prepared. Where
the detention order was almost the verbatim production of the sponsoring authorities’ proposal, it was held that
there was no proper application of mind.49.
The question of non-application of mind and the satisfaction of the authority being impaired thereby does not
arise so long as it appears from the grounds supplied to the detenu that the detaining authority was aware of all
the material facts (e.g., the fact that the detenu was already in actual custody), and he took those facts into
consideration before making the order of detention.50.
When the fact that the detenu had been released on conditional bail was within the knowledge of the detaining
authority as stated in the detention order, it cannot be said that there was non-application of mind by the
detaining authority merely because he required the detention order to be served through the Superintendent of
Central Prison.51. The fact that the detenu has not taken into consideration the confession which was already
retracted is also a result of non-application of mind.52. A verbatim reproduction of proposal for detention in the
detention order suffers from non-application of mind.53.
Anything which shows “casualness” in making the order may lead to the inference that the authority did not
apply his mind, e.g. where all the grounds specified in the Act are reproduced in the order mechanically.54.
The genuineness of subjective satisfaction of the authority is also demolished where there is absence of a “live
and proximate link” between the grounds of detention and avowed purpose of detention, e.g., prevention of
smuggling activities by reason of unreasonable and unexplained delay between the order of detention and that
of its execution by arresting the detenu.55.
On the other hand, the order will be vitiated by non-application of mind where, instead of confining his
consideration only to the facts or incidents mentioned in the grounds supplied to the detenu, the authority
mechanically passed the order taking into consideration extraneous matters or incidents other than those
mentioned in the grounds.56.
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The result will be the same where the Police or the Department placed before the detaining authority
extraneous materials or documents relating thereto which might have influenced the mind of the detaining
authority.57. What vitiates the order in this case is the fact of placing before the detaining authority extraneous
materials without which the authority might or might not have passed the order of detention.57
[Art. 22.13.12] (d) Under Article 22 Article 22
(i) The court may examine the grounds communicated to the detenu to see if they are sufficient to enable him to
make an effective representation.58. While the sufficiency of the ground, in the sense whether it would give
satisfaction to the Government, is not a matter for examination by the courts, the sufficiency of the grounds in
the sense of enabling the defence to make an effective representation can be examined by the courts.58
(ii) The order should be struck down if it violates any of the provisions of Article 22 or does not strictly follow the
procedure laid down by the law of preventive detention under which it has been made.59.
[Art. 22.13.13] What the Court cannot do in an Application under Article 32 or 226 against an order of
Preventive Detention
From the foregoing discussion, it is clear that the court cannot do any of the following things, when the validity
of a detention order under the law of preventive detention is challenged before it:
The validity of the order of detention is to be judged with reference only to those grounds which have been
communicated to the detenu.60.
It is not open to the court to enter into the following questions – (a) The sufficiency of the ground upon which the
satisfaction of the authority issuing the order of detention purportedly based its order, provided they have a
rational probative value and are not extraneous to the scope and purpose of the legislative provision, cannot be
challenged in a court of law, except on the ground of mala fides;61. (b) The truth or otherwise of facts which are
mentioned as the basis of the grounds in the communication to the detenu;62. (c) If the formalities enjoined by
the Constitution and the statute have been complied with, the court cannot examine the materials before it and
find that the detaining authority should not have been satisfied on the materials before it so as to hold that it
was necessary to detain the person.63. Thus, the detaining authority can base his order even on a solitary act
of the person concerned, provided that the conduct of the person, in the circumstances in which it was
committed, was of such a nature as would enable the formation of requisite satisfaction that the person, if not
prevented by an order of detention, is likely to indulge in the repetition of similar acts in future.64.
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Glaring factual errors in the grounds served on a detenu may lead to the inference that the order was issued
without proper application of mind by the detaining authority.65. Courts do not usually permit evidence to be led
to establish a factual error. It has to be done through affidavits.66.
1. It cannot invalidate the law on the ground that the decision to make an order of detention in each case
has been delegated to the subjective satisfaction of the Executive.67.
2. Whatever might have been the defect of the order when it had been issued, if the defect is cured or a
valid order is produced at any time before the court orders the release of the detenu, the court cannot
hold the detention to be invalid.68. The validity of the detention is to be considered as on the date of
hearing of the habeas corpus petition.69.
3. The court can examine the material on record only for the purpose of seeing whether the order of
detention has been passed on no material.70. If it is found that the order has been based on materials
on record, the court cannot go further and examine whether that material was adequate for the
authority’s satisfaction.70 The evidence which is required for the satisfaction of the detaining authority
need not be of a nature which would stand the test of scrutiny of a court in a criminal trial.71. If the
formalities enjoined by the Constitution and the statute have been complied with, the court cannot
examine the “materials” before it and find out that the detaining authority “should not” have been
satisfied on the materials before it so as to hold that it was necessary to detain the person.72. In cases
where preventive detention is ordered on the basis of a single incident of smuggling, the authority must
be satisfied as to whether detenu’s acts could reasonably be said to indicate any organised act or
manifestation of organised activity and that the detenu would continue to indulge in similar prejudicial
activity warranting or necessitating his detention to ensure that he does not repeat this activity in future.
Highest standard of proof is required in such cases. In the absence of any specific and authenticated
material to indicate that a person had the propensity and potentiality to continue to indulge in such
activities in future, the mere fact that on one occasion a person smuggled goods into the country would
not constitute a legitimate basis for detaining him under COFEPOSA Act.73.
4. If the formalities enjoined by Article 22(5) have been complied with, the court cannot examine the
materials before it and find that the detaining authority should not have been satisfied on the materials
before it so as to hold that it was necessary to detain the person.74.
5. Again, the sufficiency of the grounds upon which the satisfaction of the authority issuing the order of
detention purports to be based, provided they have a rational probative value and are not extraneous
to the scope or purpose of the legislative provision, cannot be challenged in a court of law, except on
the ground of mala fides.75. When grounds of detention are precise, pertinent, proximate and relevant,
subjective satisfaction formed on that basis by detaining authority about detenu acting in a manner
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prejudicial to maintenance of public order and necessity of preventively detaining him, it is not open to
court’s interference.76. Where grounds of detention clearly indicated that detenu was habitually
indulging in and was mastermind behind various illegal activities resulting in destruction of forest
wealth and the authorities are satisfied that invoking ordinary criminal laws will not meet the situation,
and the court is satisfied that the detenu is a habitual offender, no interference will be made by
court.77.
6. It cannot go into the question whether on the merits the detaining authority was justified to make the
order of detention or to continue it.78. Thus, the High Court cannot interfere on the ground that, in view
of the fact that times have changed further detention would be unjustified.79. That is for the
Government and the Advisory Board to consider.80.
7. It is for the Advisory Board and not the courts, to examine the correctness of the statements made in
the affidavits in support of the order of preventive detention.81.
8. In short, in a habeas corpus proceeding, what has to be considered by the court is whether the
detention is prima facie legal or not, and not whether the detaining authority has wrongly or rightly
reached a satisfaction on every question of fact.82. The court cannot interfere if there was some
evidence before the detaining authority upon which a reasonable man could have formed the
satisfaction which is the sine qua non for the detention;83. and if the grounds are germane to the
reasons for which preventive detention can be provided for by the Legislature under the
Constitution.84. An order of detention which was otherwise in accordance with law, could not be
quashed on the basis that grounds for detention were insufficient.85. Thus, the courts do not go into
the question of merits of a preventive detention order. The only function of court in this area is its
concern with the question whether the order has been made in strict compliance with the law and that it
is not vitiated by any such circumstance as ordinarily vitiates the exercise of discretionary power.86.
Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a
ground of challenge, relevancy and proximity are certainly grounds of challenge.87.
But a detention order may be quashed on the ground of colourable exercise of power, if there is no rational
material for the subjective satisfaction of the detaining authority or that the material is such that no reasonable
person could possibly arrive at such satisfaction on its basis.88. Unexplained and inordinate delay in passing
the order of detention may amount to colourable exercise of power and an inference can be drawn that the
grounds are not genuine.89. Whenever the court has felt that the power of detention is being used as a
substitute for criminal prosecution, it has condemned the order of preventive detention by using the idiom
“colourable exercise of power” by the Executive.90. In Debu’s case,91. Supreme Court quashed an order of
preventive detention made on the ground of the detenu having indulged in one solitary act of wagon breaking.
Court ruled that detaining authority’s satisfaction in the case was no satisfaction at all or was in any event
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colourable and it could not form the basis for making the order. Court said that it failed to understand as to how
could one solitary act of wagon breaking persuade a reasonable person “to reach the satisfaction that unless
the petitioner was detained, he would in all probability indulge in further acts of wagon breaking”.
When there was delay in passing the order of detention, in spite of the fact that the authority was in possession
of all materials long back and no satisfactory explanation was put forward to explain the cause of delay and no
steps were taken to cancel the bail (the detention order was passed while on bail), the court said that the
detention cannot stand.92. A detention order can be passed even when the detenu is in custody. But in such a
case, the authority must prove — (1) order to be based on facts relating to detaining authority’s knowledge of
detenu’s custody, and (2) real possibility of detenu’s release on bail, and (3) necessity of preventing him from
indulging in activities prejudicial to security of State and maintenance of public order upon his release on bail.
All these three conditions must be fulfilled before detention order is passed against a person who is already in
custody, and if in any case, any of the conditions is not fulfilled, the order will be set aside.93. Detaining
authority’s satisfaction to pass an order of detention must be based on proper appreciation of facts about the
likelihood of detenu’s release on bail and necessity of his detention to prevent the detenu from indulging on
prejudicial activities of “proximate nature”. Where incidents relating to criminal activities in respect of which
detenu had been arrested earlier and released on bail were older than twelve or more years and had no live link
with incident relating to offence under section 302 IPC in respect of which detenu had been arrested and
detention order also passed, same is not valid. Mere apprehension that detenu was likely to be released on
bail, whereafter he could indulge in commission of prejudicial activities in the absence of any material is not
sufficient to pass a detention order.1.
In cases where the grounds are non-existent, i.e., in a case where certain grounds for detention are alleged to
have taken place, but the detenu was already in jail during that time, it is a case of non-existent ground. In such
cases, court will interfere.2. Stale or illusory grounds or if there is no nexus between the grounds and the
detention order, the court will interfere.3. It is the obligation of the State to prove that the application of the
detention order was a necessity against the detenu and the said order has been applied strictly in accordance
with the safeguards and the procedures. Mala fide use of power makes the order illegal and invalid.4.
[Art. 22.13.14] When is an order mala fide?
1. An order of detention is mala fide if it is made for a “collateral” or “ulterior” purpose, i.e., a purpose other than
what the Legislature had in view while passing the law of preventive detention,5.i.e., prevention of acts
prejudicial to the security of the State, maintenance of public order and so on. There is a mala fide exercise of
the power if the grounds upon which the order is based are not proper or relevant grounds which would justify
detention under the provisions of this law itself,6. or when it appears that the authority making the order did not
apply his mind to it,7. or made it for a purpose other than that mentioned in the detention order,8.e.g., for
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suppressing a rival political party in opposition to the party in power.9. When the detaining authority passes an
order of detention based on facts which were not in existence and authorities have grossly misused their
powers with intent to destroy the reputation of detenu, such an order is not sustainable. In such cases, the court
may even grant compensation.10. There must be a reasonable basis for the detention order and there must be
material to support the same. The court is entitled to scrutinize the material relied upon by the authority in
coming to its conclusion and accordingly determine if there is an objective basis for the subjective satisfaction.
The subjective satisfaction must be two fold – (1) The detaining authority must be satisfied that the person to be
detained is likely to act in any manner prejudicial to the security of State or from acting in any manner
prejudicial to the maintenance of public order and the authority must be further satisfied that it is necessary to
detain the said person in order to prevent from so acting. Whether the grounds stated in the order of detention
are sufficient or not to order preventive detention is not within the ambit of the discretion of the court and it is
the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons
which led to the subjective satisfaction of detaining authority under National Security Act is not existent or
misconceived or irrelevant, the order of detention would be invalid. No distinction can be made between
introductory facts, background facts and “grounds” as such; if the actual allegations were vague and irrelevant,
the detention order would be rendered invalid.11.
In some cases, “colourable exercise of power” has been used in the sense of mala fide action. Whenever the
court has felt that the power of detention is being used as a substitute for criminal prosecution, it has
condemned the order of prevention detention by terming it as “colourable exercise of power” by the
Executive.12.
2. The allegation of mala fides will not be entertained by the court when it is not against the authority who made
the impugned order, but against some other persons, e.g., the Police.13.
3. The question of bona fides is be determined with reference to the circumstances of each case.14.
[Art. 22.13.15] Onus where mala fides alleged
1. The onus of proving mala fides is upon the detenu.15. It was held in Ashutosh Lahiri’s case (supra) that there
can be no better proof of mala fides on the part of the Executive than use of the extraordinary provision
contained in the Act for a purpose for which ordinary law is quite sufficient. Preventive detention is, by very
nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in U.S.A. and in
U.K. (except during war time). However, since Article 22(3)(b) of the Constitution of India permits preventive
detention, it cannot be held illegal, but the power of preventive detention must be confined within very narrow
limits, otherwise the court will be taking away the great right of liberty guaranteed by Article 21 of the
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Constitution. Therefore, if the ordinary law of the land (like Penal Code and other penal statutes) can deal with
a situation, recourse to preventive detention will be illegal. Whenever an order of preventive detenton is
challenged, one of the questions the court must ask in deciding its legality is, was the ordinary law of the land
sufficient to deal with the situation. If the answer is in the affirmative, the detention will be illegal. Thus, when
ordinary criminal law is sufficient to deal with the situation, resort to preventive detention is illegal. Court said
that Article 22(3)(b) is an exception to Article 21 and Article 22(3)(b) by itself is not a fundamental right. The
right to liberty means that before sending a person to prison, a trial must ordinarily be held giving him an
opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried or is actually
being tried, for a criminal offence, but the ordinary law of the land (the Penal Code or other penal statutes) will
not be able to deal with the situation, then and “only then” can the preventive detention law be taken resort to.
Preventive detention is often described as a jurisdiction of suspicion.16. The detaining authority passes the
order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability
of Clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a magistrate
within twenty four hours of arrest. To prevent misuse of this potentially dangerous power, the law of preventive
detention has to be strictly construed and meticulous compliance with procedural safeguards, however
technical, is mandatory and vital.17.
Merely because there is difficulty in procuring evidence to sustain conviction in a criminal case against the
detenu, that cannot be a ground to pass a preventive detention order.18.
The court may consider the plea of mala fides and hold that the grounds served on the detenu cannot possibly
or rationally support the conclusion drawn against him by the detaining authority. It is only in the incidental
manner and in support of the plea of mala fides that the “question” can become justiciable; otherwise,
reasonableness or the propriety of the said satisfaction cannot be questioned by court.19. Where a court has
held a criminal case to be “false”, or the authority passes an order of detention on the same facts, it can be
inferred that there can be no “reasonable satisfaction” for passing the order and hence the same is mala fide.
But a mere discharge cannot be regarded as sufficient to sustain the plea of mala fides.20. Likewise, the fact
that the prejudicial activity of the detenu could have formed subject of criminal prosecution cannot imply mala
fide.21. If the court feels satisfied that the prosecution was not undertaken, or that it failed not because the
witnesses were afraid to testify but because there was no material against the detenu, then it can hold that the
satisfaction of the detaining authority was “colourable” as there was no rational basis for such satisfaction. In
such cases mala fides can be inferred.22.
The trend of recent decisions shows that it is not likely that the detenu may succeed in many cases.
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(A) Thus, an order of detention is not mala fide by reason of the following:
(i) Merely that the purpose might have been served by proceeding under the ordinary law,23.e.g., by
making an order under section 144, CrPC.24.
(ii) Merely because a criminal prosecution lay on the same acts alleged.25.
(iii) Similarly, where there is a pending criminal case against a person,—if the case is withdrawn or an
investigation proceeding is dropped26. and an order of detention is made against him, the order is not
necessarily mala fide27. unless there are circumstances to show positively28. that the order was made
for some ulterior motive or purpose different from the one set out on the face of the order.29.
Further, there is no question of mala fides unless the charges in the criminal prosecution are
shown to be identical with the grounds of detention.30. Generally speaking, the mere fact that
criminal proceedings had been initiated against a person for certain incidents and that he has been
discharged by the court would neither bar a valid detention order being passed against him on the
basis of these very incidents, nor can such an order for that reason be characterised as mala fide.
The rationale of this judicial view is that while the purpose of trial and punishment is punitive and
seeks to punish for past offences and therefore needs proof beyond reasonable doubt, the
purpose of detention is preventive. It is a precautionary measure and is based on a reasonable
prognosis of the future behaviour of a person based on a past conduct in the light of surrounding
circumstances. Therefore, while there may not be evidence sufficient to prove him guilty in a court,
it may be sufficient to sustain the subjective satisfaction to order detention.31. Many a time, the
prosecution fails because witnesses are afraid to depose against desperate characters; but
detaining authorities may be satisfied on the basis of past activities of the person concerned that it
was necessary to detain him to prevent him from committing prejudicial activities.32. Nor can a
detention order be held bad on the ground that it is based on such grounds as could be tried under
the criminal law and that the accused should have been tried instead of being detained.33.
(iv) Merely because an order of detention has been made against the petitioner after his discharge in a
criminal case on34. the same facts where his name had not been mentioned in the F.I.R. [See further,
below].
(v) Merely that the order of detention refers to the past activities of the detenu as giving rise to the
satisfaction of the detaining authority35. because, once the grounds are relevant, the court cannot
inquire into the reasonableness of the subjective satisfaction of the detaining authority.36.
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(vi) Merely because notoriety or a course of activities has been inferred from one single instance37.
provided it is not too trivial or remote, and it takes place at a time when such anti-social activity had
become rampant.38.
It is difficult for the individual to collect sufficient evidence as he does not have access to the Government
record. But the course of events, public utterances of the authority, statements in the pleadings or affidavits
filed by the authority or failure to file the affidavit denying the allegation etc. may lead to the establishment of
the charge of mala fides. Mala fides may also be inferred from the authority ignoring apparent facts either
deliberately or by sheer avoidance.39.
If it is established that the order of detention has been made mala fide, it would be set aside and the detenu will
be entitled to be released.40. On the question of mala fides of an order of detention, the only relevant
consideration is if the order was made for ulterior purpose or purposes other than those mentioned in the
detention order.41. When a question of mala fides of the order of detention is raised, the question must be
decided with reference to the circumstances of each case.42. It may be that where the grounds on which a
detention order is based are also the subject of criminal prosecution, the order of detention may amount to
abuse of statutory powers, but this does not mean that such an order is necessarily mala fide. Such a
circumstance calls for scrutiny as to the bona fides of the detention order but the question of mala fides has got
to be decided as one of fact with reference to all the circumstances of an individual case.43. If the grounds are
relevant and germane to the subject of the act, then merely because the objectionable activities covered
thereby also attract the provision of Chapter VII of CrPC, the preventive detention cannot for that reason alone
be considered to be mala fide provided the authority concerned is satisfied about the necessity of the detention
as contemplated by the Act.44. The mere fact that a criminal case had to be dropped against the detenu
because the investigation could not produce evidence to sustain his conviction would not be sufficient to hold
that the detention made against him is mala fide or in colourable exercise of power.45.
Single instance
Of course, the single act must be of such a nature that an inference can reasonably be drawn from it that the
person concerned would be likely to repeat such act so as to warrant his detention.46.
In case of a single act, the requirement before ordering detention is whether detenu’s acts could reasonably be
said to indicate any organised act or manifestation of organised activity and the detenu would continue to
indulge in similar prejudicial activity warranting or necessitating his detention to ensure that he does not repeat
this activity in future. The highest standards of proof are required to exist. In the absence of any specific and
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authenticated material to indicate that a person had the propensity and potentiality to continue to indulge in
such activities in future, the mere fact that on one occasion a person smuggled goods into the country would
not constitute a legitimate basis for detaining him under detention law (COFEPOSA Act).47. In Pooja Batra v
UOI the court said that even on the basis of a solitary instance of smuggling, if sufficient materials are available
and if the detaining authority is subjectively satisfied that the detenu is indulging in smuggling activities, which
are detrimental to the interest of the department, a detention order can be passed. Court said that even a single
act of smuggling can also constitute the basis for issuing an order of detention.
In cases where the passport discloses that the detenu has made several trips to foreign countries, the volume
of goods seized is large, and its value is misdeclared, an inference can be drawn that the detenu was part of a
bigger network in bringing goods for commercial distribution inside the country without payment of duty, such
that a single instance to order preventive detention is not bad. It was observed that the validity of detention on a
solitary instance would depend on facts and circumstances of each case, the magnitude of the case and other
attendant circumstances. Merely because the passport is seized may not be sufficient in such cases.48. The
question whether a man has only committed a breach of law and order or has acted in a manner likely to cause
disturbance of public order is a question of degree and the extent of the reach of the act upon the society. A
solitary act of assault can hardly be said to disturb public peace or place public order in jeopardy so as to bring
the case for preventive detention.49. It was held therein that when there is nothing on record to show that the
reach and potentiality of the incident (i.e. single robbery) was so great as to disturb the even tempo or normal
life of the community in the locality, the order of preventive detention cannot be sustained.50. A verbatim use of
statutory language that the detenu acted in a manner prejudicial to the maintenance of public order is not
sufficient. In a case of solitary incident of attempted murderous assault on a Minister in a seminar because of
political rivalry and where the detenu was facing criminal trial in respect of the incident, was held not sufficient
to hold that tempo of life of the community is affected. It was only a case of law and order problem.51. An act
affecting law and order may not necessarily also affect the public order. Likewise, any act may affect public
order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in
question. One act may affect only individuals while the other, though of similar kind, may have such an impact
that it would disturb the even tempo of the life of the community. An act for instance, affecting public order may
have such an impact that it would affect both public order and security of the State.52.
Where the order of detention was passed against the detenu on the basis of the only ground alleged against
him, that he along with others jointly committed murder in broad day light, but it was difficult to infer from the
solitary ground set out in the grounds of detention that the act alleged to have been committed by the detenu
would have disturbed public order as distinct from law and order or that one single act committed by detenu
was of such a character that it could reasonably be inferred by the detaining authority that if not detained, the
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detenu would be likely to indulge in such activity in future, the order of detention passed against the detenu
would not be sustainable.53.
Where an order of detention was based only on one incident of possessing sixteen missiles, detention on that
score was held to be proper as it required pre-planned and protracted activity in procuring and possessing the
same for nefarious activities.54.
The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in
similar prejudicial activity. That is the reason why single acts of wagon-breaking, thefts of signal material, theft
of copper wires in large quantity, the removal of railway fish-plates are held sufficient. Similarly, where the
person tried to export huge amounts of Indian currency to a foreign country in a planned premeditated manner,
same warrants inference on the ground that he will repeat his activity in future and, therefore, his detention is
necessary to prevent him from indulging in such prejudicial activity. Preventive detention contemplated under
COFEPOSA is regarding acts preceded by a good amount of planning and organisation. They are not like
ordinary law and order crimes. If, in any given case, an act is found to be not sufficient to sustain the order of
detention, that order may be quashed, but it cannot be said as a principle that one single act cannot constitute
the basis of detention, on the contrary it does, in other words, it is not necessary that these should be
multicipility of grounds for making or sustaining an order of detention.55.
A detenu catching hold of a Police Inspector and threatening him in a public place on inspection attempt to
effect arrest of detenu’s associates and seizure of liquor bottle being sold in the detenu’s stable is an act that
would create panic in the locality and pertained to public order.56. It is not the number of acts that counts, but it
is the impact and effect of the act which is determinative.57. Detention can be based on a single incident
provided that the detaining authority had material before it to come to a reasonable conclusion or opinion that
from the surrounding circumstances coupled with the incident in “question”, a satisfaction as to the future illegal
activities of the detenu can be inferred.58. The justification for passing the order of detention is suspicion or
reasonable probability of the person sought to be detained to prevent him in carrying on smuggling activities in
the future. In other words, what needs to be proved is the potentiality or propensity of the person to engage in
future prejudicial activities. Even a single incident is enough to prove the propensity and potentiality of the
detenu so as to justify the order of preventive detention.59. In Pooja Batra v UOI, the court said that in an
appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the
person may indulge in smuggling activities, and for that purpose antecedents and nature of the activities
already carried out by a person are required to be taken into consideration for reaching justifiable satisfaction
that the person was engaged in smuggling and that with a view to prevent it, it was necessary to detain him. In
that case, court further said that if there is no adequate material for arriving at such a conclusion based on
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solitary incident, the court is required and is bound to protect him in view of the personal liberty which is
guaranteed under the Constitution of India. Court also held that while a single act of smuggling can also
constitute the basis for issuing an order of detention under COFEPOSA, the highest standards of proof are
required to exist. In the absence of any specific and authenticated material to indicate that he had the
propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one occasion
a person smuggled goods into the country would not constitute a legitimate basis for detaining him under
COFEPOSA. This can be gathered from the past or future activities of the said person. In that case, court also
observed that subjective satisfaction of the authority under the law is not absolute and should not be
unreasonable. In the matter of preventive detention what is required to be seen is that it could reasonably be
said to indicate any organised act or manifestation of organised activity or give room for an inference that the
detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the
person to ensure that he does not repeat this activity in future.
While considering some State enactments, where the expression used is “habitually commits”, it was held that
a single instance may not be sufficient to detain the person under the preventive detention law.60.
But in the absence of such special circumstances appearing from the order, the inference of notoriety from one
single instance may be held to be unreasonable, amounting to a colourable use of the power.61.
So also where the relevant statutory provision uses words, such as “habitually”, to indicate continuity.62.
(vii) That wrong facts were placed before the authority which issued the order.63.
(viii) Merely that a fresh order is made superseding a former order which was defective.64.
(ix) That there were certain disputes between the detenu and a minister, when the Secretary who issued
the detention order was not influenced by the minister who was in charge of a different Department.65.
(x) That the action of the Police was mala fide; when there is nothing to show the detaining authority did
not apply his mind.64
(xi) Merely that the petitioner’s activities were not liked by the authorities.66.
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(B) On the other hand, the order would be tainted by mala fides—
(i) Where there is anything to show casualness in making the order or that the detaining authority did not
apply his mind,67. or that his satisfaction, on which the order was based, did not really exist,68.e.g.
(a) Where all the grounds specified in the Act are reproduced in the order, mechanically,69. with the
disjunctive “or”.69
But it would not be necessarily so where more than one ground is mentioned with the
conjunctive ‘and’.70. Even the disjunctive ‘or’ has been approved where the Legislature itself
uses ‘security of the State’ or ‘public order’ as alternatives,71. constituting a single ground of
detention.
(b) Where the authority had no opportunity of considering all the material facts before making the
order, because they were not placed before him, e.g. that a criminal case on the same facts was
pending.72. (But if he had been discharged before the making of the order, it would not be a
material fact to be placed before the authority).72 Non-placing of bail order whereunder the detenu
was released on bail before the detaining authority vitiates the subjective satisfaction of the
detaining authority.73.
(c) Where there are factual mistakes and discrepancies in the grounds supplied which go to show that
the order was made without caring to examine the facts as stated in the grounds.74.
(ii) But there is no casualness—
Merely because the maximum period of detention mentioned in the statute is fixed in the order of
detention.74
Personal affidavit of detaining authority when necessary

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2. Though, normally, the affidavit-in-opposition should be filed by the person who had actually passed the order
of detention, the absence of the affidavit of that person would not be of much consequence except in cases
where—
(a) mala fides, or bias or dishonesty75. or
(b) extraneous considerations
are attributed to the detaining authority.76.
3. Even where the affidavit-in-opposition should have been sworn by the detaining authority77. on whose
subjective satisfaction the order was passed, and in the absence thereof the allegations may be taken by the
court as uncontroverted,77—in case satisfactory reasons78. are offered why his affidavit was not available, the
affidavit should be sworn by some responsible officer who personally dealt with or processed the case,79. or an
officer who is specially entrusted with detention cases.78
When subjective satisfaction of the concerned authority is challenged on such grounds as mala fides,
colourable exercise of power, extraneous consideration, abuse of power or personal bias, failure to file the
affidavit by the authority itself, taken in conjunction with other circumstances may amount to a serious infirmity
leading to the invalidation of the detention order. The reason for such a judicial approach is that subjective
satisfaction being a mental state is established best by the affidavit of the authority concerned and not by that of
a stranger in the Secretariat familiar only with papers. The court has emphasised that this is not a mere
formality because the subject matter is personal liberty and the more subjective the Executive’s operation the
more sensitive its procedural insistence.80.
Where orders of preventive detention have been quashed because of the fact that the affidavit was filed not by
the concerned District Magistrate making the order, but by someone else in office, such an affidavit was held as
one not filed by a competent person.81. In Gazi Khan v State of Rajasthan,82. it was observed: “This practice
of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very
nature of the case, could not have any personal knowledge of the proceedings to swear the affidavirt on behalf
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of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits
sworn by such officer merit nothing but rejection”.
Supreme Court has also emphasised that there should be greater precision and perspicuity in affidavit filed in
the court. Care and clarity are particularly important when the court is concerned with the question of personal
freedom.83.
4. If the affidavit be in order, the court cannot go into the merits as to whether the facts stated therein are
correct or not, but can see whether on the facts so stated a charge of mala fides could be made out.84.
But in the absence of a counter-affidavit by the State, the allegation of non-consideration of representation
remained uncontroverted and as such continuous detention of the detenu was held illegal.85. Absence of
affidavit of the person, who passed the order of detention, is not of much consequence except in cases where
mala fides or extraneous considerations are attributed to the detaining authority.86. In cases where the
detention order is challenged on the ground of non-application of mind, return to the rule of the court should be
filed either by the detaining authority or by a person directly connected with the making of the order. Affidavit
filed in a casual manner by some official on the basis of the record of the case is not acceptable.87. Propriety of
counter-affidavit by official other than that passing the detention order is not advisable. In such cases, an
inference can be drawn that the objections raised by detenu have not been satisfactorily explained and replied.
Thus, the detention order gets vitiated.88.
Even in cases where files are submitted before the court, the Government is not absolved from filing counter-
affidavit. The Government is expected to place the factual material in connection with the detention order by
filing a counter-affidavit.89. Courts are insisting on the affidavit of the detaining authority because the subjective
satisfaction being a mental state could be better established by the affidavit of the detaining authority and not
by a stranger who is only familiar with the file. Further, in matters relating to personal liberty, the court should be
more sensitive in procedural matters.90.
[Art. 22.13.16] Bona fides of order founded on Past Activities of Detenu
(A) 1. The general rule is that an order of detention cannot be held to be mala fide merely because—
the order of detention refers to the past activities of the detenu as giving rise to the satisfaction of the detaining
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authority91. (because, once the grounds are relevant, the Court cannot inquire into the reasonableness of the
subjective satisfaction of the detaining authority).92.
The past conduct or antecedent history of a person can appropriately be taken into account in making a
detention order. It is indeed largely from prior events showing tendencies or inclinations of a man that an
inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of
public order. But in order to justify such an inference, it is necessary to bear in mind the fact that such past
conduct or antecedent history shall ordinarily be proximate in point of time and should have a rational
connection with the conclusion that the detention of the person was necessary.93.
In Haradhan Saha v State of WB,94. the court said that the order of detention is a precautionary measure. It is
based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of
surrounding circumstances. In the matter of detention, the law is clear that as far as subjective satisfaction is
concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order.
Once the detaining authority is subjectively satisfied about the various offences labeled against the detenu,
habituality in continuing the same, difficulty to control him under normal circumstances, the authority is free to
pass appropriate orders under the preventive detention law. Where the detaining authority, after scrutinising all
the details including various orders of arrest and release, bail on various dates and noting that he is habitually
indulging in trespass in forest area, illicit cutting, felling, smuggling and transporting forest wealth from reserved
forest, arrives at a definite conclusion that provisions of normal law are not sufficient to deal with the detenu, the
conclusion cannot be questioned. When past conduct is taken into consideration, the inference drawn by the
detaining authority cannot be faulted.95.
Even though a single solitary act can prove the propensity and potentiality of the detenu to carry on with
smuggling activities, before passing the order of detention, the antecedents of the person and facts and
circumstances of the case need be taken into consideration.1. In D.M. Nagaraja v Govt. of Karnataka,2. the
court took into consideration the detenu’s criminal record for a period of thirty years in coming to the conclusion
that he is a ‘goonda’ and preventive detention order was found valid.3.
In Collector and Dt. Magistrate, Eluru, AP v Sangala Kondamma,4. the Supreme Court observed that if the
facts/incidents placed before the detaining authority were proximate to each other and last of the facts/incidents
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mentioned was proximate to the order of detention, then early incidents could not be treated as stale and
detention order could not be set aside on that ground.5.
A warning given earlier by detaining authority that if detenu fails to mend his habits, he may have to be detained
under prevention detention laws, does not prove want of good faith, prejudice or bias when the person was
detained subsequently.6. If a person is under detention or is under trial, but his conviction is unlikely, but his
conduct comes within the mischief of the detention law, then the authority is entitled to take a rational view of
the matter. If there are grounds for detention and the authority takes a decision bona fide on the basis of
materials available, the same cannot be assailed.7.Bona fides of the detention cannot be challenged on the
ground that the authorities failed to inform of the detention to his near relations especially when the detenu was
already in jail and his relations also visited in jail within two days of the order of detention.8.Mala fides or
colourable exercise of power cannot be inferred merely because criminal case was dropped because of
insufficient evidence or that witness refused to speak and subsequently detention order was passed.9. When
the Government chose to bring the offender to book under the criminal law of the land, but the court informed
that the prosecution cannot stand, initiating detention laws against that person only shows the bona fides of the
Government that it was reluctant to apply its summary power against the detenu.10.Bona fides also cannot be
doubted merely because of non-prosecution of past activities.11. The mere fact that the detention order is
passed during the pendency of habeas corpus proceedings cannot by itself lead to the conclusion that the order
is vitiated by malice in law. It depends on the circumstances of the case. The detenu would have to prove not
only that the detention order has been passed during the pendency of habeas corpus proceedings, but also that
there are other facts showing malice.12. In such cases, the court cannot go into the merits as to whether the
facts stated in the affidavit filed by the government are correct or not, but can see whether on the facts so
stated, a charge of mala fides can be made out.13. If the grounds are relevant and germane to the object of the
Act (Maintenance of Internal Security Act, 1971), then merely because the objectionable activities covered
thereby also attract the provisions of Chapter VII of CrPC, the preventive detention cannot for that reason alone
be considered mala fide provided the authority concerned is satisfied about the necessity of the detention as
contemplated by the Act.14.
If an order of detention is stated to be based on certain grounds, but on uncontroverted facts it appears that
those grounds do not really exist, then it follows that the order of detention is made for reasons other than those
disclosed in the grounds, in that sense that the order will be a mala fide order and will contravene Article 22(5)
of the Constitution.15.
On the question of mala fides, it is not a relevant consideration whether the activities of the appellant were liked
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or disliked by the authorities concerned. The only relevant consideration is, if the order of detention was made
for ulterior purposes, i.e. other than those mentioned in the detention order.16.
The satisfaction of the detaining authority is not a subjective one based on detaining authorities’ emotions,
belief and prejudices. There must be a likelihood of the person being able to indulge in such activities, the
inference of such likelihood being drawn from objective data.17. But the court does not go into the adequacy or
sufficiency of the ground on which the order of detention is based, but merely examines them, whether on the
ground given to detenu, a reasonable person could possibly have come to the conclusion to which the detaining
authority did.18.
The past conduct or antecedent history of a person can be taken into consideration when making a detention
order and as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man
that the inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the
maintenance of public order. If the authority is satisfied that the original ground was still available and there was
need for detention, on that basis, the action cannot be faulted.19. The past conduct or antecedent history of a
person can appropriately be taken into account for coming to the conclusion whether the person has the
tendency to repeat the illegal activities, and if a bona fide decision is taken, it is valid.20.
2. But where the order is challenged as invalid on the ground of the time-lag between the activities and the
order, the court has to weigh several factors, e.g.—(a) whether the nature of the grounds is such that it is
necessary to detain the person who has such past conduct, to prevent him from such prejudicial activities in
future;21. (b) whether the object of detention is such that prompt action should be taken in order to combat
such mischief;21 (c) whether the activities in question were part of a continuous course of conduct.22. In short,
in order to sustain such order, the court must find that there is a proximity and rational connection between the
past conduct of the person and the conclusion that this detention is necessary at the time of the order.23.
It is necessary for the authority proposing the detention of a person to produce such material which shows the
continuous presence of illegal activities of the proposed detenu which would satisfy the detaining authority of
the need detaining the person. In other words, the material produced by the authority proposing the detention
should form a chain of incidents last of which will have to be proximate to the date of proposed detention while
other acts must be proximate to each other. If the facts placed before the authority are proximate to each other
and the last of the acts are proximate to the order of detention, then the early incidents cannot be treated as
stale and the detention will be void.24. Where the ground of detention was precise, pertinent, proximate and
relevant and the detenu was a history sheeter, the conclusion of the detaining authority is not to be interfered
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with.25. The action by way of preventive detention is largely based on suspicion and the court is not the
appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the
restraint on a person. The court can only examine the grounds disclosed by the Government in order to see
whether they are relevant to the object which the legislation has in view, i.e., to prevent the illegal activity which
is sought to be prevented by the Act. The said satisfaction is subjective in nature and if such satisfaction is
based on relevant grounds, the same is valid. Court cannot substitute its opinion.26.
Considerable delay without any reasonable and acceptable explanation for the same is a ground to make an
inference that the order is a colourable exercise of power and not genuine.27. Supreme Court has recently held
that the court has to be circumspect and has to take a pragmatic view by examining the circumstances in each
case. In cases coming under COFEPOSA, the court has to keep in mind that smuggling poses a serious threat
and smugglers by virtue of their large resources can influence and cause delay. Therefore, even if there is
delay in passing and serving the detention order, it cannot snap the said live link, if the said delay can be
satisfactorily explained.28.
There must be “live and proximate link” between the ground of detention and the avowed purpose of detention
and in some cases, it can be inferred that this link is broken or snapped if there is a long and unexplained delay
between the date of the order of detention and arrest of detenu.29. When delay was not explained, it was held
that detention order is not bona fide.30. But where the delay is properly explained, the detention will be valid.31.
In cases of smuggling of red sanders wood, which has international ramification, delay of one month by
sponsoring authority in making recommendation to detaining authority under COFEPOSA cannot be said to be
inordinate delay so as to make the detention order invalid.32. In Licil Antony v State of Kerala the court said
that the time taken by screening committee more than four months to evaluate thousand pages, to translate the
same in language of detenu and pass detention order will not amount to inordinate delay so as to make
detention order invalid. In cases where the detenu himself is responsible for the delay, the ground of delay
cannot stand.33. In Dropti Devi v UOI,34. the court said that the detenu cannot take advantage of his own
wrong and challenge the detention order on the plea that the purpose of execution and detention order no
longer survived as the maximum statutory period of detention would have elapsed by then. The plea of delay
taken by the person who himself was responsible for the delay having adopted various dilatory tactics cannot
be accepted. If a preventive detention order is to be quashed or declared illegal merely on the ground that the
order remained unexecuted for a long period without examining the reason for such non-execution, the
legislative intention contained in section 7(1)(b) of COFEPOSA Act would be wholly nugatory. Those who have
evaded the process of law shall not be heard by the Supreme Court to say that their fundamental rights are in
jeopardy. At least in all those cases, where proceedings such as those contemplated under section 7 of the
COFEPOSA Act were initiated consequent upon absconding of the proposed detainee, the challenge to the
detention orders on the nexus theory is impermissible. Permitting such an argument would amount to enabling
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the law breaker to take advantage of his own conduct which is contrary to law. Permitting an absconder to raise
such question at the pre-detention stage would render the jurisdiction of Supreme Court a heaven for
characters whose respect for law is doubtful. Merely because the execution of the detention order has taken
long years before it could be executed, the proposed detainee cannot be allowed to take such plea so as to
take advantage of the passage of time and cannot be allowed to take the plea that the order of detention is fit to
be quashed due to its pendency. It is no doubt true that there must be a “live and proximate link” so that if there
is a long and unexplained delay between the order of detention and arrest of the proposed detainee, the order
of detention may be struck down unless the grounds of detention indicate a fresh application of mind by the
detaining authority to the new situation and changed circumstances. But, where the delay is adequately
explained and is found to be the result of recalcitrant or refractory conduct of the proposed detainee in evading
arrest, there is warrant to consider that the link is not snapped. If the courts allow such advantage, the
proposed detainee can challenge the detention order at the pre-execution stage on any ground, evading
detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention
order which could not be accepted and finally seek the quashing of the detention order. This would render the
very purpose of preventive detention laws redundant and nugatory which cannot be permitted. On the contrary,
if the order of detention is allowed to be served on the proposed detainee even at a later stage, it would be
open for the proposed detainee to confront the materials or sufficiency of materials relied upon by the
authorities for passing the order of detention.35. In UOI v Parasmal Rampuria,36. the court said that in such
cases, the order of detention is not fit to be quashed and should not be quashed merely due to long lapse of
time. In such case, the proper order which was required to be passed was to call upon the respondent first to
surrender pursuant to the detention order and then to have all his grievances examined on merits after he had
an opportunity to study the grounds of detention and to make his representation against the said grounds as
required by Article 22(5) of the Constitution of India.37. An undue delay in execution of order of detention
creates a doubt regarding the genuineness of the satisfaction of the detaining authority. An inference that the
order is not lawful exercise of power can be made.38.
Where the allegations against the detenu were of a serious nature involving crores of rupees and the
transaction had been done in a clandestine manner with the help of foreign materials and the detenu also
claimed himself as a non-resident Indian, period of nearly two years in passing the detention order was held not
to affect the order of detention as the detaining authority had to consider various materials.39.
3. Put otherwise, mere delay in making the order is not fatal,40. but circumstances may make it so.41. Where
an order of detention was made in April, 1988, but the petitioner was arrested in October 1988, the court held
that the delay showed that the detaining authority had not applied its mind to arrive at the conclusion that it was
necessary to detain the petitioner. The order was quashed.42. Where the order of detention could not be
served on the detenu and the detaining authority could not give a satisfactory explanation for the delay caused,
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the detention order will be quashed.43. In Lakshman Khatik v State of WB,44. the court held that delay of seven
months in making the order of detention after the incident rendered the order fatal. In another case, the court
said: “It is true that there must be a live link between the grounds of criminal activity alleged by the detaining
authority and purpose of detention, namely, inhibition of prejudicial activity of the species specified in the
statute. This credible chain is snapped if there is too long and unexplained an interval between the offensive
acts and order of detention. No authority acting rationally can be satisfied subjectively or otherwise of future
mischief merely because long ago the detenu had done something evil”.45.
(B) 1. On the other hand, the order would be tainted by mala fides—
(i) Where there is anything to show casualness in making the order or that the authority did not apply his
mind,46. or that his satisfaction, on which the order was based, did not really exist,47.e.g.,
(a) Where all the grounds specified in the Act are reproduced in the order, mechanically,48. with the
disjunctive, “or”.49.
But it would not be necessarily so where more than one grounds are mentioned with the
conjunctive “and”.50. Even the disjunctive “or” has been approved where the Legislature itself uses
“security of the State” “or public order” as alternatives,51. constituting a single ground of detention.
(b) Where the authority had no opportunity of considering all the material facts before making the order,
because they were not placed before him, e.g.
That a criminal case on the same facts was pending. (But if he had been discharged before the
making of the order, it would not be a material fact to be placed before the authority.52.)
(ii) But there is no casualness—
Merely because the maximum period of detention mentioned in the statute is fixed in the order of detention.53.
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When all reasons for passing detention order with a view to prevent the detenu from abetting prejudicial
activities in future are narrated by detaining authority in grounds of detention, the subjective satisfaction of the
authority to detain the person will prevail.54.
2. The allegation of mala fides will not be entertained by the court when it is not against the authority who made
the impugned order, but some other persons, e.g., the Police.55.
3. Though the onus to prove mala fides is upon the detenu,56. where an allegation is made, in an application
for habeas corpus against the authority who issued the order of detention, the court may take such allegation
as uncontroverted, leading to the invalidity of the order where the affidavit-in-opposition on behalf of the State is
not sworn by the authority57. on whose subjective satisfaction the order was passed, unless satisfactory
reasons58. are offered why his affidavit was not available, in which case, the affidavit should be sworn by some
responsible officer who personally dealt with or processed the case,59. or an officer who is specially entrusted
with the detention cases.58 When the earlier order was passed under State Act and subsequent order was
passed under the Central Act on the same grounds after several months, it cannot be said that the subsequent
order is mala fide or passed mechanically without proper satisfaction. If the authority is satisfied that the original
grounds were still available requiring preventive detention, no mala fides can be attributed from the fact
alone.60. The detenu will have to prove that the detaining authority has acted mala fide in issuing the order. An
order that is issued contrary to the objects and purposes of Preventive Detention Act will be mala fide.61.
But where no personal allegation of mala fide or bias has been made by the detenu against the detaining
authority, the omission to file an affidavit in reply by itself would not be a ground to sustain the allegation of
mala fides or non-application of mind.62. But Supreme Court has also held that failure to file affidavit may not
by itself be a ground to release the detenu.63. In the absence of any allegation of mala fides, a responsible
officer who has personally dealt with or who processed the case may file a counter-affidavit. In State of Punjab
v Jagdev Singh,64. the court said that failure of District Magistrate to file an affidavit himself is an impropriety
and in many cases, it may not be of much consequence. In that case, the affidavit was filed by the Deputy
Secretary. This was held not to vitiate the detention as there was no allegation of mala fides against the District
Magistrate who was the detaining authority.65. The fact that the petitioner was discharged in a criminal cases,
for offences for which he was arrested, and the detention order was made when he was still in jail custody
would not render the detention order either illegal or mala fide.66.
If it is established that the order of detention has been made mala fide, it would be set aside and the detenu will
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be entitled to be released.67. On the question of mala fides of an order of detention, the only relevant
consideration is if the order was made for ulterior purposes or purposes other than those mentioned in the
detention order.68. Where the justification of the order did not exist and the intention to pass the detention order
was to destroy the reputation of the detenu, it is a clear case of abuse of power and mala fide. Compensation
was directed to be paid.69.
4. If the affidavit be in order, the court cannot go into the merits whether the facts stated therein are correct or
not, but can see whether on the facts so stated a charge of mala fides could be made out.70.
5. The question of mala fides is to be determined with reference to the circumstances of each case.71.
[Art. 22.13.17] Order of Detention against person in Custody
1. An order of detention presupposes that the person has or will have freedom of action to commit the mischief
which is sought to be averted by preventive detention. Hence, if the person is serving a long term imprisonment
or is in jail custody as an undertrial and there is no immediate prospect of his being released on bail or
otherwise, the authority cannot be legitimately satisfied on the basis of his antecedents that he is likely to
indulge in similar prejudicial activities after his release in the distant or indefinite future.72. Where there is no
proximate nexus between the preventive action and the past activity of the detenu, the order of detention
should be struck down.73. The order of detention would be struck down as colourable in the absence of any
explanation in the counter-affidavit (in the habeas corpus proceeding) as to why it was deemed necessary to
make the order even while the person was in custody.73 If a person who is undergoing imprisonment for a short
period, say a month or two or so, and it is known that he would be released soon from jail, it may be possible
for the authority to consider the antecedent history of the said person and decide whether the detention of the
said person would be necessary after he is released from jail and if the authority is bona fide satisfied that such
detention is necessary, he can make a valid order of detention a few days before the person is likely to be
released. The question as to whether an order of detention can be passed against a person who is in detention
or in jail will always have to be determined in the circumstances of each case.74. In cases where the detenu
has been granted bail, it can be presumed that it would be possible for him to come out of jail any moment and
indulge in prejudicial activities. If the above fact, though not mentioned in the detention order, but in the grounds
of detention which a form part of order of detention, has been taken into consideration and bail has been
granted, the validity of detention order cannot be challenged on the ground of non-application of mind.75.
Though bail application must be pending to justify detention order, even in the absence of pending bail
application, detention order can still be sustained if detaining authority reaches a conclusion about likelihood of
detenu’s release on bail on the basis of similar cases in which co-accused has been granted bail and authority
furnishes details in that regard. But in case bail application is not filed, but detention order was passed on the
ground that relatives of detenu were proposing to move bail application in higher courts since “in similar cases”
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bail was granted after lapse of time for which no details are given, since the allegations are vague and no
details are given, detention order is not valid.76.
At any rate, when there is nothing in the order to show awareness of the detaining authority that the person was
already in jail, the order would be vitiated for non-application of his mind.77.
2. (a) But where there is a chance of the petitioner being discharged on bail78. and his activities before arrest
were so desperate that the authority had sufficient reason (to be stated in the counter-affidavit) to deter the
petitioner from his desperate activities if released, the fact that he was actually in jail custody when the order of
detention was made, would not make it mala fide or colourable.79. The same principle will apply where the fact
of his being in custody was considered in the very order of detention.79
(b) Similarly, the mere fact that an earlier order had been made and revoked on some technical ground or for
expiry of the Act under which it was passed, and a fresh order is thereafter made would not render the fresh
order mala, fide provided that the objectionable activities did not take place in the remote past, or, in other
words, the person had not been in jail for any considerable time immediately before the fresh order is made.80.
When a detention order is quashed by the High Court by issuing a writ of habeas corpus or certiorari, the
ground which is the basis of the detention order should not be taken into consideration for any subsequent
order of detention. The same principle will apply even in cases where the authorities pass a second order of
detention, partly relying on a ground which has been set aside by the High Court and partly relying on other
ground which has arisen subsequent to the earlier order of detention.81. It was held that when court strikes
down an earlier order by issuing rule it nullifies the entire order.82. Successive orders of detention have to be
read down so as to bring it in conformity with Article 22(4) of the Constitution.83.
A statement made by an accused under section 161 CrPC cannot be taken as sufficient ground in the absence
of any supportive or corroborative grounds to pass an order of detention. The said statement cannot be the
basis for passing an order of preventive detention. This is clear from section 162(1) CrPC. The statement made
under section 161 can be used to contradict the witness and not as a piece of substantive evidence.84.
A detention order can be passed even while the person is already in jail on satisfying three conditions – (1) it
must be based on facts relating to detaining authority’s knowledge of detenu’s custody, and (2) real possibility
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of detenu’s release on bail, and (3) necessity of preventing him from indulging in activities prejudicial to security
of State and maintenance of public order upon his release on bail. In case any of the above three facts does not
exist, detention order would stand vitiated.85. Detaining authority’s satisfaction must be on proper appreciaton
of facts about likelihood of detenu’s release on bail and necessity of his detention to prevent him from indulging
in prejudicial activities in view of his antecedent activities of proximate nature. Where incidents relating to
criminal activities in respect of which detenu had been arrested earlier and released on bail were older than
twelve years or more and had no live link with incident relating to offence under section 302 IPC in respect of
which detenu was arrested and detention order was passed, it was held that mere apprehension that the
detenu was likely to be released on bail whereafter he could indulge in commission of further prejudicial
activities, in the absence of any other ground, is not sufficient to justify the detention order, and the court
directed his release from custody.86. Merely because the passport has been seized, it cannot be contended
that the detenu cannot resort to prejudicial activities, where the antecedents of detenu prove that he is regular
in violating the law of the land and was actively involved in smuggling activities. The subjective satisfaction of
the detaining authority about the compelling necessity to detain the person will not be interfered with by the
court.87.
An order passed immediately after the revocation of the earlier order on the basis of the report of the Advisory
Board was held unconstitutional.88. Such an order of preventive detention will be quashed because the order is
passed mechnically and without application of mind.89.
An order passed by the district magistrate on the direction of a senior officer, but without having any grounds on
record against the concerned person is void. The magistrate can pass the order when he is “personally”
satisfied on the materials placed before him. He ought not to pass an order mechanically or under anybody
else’s dictation.90.
If, however, decision proceeded simply on the ground that the law under which the order has been made was
invalid or the order was irregular in form, a fresh order of detention under a new legislation or a fresh order of
detention in valid form based on pre-existing grounds can be passed.91.
Upon revocation of earlier order of detention, a fresh order of detention can be passed on fresh materials.92. It
was held that when an order of preventive detention is quashed by the court, the detaining authority cannot
make a fresh order on the basis of the same old grounds. When the court strikes down an order, it nullifies the
entire order. This means that old grounds should not be taken into consideration either as a whole or in part
even along with fresh grounds of detention for drawing the requisite satisfaction to pass a fresh order.93. In
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another case, the court said: “It is therefore clear that an order of detention cannot be made considering the
previous grounds of detention when the same has been quashed by the court and if such previous grounds of
detention are taken into consideration while forming the subjective satisfaction by the detaining authority in
making the detention order, the order of detention will be vitiated. It is of no consequence if the further fresh
facts disclosed in the grounds of the impugned detention order have been considered.”94. Likewise, in the case
of pending proceedings, if at any time the court directs the release of the detenu, and a valid order of detention
is produced, the court cannot direct him to be released merely on the ground that at some prior stage there was
no valid order of detention.1.
A statute may also provide for barring of successive detention orders on the same facts.2.
Section 14(2) of National Security Act says: “The revocation or expiry of a detention order shall not bar the
making of a fresh detention order against the same person in any case where fresh facts have arisen after the
date of revocation or expiry.. … ”. While interpreting the above provision, the Supreme Court said that when a
detention order expires or is revoked or the detenu is released, a fresh order cannot be passed on the very
same facts on which the earlier detention order was based. A fresh detention order can be passed only when
fresh facts have arisen after the revocation or expiry of the earlier order.3. The same principle applies even
when the first order was revoked due to a technical defect, as “revocation” in section 14(2) includes cancellation
of an order whether valid or invalid.4. The same principle applies when the detention order is held illegal by the
court and the detenu is released.5. Once an order of revocation is made, another order detaining the same
person can be passed only if some additional or fresh material is in the possession of the government on which
action can be based. It was held in Hadbandhu Das v Dt. Magistrate,6. that the revocation or expiry of the
previous order cannot lead ipso facto to a revival of the detention by passing of a fresh order because a person
who is entitled to his liberty can only be put in a second jeopardy where there are additional or fresh facts
against him.
It is not necessary to fix the maximum period of detention while confirming the detention order, for, this is ipso
facto subject to the maximum period fixed in the relevant statute.7.
It is the subjective satisfaction of the detaining authority which determines whether a person has to be detained
for a particular period of time or not.8.
[Art. 22.13.18] Summary
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In a case,9. the law relating to an order of detention against a person in custody has been summarised as
follows:
(1) A detention order can validly be passed even in the case of a person who is already in custody. In such
a case, it must appear from the grounds that the authority was aware that the detenu was already in
custody.
(2) When such awareness is there then it should further appear from the grounds that there was enough
material necessitating the detention of the person in custody. This aspect depends upon various
considerations and facts and circumstances of each case. If there is a possibility of his being released
on bail and on being so released, he is likely to indulge in prejudicial activity, then that would be one
such compelling necessity to pass the detention order. The order cannot be quashed on the ground
that the proper course of the authority was to oppose the bail and that if bail is granted notwithstanding
such opposition the same can be questioned before a higher court.
(3) If the detenu moved an application for bail and the same was refused, the fact of such order not being
placed before the detaining authority does not amount to suppression of relevant material. The
question of non-application of mind and satisfaction being impaired does not arise as long as the
detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly, the non-supply of the copies of bail application or the order refusing bail to the detenu
cannot affect the detenu’s right of being afforded a reasonable opportunity guaranteed under Article
22(5) when it is clear that the authority has not relied on or referred to the same.
(5) When the detaining authority has merely referred to them in the narration of events and has not relied
upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the
detenu in making an effective representation. Only when the detaining authority has not only referred
to, but also relied upon them in arriving at the necessary satisfaction, then failure to supply these
documents, may, in certain cases, depending upon the facts and circumstances, amount to violation of
Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually
or passingly referred to these documents or also relied upon them depends upon the facts and the
grounds, which aspect can be examined by the court.
(6) In a case where a detenu is released on bail and is at liberty at the time of passing the order of
detention, then the detaining authority has to necessarily rely upon them as that would be a vital
ground for ordering detention. In such a case the bail application and the order granting bail should
necessarily be placed before the authority and the copies should also be supplied to the detenu.10.
Even though the relevant provision of law does not preclude the authority from passing an order of
detention against a person while he is in detention or in jail, the relevant facts in connection with
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the making of the order may differ and that may make a difference in the application of the
principle that a detention order can be passed against a person in jail.11. In Binod Singh v District
Magistrate, Dhanbad,12. it was observed that there must be awareness of the facts necessitating
preventive custody of a person for social defence. If a man is in custody and there is no imminent
possibility of his being released, the power of preventive detention should not be exercised. Where
there is no material to show that the person will come out on bail, i.e., “an imminent possibility” of
coming out on bail, and his five bail applications were already rejected, detention cannot be
ordered merely on the ipsi dixit of the detaining authority that the person may come out on bail.13.
Detaining authority stated in the grounds that it was aware that the detenu was on remand and that
he was likely to file a bail application and that bail was usually granted by courts in such cases and
on his release on bail he was likely to indulge in prejudicial activities, such that it was held that the
detaining authority had applied its mind.14. In a case where the detaining authority stated that it
was aware that a bail application is already filed and it may be moved at any time, it was held that
the authority had applied its mind.15. Though bail application must be pending to justify detention
order, even in the absence of pending bail application, detention order can still be sustained if the
detaining authority reaches a conclusion about likelihood of detenu’s release on bail on the basis
of similar cases in which co-accused has been granted bail and authority furnishes details in that
regard. But when no bail application has been filed, but detention order was passed on the ground
that relatives of detenu were proposing to move bail application in higher courts since “in similar
cases” bail was granted after lapse of time for which no details are given, no detention order could
be passed.16.
A person was arrested for some offence under Customs Act. His bail application was also rejected
and no attempt was also made by him to get bail. An averment that the person is likely to be
released and such release is imminent in the detention order was not accepted by court in
Rivadeneyta Ricardo Agustin v Govt of NCT Delhi.17. When a detenu is already in jail and is likely
to be released on bail, Government failure to oppose the bail application does not invariably lead to
the inference that the detention is not called for.18. Mere possibility of being released on bail alone
is not sufficient, there must be some apprehension for justifying that the detenu is likely to indulge
in prejudicial activities in case of release on bail.19.
Where the detaining authority is not even aware whether bail application of the accused was
pending, when he passed the detention order, rather the detaining authority passed the detention
order under the impression that no bail application of the accused was pending, but in similar
cases bail has been granted by courts. When the detention order gave no details of the bail
application or regarding similar cases where bail was granted, the detention order is bad for non-
application of mind.20. In Vijay Narain Singh v State of Bihar,21. the court said that when a person
is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising
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the validity of an order of preventive detention which is based on the very same charge which is to
be tried by criminal court.
[Art. 22.13.19] Preventive Detention after Discharge or Acquittal in a Criminal Prosecution
1. The scope and object of preventive detention and prosecution being different, the general proposition is that
an order of preventive detention is not mala fide or otherwise illegal merely because it has been made after the
discharge22. or even acquittal23. of the person at a criminal trial on the same facts. The mere fact that criminal
proceedings had been initiated against a person for certain incidents and that he was discharged would neither
bar a valid detention order being passed against him on the basis of these very incidents nor can such an order
for that reason be characterised as “mala fide”. The rationale of this judicial view is that while the purpose of
trial and punishment is punitive, and it seeks to punish for past offences and therefore needs proof beyond
reasonable doubt, the purpose of preventive detention is “preventive”. It is a precautionary measure and is
based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of
surrounding circumstances. Therefore, while there may not be evidence sufficient to prove his guilt in a court of
law, it may be sufficient to sustain the subjective satisfaction to order detention.24.
2. On the other hand, it is an apparent nullification of the judicial process if, in every case of discharge or
acquittal, the Executive could fall back on its power of detention because the verdict of the court goes against
it.25. The Executive would be allowed by the court to use this power only in those cases where it is genuinely
satisfied that no prosecution could possibly succeed against the accused because he is a dangerous person
who has overawed witnesses 25 or concealed his commission of the crime cleverly.25
3. Conversely, there may be circumstances in which the fact of acquittal on the same charge may raise
questions as to whether the subjective satisfaction of the detaining authority was arrived at on rational materials
or on extraneous considerations, e.g., when the charge was proved to be false;26. or a single charge27. is
seized upon, after considerable lapse of time,27 without a knowledge on the part of the detaining authority that
the detenu had been acquitted of that charge.26
But the authority of this group of cases,28. has been shaken in view of the unqualified statements of the
Constitution Bench in Haradhon’s case.27
A detention order will be vitiated if the court had earlier declared the case to be false or baseless and the order
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of detention is passed on the same grounds, i.e., which were the subject-matter of earlier prosecution.29. The
power to detain under preventive detention law should not be used to supplant the ordinary judicial machinery
which may become a threat to democratic values. If the court feels satisfied that the prosecution was not
undertaken or that it failed not because the witness was afraid to testify, but because there was no material
against the detenu, then any order of detention will be colourable exercise of power.30.
Recently the Supreme Court has held that preventive detention is not warranted where ordinary law is sufficient
to deal with alleged offence. Recourse to preventive detention law cannot be taken as a substitute to ordinary
law.31. If recourse to criminal proceedings would be sufficient to deal with alleged prejudicial activities, then
detention order will be illegal.32.
[Art. 22.13.20] Effects of parallel proceedings upon the Right to Representation
1. Though it has been held that the use of both criminal proceedings and preventive detention would not
necessarily be mala fide or illegal, at the same time, it has been held that where a criminal proceeding33. or
investigation34. on the same ground is pending against the detenu, the accused may be prejudiced in making
his representation under the same ground under Article 22(5), so that there would be a denial of the right to
make an effective representation which is guaranteed by Article 22(5), and the detenu should, accordingly, be
set free by the court.
Ordinary, criminal process is not to be circumvented or short-circuited by ready resort to preventive detention.
But the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention.
Nor is it correct to say that if such possibility is not present to the mind of detaining authority, the order of
detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of
launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining
authority had not applied its mind to the vital question whether it was necessary to make such an order when an
ordinary criminal prosecution could well serve the purpose, and the detaining authority must satisfy the court
that this question too was borne in mind before the order of detention was made. If the detaining authority fails
to satisfy the court that it so bore the question in mind, the court would be justified in drawing the inference that
there was no application of mind by the detaining authority to the vital question whether it was necessary to
preventively detain the detenu.35.
The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may
not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on
certain facts for which prosecution may be launched or may have been launched. An order of preventive
detention may be made before or during prosecution. An order of preventive detention may be made with or
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without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no
bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.36.
2. If the case is withdrawn or an investigation proceeding is dropped37. and an order of detention is made
against him, the order is not necessarily mala fide,38. unless there are circumstances to show positively39. that
the order was made for some ulterior motive or purpose different from the one set out on the face of the
order.40.
The mere fact that criminal proceedings had been initiated against a person for certain incidents and he was
discharged by the court, would not mean that no valid order of detention could be passed against him on the
basis of the very same incidents, or that such an order can for that reason be characterized as mala fide.41.
The view expressed in Biram Chand v State of U.P.,42. was dissented and overruled in Haradhan Saha v State
of W.B.43. It was declared therein that the mere circumstance that a detention order is passed during the
pendency of the prosecution will not violate the order.44. In Ashim Kumar Roy v State of W.B.,45. it was held
that mere circumstance that a detention order was passed during the pendency of a prosecution will not vitiate
the order. In conceivable cases, it may become necessary to pass an order of detention in anticipation of an
order of discharge or acquittal.46. In Masood Alam v UOI,47. it was further declared that no inference of mala
fide can be made merely because a detention order is passed pending criminal prosecution.48.
The mere circumstance that a detention order is passed during the pendency of a criminal prosecution will not
vitiate the order. The order of detention is a precautionary measure. It is based on a reasonable prognosis of
the future behaviour of a person based on his past conduct in the light of surrounding circumstances.49.
3. Further, there is no question of mala fides unless the charges in the criminal prosecution are shown to be
identical with the grounds of detention.50.
[Art. 22.13.21] Effect of Unexplained Delay in taking Action
1. Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of
imminent danger of activity prejudicial to the community, the court would scrutinise delay at each of the stages
involved, and where there is no satisfactory explanation for such delay, it would strike down the order of
detention on the ground that the order was made by the relevant authority without applying his mind and that
there was no genuine subjective satisfaction which is a pre-requisite for making such order.51. Mere allegation
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by detaining authority that the detenu could not be found in his house, though no serious attempt was made to
trace him or to cancel his bail and forfeit the security deposited by detenu, and there was a delay of more than
one year to serve the copy of detention order, same was held as inordinate and detention order was held not
valid.52.
Once the court is satisfied that preventive detention order against a person is not valid, court may direct the
release of the detenu forthwith. Court said that considering the fact that release of full reasoned judgment may
take time, it may direct immediate release of the detenu by a summary order.53. Even if a plea regarding delay
in passing detention order was not raised before the High Court, since it goes against constitutional mandate as
provided under Article 22(5), such plea can be allowed to be raised before the Supreme Court for the first
time.54. A considerable delay, say two or three months, between the date of making the detention order and
arrest of the person concerned thereunder has been held to throw doubt on the genuineness of the subjective
satisfaction of the detaining authority, for, if the authority was genuinely satisfied that it was necessary to detain
the person concerned so as to prevent him from committing prejudicial activities, then the authority should act
promptly to arrest him after making the order and not let him at large to carry on his objectionable activities.
Therefore, if the authority fails to furnish a reasonable explanation for the delay, the subjective satisfaction may
be inferred to be colourable and not genuine.55.
Where the order of detention was not executed in spite of detenu’s presence in court to the knowledge of the
authorities on many occasions and there was delay of 40 days in serving the same, for which there was no
valid explanation, it was held that the detention is bad. It was observed that the subjective satisfaction of the
detaining authority is vitiated by reason of non-execution of the order.56. But delay in non-execution of
detention order cannot be a ground for challenge when the order of detention has not been served on the
detenu, since that is a matter which could be explained by the Government.57.
2. Of course, no mechanical test can be laid down for determining whether there has been undue delay,58. and
considerable lapse of time in making or serving the order,59. has sometimes been excused in view of the time
taken for investigations,60. or because he was in the meantime in jail custody under an infructuous
prosecution.61. The real test is whether there is a rational connection between the past conduct of the person
and the authority’s conclusion that the detention of such person is necessary,62. and whether the delay has
been satisfactorily explained.63.
When the detenu is responsible for the delay by adoption of various dilatory tactics, he cannot challenge the
order of detention on the ground of delay.64. In cases where all possible steps are taken to serve the order of
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detention and still arrest was successfully evaded, ground of delay in serving the order cannot stand.65. A
detention order cannot be quashed merely because there is a long delay in executing the detention order
beyond the period of detention. Although a preventive detention order is not punitive and in case of long delay,
a fresh application of mind by the detaining authority is normally required, as the live proximate link may be
snapped due to such delay, such link is not snapped when the delay is adequately explained and is found to be
the result of recalcitrant or refractory conduct of the proposed detainee in evading arrest.66. In Subhash
Popatlal Dave v UOI the court said that merely because the execution of detention order has taken long years
before it could be executed, the proposed detainee cannot be allowed to take advantage of the passage of time
and cannot be allowed to take the plea that the order of detention is fit to be quashed due to its pendency. In
that case, court said that there could be two reasons which may lead to a situation by which the preventive
detention order passed by competent authority under various enactments could remain unexecuted - (1) the
absconding of the proposed detainee from the process of law, and (2) the apathy of the authorities responsible
for the implementation of the preventive detention order. Section 7 of COFEPOSA Act recognises the possibility
which can be resorted to when the proposed detainee is absconding or concealing himself. If a preventive
detention order is to be quashed or declared illegal merely on the ground that the order remained unexecuted
for a long period without examining the reasons for such non-execution, the legislative intent contained in
section 7(1)(b) of COFEPOSA Act would be rendered wholly nugatory. Those who have evaded the process of
law shall not be heard by the Supreme Court to say that their fundamental rights are in jeopardy. At least in all
those cases where proceedings such as the ones contemplated under section 7 of the COFEPOSA Act were
initiated consequent upon absconding on the proposed detainee, the challenge to the detention on the live
nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take
advantage of his own conduct which is contrary to law. Even in those cases where such action as the one
contemplated under section 7 of the COFEPOSA Act is not initiated, the same may not be the only
consideration for holding the order of preventive detention illegal. Permitting an absconder to raise such
question at the pre-detention stage would render the jurisdiction of Supreme Court a haven for characters
whose respect for law is doubtful.67.
In Licil Antony v State of Kerala,68. the court said that the court has to be circumspect and has to take a
pragmatic view by examining the circumstances in each case and in cases under COFEPOSA, the court has to
keep in mind that smuggling poses a serious threat and smugglers by virtue of their large resources can
influence and cause delay. Therefore, even if there is a delay in passing and serving the detention order, it
cannot snap the said live link, if the said delay can be satisfactorily explained. For smuggling of gold biscuits,
the detenu admitted the guilt, but the order of detention was passed about 11 months after the admission of
guilt, and same was held as bad since the delay was not properly explained.69. Where there was a delay of
more than one year in arresting the detenu for which a bald allegation was made that he was absconding,
without any details being given, same was not accepted by the court.70. In S.K. Serajul v State of W.B.,71. it
was held that when there was delay, both at the stage of passing the order of detention and in arresting him,
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and this delay unless satisfactorily explained, would throw considerable doubt on the genuineness of the
subjective satisfaction. In this case of delay, the detaining authority must come up with a reasonable
explanation sufficient to dispel the inference that its satisfaction is not genuine.
There must be a proximate link between the grounds of detention alleged by the detaining authority and the
avowed purpose of detaining and in appropriate cases it is possible to assume that the link is snapped if there
is a long and unexplained delay between the date of the order and the date of arrest of detenu.72.
When there is unreasonable delay in arresting the detenu, it creates a doubt regarding the genuineness of the
detaining authority as regards the immediate necessity of detaining the person in order to prevent him from
carrying on the prejudicial activity referred to in the ground of detention. It can be assumed that the detaining
authority while passing the order has not exercised the power vested in it lawfully.73.
3. But whenever there has been any delay, the State must, in its counter-affidavit, in a habeas corpus
proceeding, offer explanation for the delay, whether a complaint of delay has been made in the petition or
not.74.
4. Instances of such undue delay are—
(a) A long gap between the activities which form the ground for the order and the date of the order of
detention.75.
(b) Delay in making arrest after the order of detention has been made,76. unless there is proper
explanation for the delay, e.g., absconsion of the detenu or avoiding arrest.77.
(c) Unreasonable delay in confirming an order of detention under the COFEPOSA.78.
Preventive detention involves the personal liberty of the individual. When the representation made by the
detenu before the appropriate authority has not been considered within the period it had to have been
considered, the undue and unexplained delay in considering the representations would render the continued
detention of the detenu illegal.79. An unexplained delay in the matter of consideration of the representation by
the detenu is always fatal for the detention order to be sustained. While dealing with the matter of preventive
detention, the Government is not expected to be oblivious of the legal obligation to attend the representation
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with promptitude or attend the matter in routine manner, and where the Government has attended the
representation with indifference and there is no explanation forthcoming for the delay in disposing the
representation, the continuous detention of the detenu is liable to be set aside.80. Even if a plea regarding
delay in passing the detention order is not raised before the High Court, since it goes against the constitutional
mandate as provided under Article 22(5) of the Constitution, such plea can be raised before the Supreme Court
for the first time.81.
Even if the representation is considered in “time”, but there is delay in communicating the order of rejection and
serving it on the detenee, the detention is liable to be revoked.82. When there is delay to consider and dispose
of the representation for which there is no proper explanation, the detention order will be quashed. Court said
that the expression “as soon as may be” in Article 22(5) sufficiently makes it clear that representation should be
considered very expeditiously and disposed of with a sense of urgency and without any avoidable delay.83.
A detention order cannot be quashed where delay is satisfactorily explained and subjective satisfaction of
detaining authority is genuinely reached.84. A failure to explain the cause of delay will invalidate the detention
order.85.
It was held that there can be no hard and fast rule as to the measure of reasonable time and each case has to
be considered from the facts of the case and if there is no negligence or callous inaction or avoidable red
tapism on the facts of a case, the court would not interfere. It needs no reiteration that it is the duty of the court
to see that the efficacy of the limited, yet crucial safeguards provided in the law of preventive detention is not
lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with
their application. When there is remissness, indifference or avoidable delay on the part of the authority, the
detention becomes vulnerable.86. When there is unsatisfactory and unexplained delay between the date of
order of detention and date of securing the arrest of detenu, such a delay would throw considerable doubt on
the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the
detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with
a view to prevent him from acting in a prejudicial manner.87. The law is settled that any representation
submitted before the authorities should receive immediate attention and any delay would cause prejudice to the
detenu.88.
But there cannot be any fixed time for disposal of the representation and the delay in disposal is to be
considered vis-à-vis any prejudice that may be caused to the detenu. The time imperative can never be
absolute or obsessive. The observation that each day’s delay in dealing with the representation must be
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adequately explained is meant to emphasis the expedition with which the representation must be considered
and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law
deals with facts of life. In law, as in life, there is no invariable absolutes. Neither life nor law can be reduced to a
mere despotic formula.89. It is the constitutional commitment that the representation of the detenu must be
disposed of expeditiously.90. The detenu has the constitutional right to have his representation against the
order of detention considered in earnest and at the earliest.
Where the Central Government took about more than two months to pass orders on representation Article 22(5)
stands violated since it goes against the constitutional mandate which says that the representation must be
disposed of “as soon as may be”. The said expression clearly makes clear the concern of the framers of the
Constitution that representation should be considered very expeditiously and disposed of with a sense of
urgency and without any avoidable delay. The detention order was quashed since no explanation was offered
for the delay.1.
The detenu on being served with an order of detention, having regard to the constitutional protection contained
in Article 22(5), is entitled to be afforded an “earliest opportunity” of making representation thereagainst. Article
22(5) obligates the authority making the order of detention – (1) to communicate to the detenu the grounds on
which the order of detention has been made; and (2) to afford the detenu the earliest opportunity of making a
representation against the order of detention. The right to make a representation is, therefore, a facet of
fundamental right.2. It is also equally well settled that the constitutional right to make a representation includes
the right to obtain consideration thereof by the authority to whom it is made.3.
Where the jail authorities had unreasonably delayed transmission of the representation as an intermediary,
which had ultimately caused undue delay in the disposal of representation, same resulted in rendering the
continued detention illegal.4. In Mehdi Mohammed v State of Maharashtra5. and Virendra Singh v State of
Maharashtra6. short delay in disposing of the representation was considered fatal to the order of detention.7.
Consideration of the report sent by the State Government under section 3(2) of COFEPOSA Act by Central
Government or the competent authority to whom that power is delegated, is a statutory requirement which is in
addition to the obligation imposed by Article 22(5). Non-compliance of the statutory requirement like abrogation
of safeguards would vitiate continued detention of a person ordered to be detained under COFEPOSA Act.8. In
Jai Prakash v District Magistrate,9. where jail authorities did not forward the representation to the Central
Government in spite of the fact that sufficient number of copies were submitted to the said authorities, it was
held to be fatal and the detention order was quashed.
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Once the Government confirms the detention order, detaining authority becomes functus officio and even if he
could consider detenu’s representation, consideration by the government is sufficient. A contention was raised
that within a day of receiving the representation by detaining authority, detention order was approved by
government and detaining authority implied that there was no consideration of the representation. Court
rejected the contention on the ground that as per records another representation simultaneously sent to
government was fully considered and rejected by government and Advisory Board also rejected the detenu’s
representation thereby confirming the order of detention. Hence the contention that non-consideration of
representation of detenu by detaining authority vitiated the detention order was not accepted.10.
[Art. 22.13.22] Summary of law as to mala fides
I. Where an order of detention is challenged as mala fide, the court cannot go into the question whether the
facts stated in the affidavits filed on behalf of the Government are correct, but may examine whether, on the
facts so stated, a charge of mala fides can be made out.11.
II. Different considerations would prevail where the person making the arrest is a Police Officer. If a Police
Officer is empowered by a law to arrest a person without warrant on reasonable suspicion that such person has
acted in a manner prejudicial to the public safety, the Court is entitled to enquire whether his suspicion was
reasonable or not in the circumstances.12. The arrest would not be valid even if the Police Officer acted bona
fide,12 but not reasonably.
III. An order of detention was held to be mala fide where a person, while in jail custody, was served with an
order of detention under the Preventive Detention Act.13.
IV. The onus of proving mala fides is upon the detenu,14. and the trend of decisions shows that it is not likely
that the detenu may succeed in many cases.
(A) Thus, an order of detention is not mala fide, by reason of the following:
(i) Merely that the purpose might have been served by proceeding under the ordinary law,15.e.g., by
making an order under section 144 CrPC.16.
(ii) Merely because a criminal prosecution lay on the same acts alleged.17. But the court may interfere
where, from the circumstances of the case, the court finds that the authority did not apply its mind to
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the question whether it was necessary to make an order of preventive detention instead of
prosecution.18.
(iii) Merely because a criminal case is pending against the detenu at the time of the order.
(iv) Merely because an order of detention has been made against the petitioner after his discharge in a
criminal case19. on the same facts where his name had not been mentioned in the FIR. See further,
below.
(v) Merely because notoriety or a course of activities has been inferred from one single instance, provided
it is not too trivial or remote,20. and it takes place at a time when such anti-social activity had become
rampant.21. But in the absence of such special circumstances appearing from the order, the inference
of notoriety from one single instance may be held to be unreasonable, amounting to a colourable use
of the power.21
(vi) That wrong facts were placed before the authority which issued the order.22.
(vii) Merely that a fresh order is made superseding a former order which was defective.23.
(viii) That there were certain disputes between the detenu and a Minister, when the Secretary who issued
the detention order was not influenced by the Minister who was in charge of a different Department.24.
(ix) That the action of the Police was mala fide, when there is nothing to show that the detaining authority
did not apply its mind.23
(x) Merely that the petitioner’s activities were not liked by the authorities.25.
Where a detention order was passed when alleged acts on the basis of which order was passed were not
existing and such exercise was as a result of abuse of power with intent to destroy the reputation of detenu, it
was held as a mala fide exercise of power. In such cases, court may grant monetary compensation against the
authorities.26.
When the earlier order was passed under a Provincial Act and a subsequent order was passed under the
Central Act, on the same grounds after several months, it cannot be said that the subsequent order was mala
fide or passed mechanically without proper satisfaction. If the authority is satisfied that the original grounds
were still available requiring preventive detention, no mala fides can be attributed from this fact alone.27.
An order that is issued contrary to the objects and purposes of the Preventive Detention Act will be a mala fide
order.28. Similarly, if the grounds on which detention order is based are not proper or relevant, the courts may
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come to the conclusion that the order is mala fide. A charge of mala fides can be examined only when it is
against the very authority which made the order of detention and not when it is against any other authority.
[Art. 22.14] CLAUSE (4) [Art. 22.14.1] Clause (4): Scope of Advisory Board
Under the Constitution (Forty Fourth Amendment) Act, 1978, an Advisory Board shall consist of a Chairman
and not less than two other members. The Chairman shall be a serving Judge of the appropriate High Court
and the other two members serving or retired Judges of any High Court. This amendment in the composition of
the Advisory Board was made in 1979 by the 44th Amendment Act with a view to ensuring that the Chairman
and Members of the Board shall be independent and may not come under the influence of the Executive. A
serving Judge can be appointed only when the Chief Justice of the appropriate High Court consents to such an
appointment. Thus, indirectly the concurrence of the Chief Justice of the High Court for such an appointment is
ensured. Under the existing provisions, serving or retired High Court Judges as also those qualified to be High
Court Judges can be members of the Advisory Board. As the portion of Constitution (Forty Fourth Amendment)
Act dealing with Article 22 has not been brought into force even after thirty six years, it is as good as dead.29.
1. The only function of the Advisory Board is to report to the Government whether a detenu is liable to be
detained for a period exceeding 3 months, subject to the maximum laid down by Parliament under Clause
(7)(b). Such report will enable the Government to detain the person beyond three months, provided the
detention is valid on its merits, and does not otherwise offend the Constitution.30.
The functions of the Advisory Board are purely consultative. It is an independent body constituted under the Act
consisting of sitting or retired judges. It is expected that the Advisory Board would act in a fair and impartial
manner in making a report whether or not in their opinion there is sufficient cause for the detention of the
person. In coming to the conclusion, the Board has to make an objective assessment on the question whether
there was sufficient material on which the subjective satisfaction of the detaining authority could be based. The
Board is not only entitled to look into the record and whether there was any material on which the order of
detention could be passed, but may also call for such information as it may deem necessary from the
appropriate Government or from the person concerned, and if in any particular case it considers essential to do
so or if the person concerned desires to be heard, shall hear him in person. The Board is entitled to devise its
own procedures.
The procedure devised by the Board should not be arbitrary. The procedure must be right and just and fair and
nor arbitrary, fanciful or oppressive. If the detaining authority is permitted to have the assistance of a lawyer, the
detenu also should be given the benefit.31. The Advisory Board is required to function in an advisory capacity.
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Its opinion, which is purely an advice, is binding on the Government when it observes that there is no sufficient
cause for detention.32. It is not necessary that a speaking order should be passed by the Advisory Board.33.
The setting up of an Advisory Board to determine whether such detention is justified is considered as a
sufficient safeguard against arbitrary detention under any law of preventive detention which authorizes
detention for more than three months.34. The Advisory Board has to determine whether the detention is
justified or not. The Board is not concerned with the duration of detention. The decision as to the period of
detention must be of the detaining authority. The reference to the Board is a safeguard against Executive
vagaries and high-handed action. It is not a limitation on the Executive’s discretion as to the discharge of its
duties connected with preventive detention; it is a safeguard against one’s use of power.35. However, if the
Advisory Board reports that the detention is not justified, the detained person must be released.36. But a report
of an Advisory Board will not make detention legal, which otherwise is illegal.
The requirement of an Advisory Board is in accordance with the Preamble of Constitution and is the barest
minimum that can make a law of preventive detention, to some little degree, tolerable to a democratic
constitution.37.
The existence of an Advisory Board is mandatory under Article 22(4). Passing of an order of preventive
detention when there is no Advisory Board was severely criticised by the Supreme Court.38.
The decision of the Advisory Board is essentially different in character from a judicial or quasi-judicial decision.
It would be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board having
regard to the nature of the enquiry held by it, as amounting to a judgment of a criminal court.39.
Detenu may lead oral and documentary evidence before the Advisory Board in order to rebut the allegation
levelled against him. If the detenu desires to examine any witness, he shall have to keep them present at the
appointed time and there is no obligation on the part of the Board to summon them.40.
Making a reference to the Advisory Board is a mechanical or ministerial act that does not involve any exercise
of discretion. The Government may at any time revoke the detention.41. But the procedure should be fair. A
timely request of defence for being allowed to be assisted by a friend ought to be considered as assistance of a
friend would result in fairness of procedure towards the detenu.42.
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The obligation of the Central/State Government to consider the representation is independent of the
consideration by the Advisory Board. The consideration by the Board is only to decide whether there is a
sufficient case for detention and an additional safeguard; it is not a substitute for consideration of the
representation by the Central/State Government. After pointing out two circumstances when the representation
may be received and considered by the Government after receiving the report of the Advisory Board, the court
held that the confirmation of the detention will be valid if the Government has applied its independent mind.43.
The appropriate Government can release the detenu even before sending the matter to the Advisory Board. If
the Advisory Board expresses an opinion favouring the release of the detenu, the Government shall release the
detenu, but if the Advisory Board expresses any opinion against the release of the detenue, the appropriate
Government may still exercise the power to release the detenu.44.
2. The words “such detention” have been interpreted to refer to preventive detention and not the period for
which the person is to be detained. It follows that the matter before the Advisory Board is whether the detention
is justified and not for how long he should be detained. After the Advisory Board reports that the detention is
justified, it is for the detaining authority to determine the period of detention, subject to the maximum laid down
by Parliament.45. Of course, if the Government confirms the order of detention in pursuance of the report of the
Board, the order of confirmation may not necessarily be invalid for omission to mention the period for which the
detention is to be extended, where the relevant law fixes a maximum period beyond which the detention cannot
continue.46.
3. The function of the Board is purely advisory and it does not make the detention valid if it is ultra vires the
relevant Act or the Constitution. Hence, habeas corpus would still lie against the initial order of detention
notwithstanding report of the Advisory Board confirming it,—for instance, on the ground that the law is ultra
vires or that the order is mala fide. Again, habeas corpus would lie even before the detenu’s case is placed
before or considered by the Advisory Board. In other words, the High Court’s jurisdiction under Article 226 is not
in any way controlled by the constitution of Advisory Boards.47.
4. Similarly, the disposal of an application for habeas corpus under Article 226 cannot affect an applicant’s case
before the Advisory Board. The court and the Advisory Board function in different areas.47
5. If the Advisory Board reports against the order of detention, under Article 22(4) it would be illegal for the
Government to detain the person beyond three months. The appropriate Government must, in such a case,
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revoke the detention order and release the detenu.48. In such a case,48 the Government may be bound by
statute [e.g., section 11(2) of MISA; section 8(f) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974] to release the detenu even though three months have not yet passed and
though the function of the Board is advisory.
6. The Board must report within the period of three months specified by Article 22(4). If the Board’s report that
there is sufficient cause is received by the Government after three months from the date of detention, the
detention will be illegal for contravention of Article 22(4).48Article 22(4) of the Constitution has specified the
maximum limit of initial detention and a detention for a longer period than three months can only be made on
the basis of the report of the Board. The West Bengal (Prevention of Violent Activities) Act, 1970 authorises a
possible detention of more than three months. It is because the appropriate Government wants to detain a
person for more than three months that the matter is referred to the Board and it is only when the Board makes
its report that the appropriate Government can fix the period of detention under sub-section (1) of section 12.
So, when the Government receives a report of the Board stating that there is sufficient cause for the detention
of a person, if the Government wants to detain him for a further period of three months, it has to pass an order
or take a decision under section 12(1) to confirm the order of detention.49.
It is a statutory mandate to refer the case to the Advisory Board under section 10 of the A. P. Prevention of
Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Law
Grabbers Act, 1986, if the detention is to exceed three weeks. Even though the person has been released, if
the detention order is in force, his case must be referred to the Advisory Board. This being a mandatory
provision and having not been complied with, the detention order, even if it is in force, cannot be said to be in
force after the period of three weeks.50.
From the wordings of Article 22(4) the Supreme Court spelled out the rule that not only the Advisory Board
should report within three months of the date of detention order that, in its opinion, there is sufficient cause for
the detention of the detenu, but also the Government should itself confirm and extend the period of detention
(beyond three months) within three months time limit. Failure on the part of the Government to do so will render
the detention invalid as soon as three months lapse and any subsequent action by the Government cannot
have the effect of extending the period of detention beyond three months. While confirming the order of
detention, the Government has not only to peruse the report of the Advisory Board, but also apply its mind to
the material on record.51. The expression “may confirm” in Cl. (f) of section 8 of COFEPOSA Act is significant.
It imports a discretion. Even where the Advisory Board makes a report that in its opinion, there is sufficient
cause for detention concerned, the Government may not confirm the detention order. Read in the light of Article
22(4) of the Constitution and the context of the words “continue the detention”, they definitely lead to the
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conclusion that the sine qua non for continuing the detention made beyond the period of three months is the
confirmation of the detention order by the appropriate government. Conversely, the non-confirmation of the
initial order by the appropriate government before the expiry of period of three months detention shall
automatically result in revocation and termination of the legal authority for its continuance. These words put it
beyond doubt that if the initial order of detention is not confirmed by the appropriate government within three
months of the date of detention, the detention after the expiry of that period ipso facto becomes unauthorised
and illegal. It is true that in certain situations when the Advisory Board makes its report in favour of the
detention just before the expiry of eleven weeks from the date of detention, the time left to the government for
taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks. That
only shows the anxiety on the part of the Legislature to ensure that the Government continues the preventive
detention of a person beyond three months after due application of mind and for that purpose, acts with utmost
promptitude. The law does not lend the authority to continue the detention even for a day more than the initial
period of three months if the Government does not take a decision for that purpose on the report of the
Advisory Board within three months of the commencement of detention.52.
Under Article 21, a person may not be deprived of his personal liberty except only in accordance with procedure
established by law. Hence, in the matter of preventive detention, the administration must follow scrupulously
and strictly the procedural norm laid down in Clauses (4) to (7) of Article 22 and in the relevant preventive
detention law under which the order in question has been made. Deviation from the procedure to the
disadvantage of the detenu would render the detention invalid. It does not matter whether the irregularity is of
form or substance. Since preventive detention affects an individual’s right to freedom of his person, court seeks
to interpret the law strictly, as far as possible, in favour of the affected individual. Hence the relevant
constitutional and statutory provisions, as interpreted by courts, are treated as mandatory and failure to observe
even a single procedural safeguard makes detention bad.
Under Article 22(7)(a), Parliament may by law prescribe the circumstances under which, and the class or
classes of cases in which, a person may be detained for a period longer than three months, without referring his
case to an Advisory Board under Article 22(4)(a). It was held that Article 22(7)(a) is an exception to Article
22(4). The intercession of an Advisory Board in preventive detention cases being the normal rule, its
dispensation could be justified only in exceptional and extraordinary cases. It was held that the law under
Article 22(7)(a) would be, by its nature, a drastic law and should, apply only to exceptional circumstances and
exceptional activities, expressly and in precise terms as prescribed by Parliament. The earlier view, A.K.
Gopalan v State of Madras,53. holding that it is not obligatory on Parliament to lay down both the
“circumstances” and “classes”, but could lay down either “circumstances” or “classes” of cases in which a
person could be detained for more than three months without reference to Advisory Board was overruled. In
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Sambhu Nath Sarkar v State of W.B.,54. it was held that Parliament must apply its mind and prescribe specific
situations and types of cases which require a drastic treatment by way of dispensation of the Advisory Board.
Section 9 of COFEPOSA lays down the cases in which and the circumstances under which a person may be
detained for a period longer than three months, but not exceeding six months without obtaining the opinion of
the Advisory Board.
The 44th Constitutional Amendment was enacted in 1978 which amended Articles 22(4) to (7) with intent to
safeguard the interests of detenu. But the same has not been enforced so far. The important safeguards are:
(1) The maximum period of detention without obtaining the opinion of Advisory Board is reduced from three
months to two months. (2) No person shall be kept under detention beyond two months unless the Advisory
Board reports that in its opinion there is sufficient cause for detention. (3) An Advisory Board is to consist of a
Chairman and not less than two other members. (4) The Chairman of the Board has to be a serving judge of
the appropriate High Court and other members may be serving or retired High Court Judges. (5) The Board is
to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court. (6)
No person is to be kept in preventive detention beyond the maximum period prescribed by any law made by
Parliament.
7. The Board’s function being advisory, the Government is not bound to confirm the order of detention even
where the Board reports that there is sufficient cause for detention; and the Government can, notwithstanding
such opinion of the Board, revoke the order.55.
8. But whatever be the opinion given by the Board, the Government must take its action, to revoke or confirm
the order of detention, immediately after the opinion of the Board is received or at any rate within three months
from the date of detention of the person.55 Failure to confirm and extend the order within that period of three
months will render the detention illegal from the moment of expiry of that period and no subsequent action by
the Government can have the effect of extending the period of detention.56.
In Abdul Latif Abdul Wahab Sheikh v B.K. Jha,57. the court said: “The procedural requirements are the only
safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the
detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be
attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. If a reference
to an Advisory Board is to be made within three weeks, it is no answer to say that the reference, though not
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made within three weeks, was made before hearing of the case. If the report of the Advisory Board is to be
obtained within three months, it is no answer to say that the report, though not obtained within three months,
was obtained before the hearing of the case.”
If the relevant statute enjoins the Advisory Board to give its report within a stipulated time, failure to do so will
vitiate the detention.58. It is illegal for the original detention order to straight away fix the period of detention,
for, the scheme of constitutional provisions is that every case should be placed before the Advisory Board and
the government could confirm the detention beyond three months only after the Board holds the detention to be
justified. Fixing the period of detention before the Board has gone into the case is bound to prejudice the
detenu.59.
Section 10 of the National Security Act provides: In every case where a detention order has been made under
this Act, the appropriate Government shall, within three weeks from the date of detention of person under the
order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has
been made and the representation, if any, made by the person affected by the order.
Commenting on the above provision, the Supreme Court said that the obligation cast under section 10 is
“paramount” and the strictness with which such a mandate has to be complied with is absolute. The legislative
scheme contained in section 10 envisages that there may be a case where the detenu makes no representation
within the time contemplated in section 10. While making the reference under section 10, the grounds of
detention are a must, though furnishing of the representation is conditional upon it having been made and
receipt thereof by the appropriate government. It is obligatory for the government to forward the representation
when received.60.
In the absence of the Advisory Board’s opinion to the effect that there is sufficient cause for the “continued
detention” of the detenu, the detention for a period exceeding one year is without sanction.61.
9. Confirmation by the Government is not a mental act but an objective action and must, therefore, be recorded
in writing.62. It was held in Deb Sadhan v State of West Bengal that it is essential that the appropriate
Government should take positive action on the report of the Board, which action alone will determine whether
the detention is to be terminated or continued.63. It should also be communicated to the detenu, but, in the
absence of a statutory provision to that effect, failure to communicate such order to the detenu within the period
of three months will not render the detention illegal.64.
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In Biren Dutta v Chief Commissioner, Tripura,65. the court observed: “After all, the liberty of the citizen is in
question and if the detention of the detenu is intended to be continued as a result of the decision reached by
the appropriate authority, it should say so in clear and unambiguous terms. Though under the rules there is
nothing to indicate that the appropriate authority should communicate to the detenu the decision to extend the
period beyond three months, “it is desirable” and it would be fair and just that such a decision should in every
case be communicated to the detenu”.
Interpreting Article 22(4), the court said that this provision makes it clear that the Advisory Board should not
only report within three months from the date of detention order that, in its opinion, there is sufficient cause for
the detention of the detenu, but also that the government should itself confirm and extend the period of
detention (beyond three months) within the three months time-limit. Failure on the part of the government to do
so will render the detention invalid as soon as three months elapse and any subsequent action by government
cannot have the effect of extending the period of detention beyond three months. While confirming the order of
detention, the government has not only to pursue the report of the Advisory Board but also apply its mind to the
materials on record.66.
[Art. 22.14.2] Where Reference to the Board is Obligatory
1. In view of Article 22(4)(a), there is no need of any reference to the Advisory Board if the State Government
does not continue the detention beyond three months or releases the detenu at any time earlier than that, upon
consideration of his representation.67.
2. But if there is no reference, any detention by the Government becomes illegal on the expiry of three months
from the date of detention68. and any reference thereafter cannot cure the invalidity. Statutory requirement to
refer the case to the Board is mandatory. Non-compliance with the requirements will result in order ceasing to
be in force after the specified period of three months.69. The act of making a reference to the Advisory Board is
a mechanical or ministerial act involving no exercise of discretion though of course the Government is at that
stage, as at all other stages, at liberty to revoke the order of detention.70.Section 8(b) of the COFEPOSA Act
obliges the appropriate government within a specified time from the date of detention of a person under a
detention order to make a reference in respect of the detention to the Advisory Board to enable the Board to
make a report under Article 22(4) of the Constitution.
[Art. 22.14.3] Jurisdiction of the Board
1. The proceedings before the Board are non-justiciable, because its functions are advisory. Thus, the courts
cannot compel the Board to call for further information from the Government.71.
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2. For the same reason, the Board is not bound to communicate its report to the detenu.71
3. Its report is binding on the Government (under the MISA) only when it favours the detenu and not when it
goes against him.71
The detenu has no right to cross-examine in proceedings before the Advisory Board.72. But when the detenu
expresses his desire to be heard by the Board, an opportunity of a hearing must be given to the detenu.73.
When the detenu makes a request that he may be permitted to take the assistance of a lawyer, the Board will
have to consider the same on its own merits. It was held that often adequate legal assistance may be essential
of the right to procedural fairness, which is part of the fundamental rights guaranteed under Article 21, as also
the right to be heard.74. In Sariba Begum v Govt. of Tamil Nadu,75. the main ground of attack on the validity of
the detention order was that the request of the detenu for assistance of a lawyer at the time of personal hearing
before the Board had been considered only by the Chairman and rejected, and it was not done by the Advisory
Board as such. When records of the Advisory Board were perused, it became clear that the Chairman and
Members did not consult or confer among themselves, and records did not show the consensus opinion of
Members of the Board. It was held that the procedure adopted is neither legal nor warranted by the provisions
of section 8(c) or (e) of COFEPOSA Act and that the procedure adopted was neither just nor reasonable having
regard to the fundamental right of the individual to life and personal liberty. Court said that the detenu was not
given effective opportunity of defending himself and consequently the detention was held invalid.
The Advisory Board has jurisdiction to take evidence if the detenu desires to examine any evidence, both oral
and documentary. But the Board has no obligation to summon the witness, and the witnesses must be made
available by the detenu before the Board when his case is called. The Board is free to regulate its own
procedure within the constraints of the Constitution and the statute. It would be open to the Board, in exercise
of that power, to limit the time within which the detenu must complete his evidence.76. Unless the detenu
requests for a personal hearing, there is no obligation on the part of the Advisory Board to give personal
hearing to the detenu.77. The detenu has the right to examine defence witnesses in rebuttal of allegations
against him if the witnesses are present and are willing to depose. In the absence of any statutory prohibition in
this regard, this right must be read into the statute. Any contrary procedural regulation by the Board, i.e.,
directing the detenu to get affidavit of the witness is not valid. Detenu has to choose between filing of affidavit or
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to adduce oral evidence. Cross-examination of such witnesses has to be made by the detaining authority and
that right cannot be denied to them.78.
The detenu has right to have the assistance of a friend and if the same is refused to the detenu by the Advisory
Board, the same amounts to violation of principle of natural justice and Article 22(5). The detenu is entitled to
be released.79.
Where a representation was made and a telegram was sent to the detaining authority before the order of
detention was passed, non-consideration of the same while passing the order of detention vitiates the
detention.80.
[Art. 22.14.4] Proviso to Clause (4)(a)
What this proviso means is that even if the Advisory Board has reported that there is sufficient cause for
detention, the detention may continue for a period longer than three months, but not longer than the maximum
period prescribed by Parliament in a law made under Clause 7(b) of Article 22.81. This does not mean,
however, that Parliament is bound to make a law under Clause (7)(b) or that Clause (4)(a) cannot function so
long as no law fixing the maximum period has been made by Parliament.81 In the absence of a law made by the
Parliament under Clause (7)(b), there is nothing to prevent a State Legislature from providing for detention for a
period exceeding 3 months.81 [See, further, under Clause (7), post].
[Art. 22.15] CLAUSE (5) [Art. 22.15.1] Clause (5): The Right of Representation
1. Article 22(5) gives to the detenu the right to make a representation, but no right to be heard by an
independent tribunal. It has been interpreted to mean a right of representation to be considered by the
appropriate Government.82.
The representation must be signed and dated, otherwise it cannot be treated as a representation within the
meaning of Article 22(5).83.
2. The detention order will be invalid if the requirements of this clause are not complied with e.g., if the grounds
on which the order has been made have no connection with the order, or have no connection with the
circumstances or classes of cases under which preventive detention could be supported,84. or the grounds are
too vague to enable him to make the representation.84
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3. When an order of preventive detention is challenged on the ground that it contravenes Article 22(5), the
question for determination by the court is not whether the petitioner will in fact be prejudiced in the matter of
securing his release by his representation, but whether his constitutional safeguard has been infringed.
Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution
has provided against the improper exercise of the power must be jealously watched and enforced by the
court.85.
4. The right conferred by this clause is to make a written representation.86. Since Clause (3) excludes the
application of Clauses (1)-(2) of Article 22, the detenu has no right to consult or to be defended by a lawyer, nor
himself to personally appear before the Board.86
[Art. 22.15.2] Right to grounds and to make Representation
What is a representation for the purpose of this article? It was held that that there is neither a formula nor any
magical incantations like “open sesame” to be repeated or chanted in order to qualify a communication as a
representation. So long as it contains a demand or a request for the release of the detenu in whatever language
couched and a ground or a reason is mentioned or suggested for such release, there is no option but to
consider and deal with it as a representation. Even though the detenu makes a demand for copies of
documents and states that that the documents are necessary to make a representation, still the earlier
communication will be a representation for all purposes.87. A request for copies of documents is also a
representation.88. Opportunity to make a representation comprehends a request for supply of translated copies
of documents which amounts to representation.89. But a representation seeking temporary release, i.e., parole
under the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral
Traffic Offenders and Law Grabbers Act, 1980 is not a representation under Article 22(5). The article
contemplates representation against the order of detention or for revocation of detention.90. A representation is
a statement made by a representer to a representee and relating by way of affirmation, denial, description or
otherwise to a matter of fact. The statement may be oral or in writing or arise by implication from words or
conduct.91.
It is well settled that the constitutional right to make a representation includes the right to obtain proper
consideration thereof by the authority to whom it is made.92. The right to make a representation is a facet of
fundamental right.93. Non-consideration of representation filed by advocate of the detenu vitiates the detention.
Representation by the counsel was representation by the detenu himself and it should be considered by the
authority concerned.94. In Kirit Kumar Chamanlal Kundalia v UOI,95. the preventive detention order was
passed by Home Minister, but the detenu’s representation was rejected by the Secretary. Court held that the
Secretary has no jurisdiction to do so and detenu’s further detention is invalid. It is also the law that the
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government should consider detenu’s representation promptly and expeditiously. The fact that under Article
22(5) the earliest opportunity is to be afforded to the detenu to make the representation necessarily implies that,
as and when it is made, it should be dealt with promptly.96. The Supreme Court has emphasised that when the
liberty of a person is in peril, immediate action by relevant authorities is a desideratum.1. Court said: “The
personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the
appropriate authority, but also unconstitutional because the Constitution enshrines the Fundamental Right of a
detenu to have his representation considered and it is imperative that when the liberty of a person is in peril,
immediate action should be taken by the relevant authorities”.2.
After taking into consideration various decisions, court summarised the law as follows: “Article 22(5) of the
Constitution casts a legal obligation on the government to consider detenu’s representation as early as
possible. Though no time-limit is prescribed for disposal of representation, the constitutional imperative is that it
must be disposed of as soon as possible. There should be no supine indifference, slackness or callous attitude.
Any unexplained delay would be a breach of constitutional imperative and it would render the continued
detention of the detenu illegal. That does not, however, mean that everyday’s delay in dealing with the
representation of the detenu has to be explained. The explanation offered must be reasonable indicating that
there is no slackness or indifference. Though the delay itself is not fatal, the delay which remains unexplained
becomes unreasonable. The court can certainly consider whether the delay was occasioned due to permissible
reasons or unavoidable causes. It is not enough to say that the delay was very short. Even longer delay can as
well be explained by the authority concerned. If the inter-departmental consultative procedures are such that
delay becomes inevitable, such procedures will contravene the constitutional mandate. Any authority obliged to
make order of detention should adopt a procedure calculated towards expeditious consideration of the
representation. The representation must be taken up for consideration “as soon as” such representation is
received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in
connection with it) until a final decision is taken and communicated to the detenu.”3.
1. Clause (5) confers upon the detenu a right to make a representation against the order of detention which,
however, cannot be exercised by him unless he receives the grounds upon which the order has been made.4.
The right under Clause (5) is, therefore, two-fold:5.
(a) The authority making the order must communicate to the detenu the grounds on which the order has been
made, as soon as may be, after the order has been made.
(b) The detenu must also be afforded “the earliest opportunity of making representation against the order.
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A. Communication of the Grounds
1. The “communication” of the grounds which is required by the earlier part of the clause is for the purpose of
enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause.
Communication in this context, therefore, means imparting to the detenu sufficient and effective knowledge of
the facts and circumstances on which the order of detention is based and which are in the nature of the charge
against him of the prejudicial acts which the authorities attribute to him.6.
Diplomatic communication or petition and memorials to the President or Central Minister are not considered as
representation for the purpose of Article 22(5).7.
Communicate is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds
should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to
enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the
detenu and nothing in writing is left with him in a language which he understands then that purpose is not
served and the constitutional mandate of Article 22(5) is infringed.8. The word “communicate” would signify
actual receipt of the grounds, as the obvious purpose is to enable the detenu to make a representation. It was
pointed out that the Legislature has not used the words like “transmit”, “forward”, “send” or “despatch”.
The service of grounds of detention is a very precious constitutional right and where the grounds are couched
in a language which is not known to the detenu, unless the contents of the grounds are fully explained and
translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus
vitiate the detention ex facie. In cases where the detaining authority is satisfied that the grounds are couched in
a language which is not known to the detenu, a translated script is given to him and the grounds bear some sort
of a certificate to show that the grounds have been explained to the detenu in the language which he
understands.9. Where material particulars of the declaration signed by the detenu was in a language known to
the detenu (i.e., in Tamil), his plea that he was supplied with documents in a language not known to him (in
English) was rejected and it was held that Article 22(5) was not violated.10. Communication for the purpose of
Article 22(5) means imparting to the detenu sufficient knowledge of all the grounds of detention which are in the
nature of charges against him.
The detenu can make an effective representation only after reading and understanding the contents of those
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documents. Where the documents supplied were in Tamil, a language which was not known to the detenu, he
was deprived of the right to make an effective representation.11.
Detenu has the right to be supplied with all documents, statements and other materials relied upon in grounds
of detention without delay. Predominant object of communicating grounds of detention is to enable detenu at
the earliest opportunity to make effective and meaningful representation against his detention.12. All such
documents irrespective of the fact whether they are against the detenu or in his favour, and whether the detenu
had knowledge thereof or not, must be communicated to the detenu to enable him to make an effective
representation in exercise of his right under Article 22(5). Any breach of this rule will invalidate the detention.13.
So the process of communication which begins when grounds are prepared, ends when the detenu receives
the same. It was further held that if the grounds be in a language not understood by the detenu, then “effective
communication” will be after the grounds are made available by the detaining authority in an understandable
language which must be done forthwith after the language problem is known.14.
2. The sufficiency of the particulars conveyed to a detenu is a justifiable issue under Clause (5), the test being
whether they are sufficient to enable him to make an effective representation.15.
The communication of the grounds will necessarily enable the detenu first, to see whether the grounds are not
at all relevant to the object to be secured by the relevant provisions of the Act under which he is detained. If
they are not, then there were no grounds at all and no satisfaction could be founded on them. The very
irrelevancy of grounds will be a cogent proof of bad faith on the part of the authority so as to make the order
itself invalid. In the next place, the disclosure of the grounds will tell the detenu where his suspected activities
have been placed and whether he is entitled to the benefit of having his case scrutinized by the Advisory Board.
Finally, the communication of the grounds on which the order has been made will tell him generally the reasons
for his detention and will, therefore, be helpful to the detained person in making his representation which is also
provided in the article.16. It was held in State of Bombay v Atma Ram Shridhar Vaidya that the conferment of
the right to make a representation necessarily causes with it the obligation of the detaining authority to furnish
the grounds, i.e., materials on which the detention order is made. It is, therefore, clear that while there is a
connection between the obligation on the part of the detaining authority to furnish grounds and the right given to
the detained person to have an earliest opportunity to make the representation, the test to be applied in respect
of the contents of the grounds for the two purposes is quite different. For the first, the test is whether it is
sufficient to satisfy the authority. For the second, the test is whether it is sufficient to enable the detained person
to make a representation at the earliest opportunity.
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If the detention is on the ground that the detenee is indulging in manufacture or transport or sale of arrack then,
the authority must be satisfied that the arrack sold by the detenee is dangerous to public health and materials
must exist either in the form of the chemical examiner’s report or otherwise, copy of which should also be given
to the detenee to afford him an opportunity to make an effective representation.17.
In a case before the Madras High Court, grounds were verbally explained to the detenus and nothing in writing
was left with them in a language which they understood, namely, Tamil. The argument that the grounds for
which documents are required in Tamil are severable and are not important grounds cannot be countenanced
since the stage of testing the tenability or otherwise of the grounds has not arisen in the case. The fact remains
that grounds of detention make mention of the abovesaid grounds and the documents pertaining to those
grounds were not given to the detenus concerned in the language known to them viz., Tamil.18.
Supply of illegible document would, in fact, amount to non-supply of copies of the relevant document forming
part of the grounds of detention. It would thus mean that the grounds on which the order of detention has been
made have not been communicated to the detenue and he has been deprived of the opportunity to make
representation against the order. This makes the detention invalid. In such cases, the question of the grounds
of detention being severable does not arise.19.
Article 22(5) has two limbs: (1) The detaining authority is to communicate to the detenu the grounds of the
detention as “soon as may be”. (2). The detenu is to be afforded “the earliest opportunity” of making a
representation against the order of detention. According to learned author M.P. JAIN: “This is natural justice
woven into the fabric of preventive detention by the Constitution.”20. It is obvious that the grounds for making
the order are the grounds on which the detaining authority was satisfied that it was necessary to make the
order. These grounds, therefore, must be in existence when the order is made. By their very nature, the
grounds are conclusion of facts and not a complete detailed recital of facts.21.
Supplementary grounds are not ordinarily permitted, because it would mean that those grounds were not before
the authority while issuing the order of preventive detention. If supplementary grounds are new conclusions,
they are not permitted. However, if such grounds are in the nature of additional facts which throw more light on
the grounds which are already communicated, then such grounds are permitted.22.
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The expression “as soon as” does not mean simultaneously. Merely because the detenu was not
‘simultaneously’ furnished with the grounds of detention along with the order of detention, it cannot be said that
the detenu was thereby deprived of the right of being afforded “the earliest opportunity” of making a
representation against the order of detention as enjoined by Article 22(5). When the detenu does not allege that
his detention was for non-existent grounds, nor does he attribute any mala fides on the part of detaining
authority, the order of detention is not rendered invalid because the grounds of detention were furnished two
days later. It is not the law that no person shall be detained in pursuance of an order of preventive detention
without being informed of the grounds for such detention. The law is that the detaining authority must “as soon
as may be” i.e., as soon as practicable, communicate to the detenu the grounds on which the order of detention
has been made. That period has been specified by section 8 of the National Security Act to mean a period
ranging from five to ten days depending upon the facts and circumstances of each case.23. The expression “as
soon as may be” occurring in Article 22(5) would mean that a positive action on the part of the detaining
authority while supplying the grounds of detention, be taken without any delay.24.
It was held that “communication of grounds” means a communication to the detenu of all basic facts,
documents and materials which went into the subjective satisfaction of the authority to detain him. The
detention order becomes bad if any factual components constituting the real grounds for detention are not fairly
and fully put across to the detenu, the reason being that if some facts are held back from him, his right to make
an effective representation against the detention is infringed.25. After persuing the history sheet of a person,
order of detention was passed. But while communicating the grounds, two incidents included in the history
sheet, were not disclosed to the detenu and one of the incident was very proximate to the order of detention.
Though the District Magistrate filed the affidavit that the above two grounds did not influence him in passing the
order, the Supreme Court held that it is difficult to believe the ipse dixit.26. Counter-affidavit disclosing grounds
in addition to those disclosed in the detention order was held not a valid communication.27.
It is imperative that the detaining authority serve the grounds of detention which include all the relevant
documents which have been considered in forming the subjective satisfaction of the detaining authority before
making the order of detention and referred to in the list of documents accompanying the detention order to
enable the detenu to make an effective representation to the Advisory Board as well as to the detaining
authority. A refusal on the part of the detaining authority to supply legible copies of the relevant documents
amounts to denial of opportunity to make an effective representation. Thus, there is no valid communication.28.
In a number of cases, the Supreme Court has held that documents relied upon to make or referred to in the
grounds for detention order, form an integral part of the grounds and must be supplied to the detenu pari passu
the grounds of detention. Documents may not be supplied along with the grounds but must be supplied within a
reasonable time or within the time fixed for the purpose in the relevant law of preventive detention for the supply
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of the grounds.29. Even if the detenu is aware of contents of the documents not supplied to him, the detaining
authority has to furnish copies of those documents.30. Before legible copies of documents could be supplied to
the detenu, and the order of detention was confirmed, it was held that it amounts non-communication of
grounds of detention and denying the opportunity to make a representation.31.
In Prakash Chandra Mehta v Commissioner and Secretary, Government of Kerala,32. a case of preventive
detention invoking section 3(1) of COFEPOSA, it was observed that the concept of “grounds” used in Article
22(5) has to receive an interpretation which would keep it meaningfully in time with contemporary notions. It
was held that the expression “grounds” includes not only conclusion of facts, but also all the basic facts on
which those conclusions are based. In a later decision, it was held that the word “grounds” used in Article 22(5)
means not only the narration or conclusions of facts, but also all materials on which those facts are conclusions,
which constitute the “grounds” are based. An effective representation can be made against the detention order
only when copies of the material documents which were considered and relied upon by the determining
authority informing his opinion that the detenu be detained were supplied to him.33. Where a State law
provided that the sale of illicit arrack or liquor which is dangerous for human consumption and preventive
detention is ordered, then the documents and materials supporting the allegation that the arrack or liquor is
dangerous for human consumption must also be given to the detenu … (either in the form of report of chemical
examiner, etc.), and failure to supply such materials, will amount to non-communication of grounds.34. It was
reiterated that detaining authority is duty-bound to offer the detenu the earliest opportunity of making
representation against the order of detention and the representation to be made effective, the copies of the
documents “relied upon” by the detaining authorities on the grounds are necessary. The Constitution draws a
distinction between “grounds” and “facts”. “Grounds” are the conclusions drawn by the authority and indicate
the kind of prejudicial acts the detenu is suspected of being engaged in. The “facts” constitute the evidence or
reasons for arriving at the conclusion.35. Though it is not obligatory on the part of the detaining authority to
disclose all such facts, it would be for judiciary to determine whether the facts disclosed are sufficient or not
sufficient to give the detenu the necessary opportunity to make the representation.36.
It is clarified that there is no legal requirement that a copy of every document mentioned in this order shall
invariably be supplied to the detenu. What is important is that copies of only such of those documents as have
been relied on by the detaining authority for reaching the satisfaction that preventive detention is necessary,
shall be supplied to him.37. In an earlier case, it was observed that it is not that non-supply of each and every
document provides a ground for setting aside the detention order. It is for the detenu to establish that non-
supply of copies of the documents has impaired the detenu’s right to make an effective and purposeful
representation. The demand made by the detenu for the documents merely on the ground that there is a
reference in the grounds of detention cannot vitiate the otherwise legal order. What is essential is that the
detenu must show that the failure to supply the documents had impaired his right, however, slight or
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insignificant it may be.38. Where a document merely finds a reference on the order of detention or among the
grounds thereof, the complaint of non-supply of copies of such documents has to be supported by prejudice
caused to the detenu in making an effective representation.39. The Supreme Court has explained the
implication as follows: A detenu is entitled in addition to the right to have grounds of his detention
communicated to him, to a further right to have particulars “as full and adequate as the circumstances permit”,
furnished to him so as to enable him to make a representation against the order of detention. The sufficiency of
the particulars is a justiciable issue, the test being whether it is sufficient to enable a detained person to make
representation which, on being considered, may give relief to the detained person. This constitutional
requirement must be satisfied with respect to each of the grounds communicated to the person detained
subject of course to a claim of privilege under Clause (6). If this requirement is not satisfied, the detention
cannot be held to be in accordance with procedure established by law within the meaning of Article 21.40. If
sufficient particulars are communicated to the detenu and the discretion not to disclose certain facts has been
properly exercised, the courts have no right to sit in judgment on the opinion formed by detaining authority that
certain facts should not be disclosed in public interest.
All the grounds of detention must be communicated in one instalment. Once the grounds have been conveyed
to the detenu fresh, new or additional grounds cannot be added thereto later to strengthen the original detention
order.41. The reason is that Article 22(5) requires that all the grounds which operated to create the subjective
satisfaction of the detaining authority to issue detention order must be communicated to the detenu and nothing
should be held back. If the additional grounds were not existing at the time of detention order, then these were
not elements to bring about the subjective satisfaction and hence were irrelevant. If on the other hand, they
were existing, their non-communication earlier would amount to breach of Article 22(5).
But additional facts which were existing and which are the basis of detention order can be supplied. Even
specification of additional facts must be within reasonable time limit, since any delay will affect the detenu’s
right to make a representation.42.
The detenu is not entitled to know the confidential “sources” of information on which the detention order is
made. What is necessary for the making of an effective representation is the disclosure of the material and not
the source theory. Nor is the evidence collected against the detenu to be disclosed. In the grounds given to the
detenu all material facts necessary to make an effective representation alone are to be stated.43. But non-
communication of material or “reliable information” about the “anti-social” and “prejudicial activities” of the
detenu that led to his detention would be violative of Article 22(5), in as much as it prevents him from making an
effective representation.44. Where the activities forming grounds of detention were actually disclosed to a
detenu in unambiguous terms and adequate information furnished to enable him to make an effective
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representation against his detention, non-disclosure of source of information or exact words which formed the
foundation of order could not be complained of.45.
An opportunity to make a representation against an order of detention necessarily implies that the detenu is
informed of all that has been taken into account against him in arriving at the decision to detain him. “Grounds”
in Article 22(5) do not mean mere factual inferences but means factual inferences plus factual material which
led to such factual inferences. The “grounds” must be self-sufficient and self-explanatory. Copies of documents
“to which reference is made” in the grounds must be supplied to the detenu as part of the grounds.46.
What is material and mandatory is the communication of grounds of detention to the detenu together with
documents in support of the subjective satisfaction reached by the detaining authority.47. In Abdul Sattar
Ibrahim v UOI,48. the court held that when the detaining authority has merely referred to certain documents
(e.g., bail application and order thereon) in the narration of events and has not relied on them, failure to supply
the above documents will not cause any prejudice. Prejudice will be caused only if the detaining authority has
not just referred to the above documents, but also relied on them in arriving at the necessary satisfaction, such
that failure to supply these documents may amount to violation of Article 22(5). In a case where the detenu is
released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to
necessarily rely on these documents as that would be a vital ground for ordering detention. In such a case, the
bail application and order granting bail should necessarily be placed before the detaining authority and copies
should also be supplied to the detenu.49. Documents which are referred to and which are relied on to pass the
order of detention must be communicated to the detenu.50.
Article 22(6) to some extent has diluted the rigour of communication of grounds. It enables the detaining
authority to withhold those facts which it considers not desirable to disclose in public interest. But the authority
can withhold only “facts” and not “grounds”. All grounds should be disclosed to the detenu. In such cases, it is
not necessary for the detaining authority to disclose to the detenu its decision to withhold disclosure of some
facts under Article 22(6) and the ambit of non-disclosure.51. The detaining authority can also place these facts
before the Advisory Board.52.
Secret information which led to the discovery and seizure of contraband goods is required to be kept secret in
order to implement provisions of the statute effectively. The disclosure will be against public interest.53. Supply
of intelligence report of secret nature cannot be insisted upon and non-disclosure of such information does not
provide a basis for challenging the detention.54.
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Where in order to make effective representation, the defence finds that certain documents are necessary for
him, those documents have to be furnished. If the detenu applies for any document which is merely referred to
or even not referred to, which is in the possession of detaining authority, it will have to be supplied without delay
because the detenu alone knows what is the use of that document to project his case.55.
3. This right to make an effective representation has been held to have been denied in the following cases:
(i) Where one of the grounds upon which the order of detention was founded was never communicated to the
detenu.56.
(ii) Where adequate “particulars” of the “grounds” of detention are not communicated to the detenu.57.
(iii)(a) After the initial order of detention is passed and served on the detenu, if more documents are filed, which
are in English language (language not known to the detenu) and the detenu is not informed about the purpose
of the documents, the detention is vitiated.58.
Detenu must understand language of grounds
(iii)(b) When the detenu is not conversant with the English language, a communication of the grounds of
detention to such detenu in the English language together with an oral explanation in Hindi at the time of
delivering the grounds is not a sufficient compliance with the requirements of this clause even though English
continues to be the official language, for, such communication does not enable the detenu to make an effective
representation. When the person is not conversant with the English language, the grounds of detention should
be communicated to him in the language which he understands.59.
On the other hand, the communication is not vitiated—
Where though the order was written in the English language which the detenu did not know, the grounds were
in Gujarati with which he was conversant and from that the detenu had no difficulty in understanding why he
had been detained,60. and there was nothing to show that he was handicapped in making his representation.60
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Bombay High Court in Ladhaj Mavaji v UOI,61. has laid down four propositions – (a) In every case of detention,
a copy of the order of detention must necessarily be served upon the detenu before he is taken into custody; (b)
In the case of a detenu who is not acquainted with the English language, the ground of detention must be
supplied to him in the language understood by him; (c) In the case of a detenu not acquainted with English
language, if the order is in substance incorporated in the grounds which are supplied to the detenu in the
language known to him at the time of service of the order of detention itself, then there is compliance with
requirement of law. In such cases, it is immaterial if the order of detention is not served upon the detenu in the
language understood by him; (d) In the case of a detenu not acquainted with English language, it would be
substantial compliance with the requirement of law if the order of detention is explained to the detenu in the
language with which he is familiar, even though the order is not in substance incorporated in the grounds of
detention. This is so even if the order of detention and grounds of detention are served upon the detenu at
different times. However, the fact that the order has been explained must be established by proper material
placed before the court by the detaining authority.62.
It was held that grounds are always required to be furnished in a language which is understood by the detenu
and this requirement is not limited to only where the grounds are complicated or lengthy.63. The court has to
apply common sense while considering constitutional provisions for safeguard against misuse of powers by
authorities, though the same has to be strictly construed. Where the detenu moved a mercy petition in English,
and his children were well aware of English language, the court held that the detenu was only feigning
ignorance and the procedure adopted by the detaining authorities was proper.64. In Hadibandhu v District
Magistrate,65. the grounds which ran into fourteen pages were only orally explained without supplying the
detenu a translation of the script and the language which he understood. This was held as denial of his right to
make a representation.66. In Razia v UOI,67. it was held that where grounds are served in a language not
known to the detenu, it amounts to non-supply of grounds if the contents are not fully explained and translated
to the detenu. It was stated that the grounds must also bear some sort of certificate that this was done. A bare
statement at this stage of filing of return that it was so done would not be sufficient, unless it is supported by
affidavit or supported by some documents.68. Merely because detenu’s wife understands the language of the
detention order and the documents, is not sufficient.69.
But a mere allegation that the detenee is not conversant with English language in which detention order is
passed will not be accepted by court, if it is proved from facts and circumstances that the statement of the
detenee cannot be true. Then, where the detenu is doing export business, where most of the correspondence
was in English, it was held that communication of ground in English language amounts to proper
communication and not violation of Article 22(5).70.
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Copies of document relied on by the detaining authority should be supplied to the detenu not only in the
language with which the detenu is conversant, but also in their original language. Unless this is done, detenu
will not be in a position to ascertain whether the translation is faithful and true. While communicating the
grounds of detention, furnishing copies of the grounds in the language with which the detenu is conversant is in
addition to the supply of copies of the documents in original language and not a substitute for it. Unless such a
view is taken, the very purpose behind Article 22(5) will be frustrated. The subjective satisfaction of the
detaining authority is based on original documents placed before it. Therefore, if supply of mere translated
copies of documents to the detenu is treated as a substantial compliance with Article 22(5), then in substance,
the documents placed before the detaining authority are not supplied to the detenu at all. This is more so in the
field of preventive detention where while exercising peripheral jurisdiction, investigation as to the truthfulness of
the facts forming the basis of the grounds of detention cannot be embarked upon.71.
Documents and statements relied upon were translated in Hindi and handed over to detenu who only knew
Gurumukh. Evidence showed that detenu was not conversant with Hindi. In the circumstances, it was held that
copies of relevant documents were not supplied to detenu in script known to him and hence Article 22(5) was
violated.72. In another case, on the left side of the documents there was the order of Magistrate releasing the
detenu on certain conditions. High Court itself failed to read the order. Some important words were also
completely missing. Order of Magistrate was held to be unreadable and illegible. Court held it to be a case of
non-supply of documents and hence the detention was vitiated.73.
Contradiction in English and Hindi versions of detention order deprives the detenu of a fair opportunity to make
effective representation and Article 22(5) stands violated.74.
Discrepancies found in English and translated version of document which prevents the detenu from making an
effective representation is vital and detention order is liable to be set aside. The explanation offered that it was
only a typographical error amounts to non-application mind.75.
Discrepancy between the statements in detention order and ground of detention as also between the English
version and the regional language in which the order and ground had been served is very fatal. The
discrepancies denied the right to make an effective representation.76. But minor discrepancies which will not
cause any prejudice to the detenu are considered as not fatal.77.
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Where there was two days delay in furnishing translated copies of grounds, it was held that so long as no
prejudice is caused, the detention cannot be set aside.78.
Short delay should not be given undue importance having regard to administrative action.79. In Mohd. Sulthan
v Jt. Secretary,80. the court said that certain observations in earlier cases that everyday’s delay must be
explained in dealing with representation were meant to emphasise the expedition needed and it is not a magic
formula the slightest breach of which must result in the release of detenu. Delay caused due to postal non-
delivery of representation was held to have been satisfactorily explained.81. Delay in consideration of detenu’s
representation on ground of busy schedule of minister was held not justified. Court observed that the only
guarantee still retained is one under Article 22(5) of the Constitution. If that is also made illusory and allowed to
be diluted, depending upon the convenience of the Minister in charge of concerned department, nothing will
remain to guard against the invasion of the cherished right to life and liberty.82. Delay was sought to be
explained by saying that the representations were in a queue and were taken up one by one. The explanation
was not accepted by the court.83.
Where the detenu is not informed that his representation will be placed before the Advisory Board, but only
informed that he will be heard by the Board, and the Tamil version of the detention order also did not say that
the Advisory Board will consider his representation, there is a grave omission which vitiates the detention
order.84.
When it is clearly stated in the English version that the representation will be considered by the Government
and will also be placed before the Board, the Tamil version of the same should also contain the same meaning.
If there is inconsistency or difference between the two, the benefit should go the detenu.85.
Where the detenu is supplied with illegible copies of documents, order of detention stands vitiated.86.
[Art. 22.15.3] “Grounds” and “facts”: What is to be Communicated
A. 1. “Grounds” mean the conclusions drawn by the authorities from the “facts” or “particulars”,87. which have
led the authority to pass the order of detention. “Grounds” do not mean mere factual materials which led to such
factual inferences. The “grounds” must be self-sufficient and self-explanatory.88. In Vakil Singh v State of
J&K,89. the Supreme Court pointed out that apart from the conclusion of facts, grounds had a factual
constituent also. “Grounds” meant materials on which the order of detention was primarily based, that is to say,
all primary facts, though not subsidiary facts or evidential details.90.
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2. Article 22(5) only obliges the authorities to communicate to the detenu the grounds on which the order of
detention has been made, i.e., to indicate the kind of prejudicial activity the detenu is being suspected to be
engaged in. But the obligation to furnish sufficient facts or particulars comes from the duty of the authorities
under the second part of Article 22(5), viz., to “afford the detenu the earliest opportunity of making a
representation”, for, without getting information sufficient to make a representation against the order of
detention, it is not possible for the man to make the representation at all.1. Hence, a person detained is entitled,
in addition to the right to have the ground of his detention communicated to him, to a further right to have
particulars, as full and as adequate as the circumstances permit, furnished to him so as to enable him to make
a representation against the order of detention and the sufficiency of particulars conveyed in the second
communication is a justiciable issue,—the test being whether, they are sufficient to enable the detained person
to make a representation which on being considered may give him relief.2.
3. In other words, “grounds” in this context, does not merely mean a recital or reproduction of a ground of
satisfaction of the authority in the language of the relevant statutory provisions nor is its connotation restricted
to a bare statement of conclusions of fact. It means something … the factual constituent on which the
subjective satisfaction of the authority is based. The basic facts and material particulars, therefore, which are
the foundation of the order of detention, will also be covered by the “grounds” within the contemplation of Article
22(5) … and are required to be communicated to the detenu unless, their disclosure is considered by the
authority to be against the public interest.3. It would, therefore, include any information or material on which the
order was based;4. or which may have influenced the detaining authority in making the order of detention and it
is the duty5. of the court to examine what are the basic facts6. and materials which actually and in fact,
weighed with the detaining authority, from the entire records of the case, if necessary, or the “history sheet”
before the authority7. and the authority’s affidavit on this point is not final.7 In other words, in addition to the
“conclusions”, the authority must communicate the “primary” facts8. upon which the conclusions were founded
as distinguished from the evidential subsidiary details.9. In a Full Bench decision of the Madras High Court, it
was held that “grounds” would contain the factual constituent, which led to the arrival of subjective satisfaction.
There cannot be a second opinion that the order of detention and the grounds of detention will have to be read
as a whole, for, the ultimate object is to facilitate the detenu in making an effective and purposeful
representation challenging the impugned order of detention.10. If the basic facts have been given in a particular
case constituting the grounds of detention which enable the detenu to make an effective representation, merely
because meticulous details of acts are not given, it will not vitiate the order of detention. The grounds of
detention may have to be read as a whole and not in a truncated manner.11. Non-specification of the required
particulars in the order of detention would not vitiate the order as long as particulars are provided in the grounds
in support of the order of detention, which in quick succession of the detention order are served on the
detenu.12.
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Grounds, for the purposes of Article 22(5) do not mean mere factual inferences, but it means factual inferences
plus factual material, which led to such factual inferences. The ground must be self-sufficient and self-
explanatory.13.
There is a clear difference between the grounds of an order of detention and the incidents or events or facts or
information collected against the detenu. The latter constitute the evidence upon which the grounds are based.
The grounds, in other words, are the conclusions of the order of detention, informing the detenu why he is
detained.14. The grounds of detention, served alongwith the order of detention, are nothing but narration of
facts.15. It was observed in Aruna Kumari (supra) that the concept of “grounds” used in the context of Article
22(5) has to receive an interpretation which will keep it meaningfully in tune with contemporary notions. The
word “grounds” means not only factual inferences, but also factual material which led to the factual inferences.
It includes not only conclusion of fact, but also basic facts on which those conclusion were founded. They are
different from subsidiary facts or further particulars on the basic facts.16. In Sophia Gulam Mohd. Bham v State
of Maharashtra,17. the Supreme Court said: “A representation can be made and the order of detention can be
assailed only when all the grounds on which the order is based are communicated to the detenu and the
materials on which those grounds are based are also disclosed and copies thereof are supplied to the person
detained in his own language. The court also said that the word “grounds” used in Article 22(5) means not only
the narration or conclusion of facts, but it also means the materials on which those facts are concluded which
constitute the grounds. An effective representation can be made against detention order only when copies of
the material documents which were considered and relied upon by the detaining authority in forming his opinion
that the detenu be detained, were supplied to him.
Article 22(5) of the Constitution speaks of grounds and the term “grounds” includes the basic facts to be
communicated, and that the further particulars are to be supplied within a reasonable time. A clear line of
distinction is required to be drawn between the basic facts on the one hand, which are essential factual
constituents of the grounds and their further particulars or subsidiary details i.e., peripherals, marginal and
explanatory facts on the other. In Hansmukh v State of Gujarat,18. the apex court has clearly laid down that
while basic facts being an integral part of the grounds, they must be communicated to the detenu, as soon as
may be, after the detention, further particulars of those grounds in compliance with the second constitutional
imperative spelt out from Article 22(5) are required to be communicated to the detenu, as soon as may be
practicable with reasonable expedition.
The practice of supplying documents in piecemeal was deprecated by the Supreme Court in Ashwin Kumar B.
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Halari v State of Maharashtra,19. In that case, an order of detention was served on the detenu on 25
September 1986 under COFEPOSA. Order was passed and grounds were formulated on 1 July 1986 on the
basis of documents which were before the detaining authority e.g., Serial Nos. 1 to 18 of list of documents were
supplied to detenu. Additional documents were subsequently received in four instalments upto Sl. No. 31. It
was the case of the detaining authority that he considered afresh every time the documents were received and
on each occasion he came to the conclusion that there was no need to alter the order passed; grounds were
forwarded on 1 July 1986 and thereafter, the same order was issued alongwith the same grounds. The
Supreme Court took a very serious view of it and held: “We have been at pains to emphasise that the detention
order is passed on the basis of subjective satisfaction of the detaining authority which satisfaction is to be
arrived at by applying mind to all the materials available on record. We thought that it is elementary that
grounds of detention have to be culled out from the material in question after considering it together at a time.
Then alone it satisfies the test of a conclusion arrived at on the basis of totality of the circumstances taken
together. This test cannot be satisfied if documents are considered in piecemeal”. The court termed the process
to the extent of fraud on law. In another case, the detenu was informed about his grounds of detention which he
did not know, but his wife was aware of. It was held that the fact that the detenu’s wife knew the language in
which the grounds were prepared does not satisfy the legal requirement. In the matter of preventive detention,
the test is not one of prejudice, but one of strict compliance with the provisions of the Act.20.
In Icchu Devi v UOI,21. it was stated that if there are documents, statements, or other materials relied upon in
the grounds of detention, they must also be communicated to the detenu because being incorporated in the
grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to
be complete without them.
In Kamla Kanyalal Khushalini v State of Maharashtra,22. it was declared that the documents and materials
relied upon in the order of detention, must be supplied to the detenu pari passu the grounds and if the same is
supplied later, the detenu is deprived of making an effective representation.23.
In Ram Chandra v UOI,24. it was held that even if a document is “referred” to copy the same, it has to be
supplied since, there is no charm in the expression “relied on” or “based on”. This view, however, was not fully
accepted by the later decision25. of the apex court, wherein it was held that the failure to furnish a copy of a
document to which reference was made on the grounds of detention was not an infringement of Article 22(5),
was fatal to the order of detention. It will be fatal only in cases where the documents which are “relied on” in
passing the order of detention are not supplied. It was observed that it is unnecessary to furnish copies of
documents to which casual or passing reference may be made in the course of narration of facts which are not
relied on by the detaining authority while passing the order of detention.
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When the detaining authority has merely referred to a document while narrating the events and has not relied
on them, a failure to supply bail application and order refusing bail will not cause any prejudice. Only when the
detaining authority has not only referred to but also relied on them in arriving at the necessary satisfaction, a
failure to supply these documents, may, in certain cases depending on facts and circumstances, amount to
violation of Article 22(5) of the Constitution. In a case where the detenu is released on bail and is set at liberty
at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as
that would be a vital ground for ordering detention. In such a case, the bail application and order granting bail
should necessarily be placed before the detaining authority and copies should also be supplied to the
detenu.26. In Abdul Hakeem v State of T.N.,27. it was held that the decision as to whether non-supply of a
particular document vitiated the detention order, depends upon whether the detenu’s right to make
representation against the order of detention is hampered by the said non-supply especially, when the
documents (copies of which are not supplied), are not relied upon by the detaining authority. In District Collector
v V. Laxmanna,28. it was held that “materials on the basis” of which detaining authority has formed his opinion
or the point of detention must be given to the detenu. In Radhakrishnan Prabhakaran v State of T.N.,29. it was
declared that “what is important is that copies of only such of those documents as have been relied on by the
detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be
supplied to him”.30. When an order of detention, together with the ground of detention is served, the detenu
may ask for particulars on which a ground is based, if they are not already mentioned there. When a document
containing the “grounds” which often consist of the background of the case, the narration of facts and instances
of detenu’s activities, is supplied to the detenu; the detenu is not entitled to know which part or parts of the
grounds was or were taken into consideration or not. The Government is not under any liability to furnish the
detenu with legal information available from the legal literature. The State only needs to comply with Article
22(5).31.
The documents are such that even in their absence, subjective satisfaction would not be affected, and then
failure to place the documents before the detaining authority would be immaterial.32. In a case33. the detenu
was found in possession of diamonds which he was trying to smuggle out of India. Documents were also seized
from the premises of kingpins, financiers and organizers of the smuggling activities indicating that the detenu
was acting as a carrier for persons dealing in smuggling goods. The detaining authorities relied on those
documents while passing the detention order, copies of which were not supplied. It was held that Article 22(5)
was violated. Where the subjective satisfaction was based on alleged confession made by the detenu, which he
later retracted twice, copies of which were not supplied to the detaining authority, it was held that detention
cannot be sustained.34. In case where the customs declaration card is filled by the detenu himself and
declaration is also given by him, non-furnishing of a Tamil translation of the said documents will not amount to
non-supply of the relevant document.35. Where the activities forming grounds of detention were actually
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disclosed to a detenu in unambiguous terms and it furnished adequate information to enable him to make
effective representation against his detention, the non-disclosure of source of information or exact words of the
information which formed the foundation of the order could not be complained of.36. When documents relating
to search of house of third party were considered to be not material documents, non-furnishing copies of such
documents by the detaining authority would not vitiate the detention order.37.
Merely because the detenu did not make a demand for the documents, copies of the documents cannot be
denied to him. It is a constitutional obligation on the detaining authority to supply all materials and documents
which are referred to and relied on by the detaining authority.38. The Supreme Court has held that it was hardly
an answer on the part of the detaining authority that the copies of the documents were not supplied to the
detenu as the detenu was already aware of the contents of the document.39.
The detaining authority is not bound to disclose and supply to the detenu, any intelligence report or history
sheet which may be relied on by the detaining authority.40. Particulars are to be supplied to the detenu by the
detaining authority, but not the evidence against the detenu and details of sources of information need not be
furnished.41.
4. The Supreme Court has, accordingly, struck down orders of detention for the failure to supply particulars in
the following cases, inter alia—
(i) Where the grounds were that the Petitioner indulged in unauthorised milling of paddy and smuggling it
to another State for profiteering, but no particular instances of unauthorised milling or smuggling were
given.42.
(ii) Non-mention of the names of persons to whom the alleged illegal sale or other transactions took
place.43.
(iii) Where, apart from the grounds communicated to the detenu, there were other particulars or
information which influenced the authority,44. issuing the order but, were withheld from the detenu so
that he could not make any representation against such allegations,45.e.g.—
Where only one instance of theft of cable wire or wagon breaking, was communicated to the
detenu without disclosing to him that the authority was influenced by the information as to his
notoriety as a stealer of wire,46. or wagon breakers.47.
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(iv) Where it was intended to charge that the Petitioner, as a member of a students’ association, preached
violence, the grounds of, detention should allege violence.48.
B. 1. On the other hand, what the detenu is entitled to be furnished with is “grounds”, not—
(i) Evidence on which the grounds rest;49.
(ii) The source of the information on which the authority has been satisfied;50.
(iii) Facts or documents which are not referred to in the grounds or relied upon by the authority in making
the order of detention;51.
Secret information which led to the discovery and seizure of contraband goods is required to be
kept secret in order to implement the provisions of the Act effectively. If this information is passed
on to the detenu it would lead to a disastrous situation and there shall be apprehensions in the
minds of the informants. Such disclosure will be against public interest.52.
2. The failure to furnish the following particulars has been held not to deny the detenu an opportunity of making
effective representation—
Non-mention of the names of the associates of the detenu in the commission of the prejudicial act, where the place,
the date and the time of the act have been specified in the ground communicated.53.
But the order will be struck down for non-mention of the names of the associates, where the recovery of stolen articles
from one of the associates of the detenu weighed with the authority in making the order for, in such a case, non-
mention of the names of associates would amount to a denial of effective opportunity to the detenu to represent
against the order.54. After rejecting the representation, the detaining authority promised to supply some documents in
continuation of the memorandum. The argument that, it was graciousness on the part of the detaining authority to have
promised to supply is untenable.55.
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3. The requirements of Article 22(5) are satisfied once the “basic facts and materials” which were weighted by
the detaining authority in reaching his subjective satisfaction have been communicated to the detenu.56. The
order of detention cannot be invalidated on the ground that the detaining authority did not communicate to the
detenu “other particulars” which he has to send to the State Government as required by section 3(3) of the (old)
Maintenance of Internal Security Act.56
Where a fresh order of detention had been passed four days after the initial order of detention was struck down
by the Supreme Court in Purushottam Dayabhai v State of Gujarat,57. it was quashed.
Where the copy of a vital document supplied to the detenu was not legible and the authority refused to supply a
legible copy, the detention was quashed since the right of detenu to make an effective representation was
violated.58. When it is alleged that copies of documents are illegible and unreadable, the High Court should
examine the extent and nature of the illegibility, particularly where the detaining authority had sought to file a
detailed reply regarding the alleged illegible/unreadable document.59.
4. But, while there is a connection between the obligation on the part of the detaining authority to furnish
grounds and the right given to the detained person to have an earliest opportunity to make the representation,
the test to be applied in respect of the contents of the grounds for the two purposes is quite different. For the
first, the test is whether it is sufficient to satisfy the authority; for the second, the test is, whether it is sufficient to
enable the detained person to make the representation at the earliest opportunity,60. which must, ofcourse be a
real and effective opportunity.61.
5. Though it is not obligatory upon the authority to disclose all facts other than those which he has the privilege
to withhold under Article 22(6), the authority must, nevertheless, furnish information sufficient to enable the
detenu to make representation. If the particulars supplied are not sufficient for that purpose, there is a violation
of Article 22(5) and the detenu is entitled to be released. Particulars may, however, be furnished subsequent to
the communication of the grounds, i.e., details of something already submitted. However, once the grounds are
communicated, no new or additional grounds may be furnished.62. Additional grounds which are in the nature
of new grounds cannot be permitted, but, supplementary grounds, which give only fresh details with respect to
the original grounds or refer to further particulars which lead to the same conclusion as the original grounds, are
permissible. So long as the later communication does not make out a new ground, their contents do not infringe
the rights of the detenu. A latter communication may merely give a narration of facts or particulars relating to
the grounds already supplied. But even such particulars must be supplied at the earliest, to make an effective
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representation.63. Where the grounds of detention were served on the detenu in time, the documents which
were supplied subsequently were only additional materials in support of the grounds already supplied, the same
not being case supplemental or additional grounds.64. Where particulars are necessary in order to make the
grounds intelligible for the purpose of making a representation at the earliest opportunity, the particulars also
must be furnished “as soon as may be”, so that the right under Article 22(5) may not be defeated.65.
6. Failure to furnish grounds with the speedy addition of such particulars as would enable the detenu to make a
representation at the earliest opportunity against the detention order can be considered by a court or law as an
invasion of a fundamental right or safeguard guaranteed by the Constitution, viz., being given the earliest
opportunity to make a representation.65
The authorities relied on a confession of the detenu, as having been made voluntarily, and a detention order
was passed. The detenu challenged the same and contended that he was coerced to make a confession. He
was medically examined. The detenu wanted the report of the medical examination, which was not given even
after a demand was made. The court held that the authorities denied the detenu to make an effective
representation.66.
Supply of documents
7. The detenu’s right to make a representation includes his right to receive copies of the statements and
documents which are referred to in the grounds supplied.67. If the detaining authority fails to supply them within
a reasonable time, there would be a denial of the detenu’s guaranteed right to make an effective representation
and to have it considered expeditiously.68. Also, supply of copies of relaxing the condition of bail would not
result in denial of the right to make a representation,69. so that his continued detention would be illegal.67 The
documents supplied should be legible. Where a legible copy is not supplied, inspite of being demanded, it
amounts to a non-supply of documents.70. But, if the documents furnished by the detenu to the department
contain some portions or pages which were illegible, obviously the copies thereof furnished by the detaining
authority to the detenu will also contain illegible portion. And if the detaining authority makes use of legible
portion while passing the order, no fault can be found on the same.71. This right is not dependent upon the
detenu’s demanding the documents.72. If the relevant and material document is not placed before the Advisory
Board, which has a bearing on the subjective satisfaction of the detaining authority, the same amounts to the
denial of opportunity by the detenu to make an effective representation. The detention was set aside.73. The
Tamil translation of a customs declaration which had been filed by the detenu, need not be given, since, the
detenu would naturally know the contents thereof.74.
The mere non-supply of documents demanded by the detenu, however irrelevant they may be, merely on the
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ground that there is a reference to them in the grounds of detention, cannot vitiate an otherwise legal detention
order. What is important is that the non-supply should have impaired the detenu’s right to make an effective and
purposeful representation as in several cases of preventive detention, the Supreme Court has observed that
“no hard and fast rule” can be laid down on this behalf.
The Supreme Court has repeatedly emphasised that documents and materials mentioned in the grounds of
detention must be supplied to the detenu immediately. This requirement cannot be taken lightly and in one case
delay of 28 days in sending the documents was sufficient to set aside the detention order.75.
In A. Sowkath Ali v UOI,76. the court said that confessional statement and retracted statement, both
constituting a composite relevant fact, should be placed before the detaining authority and if any one of the two
documents alone is placed without the other, it would affect the subjective satisfaction of the detaining authority.
Hence, non-placement of retracted statement affects the subjective satisfaction.77.
However, only those documents which had been relied upon by the detaining authority, the absence of which
would render it difficult for the detenu to make his representation, and not every document which has been
casually referred to, has to be supplied to the detenu.78. In Kirti Kumar v UOI,79. it was held that there is no
charm in the expression “relied on” or “based on”. Hence, even if a document is “referred to”, a copy of the
same, must be supplied to the detenu. It was held that all these expressions only signify one thing, i.e., that the
subjective satisfaction has been arrived at on the basis of the heads mentioned under “grounds”.80. The
detaining authority cannot choose which documents are to be supplied and which documents should not be
furnished. When the detenu sought a copy of a document relevant for making the representation, and which
was refused, the detention was set aside.81. When the conditions imposed by Magistrate were not relevant to
the activities of the detenu, an order of the Magistrate varying under any condition is not a relevant document
that should have been produced before the detaining authority.82. Similarly, to give copies of the account
books will be relevant only if they were vital and material document.83. If a piece of evidence which might have
reasonably affected the decision to pass an order of detention is excluded from consideration, there would be
failure of application of mind, which in turn would vitiate the order of detention.84. The Supreme Court has
repeatedly emphasised that documents and materials mentioned under the grounds of detention must be
supplied to the detenu immediately.85.
8. Where there are any exceptional reasons as to why the documents incorporated under the grounds by
reference could not be supplied together with the grounds or within a reasonable time thereafter, such reasons
must be recorded in writing and also communicated to the detenu so that he could show that no such
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exceptional circumstances existed.86. Where the grounds of detention were not supplied to the detenu within
five days of detention, but due to exceptional circumstances were supplied to him within ten days, the non-
communication of the exceptional circumstances and reasons recorded for non-supply of the grounds of
detention before the expiry of five days, but within outer limits of ten days alongwith the grounds of detention,
will not vitiate the detention order. It could not be said that such non-communication would, by necessary
implication, amount to breach of the valuable right of representation at the earliest opportunity as envisaged by
Article 22(5) and thereby, the detenu would become entitled to be released from detention. What was material
and mandatory was the communication of the grounds of detention to the detenu, together with the documents
in support of the subjective satisfaction reached by the detaining authority when the representation had been
made by the detenu to the appropriate Government or to the Advisory Board, it may be one of the grounds for
him to impugn the order of detention that he was not supplied with the grounds within the time prescribed and
thereby, he was unjustifiably detained without any reasonable justification. When such a ground was raised and
pressed for consideration, it would be for the detaining authority to satisfy the appropriate Government or
Advisory Board or in an appropriate case in the proceedings under Article 226 of the Constitution of India. The
exceptional circumstances are those under which the grounds and documents could not be supplied to the
detenu and that the same were recorded in writing in the records of the detaining authority. If the appropriate
Government or the Advisory Board or the court were not satisfied with the recorded exceptional circumstances
due to which the grounds of detention could not be supplied, after five days, but before ten days, that may be
one of the circumstances which the appropriate Government or the Advisory Board or the court may consider
while deciding whether the detention order was vitiated or it was an infraction of Article 22(5) of the Constitution
since, the National Security Act 1980 does not envisage the communication of the exceptional circumstances
and the reasons recorded for non-supply of the grounds as non-communication or non-supply by itself was not
sufficient to hold that the order of detention was in violation of Article 22(5) of the Constitution.87.
In Ramachandra A. Kamat v UOI,88. an offer of inspection of documents twelve days after a request for the
copies was considered fatal to the detention. It was observed: “If there is undue delay in furnishing the
statements and documents referred to in the grounds of detention, the right to make effective representation is
denied. The detention cannot be said to be according to the procedure prescribed by law when the Act
contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the
intention is clear that the statements and documents which are referred to in the grounds of detention and
required by the detenu and are expected to be in possession of the detaining authority, should be furnished
with reasonable expedition.
The fact that the detenu has been released on bail could not be a ground for contending that the delay in
communicating the grounds of detention be condoned and the right under section 8(1) of the National Security
Act 1980 be relaxed; if this contention was to be extended to its logical conclusion, it would be clothing the
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authorities with the power to delay communication of grounds of detention indefinitely, whenever a detenu
secured from a court of law, either bail or parole. To accept this contention would be to destroy the effect of the
mandate of the section. The section has to be interpreted literally. No relaxation was permissible. If the original
time of five days had to be extended, such extension must be supported by an order recording reasons. If the
reasons are not so recorded, the order of detention would automatically fail. Even if the reasons were recorded,
they had to inspire the confidence of the court and were subject to legal scrutiny. If the reasons were found to
be unsatisfactory, courts would still quash the order of detention.89.
9. Failure to supply the necessary information and materials renders the order void and entitles the detenu to
be released forthwith,90. provided there is a pleading that the non-supply of a document has prejudiced the
detenu in making his representation.91.
In the case of Icchu Devi Chorasia v UOI,92. the court held that where masses of people are poor, illiterate and
ignorant, having no easy access to the court for lack of financial resources, it would not be reasonable to insist
that the petitions should set out specifically and clearly the grounds on which an order is assailed. The court
observed on the above lines in a habeas corpus petition, in which it was stated that the practice involved by the
court is not to follow strict rules of pleadings and that even a post card can be sent from jail, which would
activate the court into examining the legality of the detention.93.
[Art. 22.15.4] “As soon as may be”
The term “as soon as may be” has a relative meaning according to the thing which is to be done. It may denote
merely “a reasonable time” or may be equivalent to “whenever” or may even mean “immediately”. “As soon as
may be” means “as soon as practicable”. In Ashok Kumar v Delhi Administration,94. quite clearly, the period of
time prescribed by the phrase “as soon as may be” begins to run from the time the detention, in pursuance of
the detention order begins. It may not be possible in many cases to affirmatively say or to precisely quantify the
period of time by reference to hours, days or months, nevertheless, it is possible having regard to the
circumstances of the cases, to say whether the thing done was or was not done, “as soon as may be”, i.e.,
within the time which was reasonably convenient or requisite.95. The expression “as soon as may be” occurring
in Article 22(5) of the Constitution would mean that a positive action on the part of the detaining authority in
supply of the grounds of detention be taken without any delay.1. It is for the Court to consider whether in the
circumstances of the case, the time taken to communicate the ground was “reasonable” or “more than
reasonable”.2. The measure of time indicated by the words “as soon as may be” must obviously run from the
date of detention. In State of Bombay v Atma Ram Shridhar Vaidya,3. it was held that the expression “as soon
as may be” allows the authorities reasonable time to formulate the grounds on the materials in their possession.
The time element is necessarily left indeterminate because activities of individuals tending to bring about a
certain result may be spread over a long or short period, or a larger or smaller area, or may be in connection
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with a few or numerous individuals. The time required to formulate the proper grounds of detention, on
information received, is bound to vary in individual cases.4. A person sought to be detained has no right to
communication of grounds of detention before his arrest and detention.5. The use of the words “earliest
opportunity” also carries the same philosophy that there should be no delay in giving the detenu an adequate
opportunity of making a representation against the order of detention.6. The use of the expression “as soon as
may be” requires that the representation should be expeditiously considered and disposed of with promptitude
and diligence and with a sense of urgency.7. The requirement under section 8(1) of the National Security Act
1980 for the supply of the grounds of detention “as soon as may be” indicates that normally the detenu is
entitled to be communicated with the grounds of detention within five days with a view to tide over unavoidable
circumstances due to which the detaining authority could not have the grounds of detention supplied, the
statute engrafted a leverage and directed him to record reasons therefore, in writing and the administration
should supply the grounds of detention before the expiry of ten days. So, the delay should be exceptional and
those exceptional circumstances are always a question of fact in each case. What is mandatory is the supply of
grounds of detention before expiry of ten days, but after expiry of five days. It is a well settled legal position that
the phrase “as soon as may be” means, within a reasonable dispatch when there is no avoidable delay. What is
avoidable delay is always a question of fact.8. The words “as soon as may be” appearing in section 7 of the
Preventive Detention Act 1950 have to be interpreted as meaning, as soon as circumstances permit the
authority to furnish the grounds.9.
In Pebam Ningol Mikoi Devi v State of Manipur,10. the court said that Article 22(5), in preventive detention
matters, mandates that the detenu should be afforded the “earliest possible opportunity” to make a
representation against the order. The court reiterated the law declared in the earlier case of UOI v Laishram
Lincola Singh,11. wherein it was ruled that, “there can be no hard and fast rule as to the measure of reasonable
time and each case has to be considered from the facts of the case and if there is no negligence or callous
inaction or avoidable red-tapism on the facts of the case, the court would not interfere. It needs no reiteration
that it is the duty of the court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of
preventive detention is not lost in mechanical routine, dull casualness and chill indifference, on the part of the
authorities entrusted with their application. When there is remissness, indifference or avoidable delay on the
part of the authority, the detention becomes vulnerable”.12.
1. Clause (5) requires that the detaining authority shall communicate the grounds to the detenu as soon as may
be after he “is detained in pursuance of an order … for preventive detention.” Prima facie, the detenu cannot
insist on the grounds being supplied with the particulars at any time prior to the service of the detention order
and his arrest in execution thereof.13.
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2. A Division Bench of the Supreme Court in Kiran Pasha’s case,14. however, held that since a person is
entitled to “enforcement” of his right to personal liberty under Article 21, even when the right is merely
threatened, and since preventive detention constitutes a violation of Article 21 as well (para 11),15. a person is
entitled to bring a Petition under Article 32 or 226 challenging a detention order even before he is taken into
custody in execution of the order; and that, accordingly, such Petition cannot be dismissed on the ground that it
was not maintainable until the Petitioner first surrendered to it.14
3. After the decision in Kiran Pasha’s case,14 the practical difficulties arising from it became evident in a Petition
before three Judges, where the Petitioner prevented execution of the detention order by absconding and
thereafter challenged the order and also asked for the grounds as well as the documents relied upon, without
surrendering to the detention order. The 3-Judge Bench of the Supreme Court 15 reversed the judgement of the
High Court which had allowed the Writ Petition and also overruled the decision in Kiran Pasha’s case14 in so far
as it was inconsistent with the propositions laid down by the 3-Judge Bench (para 33):15
(a) Even though judicial review is a basic structure of the Constitution of India and the courts are entitled to
use its powers under Article 32 or 226 to enforce the fundamental rights even before they are actually
infringed, the Supreme Court has laid down certain self-imposed limitations in order to prevent any
abuse of this power (para 30).16.
(b) In the case of preventive detention, one of such self-imposed limitations is that even though the court
has the power to entertain grievances against a detention order prior to its execution, it would do so
only in a limited number of cases, viz., where the court is prima facie satisfied,17.
(i) that the impugned order is not passed under the Act under which it is purported to have been
passed; or
(ii) that it is sought to be executed against a wrong person; or
(iii) that it is passed for a wrong purpose; or
(iv) that it is passed on vague, extraneous or irrelevant grounds; or
(v) that the authority which passed it had no competence to do so.18.

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In the absence of any of the five exceptional grounds just stated, an order of detention cannot be challenged at
the pre-detention stage.19.
The question should be taken as settled since, the view of the earlier 3-Judge Bench has been reiterated,
verbatim, by a subsequent three-Judge Bench 17 adding further, that where the provision of the relevant statute
prima facie shows the commission of an activity which is a proper ground for issuing an order of detention
under the Act, the person affected cannot seek from the court any relief at the pre-execution stage on any of
the following grounds:
(a) that the order proposed is totally extraneous to the provisions of the Act and cannot be described as an
order made under the Act under which it is purportedly made; or
(b) that the grounds of detention are vague or irrelevant.17
In Subhash Popatlal Dave v UOI,20. the court has held that grounds other than those enumerated in Alka
Subhash Gadia’s case,21. can be grounds to challenge a detention at pre-execution stage. The proposed
detenu can challenge the preventive detention order on grounds other than the five grounds enumerated
above.
B. B. Representation and consideration thereof
1. Article 22(5) of the Constitution itself does not say to whom the representation will be made or who will
consider that representation.22. By statute [e.g., section 8(1) of the National Security Act 1980,
replacing the Preventive Detention Act 1950], it has been provided that the representation is to be
made to the appropriate Government, which means the State Government, in the case of an order
made by the State Government itself or any of its officers empowered to make such order.23. But
since, under section 14 of the N.S. Act, the Central Government has the power to revoke the order of
detention, at any time, a copy of the representation is to be sent to the Central Government as well.24.
Though Article 22(5) does not specify the authority to whom, the representation should be made, it
does not mean or make the right unconstitutional. The representation should be made to the
authorities capable of effectively dealing with it.25. The representation should be disposed of as
early as possible. The detenu, however, must be informed of all the authorities to whom he has a
right to make a representation. The failure to do so vitiates the order.26.
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In Masuma v State of Maharashtra;27.R.M.G. Jules v State;28.Kavitha v State of

Maharashtra;29.Ibrahim Bachu Bafan v State of Gujarat30. and in Amir Shad Khan v L.
Himingliana,31. it was held that the detaining authority under COFEPOSA Act, 1973 has the power
to revoke the detention order by virtue of this power conferred under Section 11 of that Act, read
with Section 21 of the General Clauses Act. The power of revocation has a nexus with the right of
representations conferred to the detenu by Article 22(5).32. However, in State of Maharashtra v
Sushila Mafatlal Shah,33. it was held that only the Central and State Government has the power to
revoke and representation could be made to them and not to the detaining authority: In view of
conflict of views, the matter has been referred to a larger bench.34.
In Veeramani v State of T.N.,35. it was held that representation should be to such authority that
has the power to approve, resind or revoke the order of detention and the interpretation given with
respect to COFEPOSA Act cannot apply. In such cases, the provisions of the relevant Act alone
have to be considered. In cases where the detention has to be approved by the Government, the
Government is the authority who is to consider the representation.
The decisions in Ibrahim Bachu Bafan’s case (supra) and Amir Shad Khan’s case (supra) which
arose under COFEPOSA were distinguished on the ground that there is no provision for such
approval. It was held that the observations in the above two cases do not change the legal
scenario under the other Acts where the legal implications in the context of Article 22(5) are of
different matter, but in conformity with the sprit and avowed object underlying Article 22(5). Even in
the context of Article 22(5) the scheme of the particular Act has to be examined to find out the
authority to whom a representation can be made.
Representation should be to the Government which alone has the power to approve or revoke the
detention.36.
Competent authority, to whom representation could be made, would be the Central Government or
State Government in cases of detention under the National Security Act and not the detaining
authority. Therefore, the detaining authority is not obliged to inform the detenu that he can make
representation to it also. Amir Mohd. Qureshi v Commissioner of Police,37. where the detention
order itself says to whom the representation is to be made, a representation addressed to the
President of India or to the Governor of the State is not the correct procedure, though such
representation would amount to representation to the Central Government or State Government. In
such cases, if there is some delay in disposing the representation, the same is not fatal.38.
Representation made to the Governor instead of the Chief Secretary, was held valid. It was
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contended that representation was deliberately made to the Governor, knowing well that it had to
be addressed to the Chief Secretary with a view to create a ground for delay and that it was a
mere non-statutory representation. The court rejected the contention and held it to be untenable. It
was held that representation made to the Governor must be treated as one made to a State
Government.39. The contents of Article 22(5) as well as the nature of duty imposed thereby, on the
detaining authority, support the view that so long as there is a representation made by the detenu
against the order of detention, dual obligation under Article 22(5) arises irrespective of the fact
whether the representation is addressed to the detaining authority or to the Advisory Board or to
both. The mode of address is only a matter of form which cannot whittle down the requirement of
the constitutional mandate in Article 22(5) enacted as of the safeguards provided to the detenu in
case of preventive detention.40.
Under section 3(8) of the General Clauses Act, the Central Government means the President and
a representation addressed to the President must therefore, be considered to be a representation
properly addressed to the Central Government.41.
The Administrator of a Union Territory appointed under Article 239 of the Constitution, is not purely
a constitutional functionary and is not bound to act on the advice of the Council of Ministers. He is
not in the same position as the Governor of a State or the President of India in the matter of
discharge of the executive functions conferred upon him. Therefore, it cannot be said that the order
of detention has to be made only by the Chief Minister and in the name of the Administrator and
not by the Administrator, though it can be made in the name of the Administrator. The
Administrator is competent to pass an order of detention and to dispose of the representation of a
detenu.42.
Where under the grounds of detention, it has been specifically averred, that, if the detenu wished
to make any representation he should address it to the Secretary to Government, Prohibition and
Excise Department and forward it through the Superintendent of Prison. A representation sent to
the Chief Minister cannot be construed as a representation made to State Government.43.
Persons detained by this order of Secretary to State Government, informed the detenu that he has
a right to make a representation to the State Government, the Central Government and the
Advisory Board. He moved a representation only to the Advisory Board with a request that the
same may be communicated to the State and the Central Government. State Government rejected
the representation and did not forward the representation to the Central Government. It was held
that non-communication of the representation to the Central Government vitiated the detention.44.
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Merely because the representation is addressed to the Advisory Board, the State Government is
not absolved from considering the representation.45.
The right to representation continues so long as the detention continues. There is no limitation in
such cases. Even after the earlier representations are rejected, a subsequent representation after
four months of detention cannot be said to be barred and the authorities cannot refuse to forward
the same to the Central Government “as it is made after extraordinary delay”. The detaining
authority is bound to forward the representation and it has no power to reject the same on the
ground that earlier representation was rejected or that there is delay in making the second
representation.46. But if the second representation does not contain any fresh material or that
there is no subsequent event justifying reconsideration, the second representation need not be
considered and no separate order need be passed.47.
2. When the detenu hands over his representation with requisite copies to the Jail Authorities, it is the
duty of the latter to forward the representation to the appropriate Government and for failure in this
duty, there is a breach of Article 22(5) and the detenu is entitled to be released, after quashing the
order of detention.48.
3. This right to have his representation considered by the appropriate Government is safeguarded by
Article 22(5) and the Government must bring to bear on the consideration of the representation with an
unbiased mind.49. But the order passed by the Government upon such consideration of the
representation, need not be a “speaking order” or give reasons.49 All that is necessary is that there
should be a real and proper consideration by the Government,—not in a casual or mechanical
manner.49 There is an obligation on the State to consider the representation. The Government
considers the representation to ascertain eventually whether, the order is in conformity with the power
under the law. The Board, on the other hand considers whether, in the light of the representation, there
is sufficient cause for detention. The order of the Government, rejecting the representation of the
detenu, must be after proper consideration. There need not be a speaking order. There is also no
failure of justice by the order not being a speaking order. All that is necessary is that there should be a
real and proper consideration by the Government.50.
The principles of natural justice are an element in considering the reasonableness of a restriction
where Article 19 is applicable. At the stage of consideration of a representation by the State
Government, the obligation of the State Government is such as Article 22(5) implies. Article 22,
which provides for preventive detention, lays down substantial limitations as well as procedural
safeguards. The principles of natural justice, in so far as they are comparative with detention laws,
finds place in Article 22. Even if Article 19 be examined in regard to preventive detention, it does
not increase the content of reasonableness required to be observed in respect of orders of
preventive detention. Whether in a particular case, a detenu has not been afforded an opportunity
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of making a representation or whether the detaining authority is abusing the powers of detention,
can be brought before the court of law. The court notices the distinction between the duty to act
fairly and a duty to act judicially in accordance with natural justice. The detaining authority is under
a duty to give fair consideration to the representation made by the detenu, but it is not under a duty
to disclose to the detenu any evidence or information. The duty to act fairly is discharged even if
there is not an oral hearing. “Fairness” denotes “abstention from abuse of discretion”.51.
It has been held that though a speaking order is not “either necessary or feasible”, but the
substance of this charge and essential answer in the representation must have been impartially
considered.52.
There should not be any indifference or callousness in consideration and disposal of the
representation where the State Government kept the representation without being considered and
rejected it after receipt of the Advisory Board, it was held that procedure and approach of the State
was indifferent and callous. Keeping the representation without consideration is illegal.53.
Order rejecting the representation alleged to be not in the language understood by the detenu. The
jail authorities who served the order made an endorsement that the order is read over and
explained in the language known to the detenu. The court believed the endorsement and hence,
no ground for interference existed.54.
Non-consideration of the representation by the Government, of a representation filed by the

counsel of the detenu, vitiates the detention. Representation by the counsel was representation by
the detenu himself and it ought to have been considered in accordance with law.55.
4. The obligation of the appropriate Government to consider the detenu’s representation is separate from
and independent of the consideration of the detenu’s case by the Advisory Board,56. referred to in
Clause (4).57. A consideration by the Board is an additional safeguard and not a substitute for
consideration of the representation by the Government which is required by Article 22(5):
The detenu can make a representation more than once during the period of his detention. The
question as to whether the successive or frequent representation amounts to abuse of the right
conferred under the provisions of the Act can be dealt with only by the State Government and the
Central Government, and not by any other authority. The representation submitted to the Central
Government or the State Government, even if it is based on the same ground, cannot be ignored
and has to be considered by the appropriate authority.58. In Makhan Lal Gokul Chand,59. the
detenu had earlier, three times challenged the order of detention and failed. In yet another
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representation filed by him, the court found that neither any fresh material was brought on record
nor any subsequent events were pointed out which may have warranted a “fresh” consideration of
the representation. It was held that since, there were no “fresh grounds” nor any “fresh materials”
or “subsequent events” brought out in subsequent representation, there was no obligation on the
State to get that representation considered by a “fresh Advisory Board” and, therefore, the exercise
of discretion by the State in rejecting the representation and not constituting a “fresh” Advisory
Board could not be faulted.
(i) Government must consider the representation, as soon as it is received, where it does not refer the
case to the Advisory Board at all.60. Where the representation of detenu was received before the
case was referred to the Advisory Board, the appropriate Government must consider the same
before the matter was referred to the Advisory Board and it would be justified in not considering the
same, only if, there was no reasonable time to consider and dispose of the representation before
the case was referred to the Advisory Board, and in such a case, the representation may be
forwarded to the Advisory Board along with the case of the detenu.61.
(ii) Even where the Government intends to make a reference to the Board, it must consider the
representation before such reference; and as soon as it is received,62. in such a case, such
consideration has been said to be the “initial consideration”.63.
(iii) Since, the Government was bound to consider the representation as soon as it was received, there
is nothing wrong in the Government forwarding the representation to the Board after rejecting it.64.
(iv) Even where the representation is received after reference to the Board and pending such
reference, the Government is bound to consider the representation forthwith, and release the
detenu if it is satisfied, upon such consideration, that it is not necessary to detain the detenu,—
irrespective of the eventual report of the Board,62 because the Board is merely an advisory body.
Once the Government confirms the detention order, the detaining authority becomes functus
officio and even if the authority can consider the representation, the consideration of the
Government is sufficient.65.
Where the order of preventive detention was made by the Home Minister, but the detenu’s
representation was rejected by the Secretary, the court held that the Secretary had no
jurisdiction to do so and the detenu’s further detention became invalid.66.
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Under the COFEPOSA Act, a detenu has the right to simultaneously make a representation to the
detaining authority, which has to be considered by the Advisory Board, as also the right to apply to the
Central Government for revocation of the order of detention under Section 11 of the Act. It was held
that the Central Government has the power to consider the representation of the detenu independently
and it need not wait till the Advisory Board submits its opinion to the State Government. Hence, if any
representation is received, the State Government is bound to forward the same immediately and should
not wait for the opinion of the Board.67.
If the Government merely forwards the detenu’s representation to the Advisory Board, without itself
considering it first, it will be violative of Article 22(5). The appointment of the Advisory Board does not
absolve the detaining authority of the obligation of first considering the representation itself.68.
The appropriate Government is obliged to consider the detenu’s representation independently of the
consideration by the Advisory Board. The Central Government, which has the power to revoke the
detention order passed by the State authority, is also under a legal obligation to dispose of the
representation without delay.69.
The safeguards for the detenu embodied in Article 22(5) are two-fold. The authority making the order of
detention shall, as soon as may be, communicate to such person, the grounds on which the order has
been made and shall afford him the earliest opportunity of making a representation against the order.
From the analysis of the clause, it appears that consideration of the report of the State Government by
the Central Government is not part of the safeguards embodied under Article 22(5). The Central
Government’s power to revoke the order of detention under section 11 of COFEPOSA may be either
suo moto on consideration of the report under section 3(2) of the Act or on the representation made
either by the detenu or anyone on his behalf. Consideration of the report sent by the State Government
under section 3(2) of COFEPOSA Act by the Central Government or a competent authority, to whom
the power is delegated, is a statutory requirement, which is in addition to the obligation imposed under
Article 22(5). Non-compliance of the safeguards would vitiate continued detention of a person ordered
to be detained under COFEPOSA.70. Under section 11 of COFEPOSA read with section 21 of the
General Clauses Act, three authorities are empowered to revoke a detention order viz., the officer
making the order, the StateGovernment, if the detaining authority is an officer of the State and the
Central Government It was held that the action of the detaining authority in not taking out copies of the
detenu’s representation and sending the same to the Central Government was not reasonable. A
person in preventive detention suffers from certain handicaps. If he makes a request to forward copies
of his representation to the State and Central Government, it would be a denial of his right to represent
himself before the Central Government, if the detainsing authority, as well as the State Government
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refuse to accede to his request and omit to forward his representation to the Central Government for
consideration. The Court failed to understand why such a technical and rigid view was taken by the
authority in the matter of personal liberty when a person was kept in preventive detention.71.
Where the detention order itself stated before whom the representation is to be submitted, but the
representation is filed before the Advisory Board, the Central Government, the authority named in the
detention order, is not bound to consider the representation addressed to the Board.72.
Merely because the report of the Advisory Board was also placed alongwith other materials before the
State Government for consideration of the representation, it cannot be said that the Government was
influenced by the report and that no independent decision was taken.73.
5. Where Government fails in its obligation to make the initial consideration as soon as the representation
is received, the order of detention becomes immediately invalid, so that any subsequent reference to
the Board or consideration and rejection of the representation cannot validate the detention.74.
The detenu sent his representation to the Advisory Board. The Board considered the
representation and sent its opinion to the Central Government Thereafter, the Government
confirmed the order, but did not consider the detenu’s representation. Thus, there was no
independent consideration of the detenu’s representation by the Government at any given time.
The court said that there has been a breach of the detenu’s right under Article 22(5). The
obligation of the Government to consider the representation is different and it is in addition to the
obligation of the Board to consider the same. The detenu’s right to have the representation
considered by the Government under Article 22(5) is independent of the consideration of the
detenu’s case and his representation by the Advisory Board.75. It was held therein, that, the
Government has to consider the representation made by the detenu independently of the opinion
of the Advisory Board. The Supreme Court laid down that confirmation of the detention order by
the Government on the basis of the opinion of the Advisory Board, but before considering the
representation of the detenu is not invalid, if made by applying an independent mind. Post-
confirmation of the representation is not unconstitutional.
6. Since, the Government is bound to consider the representation as soon as it is received by it, there is
nothing wrong in forwarding the representation to the Advisory Board after the Government has
rejected the representation.76. In such a case, the Government would consider the detenu’s case once
again after the report of the Board is received, before confirming the order of detention.
7. The consideration of the representation by the Government must be real and not merely mechanical or
casual; it must also be considered with an unbiased mind.77. One representation of the detenu,
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addressed only to the Central Government and not to the Advisory Board as well, does not dispense
with the requirement of its consideration by the Board as well.78.
But it would not be tainted by casualness—
Merely because the representation was rejected the next day it was received.79.
8. There need not be any reference to the Advisory Board if the State Government does not continue the
detention beyond three months or releases the detenu upon consideration of his representation;80. if,
however, this is intended, there must be a reference to an Advisory Board, by reason of Clause
(4)(a).81. Another safeguard that is provided by Article 22(4) to a detenu is that under that Article,
preventive detention for over three months is possible only when an Advisory Board holds that in its
opinion there is sufficient cause for such detention. The Board must report before the expiry of three
months. If the report is not made within three months of the date of detention, the detention would be
illegal.82.
While interpreting Article 22(4), the court has held that not only should the Advisory Board report
within three months of the date of detention order that, in its opinion, there is sufficient cause for
the detention of the detenu, but the Government should also, itself confirm and extend the period
of detention (beyond three months) within the three months’ time-limit. Failure on the part of the
Government to do so will render the detention invalid, as soon as the three months elapse and any
subsequent action by the government cannot have the effect of extending the period of detention
beyond three months. While confirming the order of detention, the Government has not only to
peruse the report of the Avisory Board, but apply its mind to the materials on record as well.83. It is
also necessary that the order of confirmation be in writing and be communicated to the detenu.
The detenu, whose freedom is in jeopardy, is entitled to know the result of his representation.
However, lack of communication to him is merely an irregularity and it does not invalidate an
otherwise valid detention.84. The Supreme Court has, accordingly, held that Clauses (4)-(5) of
Article 22 read together, confer upon the detenu, a dual right of representation against the order of
detention:
(i) It has been held that apart from any statutory provision, it is implicit in Article 22(5) that the
representation should be independently considered by the appropriate Government to whom it is
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made.85. The Government cannot absolve itself of this obligation by referring his representation to
an Advisory Board.86. This initial obligation on the part of the Government is to consider the
representation as soon as it is received by it.86
This initial obligation of the Government is to consider whether, the order is contrary to the law
authorising preventive detention,85 and to see that no person is, through error or otherwise,
wrongly arrested and detained.85 This obligation confers a constitutional right upon the detenu
to have his representation considered by the Government irrespective of the length of the
detention, i.e., both in cases of detention for three months and in cases of detention exceeding
three months.85
(ii) After the report of the Advisory Board is received, the Government has to consider the Report of
the Board, keeping in view all the facts and circumstances of the case87. and consider the
representation, if it has not so far been considered, and come to its own decision as to whether,
the order of detention should be confirmed or not. The Government may, therefore, release the
detenu, even though the Board may have expressed its opinion against the release of the
detenu.88.
Article 22(5) is violated if the Government merely forwards the detenu’s representation to the
Advisory Board without itself considering it. The appointment of the Advisory Board does not
absolve the detaining authority of the obligation of first considering the representation itself.89.
In Hardhan Saha v State of WB,90. the court said: “If the representation of the detenu is
received before the matter is referred to the Advisory Board, the detaining authority considers
the representation. If the representation is made after the matter has been referred to the
Advisory Board, the detaining authority will consider it before it sends the representation to the
Advisory Board”.
The detenu must also be informed that he has a right to representation, addressed to specified authorities,
where the detention order does not speak about the detenu’s right to make representation within 12 days of his
detention, and the non-communication of the same vitiates the detention.91. The detenu has a right to make a
representation to the detaining authority, seeking revocation of detention before approval by the State
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Government. Non-communication of the right to the detenu in the detention order vitiates the detention.92. It
was held that if that right is infringed, the detenu is to be released.93.
[Art. 22.15.5] Representation received after Confirmation of the Order of Detention
The words “shall afford... a representation against the order” in Article 22(5) suggest that the obligation of the
Government is to offer the detenu an opportunity of making a representation against the order, before it is
confirmed according to the procedure laid down in the relevant law. If the detenu does not exercise his right to
make representation at that stage, but presents it to the Government after the Government has confirmed the
order of detention upon consideration of the report of the Board and nothing is pending, nothing could be done
on the representation, to determine the validity of the order of detention.94.
Where the representation is received after the confirmation of the detention order, consideration of such
representation is not unconstitutional. The Government can consider the representation even after receipt by
the Advisory Board and subsequent confirmation order. It has to consider the representation independent of the
report of the Board.95. It was held in K.M. Abdulla Kunhi’s casethat confirmation of detention does not preclude
the Government from revoking the order of detention after considering the representation, and there may be
cases where the Government has to consider the representation only after confirmation of the detention. The
court said that words “shall afford him the earliest opportunity of making a representation against the order” in
Article 22(5) suggest that the obligation of the Government is to offer the detenu an opportunity of making a
representation against the order, before it is confirmed according to the procedure laid down under section 8 of
COFEPOSA Act. However, if the detenu does not exercise the right to make a representation at that stage, but
presents it to the Government after the Government has confirmed the order of detention, the Government still
has to consider such representation and release the detenu if the detention is not within the power conferred
under the statute. Confirmation is not conclusive; it can be revoked suo moto under section 11 of COFEPOSA
or upon a representation of the detenu. There is no constitutional mandate under Article 22(5), much less any
statutory requirement to consider the representation, before confirming the order of detention. As long as the
Government, without delay, considers the representation with an unbiased mind, there is no basis to conclude
that the absence of independent consideration is an obvious result of the representation being not considered
before the confirmation of the detention.96.
It was, however, held that in view of the power to revoke or modify an order of detention conferred upon the
Government by section 14 of the (old) Maintenance of Internal Security Act, 1971, it would be the duty of the
Government to consider even a representation received from the detenu subsequent to confirmation of the
order of detention, to determine whether it would exercise its power to modify or revoke the order on the basis
of the new or supervening facts;97. and the court might direct the appropriate Government to consider such
subsequent representation.98.
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It was observed therein, that, it would be a reasonable and judicious exercise of the power under section 14 of
MISA to refer the case once again to the Advisory Board for its opinion, before a subsequent representation
made on “fresh materials” by the detenu is rejected. It was held that a subsequent reference would result from a
necessarily implied power of the Government to act, so far as possible in a like manner to the one it has to
adopt in confirming or revoking the initial detention under section 12 of MISA.
The decision in the above case was doubted in Makhanlal Gokul Chand v Administrator, Union Territory of
Delhi, whereby, a three Judge Bench on 27 September 1983 observed that, it goes against the decision in
Pushpa v UOI.1. On reference, the court held that there was no inconsistency between the two decisions and
the decision in Ram Bali Rajbhir’s case was correct.2. The court held that unless there are fresh materials
brought on record, or where any subsequent event pointed out, which would have warranted a “fresh”
consideration of the representation made by the detenu, there is no obligation on the State to get the
representation considered by a “fresh Advisory Board” and the rejection of the subsequent representation made
by the detenu was rightly done.3.
[Art. 22.15.6] Delay in considering the Representation
1. It has been held by the Supreme Court that the obligation of the Government, under Article 22(5), is to
consider the representation “as soon as it is received by it”,4. because it affects the liberty of a citizen,5.
though, of course, it may not be possible to lay down any hard and fast rule as to the measure of time taken by
the appropriate authority for such consideration.4 The law on this subject was summarised by the Supreme
Court recently wherein, it was held thus: “Article 22(5) of the Constitution casts a legal obligation on the
Government to consider the detenu’s representation “as early as possible”. Though no time-limit is prescribed
for disposal of representation, the constitutional imperative is that it must be disposed of as soon as possible.
There should be no supine indifference, slackness or callous attitude. Any unexplained delay would be a
breach of constitutional imperative and it would render the continued detention of the detenu illegal. That does
not, however, mean that every day’s delay in dealing with the representation of the detenu has to be explained.
The explanation offered must be reasonable, indicating that there is no slackness or indifference. Though the
delay itself is not fatal, the delay which remains unexplained becomes unreasonable. The court can certainly
consider whether, the delay was occasioned due to permissible reasons or unavoidable causes. It is not
enough to say that the delay was very short. Even longer delay can as well be explained by the authority
concerned. If the inter-departmental consultative procedures are such that delay becomes inevitable, such
procedures will contravene the constitutional mandate. Any authority obliged to make an order of detention
should adopt a procedure calculated towards expeditious consideration of the representation. The
representation must be taken up for consideration “as soon as” such representation is received and dealt with
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continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final
decision is taken and communicated to the detenu”.6.
In K.M. Abdulla Kunhi v UOI,7. after considering the precedents, the court said that neither under clauses (4)
and (5) of Article 22 of the Constitution, nor under the relevant statutory provision, any time-limit has been fixed
for consideration of the representation made by the detenu. The time-limit has been deliberately kept elastic.
But the court gave importance to the expression “as soon as may be” in Article 22(5) and held that the said
expression sufficiently makes clear the concern of the framers of the Constitution, that the representation
should be very expeditiously considered and disposed of with a sense of urgency and without any avoidable
delay.8. Procedural safeguards given for protection of personal liberty must be strictly followed. The history of
personal liberty is a history of insistence on procedural safeguards. In a case where there was an unexplained
delay of nearly two months, the court found that the detenu has to be released when personal liberty is at
stake.9. In Pebam Ningol Mikoi Devi v State of Manipur,10. a delay of seven days was the reason to quash the
detention order.
2. This duty of the Government to consider the representation as soon as received, is a constitutional
safeguard11. against improper or unjustified exercise of the power of detention and enjoins the Government to
release the detenu forthwith if, upon such consideration, it finds that the grounds upon which the order of
detention had been made are incorrect or non-existent or irrelevant.12.
3. Hence, any delay on the part of the Government to consider the representation must be accounted for, and
the Court will, in a petition of habeas corpus, release the detenu if there was no explanation for the delay,12 or
the explanation was unsatisfactory.13.
Where representations are sent not only to the detaining authority, but also before the Central Government and
Advisory Board, in the case of the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974, even if the detaining authority and Advisory Board rejected the representation, the Central
Government is also obliged to dispose of the representation “expeditiously”.14.
4. The following explanations have been held not to be satisfactory for the failure of the Government to consider
the representation within the shortest possible time after the representation has been received by it:
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Slow movement of files, owing to go-slow tactics of employees of the Government.15.
When the court finds that detention is not legal, it may pronounce a summary order since, pronouncing a well-
reasoned order may take time and the detenu will have to remain in custody. To enable immediate release from
custody, direction was given to release the detenu immediately.16. The court said that in such cases immediate
relief is to be granted.
5. Once the detenu takes such plea, it is for the State to offer explanation for the delay, which must satisfy the
conscience of the court that the State Government considered the representation at the earliest opportunity.17.
Any undue delay, for which there is no sufficient explanation on the part of the Government to consider the
representation, invalidates the order of detention, even though, an Advisory Board, to which the representation
may have been referred to by the Government, reports against the representation.18. The expression in Article
22(5), “as soon as may be”, sufficiently makes clear the concern of the framers of the Constitution that the
representation should be considered very expeditiously and disposed of with a sense of urgency and without
any avoidable delay. Where the Central Government took two months to dispose of the representation for
which there is no proper explanation, the court declared the detention as illegal.19. Where the cause of delay
was properly and satisfactorily explained, the detention order will be sustained.20.
The representation must be signed and dated, otherwise, it cannot be treated as a representation within the
meaning of Article 22(5).21.
There is a distinction between an order of detention which is void ab initio, by reason of non-application of mind
on the part of the detaining authority, while passing the initial order of detention and a detention which becomes
illegal due to delay caused in consideration of representation of detenu. In cases where the detention becomes
illegal due to a delay caused by authorities, only the further detention becomes illegal and not the initial
order.22.
Where the representation was in Tamil language, addressed to the Ministry of Home Affairs, the same was to
be translated, which was sent to the concerned State for the said purpose and the representation was disposed
of immediately after getting translation; it was held that 21 days’ time taken was reasonable and fully
explained.23. If the explanation offered by the State is proper and acceptable, continued detention would not be
rendered illegal merely because there was delay. A delay in disposal of representation cannot be judged by any
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strait jacket formula, divorced from facts. This has to be examined with reference to the facts of each case,
having regard to the volume and contents of the grounds of detention, the documents supplied along with the
grounds, the enquiry to be made by the officers of different departments, the nature of enquiry, the time
required for examining the various pleas raised, the time required in recording the comments by the authorities
of the department concerned and so on. There should be no infraction or lethargy in consideration of the
representation and where there is a proper explanation for the time taken in disposal of representation, even
though it may be long, the continued detention of the detenu would not be illegal in any manner.24. The time
imperative can never be absolute or obsessive.25. It was held that the time taken by the Government in
consulting the authority which initiated the proposal can never be said as an unwarranted exercise.26.
Delay due to postal delivery cannot be said to be unreasonable.27. When there is no slackness, callousness or
casualness, inaction or leisurely treatment of the representation detention not vitiated due to delay.28. Where
representation is sent to wrong authorities, some delay in disposing of the representation is reasonable.
Further, it was held that where a number of representations have been sent, all of which except one has been
disposed of without any delay, any delay in disposal of the remaining representations is not fatal.29.
The Supreme Court has underlined the need for expeditious consideration of the detenu’s representation thus:
“The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the
appropriate authority, but also unconstitutional because the Constitution enshrines the fundamental right of a
detenu to have his representation considered and it is imperative that when the liberty of a person is in peril,
immediate action should be taken by the relevant authorities”.30.
The Supreme Court recently reminded the High Courts, that, in a matter affecting the personal liberty of a
citizen it is the duty of the courts to take all endeavours and efforts for an early decision. Keeping the writ
petition (writ of habeas corpus) pending after hearing the parties and compelling the detenu to wait for five
months to know the result of his petition, cannot be accepted. The Supreme Court requested all the High
Courts to give priority for the disposal of the matters relating to personal liberty of a citizen, particularly when
the detention period is one year or less than a year and more so, after hearing the parties, the decision must be
known to the affected party without unreasonable delay.31.
Time taken to obtain parawise comments from the sponsoring authority is a permissible ground to excuse delay
in disposal of the representation.32. The Supreme Court refused to prescribe any time-limit for the disposal of
the representation. It depends on the facts and circumstances of each case whether, the Government
considered the representation promptly or not. In this matter, no delay should be caused because of
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negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination. What is reasonable
dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in
this regard.33.
Where the first representation was disposed of by the Advisory Board, the detaining authority and Government
without any delay, but the second representation on the same lines as the first representation was not disposed
of “as soon as possible”. In such cases, the delay in disposing of this representation or communicating the
same will not vitiate the detention order.34.
Where the delay is not explained, the detenu is liable to be released on the ground that the right of the detenu
“of giving an earliest opportunity of making a representation” is defeated. The right becomes an empty
formality.35. The contention that certain amount of delay is inevitable, having regard to the procedure
prescribed by the National Security Act and the delay will not prejudice the detenu, was rejected by the court on
the ground that the right flows from the Constitution which brings life into the law and as such the constitutional
imperative cannot be abridged or curtailed.36. Time limit for consideration of representation has not been
prescribed, but it must be considered and disposed of expeditiously. The question of delay on the disposal has
to be considered in the context of the necessities of the particular situation.37.
Where representation is handed over to a person or served on a person who is not authorized to receive the
same, the authority concerned cannot be held responsible if any delay is caused, on account of the inaction of
the unauthorised person. If any dispute is raised about the authority of the person to whom that representation
is claimed to have been handed over or served, the person making the representation has to establish as to
whom the service was effected and that he had the authority to receive the representation.38. It was held in that
case that where the detention order says to the authority before whom the representation is to be submitted, a
representation submitted to the President of India or the Governor of a State is not proper, though it does
amount to representation to the Central or a State Government, as the case may be.
There is no format or magical incantation in which the representation should be couched. Any delay in
considering the representation on hyper technical grounds vitiates the detention.39.
What is the effect of release of the detenee, on the ground that the representation was not considered in term
or when there is delay?
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Recently, the Supreme Court held that the initial detention is not void and the detention subsequent alone, will
become unlawful or illegal. The detention order would not render the detention void ab initio. Only the continued
detention may become illegal. The initial detention is not ultra vires. The detainee can be proceeded against for
forfeiture of property smuggled, which was the basis of the detention order.40.
[Art. 22.15.7] Complaint of delay in consideration of representation by Government
1. Where the detenu is aggrieved by any delay on the part of the Government in considering his
representation, it must be pleaded in his petition for habeas corpus.41. Otherwise, the court will not
enter into any investigation on this point or whether, there was sufficient explanation for the delay, if
any.42.
2. Such a plea would also be idle where there was nothing in the detenu’s representation, save a bare
denial of the commission of an offence, which necessitated an immediate consideration.42
3. Where an earlier representation to the Government had been properly disposed of without delay, any
delay in disposing of any subsequent representation would not be material.43.
[Art. 22.15.8] What is a “vague” ground?
1. An “irrelevant” ground is a ground which has no connection at all with the satisfaction of the authority, while a
“vague” ground is one which is not sufficient to enable the detenu to make an effective representation.44.
“Vagueness” is a relative term and varies according to the circumstances of each case, but if the statement of
facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand
what exactly is the allegation against him, and he is thereby, prevented from making an effective
representation, such a vague ground is sufficient to justify violation of Article 22(5). However, a ground is said
to be irrelevant where it has no connections with the satisfaction of the authority making the order of detention
under the appropriate law. If it nevertheless appears that irrelevant grounds were taken into consideration for
making the detention order that, is sufficient to vitiate it.45. “Vague” can be considered as the antonym of
“definite”. If the ground which is supplied is incapable of being understood or defined with sufficient certainty, it
can be called “vague”. It is not possible to state affirmatively more on the question of what is vague. It must vary
according to the circumstances of each case.46. The law declared in Atma Ram’s case,47. has been followed
in other cases.48. In Puranlal Lakhanpal v UOI,49. the right of detenu was analysed and the court held that it
was open to the detenu to apply for further particulars in case he had any grievance. Having regard to the test
laid down in Atma Ram’s case, it was held that where the detenu had made a detailed representation, he
cannot contend that the grounds supplied to him were vague,50. nor would the grounds necessarily be vague if
the only answer of the detenu to the grounds stated was to deny them.51. In Panna Ram v State of Punjab,52.
in the grounds it was stated: “Your places are meeting places of all murderers and “bad masters” not only from
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this State, but also from Pepsu and Rajasthan. It is widely known that the members of your party and that of
Mukh Ram are big schemers and do no cultivation themselves”. The court termed the grounds as vague.53. If
the grounds are not vague, but the detenu thinks that he is not able to make a representation, he can apply for
further particulars.54.
If the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained
person to make his representation, then the grounds are not vague.55. Where the detenu did not ask for any
particulars which he is entitled to receive under Article 22(5), it is a circumstance to show that the grounds are
not vague.56. The detenu alleged to be a “dangerous person” under the Gujarat Prevention of Anti-Social
Activities Act, 1985. Without giving particulars regarding the victims and places of alleged offences, was held as
a vague ground, such that the detenu was prevented from making an effective representation for want of
details.57. What has to be seen by the court is that the grounds of detention supplied to the detenu are not so
vague as to prevent him from making an effective representation. Where the date, time and place of the
incident were clearly stated, it was held that the grounds of detention were sufficient to appraise the detenu of
the precise activity on account of which the order of detention was made and he was not handicapped in
making an effective representation against the order. The mere fact that the names of his associates were not
stated did not make the grounds vague.58. Where the detenu after intelligently understanding the grounds has
procured the certificates to contradict its statements, the ground cannot be said to be vague.59. Under Article
22(5), the detenu has two rights – (i) the right to be informed of the grounds as soon as may be and (ii) the
earliest opportunity for representation. The inclusion of irrelevant or non-existent grounds among other relevant
grounds is an infringement of the second of these rights. Therefore, in this view of the legal position, if the
grounds are vague and indefinite, that would amount to an infringement of the second right of the applicant.60.
Where there are several grounds for detention, the vague nature of one of the grounds would not vitiate the
order.61.
Section 5A of COFEPOSA provides that, when a detention order is passed on several grounds it shall be
deemed to have been made separately on each of such ground. The order shall not be invalid merely because
any of the ground is—(1) vague, (2) non-existent, (3) not relevant, (4) not connected or not proximately
connected with such person, (5) invalid for any reason whatsoever. But the above action cannot apply in cases
where there is only one ground which is vague.
Where the detenu was already in custody in connection with a criminal case and a detention order was passed
under Section 3 of the National Security Act, that he was threatening the shopkeepers to collect money and
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would otherwise, kill the shopkeepers, and the detenu also threw a bomb at the police party, was held as
vague, since, no representation could be given, as the grounds are lacking in details.62.
There must be reasonable basis for the detention order and there must be material to support the same. The
court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion and
accordingly, determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction
must be two-fold. The detaining authority must be satisfied that the person to be detained is likely to act in any
manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of
the public order and the authority must be further satisfied that it is necessary to detain the said person in order
to prevent him from acting so. Whether the grounds stated in the order of detention are sufficient or not to order
preventive detention, is not within the ambit of the discretion of the court and it is the subjective satisfaction of
the detaining authority which is implied. However, if one of the grounds or reasons which led to the subjective
satisfaction of the detaining authority under the National Security Act is non-existent or misconceived or
irrelevant, the order of detention would be invalid. No distinction can be made between introductory facts,
background facts and grounds as such, if the actual allegations were vague and irrelevant, and the detention
would be rendered invalid.63.
The courts would look with disfavour upon vague grounds or detention, because such grounds fail to convey to
the detenu the precise activity on account of which he is being detained. The detenu is thus, prevented from
making an effective representation which he might possibly have made if he had been apprised of the
objectionable activity which led to his detention.64.
2. The question, whether, the grounds furnished are vague or not, has to be determined on a consideration of
the circumstances of each case.65. Thus,
(A) On the one hand—
(i) A communication, which is not readily intelligible by a layman without legal aid, is vague.66.
(ii) As stated earlier, a communication in English to a person not conversant with that language is
invalid.67.
(B) On the other hand—

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(i) If on reading the ground furnished it is capable of being intelligently understood 67 by a reasonable
person,68. and is sufficiently definite to enable the detenu, to make a representation against the
order of detention, it cannot be called vague.69.
(ii) Hence, vagueness cannot be urged where there is an obvious mistake or verbal inaccuracy in
stating the grounds,70. or where the vagueness has been removed by a subsequent
communication, made promptly.71.
(iii) Particulars of things which the person is apprehended to do in the future cannot be given, in the
very nature of things, with as much definiteness as of events which have already taken place.72. It
is not necessary to indicate the objectionable passages of the alleged speeches delivered by the
detenu if the time and place and their general nature and effect are stated.73.
3. If the grounds are not sufficient to enable the detenu to make a representation, he may, if he likes, ask for
particulars which would enable him to make a representation.74. If he does not ask for such particulars, his
inaction may, in particular circumstances, be taken into consideration in deciding whether, the grounds can be
considered to be vague.75.
[Art. 22.15.9] Instances of vague grounds
Subject to the foregoing general observations, the following cases may illustrate what grounds have or have not
been held to be vague:
(A) In the following cases, the grounds have been held to be vague—
1. “In pursuance of the policy of the Communist party, you are engaged in preparing the masses for
violent revolutionary campaign and attend secret party meetings to give effect to this programme.”75
2. “You tried to create public disorder amongst tenants in Una Tehsil by circulating and distributing
objectionable literature issued by underground communists.”75
3. To allege, merely, that the detenu had been carrying on “subversive” propaganda;69 or was a man of
“desperate habits and dangerous character”.76.
4. To allege that a meeting decided “to start a Gujarat type of agitation”.77.

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5. It was stated in the grounds of detention that the detenu was indulging in profiteering by selling Sagol and
Murrum powder as cement to the general and illiterate public through the medium of unsocial elements who
were carrying on illegal trade in cement. The names and other particulars of the unsocial elements through
whom the detenu was indulging in the sale of Sagol and Murrum powder as cement have not been stated. The
person or persons to whom the above powder was sold by the detenu has also not been stated; in fact, not a
single instance had been cited in which the said powder produced by the detenu was sold. The court said that
the allegation, in the ground of detention regarding sale of the powder as cement, was vague and, therefore,
the order of detention passed by the detaining authority was vitiated.78.
6. In Anoop Kumar v Union Territory of Delhi,79. the accused was detained under section 3(1) of COFEPOSA,
with a view of preventing him from acting in any manner prejudicial to the augmentation and conservation of
foreign exchange and also preventing him from abetting the smuggling of goods viz., gold and foreign currency.
The only allegation in the grounds of detention against the detenu was to the effect that he was present in the
house at Delhi where the plan for smuggling gold and foreign currency named dollars from Hong Kong to Delhi
was made. It was not clear as to what part was played by the detenu because he had never left the country and
never took part in any smuggling operation. The court held that the allegation against the detenu in the grounds
of detention was so vague that it was not possible for anybody to make an effective representation against the
order of detention.80. In the grounds of detention, it was stated thus: “That you have been for a long time
engaged in anti-social, illegal and highhanded criminal activities and in the course of such activities you have
on different occasions held out threats to different persons and that you have associated yourself with anti-
social elements. Whenever, the peace loving citizens questioned your bona fides and protested against your
activities and whenever, they offered themselves as witnesses against your activities, you threatened to burn
down their houses”. The court said that the detention could not be sustained because of the existence of the
above ground which was so vague that the petitioner could not possibly have made any representation with
regard to it.81.
7. Where in the grounds it was stated that with a view to prejudice the relations of India with the Portuguese
Government and also the security of India, the detenu was carrying on espionage with the financial help given
by the Portuguese authorities in Goa, collecting intelligence about the security arrangement on the border, held,
the grounds were not vague by reason of the details of the financial aid or the length of the period for which the
detenu was carrying on his activities not having been given particularly because having regard to the nature of
the activities and the strained relations between India and Goa, it was against the public interest to disclose
further particulars.82.
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Where, out of the five grounds mentioned under the grounds of detention of a person for indulging in black-
marketing of food-grains, atleast two grounds were vague, one ground was found to be false and of the
remaining, in one, there was no explanation and in the other, there were lame excuses. In such a case, the
detention could not be justified and the detenu was released.83. The constitutional right of the detenu would be
infringed if he is not supplied with reasonably definite grounds.84. Equally, the grounds would be vague if the
authority has not furnished the detenu adequate particulars of the grounds of detention to enable a proper
representation to be made.85.
The plea of vagueness of grounds for lack of particulars is, however, subject to two limitations – (a) If the
grounds are not sufficient, the detenu, if he likes, may ask for particulars which would enable him to make a
representation. The fact that he made no such application for particulars is, therefore, a circumstance which
may well be taken into consideration in deciding whether, the grounds can be considered to be vague, and (b)
the right to get particulars relating to the grounds is subject to the rights or privileges given by Article 22(6),
namely, the privilege of withholding facts considered to be against public interest.
[Art. 22.15.10] What is an “irrelevant” ground
1. A ground is irrelevant if it is not relevant to any of the circumstances under which preventive detention can be
made under section 3 of the Maintenance of Internal Security Act, read with List I, Entry 9 and List III, Entry
3;86. or it is non-existent in fact 86 or not available under the law.86
A ground is said to be “irrelevant” when it has no connection with the satisfaction of the authority making the
order of detention under the appropriate law.87. The grounds are irrelevant if they have no probative force, i.e.,
they are extraneous to the scope or purpose of the preventive detention law.88. The grounds must have a
rational connection with the object mentioned in the Act for which a person may be detained. If the grounds are
not relevant to the object of the legislation, then, the right of the detenu under Article 22(5) is violated.89. A
detention order should not be based on a ground which is irrelevant or extraneous to or falls outside the scope
and object of the law of preventive detention. The ground on which a detention order has been made must have
some rational connection and be relevant and germane to the object to prevent which the order in question has
been made. A detention order based on no material, but on pure speculation is not valid.90. A preventive
detention order based on non-existing grounds and ingredients of statutory provision, not made out by bringing
on record any evidence for framing charges, is an exercise of abuse of power and on irrelevant grounds with
intent to tarnish the reputation of the detenu, was quashed by the court directing the State to pay monetary
compensation.91.
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Consideration of extraneous matters, namely, the incidents other than those shown under the grounds of
detention with which the detenu had no direct or indirect connection of participation renders the detention
invalid.92.
The Chief Medical Officer was suspended and detained for certain acts of criminal misconduct and criminal
conspiracy in relation to purchase of essential life saving drugs. The High Court of Allahabad quashed the
detention and said: “Where the crime of act or omission attributed is such that, the same can be committed only
when the man is occupying a particular office then, as soon as he is suspended or dismissed or retired, he
automatically stands disabled from committing it and the need to imprison him from preventing him from
repeating it cannot arise.1.
In Bhupal Chandra v Arif Ali,2. the petitioner was detained with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order. Five out of sixteen grounds did not have any rational relation with
public order. In other words, one-third of the grounds were irrelevant. Quashing the detention, the court said:
“We cannot assess how far these five grounds have swayed the mind of the District Magistrate and titled his
judgment against the detenu. To the intertwining of relevant and irrelevant grounds of detention, the rule of
severability would not apply and the whole order of detention will fall down”.3.
Irrelevant material taken into consideration for subjective satisfaction of the detaining authority, detention is
vitiated.4. Where irrelevant materials have been taken into consideration for the subjective satisfaction of the
detaining authority, the end result would be that the detaining authority has not applied his mind to relevant and
proximate matters. In Shalini Soni v UOI,5. it was observed by the Supreme Court: “It is an unwritten rule of
law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective
satisfaction of a statutory functionary, there is an implied obligation to apply his mind to pertinent and proximate
matters only, eschewing the irrelevant and the remote”.6. Where grounds relied on to pass an order of
preventive detention had no probative value and were extraneous to scope, purpose and object of the National
Security Act, it is an order based on irrelevant material and consequently the order of detention will be
quashed.7.
If two out of three grounds set out in order of detention are “irrelevant”, the detention is illegal.8.
2. The connection between the grounds for which preventive detention is sought in a particular case and the
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relevant reason, specified in the aforesaid Entries, must be proximate and not far-fetched.9. As to the scope of
these specified Entries, it should be noted at once that—
(i) “Defence”
refers to the contents of Entry 1 of List I of the 7th Schedule.

(ii) “Foreign affairs”
(see Entry 10 of List I, post) includes the power to use preventive detention for the purpose of making
arrangements for the expulsion of foreigners from India.10.
(iii) “Security of India”
has the same meaning as under Article 19(2),11.

(iv) “Security of a State”:
The Union has jurisdiction to provide for preventive detention when the security of the Union as a whole is
involved; if it affects a particular State, the jurisdiction is concurrent, under Entry 3 of List III, post.
(v) “Public order”
indicates something more than “law and order” a breach of public order involves such a degree of disorder as
affects the life of the community as a whole or in a specified locality,12. as distinguished from solitary
instances13. affecting only a few individuals, which may constitute a breach of “law and order” but not of “public
order”.14. The difference between the two concepts is only one of degree.15. An activity which affects “law and
order” may not necessarily affect “public order” and an activity which might be prejudicial to public order may
not necessarily affect “security of the State”. The absence of public order is an aggravated form of disturbance
of public peace which affects the general current of public life. Any act which merely affects the security of
others may not constitute a breach of “public order”.16. Public order is synonymous with public safety and
tranquility and it is the absence of any disorder involving a breach of local significance in contradistinction to
national upheavals such as revolution, civil strife, and war affecting the security of the State.17. In Ram
Manohar Lohia v State of Bihar,18. it was held that any contravention of law always affected the order, but
before it could be said to affect public order, it must affect the community at large. It was observed that offences
against “law and order”, “public order” and security of the State are demarcated on the basis of their gravity.19.
In Kanu Biswas v State of WB,20. the court held that the concept of public order is something more than
ordinary maintenance of law and order.21. Where detenu and his associates, armed with deadly weapons
caused damage to both public and private properties, threatened public and also created panic amongst the
public in a busy locality-cum-business area, the act results in the disturbance of public order. Public order is the
even tempo of life of the community, taking the country as a whole or even a specified locality.22.
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It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a
locality, determines whether the disturbance caused by such activity amounts only to a breach of “law and
order” or it amounts to the breach of “public order”. If the activity falls within the category of disturbance of
“public order” then it becomes essential to treat such criminal and deal with him differently than an ordinary
criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even
tempo of life of the community.23. Where in the ground of detention, the detaining authority has stated that by
committing the offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the
minds of the public of the area and thereby, acted in a manner prejudicial to the maintenance of public order
which affected even the tempo of the community, but, in fact, it was a solitary case of robbery, it was held that
mere citation of these words in the order of detention is more in the nature of ritual rather than with any
significance and are “irrelevant” for the purpose of entering subjective satisfaction of the detaining authority.24.
The determining test in all such cases is—
Does it lead to a disturbance of the current life of the community so as to amount to a disturbance of the public order,
or it merely affects an individual or individuals, leaving the tranquillity of the society undisturbed?25.
This question has to be decided on the totality of the facts and circumstances of each case.25
The true distinction between the area of law and order and public order, lies, not merely in the nature or quality
of the act, but in the degree and extent of its reach upon the society. Acts similar in nature but committed in
different contexts and circumstances, might cause different reactions. In one case it might affect specific
individuals only, and, therefore, touche ony the problem of law and order, while in another, it might affect public
order. The Act by itself, therefore, is not a determinant of its own gravity. In its quality it may differ from similar
acts, but in its potentiality, i.e., in its impact on the society, it may be very different.
The two concepts have well-known contours “its being” well-established, that, stray and unorganized crimes of
theft and assault are not of public orders, since they do not tend or affect the even flow of public life. The
infraction of law is bound in some measure to lead to disorder, but every infraction of law does not necessarily
result in public disorder. Law and order represents the largest scale within which, the next circle represents
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public order and the smallest circle represents the security of the State. “Law and Order” comprehends
disorders of lesser gravity, than those affecting “public order”, just as “public order” comprehends disorder of
less gravity than those affecting the “Security of State”.26. The expressions “law and order”, “public order” and
“security of State” are distinct concepts, though, not always separate. Whereas, every breach of peace may
amount to disturbance of law and order, every such breach may not amount to disturbance of the public order
and every public disorder may not prejudicially affect the security of the State.27. The question, whether, a man
has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the
public order is a question of degree and the extent of the reach of the act upon the society.28. In P. Mukherjee
v State of WB,29. the court drew a line of demarcation between the serious and aggravated form of breaches of
public order which affect the community or endanger the public interest at large from minor breaches of peace
which do not affect the public and private crime. A large number of acts directed against persons or individuals,
may total up in a breach of public order.
“Public order” is synonyms with public safety and tranquillity: It is the absence of disorder involving breaches of
local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting
“Security of State”. Public order, if disturbed, must lead to public disorder. Every breach of peace does not lead
to public disorder. When two drunkards quarrel and fight, there is disorder, but not public disorder. They can be
dealt with under the powers to maintain law and order, but cannot be detained on the ground that they are
disturbing public order. Disorder, no doubt, can be prevented by maintenance of law and order also, but
disorder in a broad spectrum, includes at one end, small disturbances and at the other, the most serious and
cataclysmic happenings.30.
“Public order”, “law and order” and the “Security of the State” fictionally draw three concentric circles, the
largest representing law and order, the next representing public order, and the smallest representing the
security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order
may not necessarily also affect public order. Likewise, an act may affect public order, but not necessarily the
security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect
only individuals while, the other, though of similar kind, may have such an impact that it would disturb the even
tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an
act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an
impact that it would affect both public order and the security of the State.31.
In T. Devaki v State of Tamil Nadu,32. the court held that a single incident of murderous assault on a minister in
a public place, may give rise to a “law and order” problem but, certainly not a “public order” problem. The
incident did not and could not affect public peace and tranquility, nor did it have the potential to create a sense
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of alarm and insecurity in the locality. The solitary incident as alleged in the grounds of detention, is “not
relevant” for sustaining the order of detention for the purpose of preventing the petitioner from acting in a
manner prejudicial to the maintenance of public order. But, a highway robbery, making use of daggers, murder
by member of an extremist party with the object of promoting the party cause, possession of highly explosive
bombs, firing and killing people, affect public order.33. There may, however, be circumstances in which a
criminal act against one person may amount to problem of public order.34. A mere peaceful protest does not
disturb public peace and has no nexus with public order.35.
Public order is different from orderliness in a local area. The breach of peace confined to a particular area may
not necessarily lead to public disorder. However, where a disturbance affects the community or the public at
large, it may give rise to public disorder. Disturbance of public peace when aggravated may become a public
order problem. Any act which merely affects the security of others may not constitute a breach of public order.
The expression “law and order” is a comprehensive expression which may include not merely “public order” but
also matters of public peace, public tranquility and orderliness in a locality or local area and perhaps some
other matters of public concern too. “Public order” is something distinct from order or orderliness in a local area.
Public order, if disturbed, must lead to public disorder, whereas, every breach of peace may not always lead to
public disorder. However, where the two persons fighting were of rival communities and one of them tried to
raise communal passion, the problem is still one of “law and order”, but it raises the apprehension of public
disorder. The main distinction is that where it affects the community or public at large, it will be an issue
relatable to public order. Section 144 of the CrPC empowers the passing of such order in the interest of public
order equitable to public safety and tranquility. The provision of section 144 of the CrPC, empowering the
authorities to pass orders tends to or to prevent the disturbance of public tranquility is not ultra vires the
Constitution.36.
(vi) “Maintenance of supplies and services essential to the community”
would include supply of unadulterated foodstuff;37. light and power,37 kerosene, gasolene;37 shipping, railways
and the like, a disturbance of which would disturb the even keel of communal life.38.
Where a person was ordered to be detained because he was found to be transporting kerosene oil without
licence, the order would not be open to challenge on the ground that, what was prohibited under the Kerosene
Control Order was selling or storing of kerosene without licence. The activity of the person was an activity which
was prejudicial to the maintenance of supplies of the commodities essential to the community.39.
It is not necessary that a person should be only a fair price shop dealer, dealing in an essential commodity.
Even if he is not a fair price shop dealer, he may still deal in an essential commodity in a manner prejudicial to
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the maintenance of the supplies of commodities essential to the community, in which case, he can be detained.
Even when a fair price shop dealer surrenders his licence or when it is cancelled, in view of his past conduct
and antecedent, if he is likely to indulge in a manner prejudicial to the maintenance of supplies of commodities
essential to the community, he could be detained.40.
It was held in Bankatlal’s case, that supplies mean the supply of essential commodities or food stuffs in a
wholesome form. It does not mean the supply of their adulterated substitute. Engagement in the process of
adulteration of foodstuffs meant for sale is an activity highly prejudicial to the maintenance of supplies and
services essential to the community, more so, when it is done in an organised manner and on a large scale. It
was further observed that every petty or ordinary act of adulteration of foodstuffs will not justify preventive
action. It is only adulteration carried on “habitually” or in a big way that throws off gear, the even tempo of life.
The power of detention must be exercised taking into consideration, the nature and process of the activity, its
magnitude, its impact on the public generally and the incidence of the evil in the locality or in the State generally
are some of the relevant factors in arriving at the subjective satisfaction.
In Jagadish Lal’s case (supra) it was observed that an essential commodity is at once a supply and a service.
The touchstone of social control is that it must be a thing essential for the existence of the community; when
crystallized, it is supplies, when sublimated, it is services. Illicit transport of food grains in the still secrecy of
night, by one whose business licence does not permit it and who gives false excuses when confronted, does
indulge in an activity with an impact on the supplies and services. Supplies and stocks, if hijacked by
wholesalers, upset the delicate control system. So also, transport and delivery to each centre according to the
requirement is thrown out of gear by these private operations.41.
When an essential commodity is stocked secretly and the dealer refuses to sell the same to customers, it
amounts to “hoarding”, i.e., to amass and deposit in secret. The same is also not displayed at the shop. This
would create scarcity of the commodities in the market and vitally affect the maintenance of services and
supplies essential to the community (match boxes and soap).42.
Theft of batteries from an empty rake in railway goods yard, would prejudicially affect the smooth and
systematic running of trains. Batteries are essential equipment and the mere fact that at the time of theft, the
rake lay stabled and was not in motion, does not mean that the theft of this essential equipment will not
prejudicially affect the normal running of trains.43.
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Similarly, theft of electric copper, which is likely to affect or disturb the electric supply,44. black-marketing,45.
theft of telephone cable,46. are all activities relevant to the maintenance of supplies and services and
preventive detention orders were held to be valid. In Amanullah Khan Pathan v State of Gujarat,47. the
activities by way of trying to extract money from ordinary citizens by putting them to fear of death and on their
refusal to part with their money, to drag them and torture them on public roads, undoubtedly, affected the even
tempo of life of the society and, therefore, such activities cannot be said to be a mere disturbance of law and
order. These activities were such that the detaining authority was satisfied that such activities amount to
disturbance of public order and to prevent such disturbance, the order of detention was passed.
Where detenu’s thirty years of criminal record of continuously indulging in similar type of activities like
damaging public property, provoking the public, extortion, possessing illegal weapon, committing murders,
attempting to commit murder, rioting, dacoity, etc. and whenever he was released on bail, he continued to
pursue such activities, the subjective satisfaction of the detaining authority that, because of his habituality in
committing crimes and violating public order and being not amenable and controllable by normal procedure,
was held as affecting the public order, and his detention was upheld.48.
3. Where the contention is that, any of the grounds of detention is irrelevant or vague, the grounds must be
read as a whole to see whether, they are relevant or not. If the relevancy appears upon a reading of all the
grounds together, the detention order would not be vitiated.49.
4. But where the ground communicated was maintenance of “public order”, the order could not be supported on
the ground that the activities alleged were prejudicial to “law and order”, which had a wider and distinct
connotation.50. The distinction between a breach of “law and order” and a disturbance of “public order” is,
however, one of degree and the extent of its effect on the community; it amounts to a disturbance of “public
order” if it affects the even tempo of the life of the community in the locality.51.
5. Where, the order refers to one ground of detention (say, public order) and the facts stated appear to be
irrelevant to that ground, the order cannot be allowed to be supported by another ground (say, maintenance of
supplies and services essential to the community).52.
[Art. 22.15.11] Instances of relevant grounds
A. Grounds Relevant to
(i) Theft of overhead electric wires53. of Telegraph54. or Maintenance of essential supplies and services.
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Railway,55. or breaking wagons for robbery, even on a single

occasion;55 or of batteries from a Railway yard.56.
(ii) Removing fish plates from a running track, even on a single Do

occasion.57.
(iii) Smuggling of paddy from one district to another at Do

night.58.
(iv) Food adulteration activity of an organised kind,59. or Do
carried on habitually.60.
(v) Blackmarketing in truck tyres in bulk.60 Do
(vi) Failure to display the stock and concealing essential Do

commodities, by a shopkeeper.61.
(vii) Assault by one community upon a member of another Maintenance of public order.
community, in time of communal tension,62. even though the
attack may be against a single individual and the person
attacked may be a personal enemy.63.
(viii) Attacking a Police-party on a railway platform, with arms Maintenance of public order.
and explosives.64.
(ix) Attacking passengers in a running train with open knives.64 Do
(x) A serious dacoity at dead of night with the indiscriminate Do

use of lethal weapons.65.
(xi) Chasing a woman in public street, with drawn knife Do

causing panic to women in the public street.66.
(xii) A striking worker stabbing a blackleg during bitter strike, Do

spreading terror.66
(xiii) Insulting or multilating, in the public view, the National Do

Flag or any other object of public veneration,67.e.g., the
statute of Mahatma Gandhi or poet Tagore.68.
(xiv) Forming a violent mob outside the walls of a workshop Do

and pelting brickbats in order to terrorise the workers as well
as the local people.69.
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(xv) Committing robbery at point of dagger, on a public road, Do

on two occasions causing panic to the local people.70.
(xvi) Hurling bombs, brickbats, etc., while clashing with a rival Do

group,71. or an armed mob terrorising inhabitants of a village
to kill members of a resistance group;72. or to extort grocery
from a shop.73.
B. Grounds Not relevant to
(i) Solitary instances of theft74. or looting75. or dacoity76. Maintenance of public order.
unless attended by violence,77. and creating panic in the

locality.78.
(ii) A solitary instance of dacoity for theft of money in a third Maintenance of public order.
class compartment of a running train.79.
But it may be relevant if it is organised and attended with
outrageous violence,80. or at night with threat of violence.81.
(iii) An assault, in ordinary times, by one individual upon Do

another82. whether it is a woman, a neighbour or a
pedestrian.83.
(iv) Smuggling activity.84. Do
(v) That the detenu asked his audience “to rise in revolt Do
against oppression” by the Government, without suggesting
that the revolt was to be attended with any violent activity.85.
(vi) Activities of “Bootlegger” not shown to adversely affect Do

maintenance of public order.86.
(vii) Storing a huge quantity of diesel oil pending the clearing It constitutes a technical offence but does not disrupt the
of the Petitioner’s licence.87. maintenance of the essential supplies to the community of this
commodity.88.
(viii) Failure to display the stock position and price on a day Maintenance of essential supplies.
when the shop was closed.89.
[Art. 22.15.12] Non-existence of ground
Since, the satisfaction of the authority is a condition precedent for making an order of detention, the order would
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be struck down as mala fide or ultra vires if a ground which is mentioned in the order was not in existence when
the order was made,90.e.g., where the ground was the non-mention of the names and addresses of the
purchaser of diesel oil in cash memos but the relevant Control Order, as it stood on the date of the order of
detention, did not require the mention of such particulars;91. where the allegation was that the Petitioner did not
display the price lists, but the relevant Control Order did not require that there should be such display even on a
day when the shop was closed;91 or where the names of persons with whom the Petitioner made the alleged
transactions, were fictitious.92.
[Art. 22.15.13] When one of several grounds is irrelevant, non-existent or vague
1. The constitutional requirement of Clause (5) must be satisfied in respect of each one of the grounds
communicated to the detenu, subject, of course, to the claim of privilege under Clause (6).1.
2. Thus, if any of the grounds or reasons that led to the satisfaction be irrelevant, or non-existent,2. or vague,3.
the detention would be invalid, even if there are other relevant grounds, because it can never be certain as to
what extent the bad reasons operated upon the authority or whether the detention order would have been made
at all if only one or two good reasons had been before them.4. In Mohd. Yusuf Rather v State of J&K,5. it was
observed that under Article 22(5), the detenu has two rights – (a) to be informed as soon as may be, of the
grounds on which his detention is based; (b) to be afforded the earliest opportunity of making a representation
against his detention. In Pebam Ningol Mikoi Devi v State of Manipur,6. the court, after relying on the above
rights as stated in Mohd. Yusuf Rather’s case, said: “The inclusion of an irrelevant or non-existent ground
among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague
ground among other clear and definite grounds is an infringement of the second right. No distinction can be
made between introductory facts, background facts and ‘grounds’ as such; if the actual allegations were vague
and irrelevant, detention would be rendered invalid.” If one of the grounds or reasons, which led to the
subjective satisfaction of the detaining authority under the National Security Act, is non-existent or
misconceived or irrelevant, the order of detention would be invalid.
In Shibbon Lal v State of U.P.,7. out of the two grounds, one was admitted to be unsubstantiated or non-
existent. The question was whether, the order could be allowed to stand in such circumstances. It was
observed: “To say that the other ground which still remains, is quite sufficient to sustain the order, would be to
substitute an objective judicial test for the subjective decision of the executive authority which is against the
legislative policy underlying the statute. In such a case, we think, the position would be the same as if one of
these two grounds are irrelevant for the purpose of the Act or was totally illusory and this would vitiate the
detention order as a whole.”8. If equivocal language is used and the detenu is not told whether his alleged
activities set out in the grounds of detention fall under one head or the other or both, it would be difficult for him
to make an adequate representation against the order of detention.9. In view of the decision of the Supreme
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Court in Kishori Mohan v State of WB,10. and Akshoy Konai v State of WB,11. there can be no doubt, that, if
the order of detention purports to be based on the satisfaction of the detaining authority that it is necessary to
detain the detenu with a view to preventing him from acting in a manner prejudicial to the maintenance of public
order or security of State, it would clearly be an invalid order. The satisfaction of the detaining authority in such
a case would be on the disjunctive and conjunctive grounds that would mean that the detaining authority was
not certain whether, it had reached its subjective satisfaction as to the necessity of exercising the power of
detention on the ground of danger to “public order” or danger to the security of State; where the disjunctive “or”
is used instead of conjunctive “and”, it would mean that detaining authority was either not certain whether the
alleged activities of the detenu endangered “public order” or security of the State or did not seriously apply its
mind to the question whether, such activities fell under one head or the other and merely reproduced
mechanically the language of section 3(1)(a)(ii) of the Act. When such equivocal language is used and the
detenu is not told whether the alleged activities set out in the grounds of detention fell under one head or the
other or both, it would be difficult for him to make an adequate representation against the order of detention.12.
But all the above decisions may not be relevant after the decision in Pushpadevi M. Jatia v M.L. Wadhawan,13.
a decision, rendered after amendment to COFEPOSA by incorporation of Section 5A to the Act with effect from
July 1, 1975. The controversy whether, any of the grounds of all the grounds mentioned in the grounds of
detention, was found to be vague, non-existent, not relevant, not connected, irrational or invalid for any of the
reasons, the detention order will be sustained or not was set at rest by the introduction of the above provision.
The section has now made the ground severable and the “the Government or officer making the order of
detention shall be deemed to have made the order of detention under the said sub-section (1) after being
satisfied as provided in the sub-section, with reference to the remaining ground or grounds. Similar amendment
is also incorporated in the National Security Act, 1980 (Section 5A). After the amendment to the National
Security Act in 1984, it was held that, if more than one ground is stated under the grounds mentioned, then the
fact that one of the grounds is bad, would not alter the order of detention provided, the other grounds are
valid.14. After the amendment, when a detention order was made on the basis of the second allegation of
smuggling, and one of these was found to be vague or not relevant, the detention was not held to be illegal.15.
The validity of the new provision has been upheld. It was observed that the first part of Section 5A of
COFEPOSA, creates only a legal fiction which the Parliament is competent to create and which does not go
against Article 22(5). Article 22(5) does not in terms or otherwise, prohibit the making of more than one order
simultaneously, against the same person on different grounds. The Parliament is competent to say by creating
a legal fiction that where an order of detention is made on more than one ground it must be deemed that there
are as many orders of detention as there are grounds. If this creation of legal fiction is competent, then, no
question of inconsistency between Section 5A and Article 22(5) can arise.16. Regarding the second part of the
new provision, it is only in the nature of clarification and explanation and hence, that provision is also valid.17.
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3. On this point, there is no distinction between “irrelevant and vague” grounds.18.
4. The above rule will not, however, apply where the rejected grounds are of a minor and unessential nature, so
that, it may be reasonably stated that they might not have affected the subjective satisfaction of the detaining
authority, or where the vagueness has been removed by a subsequent communication, in time, so as to satisfy
the requirement of “earliest opportunity”.19.
[Art. 22.15.14] Effect of supplying vague grounds
1. When the grounds supplied to the petitioner at the time of the order are so vague (apart from questions of
technical defects) as to prevent the detenu from making a representation, the constitutional right of the detenu
to make a representation at “the earliest opportunity [Article 22(5)] is infringed, and this renders the detention
order void ab initio.20. There is an obligation on the part of the Government to furnish grounds on which the
order of detention is based. This constitutional obligation is not discharged if the grounds which are
communicated to the detenu are vague. A ground will be vague when it does not enable the detenu to make an
effective representation against the order of detention. The question whether, the grounds furnished are vague
or not, is ultimately a question that has to be determined on a consideration of the circumstances of each case.
In State of Bombay v Atma Ram Shridhar Vaidya,21. the court said: “The contention that the grounds are vague
requires some clarification... If the ground which is supplied is incapable of being understood or defined with
sufficient certainty, it can be called vague. It is not possible to state affirmatively more on the question of what is
vague. It must vary according to the circumstances of each case... If, on reading the ground furnished, it is
capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained
person to make a representation against the order of detention, it cannot be called vague”. The conditional right
of the detenu would be infringed if he is not supplied with reasonably definite grounds.22. In Atma Ram’s
case,23. the court also said: “A detenu is entitled in addition to the right to have grounds of his detention
communicated to him, to a further right to have particulars “as full and adequate as the circumstances permit”,
furnished to him so as to enable him to make a representation against the order of detention. The sufficiency of
the particulars is a justiciable issue, the test being whether, it is sufficient to enable a detained person to make
a representation which on being considered, may give relief to the detained person. This constitutional
obligation must be satisfied with respect to each of the grounds communicated to the person detained, subject
of course, to a claim of privilege under Article 22(6).
The court would look with disfavour upon a vague ground of detention because such grounds fail to convey to
the detenu the precise activity on account of which he is being detained. The detenu is thus, prevented from
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making an effective representation which he might possibly have made, if he had been apprised to the
objectionable activity which led to his detention.24.
A layman, who is not experienced in the interpretation of documents, can hardly be expected, without legal aid
which is denied to him, to interpret the grounds in a proper sense. It is, therefore, upto the detaining authority to
make his meaning clear, beyond doubt, without leaving the person detained to his own resource for interpreting
them. Otherwise, such grounds would be regarded as vague so as to render it difficult, if not impossible for the
petitioner to adequate representation.25. In all the above cases it was held that, the detention order is vague
which denies the detenu to make an effective representation and hence, is violative of Article 22(5).
2. If a ground communicated to the detenu is vague, the fact that the detenu could have, but did not, ask for
further particulars, is immaterial for invalidating the order for contravention of Article 22(5),26. though, that fact
may be relevant for considering whether, the ground was really vague or not, where that was disputed.27.
3. In such a case, the power of the Supreme Court 26 or a High Court, to strike down the order on the ground of
vagueness, cannot be impaired by the fact that the representation of the petitioner was pending before the
Advisory Board, which might consider the petitioner’s contention as to the vagueness.28.
[Art. 22.15.15] Judicial Review or interference of pre-execution or pre-arrest stage
Regarding the scope of judicial review at pre-arrest or pre-execution challenge stage to the detention order, it
was held that courts have the necessary power which has to be used in proper cases namely: (1) Where the
courts are prima facie satisfied that, (a) the expunged order is not passed under the Act which is purported to
have been passed; (b) that it is sought to be executed against a wrong person; (c) that it is passed for a wrong
purpose; (d) that it is passed on vague, extraneous and irrelevant grounds; and (e) that the authority which had
passed it had no authority to do so, or any other contingencies which are of the same species which falls within
the above categories. Interference by court of laws at pre-execution or pre-arrest stage must be an exception
and not the rule.29.
The five circumstances specified in Govt. of India v Alka Subhash Gadia,30. are not exhaustive of the grounds
on which a pre-execution scrutiny of the legality of preventive detention can be undertaken. The grounds
specified in that case are not exhaustive.31.
Another limitation comes from the discretionary nature of the writ of mandamus e.g., where the delay in
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execution of the detention order on the ground of which the detenu sought to prevent its execution was known
to him, but he did not file a writ petition earlier, despite having an opportunity to do so.32.
[Art. 22.16] CLAUSE (6) [Art. 22.16.1] Clause (6): Discretion of authority not to disclose facts
1. While it is obligatory upon the authority to disclose all the grounds, the detaining authority has been given an
absolute discretion to withhold facts which would be against the public interest to disclose, according to the
opinion of such authority.33.
2. The court has no power34. to impose its opinion as to whether it is against the public interest or not, to
disclose any particular fact or facts. Once the authority refuses to disclose any fact or facts in the “public
interest”, the court shall have no power to declare that it was not against the “public interest” to disclose those
facts. The court can interfere, not on the ground that, what has been withheld should have been disclosed, but,
on the ground that, what has been stated is insufficient for making a representation.34 Under this sub-clause,
the authorities are permitted to withhold facts which they consider not desirable to be disclosed in public
interest. It was, therefore, argued that all other facts must be disclosed. The Supreme Court held in Atma
Ram’s case,35. that it was the necessary conclusion from the wordings of Article 22(6). It gives a right to the
detaining authority not to disclose such facts, but from that it does not follow that what is not stated or
considered to be withheld on that ground, must be disclosed and if not disclosed, there is a breach of a
fundamental right. Wide latitude is left to the authorities in the matter of disclosure. They are given special
privilege in respect of facts which are considered not desirable to be disclosed in public interest. As regards the
rest, their duty is to disclose facts, so as to give the detained person the earliest opportunity to make
representation against the order of detention.
In view of this clause, the District Magistrate may not disclose the intelligence report or the history-sheet.36.
On a reading of sub-clause (5) and sub-clause (6) of Article 22, the true position is that sub-clause (6) refers to
that limited class of facts which the detaining authority is not under an obligation to disclose and that limited
class of facts is that, which, in the opinion of the detaining authority, is against the public interest. As far as sub-
clause (6) is concerned, it is perfectly true that it is entirely for the detaining authority to decide whether a
discretion, vested in the detaining authority by sub-clause (6) may be challenged on the ground that the
discretion has been exercised arbitrarily, capriciously or mala fide, but if the discretion is properly exercised, it is
not for the court to sit in judgment on an opinion formed by the detaining authority that, certain facts are not in
the public interest to be disclosed. But, subject to that, it is incumbent upon the detaining authority under sub-
clause (5) to disclose all facts which would enable the detenu to make a representation against the order which
had been passed, depriving him of his liberty, and it would be for the court to determine whether, the facts
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disclosed are sufficient or not sufficient to give the detenu necessary opportunity to make the representation
under sub-clause (5).37.
Under sub-clause (6), the Government has the right not to disclose facts which it considers undesirable to
disclose in public interest.38. It does not permit the Government to refrain from disclosing grounds which fall
under Clause (5). It was stated that the grounds are based on the allegation and the facts are the evidence on
which the basis of allegations are to be established. In brief, “grounds” are based on and arise out of facts.39.
Clauses (5) and (6) are not mutually exclusive in the sense that when Clause (6) is invoked, Clause (5) ceases
to be applicable. When, therefore, the detaining authority withholds the material facts under Clause (6) and
communicates to the person detained, the grounds of detention, which in that case must necessarily be vague,
it would still be communicating to him the “grounds” on which the order has been made, and such
representation as the person may wish to make on the basis of that communication would still be a
representation within the meaning of Clause (5). This shows that no precise connotation can be attributed to the
“grounds” and “representation” as used in Clause (5), for, in certain cases, atleast one can be vague and the
other, inadequate, from the detenu’s perspective and on a question of construction they need not be different in
other cases.40. The combined effect of Clauses (5) and (6) is to require the detaining authority to communicate
to the person affected only such particulars as that authority and not a court of law considers sufficient to
enable the said person to make a representation.
Clause (6) of Article 22 is the only exception to the constitutional mandate to disclosure under Clause (5). This
privilege can be claimed under detention laws.41.
When the State takes recourse to Clause (6) of Article 22, it has to prove that the authority concerned was
satisfied that it was not in the public interest to disclose facts upon which the grounds of detention were based.
What facts are against public interest are left to the satisfaction of the detaining authority. The authority has to
satisfy the court by swearing an affidavit that the decision to withhold facts, information, documents,
statements, etc. from the detenu was reached on proper application of mind and due consideration of relevant
facts and aspects of the matter.
If the exercise of privilege under Article 22(6) is challenged in a court of law as vitiated by factual or legal mala
fides, the bald assertion of detaining authority that it was not in the public interest to disclose the relevant
documents, materials and particulars would not conclude the issue. A mere ipse dixit of the detaining authority
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to that effect, will not preclude the examination of the challenge. A general unspecific and bald statement of
public interest is not what the Constitution or the law requires. The court will have to be satisfied in such a case
by an affidavit affirmed by the detaining authority itself that the decision to withhold from the detenu the material
documents, statements, materials and particulars was bona fide and rationally reached by the detaining
authority after proper application of mind to each matter and after considering all relevant aspects. Although,
the question of public interest is not justiciable and although, the Constitution and the Act have left it to the
detaining authority to decide what materials and particulars should be withheld, the court must atleast be
satisfied that the authority has applied its mind and has come to the conclusion with regard to public interest
bona fide and not arbitrarily or capriciously.42.
Once the affidavit of the detaining authority discloses the grounds and reasons which weighed with it in
withholding the documents, statements, materials and particulars, it would be the duty of the court to examine
whether, the grounds and reasons have any rational connection with the public interest or whether, the
detaining authority could have been reasonably satisfied on that basis that the disclosure was not in the public
interest. It would be open to the court, if it considers necessary, to itself peruse or scrutinise the documents,
statements, materials and particulars withheld in order to judge whether, the materials belong to a class which
requires to be withheld in the national interest or whether, it has rational connection with the public interest.43.
The Allahabad High Court has also held that in such a case, the court has the power to impose its opinion as to
whether, it is against the public interest or not to disclose any particular fact or facts but, it must be shown prima
facie that such disclosure has been refused in public interest.44.
Whenever, privilege is claimed under Article 22(6), that claim must be made in the grounds of detention
enabling the detenu to know that on account of claim of privilege, he is not being supplied copies of statements
of witnesses nor is being supplied the names and addresses of confidential witnesses. It is not the choice of
detaining authority to supplement this vital defect in the grounds of detention at a later stage by filing a counter-
affidavit.45.
There is nothing wrong in the detaining authority placing before the Advisory Board, the facts not supplied to
the detenu in the public interest.46.Section 8(2) of the National Security Act also enables the authority not to
disclose the facts which it considers to be against public interest. This is in accordance with the Article.47. In
such cases the court cannot interfere. But interference can be made on the ground that what has been stated is
insufficient for making a representation or that the authority has failed to apply his mind to whether, the supply
of such facts would be prejudicial to the public interest, in which case, the order would be treated as
arbitrary.48.
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3. Nor should it be supposed that since Clause (6) permits the withholding of facts which are considered not
desirable to be disclosed in the public interest,—the authorities are bound to disclose all other facts, save those
which are so withheld under Clause (6). As has been already explained, the sole test for determining the
sufficiency of the facts disclosed is the sufficiency for giving an opportunity to make representation.49.
4. While it is correct to say that the decision that further particulars cannot be furnished to the detenu without
prejudice to the public interest must be taken by the detaining authority at the time when the grounds are
furnished, there is no obligation on his part to communicate to the detenu that such a decision has been taken,
unless the detenu, feeling the grounds to be vague, asks for further particulars.50.
The National Security Act does not envisage communication of exceptional circumstances and the reason
recorded for non-supply of grounds, that ground of non-communication or the non-supply by itself is not
sufficient to hold the detention order as bad.51. It was held that unless the exceptional circumstances and
reasons for non-supply of grounds of detention and documents in support thereof communicated to the detenu
or by necessary implication, the valuable right of the detenu to make a representation under Article 22(5) is
breached.
[Art. 22.17] CLAUSE (7) [Art. 22.17.1] Clause (7): Power of Parliament
1. In exercise of the power conferred by the present clause, the Parliament enacted the Preventive Detention
Act, 1950, and, on its expiry,—the Maintenance of Internal Security Act, 1971;52. At present the National
Security Act, 1980, and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974.
[Art. 22.17.2] Clauses (4) and (7)
1. These two clauses, read together, lead to the following conclusions:53.
(i) That ordinary detention provided by a law of preventive detention (whether made by a State
Legislature or by Parliament) should not be for a period longer than three months;
(ii) that if, however, such a law does provide for a longer period than three months, it must provide for the
intercession of an advisory body;
(iii) that situations may arise when, in certain classes of cases, the Parliament alone should be empowered
to enact a law which provides for a longer detention, even without the intercession of an advisory
board.
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(iv) In other words, the two clauses envisage three distinct situations—(a) where the activities and the
persons likely to perpetrate them, though connected with the subjects enumerated in the relevant
Legislative Lists, are of such a nature that three months’ detention would meet the situation; (b) where
they are of such a nature that they need a longer period of detention but with the intercession of an
advisory board; and (c) where they are of such a nature and the situations they create are such as
require not only a longer period of detention, but also the dispensation of intercession by an advisory
body. Such situations of the third class may arise not only in cases involving security of the nation but
may arise in connection with the rest of the subjects, such as maintenance of essential supplies and
services or public order.
(v) Clause (7)(a), read with Clause (4)(b), constitutes an exception to the rule in Clause (4)(a). Hence,
Clause (7)(a) has to be strictly construed.54.
Under Clause (7), the Parliament has been empowered to fix the maximum period of detention and
such duty cannot be further delegated.55.
Article 22(7) does not confer any fundamental right, but restricts to a certain degree the provision
under Article 22(4)(a). However, the law under which a person has been detained can be amended
even retrospectively. When the amending Act provides an overall maximum limit, it satisfies the
requirements of Article 22(4)(a) and Article 22(7).56.
In State of WB v Ashok Dey,57. it was argued that since, Clause (7) authorises only the Parliament
to make a law for preventive detention for a period longer than three months, a State Legislature is
not authorised to make a law in this regard. The court held that since, preventive detention is a
subject in the Concurrent List, a State Legislature is also competent to make a law subject to such
limitation as has been specified under Article 22. If a State Legislature was intended by the
Constitution to function under limitation in respect of the period of detention, one would have
expected to find such a limitation expressly stated in Article 22. The only limitation imposed by
Clause (4) of Article 22 is that no law providing for preventive detention should authorise such
detention for over three months without requiring confirmation by the Advisory Board. The only
exception to this limitation is provided in clause (7) which authorises the Parliament to make a law
in this regard without obtaining the opinion of Advisory Board. However, clause (7) does not
prohibit a State legislature from making a law providing for preventive detention for a longer period
than three months when there is a provision for securing opinion of an Advisory Board as required
by clause (4). It is only if Parliament fixes the maximum period under Article 22(7)(b) that the power
of State Legislature is curtailed to that extent.
In Fagu Shaw v State of WB,58. the question was, whether the Parliament is bound to prescribe
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the maximum period under Article 22(7)(b) in order that the proviso to Article 22(4)(a) might
operate. It was held that as the Parliament and the State legislature have the power under Entry 3
of List III in Schedule VII of the Constitution to pass a law enabling the detention of a person for a
period longer than three months, in case the law provides for the opinion of the Advisory Board,
there could be no limit to that period, reasonableness apart. The proviso in Article 22(4)(a) merely
enables the Parliament to put a curb on that power by prescribing the maximum period of detention
under Article 22(7)(b). The proviso does not “proprio vigore” compel the Parliament to fix the
maximum period.
The “maximum period” may be prescribed in terms of years, months or days or in terms of the
occurrence of an event or the continuance of a state of affairs. Therefore, the fixation of the
duration of the maximum period of detention with reference to an event like the cessation of the
period of emergency is not improper.59.
The requirement of an Advisory Board can be dispensed with in two cases – (1) When the
detention is not to exceed the period of three months, and (2) under clause (4)(b) read with clause
(7) (a) and (b) of Article 22. The Constitution evidently does not contemplate of a person for the
period of three months or less as sufficiently serious to have the safeguard of a report by the
Advisory Board to the effect that there is sufficient cause for detention.60.
[Art. 22.17.3] Clause (7)(a): “Circumstances ... and the class or classes of cases”
1. The conjunction “and” in this expression, is to be read as conjunctive and not disjunctive (as was held in
Gopalan’s case).61.
2. In the result, a law under Clause (7)(a) shall be invalid unless, it specifies both the “circumstances” and the
“class of cases” in which detention beyond three months without intervention of an Advisory Board would be
permissible.61
3. “Circumstances” would ordinarily mean situations or events extraneous to the activities of the person or
persons concerned, such as riots, disorders, tensions, commotions, which might by their pre-existence
accentuate the impact of the activities affecting the security of the country or public order and the like. “Class or
classes of cases”, on the other hand, relate to a group or groups of individuals, who, by the nature of their
activities, fall under one particular group or groups by their common or similar objective or objectives.61
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4. The subjects set out in the legislative entries merely delineate the bounds within which the respective
Legislatures can pass the detention laws. The object of Clause (7)(a) is different, namely, to distinguish the
ordinary from the exceptional, to which only the salutary safeguard provided by Clause (4)(a) would not apply.
Hence, the requirements of Clause (7)(a) would not be satisfied by a mere repetition of the subject or topic of
legislation from the Entries in the Legislative Lists.61
[Art. 22.17.4] Clause (7)(b): “Maximum period”
1. There has been a serious controversy as to whether this expression means that where the detention is
intended to exceed three months, (i) the Parliament must fix a definite period reckoned in terms of years,
months or days, on the expiry of which the detention must terminate; or (ii) it was competent for the Parliament
to specify the duration with reference to an event or the continuance of a state of affairs, e.g., the duration of a
Proclamation of Emergency,61 or, until the expiry of the D.I. Act.62. By a majority of 3 : 2 in Fagu Shaw’s
case,63. the Supreme Court held that the second alternative was also permissible under Article 22(7)(b).
2. It has also been held 63 that it is not obligatory for the Parliament to make a law under Clause (7)(b) in order
that the proviso to Clause 4(a) might operate; and that it would be competent for the Parliament to make laws,
changing the maximum period fixed by any previous law.
In State of W.B. v Ashok Dey,64. it was held that Article 22(7) on its plain reading merely authorizes or enables
the Parliament to make law prescribing;
(i) the circumstances under which a person may be detained for a period longer than three months;
(ii) the maximum period for which a person may in any class or classes of case, be detained under any law
providing for preventive detention; and
(iii) the procedure to be followed by the Advisory Board in any enquiry under Clause (4) of the Article.
Section 10 of the COFEPOSA Act provides that the maximum period for which any person may be detained in
pursuance of an order of detention shall be a period of one year or two years, as the case may be, from the
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date of detention or the specific period. The Constitution looks upon the preventive detention with disfavour and
has permitted it only for a limited period of three months without intervention of the Advisory Board. The fact
that the report of the Advisory Board has to be obtained before the expiry of three months from the date of
detention shows that the maximum period within which the detaining authority can on its own satisfaction detain
a person is three months. If such detention is to continue thereafter, it can only be when there is a report of the
Board, certifying the sufficiency of the cause of detention. In Poonam Lata v M.L. Wadhawan,65. the court
observed: “The key to the interpretation of Section10 is in the words “may be detained”. The subsequent words
“from the date of detention” which follow the words “maximum period of one year” merely define the starting
point from which the maximum period of detention of one year is to be reckoned in a case not falling under
Section 9. There is no justifiable reason why the word “detain” should not receive its plain and natural meaning
… The purpose and object of Section 10 is to prescribe a maximum period for which a person against whom a
detention order under the Act is made may be held in actual custody pursuant to the said order.” Section 13 of
the National Security Act 1980, section 11 of the Narcotic Drugs and Psychotropic Substances Act 1985,
section 13 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,
1980 also provide for maximum period of detention.
Clause (7) does not prohibit the State Legislature from making a law, either providing for preventive detention
for a longer period of three months when there is a provision for securing the opinion of an Advisory Board or
prescribing a procedure to be followed by the Advisory Board. The provision has been held to be merely
permissive and it does not oblige the Parliament to prescribe any maximum period of detention. It was also held
that it is not necessary for the Parliament to fix the maximum period for detention in terms of years, months or
days. It is valid to fix such period in terms of any specific event, for example until the expiry of the emergency
under Article 352 of the Constitution.
See also Sunil Fulchand Shah v UOI.66.Section 10 of COFEPOSA prescribes the maximum period of
detention. It was held that the period of detention has to be computed from the date of actual detention and not
from the date of order of detention and the same has to be computed by including the period during which the
detenu was released on parole under the terms of grant of parole prescribed otherwise.
[Art. 22.17.5] Suspension of the safeguards in Article 22 in Emergency and effects thereof
1. In view of the suspension of Article 22 by the President’s Order under Article 359(1), dated 27 June 1975,67.
during the operation of the Proclamation of Emergency under Article 352, an order of detention under the
Maintenance or Internal Security Act could not be challenged on the ground of contravention of any of the
provisions of Article 22 (or Article 14 or 21, which were also suspended by the same Orders), or Article 19
which remains unenforceable under Article 358, and also Article 359 (since 8 January 1976,),68. even though
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the statute has reiterated the grounds specified in Article 22, e.g., the right to be communicated the grounds,67
or to make representation,69. or on the ground of any defects in the grounds of detention.69
2. It was, however, held in a number of Supreme Court decisions that, notwithstanding the suspension of
Articles 14, 19 and 21-22 by an Order under Article 359, the detenu remained free to rely on grounds
outside70.Articles 14, 19, 21 or 22, under Article 32 or 226, in habeas corpus application (as long as Articles 32
and 226 are not specifically suspended), e.g.—
(i) That the order of detention is mala fide71. or has been passed without application of the mind;
(ii) That any of the grounds given in the order is irrelevant and that there is no real and proximate
connection between the ground given and the object which the Legislature had in view;71
(iii) That the order of detention is ultra vires, i.e., in contravention of any mandatory provision of the statute
authorising the detention,72. but not so, if to enforce such provisions would be substantially to enforce
the provisions of the Constitution which have been suspended under Articles 358 and 359;73.
(iv) That the authority who passed the order of detention was not competent under the statute (even
though Article 21 has been suspended)74. or that he exercised the power for some purpose not
sanctioned by the statute,75. or inconsistently with the conditions laid down therein;76.
(v) That the Act or the Rules made thereunder, suffer from the vice of excessive delegation;76 although,
the Presidential Order 1962 did not suspend Article 32 and petitioner’s right to enforcement of
fundamental right under Articles 21 and 22 would remain suspended during the period of emergency,
the detenu could not challenge the impugned enactment on the ground that it contravened Articles 14,
21 and 22.77. Once Article 22(5) is suspended, there is no question of furnishing grounds. The clear
intendment of the Presidential Order is that the validity of any action cannot be tested on the ground
that Articles 14, 21 and 22 have been violated.78.
(vi) That the Act or the Rules is or are ultra vires, i.e., lacks or lack legislative competence.79.
But the foregoing view80. is wiped off by the Supreme Court in the later decision in A.D.M.,
Jabalpur v Shivakant Shukla,81. holding that when Article 21 is suspended, the locus standi of a
detenu to move any court for habeas corpus to obtain his release is taken away, so that he cannot
press any ground whatsoever, whether, founded on Articles 21-22 or otherwise, including even
mala fides. It was held therein, that the Presidential Order passed under Article 359 will completely
bar any detenu from approaching the Supreme Court under Article 32 or the High Court under
Article 226. It was held that although the Presidential Order declaring emergency in 1975, like the
earlier order passed in 1962, did not suspend the general power of the Supreme Court under
Article 32 or the High Court under Article 226, the effect of taking away the right of the detenu to
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personal freedom affects his very locus standi to file a writ of habeas corpus. JUSTICE
CHANDRACHUD said that the Presidential Order would bar any investigation whether the
detention order is vitiated by mala fides, extraneous consideration or lack of subjective satisfaction.
CHIEF JUSTICE RAY rebuked the counsel who argued the possibility of the life of a person being
taken away during the emergency with no redress or remedy available. The learned Judge
remarked: “There is no record of any life of an individual being taken away either in our country
during the emergency or in England or America during emergency in their countries. It can never
be reasonably assumed that such a thing will happen. … People who have faith in themselves and
in their country will not paint pictures of diabolic distortion and mendacious malingment of the
governance of the country”. Commenting on the above judgment, the learned author82. has said
thus: “However in Shivakant Shukla’s case, the attitude of Supreme Court underwent a complete
change and the court laid down that a detention order cannot be challenged on any ground during
the period of emergency. This was the most unfortunate judgment and even one of the Judges
who was a party to the majority judgment who later became the Chief Justice of India regretted the
decision”.
3. The foregoing view in Shukla’s case 81 has, however, been superseded by the amendment of Article 359(1)
by the Constitution (38th Amendment) Act, 1975 which has taken out the Articles 20 and 21 from the mischief
of Article 359. As a result, the Presidential Order cannot suspend the enforcement of the rights conferred by
Articles 20 and 21. Hence, even during the operation of a Proclamation of Emergency, the individual’s right to
move the Supreme Court or a High Court to challenge either a law or an executive order on the ground of
contravention of the rights guaranteed by Articles 20 and 21 [Clause (1)], shall survive.
In short, the Amendment takes away from the President, the power to bar proceedings for the enforcement of
Articles 20 and 21. No doubt is thus left that a proceeding for habeas corpus cannot be suspended by an Order
under Article 359(1).
But when a Presidential Order deprives a person of his right to move the court, when he is deprived of his
liberty under the Defence of India Act, a person detained under the Preventive Detention Act can always move
the court for expressing his right under Articles 21 and 22.83.
[Art. 22.17.6] Applicability to Jammu & Kashmir
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In its applicability to the State of Jammu & Kashmir, the following change is to be made in Clauses (4) and (7)
of this Article:
In place of “law made by Parliament”, substitute—
This means that in the State of Jammu & Kashmir, the Preventive Detention Act, 1950, made by the Parliament
was not applicable, but the Jammu & Kashmir Preventive Detention Act, 1964, made by the Legislature of that
State, later replaced by the Jammu & Kashmir Public Safety Act, 1978.
[Art. 22.17.7] The Preventive Detention Law of Jammu & Kashmir
The Constitution (Application to Jammu & Kashmir) Order, 1954, amended the Constitution of India in its
application to Jammu and Kashmir in the following respects:
(a) Entry 9 of List I of the 7th Sch. is omitted. The result is that Parliament shall have no power to legislate
with respect of preventive detention for reasons connected with Defence, Foreign Affairs or the
Security of India, in relation to Jammu and Kashmir, and laws made by Parliament under this Entry will
not extend to that State.
(b) The power conferred upon Parliament to legislate with respect to the matters enumerated in Article
22(7) will not extend to Jammu and Kashmir.
(c) The existing law of the State with respect to preventive detention shall continue to be in force until
repealed or amended by the Legislature of the State.
In short, the entire legislative power relating to preventive detention will belong to the Legislature of
the State of Jammu and Kashmir and Parliament shall have no power in relation to that State.
In pursuance of this power, the Legislature of Jammu and Kashmir enacted the Jammu and
Kashmir Preventive Detention Act, 2011, later replaced by the J&K Preventive Detention Act,
1954, and, thereafter, by the J&K Public Safety Act, 1978.
The provisions of this Act have been broadly interpreted as under the Central Acts, by the
Supreme Court, thus:
(d) In a habeas corpus proceeding brought by the detenu, the burden of justifying the detention is upon the
detaining authority.84.
Page 211 of 320
(e) The order will be invalid if it shows non-application of the mind of the detaining authority;84 or where it
is not based on any relevant material at all for the subjective satisfaction of the authority.85.
(f) Non-supply of relevant material to detenu depriving him of the right to make effective representation,
vitiates the order of detention.86.
1. By section 3 of the Constitution (44th Amendment) Act, 1978, clause (4) was substituted and sub-clause (a) of sub-
section (7) was omitted, and consequential changes made in sub-clauses (b) and (c). This amendment, however, has
not been brought into force as yet, notwithstanding the unfavourable comments of the Supreme Court in view of the
lapse of more than 2½ years since the passing of the amendment Act, in Roy v UOI, AIR 1982 SC 710 [LNIND 1981
SC 469] (paras 52, 113), 36, years having passed by now, these amendments [for text, see pp 518–19 of the 6th Edn
on Author’s Constitutional Law of India], must be taken to have been abandoned.
2. By the section 3 of Constitution (44th Amendment) Act, 1978, clause (4) was substituted and sub-clause (a) of sub-
section (7) was omitted, and consequential changes made in sub-clauses (b) and (c). This amendment, however, has
not been brought into force as yet, notwithstanding the unfavourable comments of the Supreme Court in view of the
lapse of more than 2½ years since the passing of the amendment Act, in Roy v UOI, AIR 1982 SC 710 [LNIND 1981
SC 469] (paras 52, 113), 36, 15 years having passed by now, these amendments [for text, see pp 575–76 of the 7th
Edn, the Appendix on Author’s Constitutional Law of India], must be taken to have been abandoned.
1. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950
SCJ 174 [LNIND 1950 SC 22] (Kania, C.J.).
: 1966 Cr LJ 311 .
3. Pankaj v State of W.B., AIR 1970 SC 97 [LNIND 1969 SC 204] (101) : (1970) 1 SCR 543 [LNIND 1969 SC 204] :
(1969) 3 SCC 400 [LNIND 1969 SC 204] ; Abdul Karim v State of W.B., AIR 1969 SC 1028 [LNIND 1969 SC 29]
(1032) : (1969) 3 SCR 479 [LNIND 1969 SC 29] : (1969) 1 SCC 433 [LNIND 1969 SC 29] .
4. State of Bombay v Atmaram, (1951) SCR 167 [LNIND 1951 SC 5] (189) : AIR 1951 SC 157 [LNIND 1951 SC 5] .
[LNIND 1978 SC 25] .
Page 212 of 320
6. Francis v UnionTerritory, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 2 SCR 516 [LNIND 1981 SC 27] : (1981) 1
SCC 608 [LNIND 1981 SC 27] (para 3).
7. Francis v UnionTerritory, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 2 SCR 516 [LNIND 1981 SC 27] : (1981) 1
SCC 608 [LNIND 1981 SC 27] (para 3); Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 8, 26, 29) (3 Judges).
8. Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 8, 26, 29) (3 Judges).
9. SeeA.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] .
11. A.K. Roy v UOI, AIR 1982 SC 739 : (1982) 1 SCC 271 [LNIND 1981 SC 469] ; see alsoFrancis Coralie Mullin v
Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND 1981 SC
27] : (1981) 1 SCR 516 .
2010 SC 926] .
13. Baby Devassy Chully v UOI, AIR 2013 SC 303 [LNIND 2012 SC 641] : (2013) 4 SCC 531 [LNIND 2012 SC 641] .
14. K. Nageswara Rao v Collector & Dt. Magistrate, (2012) 13 SCC 585 : (2012) 11 Scale 409 .
15. Rekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
16. Kochunni v State of Madras, AIR 1960 SC 1080 [LNIND 1960 SC 436] (1092) : (1960) 3 SCR 887 [LNIND 1960 SC
436] : (1961) 2 SCJ 443 [LNIND 1960 SC 436] .
17. Nand v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1982) 1 SCR 718 [LNIND 1981 SC 388] : (1981) 4
SCC 327 [LNIND 1981 SC 388] (para 8).
Page 213 of 320
18. SeeKhudiram Das v State of WB, AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC 386] .
19. Supra.
20. Makkan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 [LNIND 1963 SC 234] .
22. Addl. Secretary, Govt. of India v Alka Subhash Godia, 1992 (Supp-1) SCC 490 (supra).
23. Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 8, 26, 29) (3 Judges).
24. A.K Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22] (Kania
C.J.); Addl. Secy v Alka, 1992 Supp (1) SCC 496 (paras 8, 26, 29) (3 Judges).
25. Addl. Secy v Alka, 1992 Supp (1) SCC 496 (paras 8, 26, 29) (3 Judges); Kochunni v State of Madras, AIR 1960 SC
1080 [LNIND 1960 SC 436] (1092) : (1960) 3 SCR 887 [LNIND 1960 SC 436] : (1961) 2 SCJ 443 [LNIND 1960 SC
436] .
26. Johnson v Zerbst, (1938) 304 US 458.
27. Von Moltke v Giles, (1948) 332 US 708.
28. Glasser v U.S., (1942) 315 US 60.
29. Kochunni v State of Madras, AIR 1960 SC 1080 [LNIND 1960 SC 436] (1092) : (1960) 3 SCR 887 [LNIND 1960 SC
436] : (1961) 2 SCJ 443 [LNIND 1960 SC 436] .
30. Gideon v Wainwright, (1963) 372 US 335, overrulingBetts v Brady, (1942) 316 US 455.
31. (1972) 407 US 25.
32. (1967) 388 US 218.
33. Escobedo v Illinois, (1964) 387 US 478; Miranda v Arizona, (1966) 384 US 436.
34. United States v Wade, (1967) 388 US 218; Gilbert v California, (1963) 388 US 335.
36. Hamilton v Alabama, (1961) 368 US 52.

Page 214 of 320
38. Mempa v Rhay, (1967) 389 US 128.
39. Argersinger v Hamlin, (1972) 407 US 25 : 92 SCt 2006.
40. Duncan v Lousiana, (1968) 391 US 145.
41. Scott v Illinois, (1979) 440 US 367.
42. Shelton v Alabama, (2002) 535 US 654.
43. See also Craig R. Ducat, Constitutional Interpretation, 8th Edn, 2002, Chap. 8, Due Process Law — (B), The Right to
Counsel, p 514.
44. (1989) 491 US 617.
45. See alsoUnited States v Monsanto, (1989) 491 US 600.
46. (1985) 470 US 68.
47. Gibbs v Burke, (1949) 337 US 773.
49. Palko v Connecticut, (1937) 302 US 319.
50. Chandler v Fretag, (1954) 348 US 3 (9).
51. De Meerleer v Michigan, (1947) 329 US 663.
54. Glasser v U.S., (1942) 315 US 60.
55. Coplon v U.S., (1951) 191 F. 2d 749.
56. Avery v Alabama, (1940) 308 US 444; Hawk v Olson, (1945) 326 US 271.
57. Von Moltke v Giles, (1948) 332 US 708. See alsoFarctta v California, (1975) 422 US 806.
58. United States v Cromic, (1984) 466 US 648. See alsoStrickland v Washington, (1984) 466 US 668.
59. Burdine v Johnson, (2002) 122 Sup Ct 2347. See alsoEvitts v Lucey, (1985) 469 US 387.
Page 215 of 320
60. (1984) 466 US 648.
61. See alsoStrickland v Washington, (1984) 466 US 668 – where the duty of counsel has been explained, the counsel
said: “Counsel has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing
process”. See alsoEvitts v Lucey, (1985) 469 US 187; Nix v Whiteside, (1986) 475 US 157.
62. SeeStrickland v Washington, (1984) 466 US 668.
63. Bute v Illinois, (1948) 333 US 640.
64. Von Moltke v Giles, (1948) 332 US 708. See alsoFarctta v California, (1975) 422 US 806.
66. Spans v N.Y, (1958) 360 US 315 (325).
68. Massey v Moore, (1954) 348 US 105.
69. Moore v Michigan, (1957) 355 US 155 (161).
70. Spans v N.Y, (1958) 360 US 315 (325).
71. Center v Illinois, (1946) 329 US 173.
72. Rice v Olson, (1945) 324 US 728.
73. Crooker v California, (1957) 357 US 433.
74. Crooker v California, (1957) 357 US 433; Lisenba v California, (1941) 314 US 219; Gilbert v California, (1967) 388 US
263.
75. Escobedo v Illinois, 378 US 478 (supra); Miranda v Azrizona, (1966) 384 US 436.
76. United State v Wade, (1967) 388 US 218; Gilbert v California, (1967) 388 US 263.
77. Kirby v Illinois, (1972) 406 US 682.
78. Escobedo v Illinois, (1964) 378 US 478 : 84 S Ct 1758.
79. See alsoMiranda v Arizona, (1966) 384 US 436 : 16 L Ed 2d 694 : 86 S Ct 1602.
80. United States v Wade, (1967) 388 US 218; Gilbert v California, (1963) 388 US 335.
82. Mallory v U.S., (1957) 354 US 449.
84. Murray v Giarratano, (1989) 492 US 1.
85. Also read T.M. Cooley, Treatise on the Constitutional Limitation, “The Right to Counsel” pp 330–38, 1st Indian Reprint,
2005.
Page 216 of 320
86. Christie v Leachinsky, (1947) 1 All ER 567 (575) (HL); Lewis v Tims, (1952) AC 676 .
87. Christie v Leachinsky, (supra).
88. SeeEdwards v DPP, (1993) 97 Crl. Appeal Reports 301.
89. (1969) 2 QB 216 .
90. DPP v Hawkins, (1988) 1 WLR 1166 .
91. Gelberg v Milller, (1961) 1 WLR 153 .
92. See alsoJecius v Lithuvania, (2002) 35 EHRR 16 .
93. Christie v Leachinsky, (1947) 1 All ER 567 (575) (HL); Lewis v Tims, (1952) AC 676 .
94. R. v Home Secretary ex parte Hosenball, (1977) 3 All ER 452 .
95. (2004) 3 All ER 503 .
96. (1990) 1 All ER 1046 .
97. (1988) 1 AC 379 ; Halsbury’s Laws of England, 4th Edn, Vol 11, p 228.
98. In Re McC, (1985) AC 528 (HL).
1. Perotti v Collier Brigslow, (2004) 2 All ER 189 .
2. Steel and Morris v U.K., (2005) All ER 207 .
3. Murray v U.K., (1996) 22 EHRR 29 .
4. See also section 10(a) of the Canadian Charter.
5. Fox, Campbell and Hartley v UK, (1990) 13 EHRR 157 .
6. Brogan v UK, (1989) 11 EHRR 117 .
7. Hans Muller v Supdt, (1955) 1 SCR 1284 [LNIND 1955 SC 14] (1291) : AIR 1955 SC 367 [LNIND 1955 SC 14] : 1955
SCJ 324 [LNIND 1955 SC 14] .
8. Stanley v Georgia, (1969) 394 US 557. See alsoKhatri II v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] :
(1981) 1 SCC 627 [LNIND 1980 SC 473] .
9. See Edwin Shorts and Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, Sweet and Maxwell
Publication, 1998, p 40. See alsoAshok Hussain Allah Detha v Asst. Collector of Customs, (1990) Cr LJ 2204 (Bom).
10. Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 [LNIND 1993 SC 656] : (1994) 3 SCC 440 .
Page 217 of 320
11. Lord Denning, Due Process of Law, p 103.
12. Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 [LNIND 1993 SC 656] : 1994 Cr LJ 2269 : (1994) 3
SCC 440 (supra).
13. Ajaib Singh v State of Punjab, AIR 1952 P&H. 309 (FB).
14. UOI v Padam Narain Aggarwal, (2008) 13 SCC 305 [LNIND 2008 SC 1976] : (2008) 13 Scale 171 [LNIND 2008 SC
1976] : AIR 2009 SC 254 [LNIND 2008 SC 1976] .
15. V. Viswanathan v State of Kerala, 1971 Mad LJ (Criminal) 13; Jagannathan v State, (1983) LW (Crl) 250; Niranjan
Singh v Prabhakar, AIR 1980 SC 785 [LNIND 1980 SC 112] : (1980) 2 SCC 559 [LNIND 1980 SC 112] .
16. See A.W. Bradley & K.D. Ewing, Constitutional & Administrative Law, 13th Edn, pp 462–463.
17. See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn, p 536, Chapter 21, para 6.
18. See 1998 Cr LJ (Journal Section) p 93.
19. Stanley v Georgia, (1969) 394 US 557. See alsoKhatri II v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] :
(1981) 1 SCC 627 [LNIND 1980 SC 473] .
20. Hansmukh v State of Gujarat, AIR 1981 SC 28 [LNIND 1980 SC 312] : (1981) 2 SCC 175 [LNIND 1980 SC 312] .
21. State of MP v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 Cr LJ 1521 : 1966 (Supp) SCR 239.
22. Madhu Limaye, in re, AIR 1969 SC 1014 : (1969) 1 SCC 292 .
23. Hansraj v State of UP, AIR 1956 All 641 [LNIND 1956 ALL 102] .
24. State of MP v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 Cr LJ 1521 : 1966 (Supp) SCR 239.
25. Jose Poothrikkayil v UOI, (2009) (1) KLJ 381 .
26. Moti Bhai v State of Rajasthan, AIR 1954 Raj. 241 [LNIND 1954 RAJ 58] .
27. Nandini Satpathy v P.L. Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424 [LNIND 1978 SC 607] .
28. Saiyad Affail Hussain v State, AIR 1962 Raj. 216 [LNIND 1962 RAJ 224] : (1962) 2 Cr LJ 496 .
29. State of Karnataka v Siddha, (1975) Cr LJ 1159 ; Ranchod Mathur Wasawa v State of Gujarat, AIR 1974 SC 1143
30. State of MP v Sobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 Cr LJ 1521 : 1966 (Supp) SCR 239.
31. Mehmood Nayyar Azam v State of Chattisgarh, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND
2012 SC 456] .
32. Joginder Kumar v State of U.P., AIR 1994 SC 1349 [LNINDORD 1994 SC 51] : (1994) 4 SCC 260 [LNINDORD 1994
SC 51] .
33. The New Universe of Human Rights, “Human Rights in Prisons” by former Chief Justice J.S. Verma, p 134.
Page 218 of 320
2177] .
36. SeeMukesh Kumar v State, (1990) Cr LJ 1923 (Del).
37. Selvi v State of Karnataka, AIR 2010 SC 1974 [LNINDORD 2010 SC 207] : (2010) 7 SCC 263 [LNIND 2010 SC 438] .
38. A.S. Mohammed Rafi v State of Tamil Nadu, (2011) 1 SCC 688 [LNIND 2010 SC 1609] .
2012 SC 1215] .
40. See alsoMohd. Hussain v State (Govt. of NCT of Delhi), (2012) 9 SCC 408 [LNIND 2012 SC 14] : (2012) Cr LJ 4537 ;
Mohd. Sukur Ali v State of Assam, AIR 2011 SC 1222 [LNINDORD 2011 SC 143] : (2011) 4 SCC 729 [LNINDORD
2011 SC 143] ; A.S. Mohammed Rafi v State of Tamil Nadu, AIR 2011 SC 308 [LNIND 2010 SC 1609] : (2011) 1 SCC
688 [LNIND 2010 SC 1609] ; Rekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC
222 [LNIND 2011 SC 371] .
41. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 Cr LJ 1521 : 1966 (Supp) SCR 239.
42. Shri Jayendra Saraswathi Swamigal v State of T.N., (2005) 8 SCC 771 [LNIND 2005 SC 815] .
43. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 Cr LJ 1521 .
44. Ram Krishnan Bharadwaj v State of Delhi, AIR 1953 SC 318 [LNIND 1953 SC 49] : (1953) SCR 708 [LNIND 1953 SC
49] . Also see the article “Law of Arrest: Some Problems and Incongruities” by R.V. Kelkar (Reader, Faculty of Law,
University of Delhi), Journal of Indian Law Institute, Vol. 22 (1980), p 314. See alsoRam v State of Bihar, AIR 1975 SC
223 [LNIND 1974 SC 361] : (1975) 3 SCC 710 [LNIND 1974 SC 361] : (1975) 2 SCR 732 [LNIND 1974 SC 361] ;
Prabhu v Dt. Magistrate, AIR 1974 SC 183 [LNIND 1973 SC 304] : (1974) 1 SCC 103 [LNIND 1973 SC 304] ;
Bhanwarlal v State of TN, AIR 1979 SC 541 [LNIND 1978 SC 378] : (1979) 1 SCC 465 [LNIND 1978 SC 378] ; UOI v
Venkatesan, AIR 2002 SC 1890 [LNIND 2002 SC 310] : (2002) 5 SCC 285 [LNIND 2002 SC 310] .
45. State of Punjab v Ajaib Singh, (1953) 4 SCR 254 [LNIND 1952 SC 68] : AIR 1953 SC 10 [LNIND 1952 SC 68] : 1953
Cr LJ 180 : 1952 SCJ 664 [LNIND 1952 SC 68] ; Madhu Limaye, in re, AIR 1969 SC 1014 (1019) : (1969) 3 SCR 154 :
(1969) 1 SCC 292 .
46. State of Punjab v Ajaib Singh, (1953) SCR 254 [LNIND 1952 SC 68] : AIR 1953 SC 10 [LNIND 1952 SC 68] : 1953 Cr
LJ 180 : 1952 SCJ 664 [LNIND 1952 SC 68] .
Page 219 of 320
47. Jit Bahadur v State, AIR 1953 All 753 [LNIND 1953 ALL 133] .
48. Digambar v Nanda, AIR 1957 Ori. 281 [LNIND 1957 ORI 8] (284).
49. Purushotham Govindji Halai v B.M. Desai, AIR 1956 SC 20 [LNIND 1955 SC 79] : (1955) 2 SCR 887 [LNIND 1955 SC
79] .
50. State of Punjab v Ajaib Singh, (1953) SCR 254 [LNIND 1952 SC 68] (270) : AIR 1953 SC 10 [LNIND 1952 SC 68] :
1953 Cr LJ 180 : 1952 SCJ 664 [LNIND 1952 SC 68] . So stated, the proposition would be very broad, but the Court
guarded against being misunderstood by observing:
“It is not our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and
ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection.”
51. Collector of Malabar v Hajee, (1957) SCR 970 [LNIND 1957 SC 40] : AIR 1957 SC 688 [LNIND 1957 SC 40] : 1957 Cr
LJ 1030 : 1957 SCJ 640 [LNIND 1957 SC 40] ; Purshottam v Desai, (1955) 2 SCR 887 [LNIND 1955 SC 79] : AIR 1956
SC 20 [LNIND 1955 SC 79] : 1956 Cr LJ 129 : 1956 SCJ 75 [LNIND 1955 SC 79] .
52. Keshav Singh v Speaker, Legislative Assembly, AIR 1956 All 349 [LNIND 1955 ALL 262] .
53. Raj Bahadur v Legal Remembrancer, AIR 1953 Cal 522 [LNIND 1953 CAL 30] .
54. State of U.P. v Abdul Samad, AIR 1962 SC 1506 [LNIND 1962 SC 120] .
55. Madhu Limaye, in re, AIR 1969 SC 1014 (1019) : (1969) 3 SCR 154 : (1969) 1 SCC 292 .
56. Tarapae De v State of W.B., AIR 1951 SC 174 [LNIND 1951 SC 4] : (1951) SCR 212 [LNIND 1951 SC 4] .
57. Hansmukh v State of Gujarat, AIR 1981 SC 28 [LNIND 1980 SC 312] : (1981) 2 SCC 175 [LNIND 1980 SC 312] .
58. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 (Supp) SCR 239.
59. In re. Madhu Limaye, AIR 1969 SC 1014 : (1969) 1 SCC 292 .
60. Vimal v State of UP, AIR 1956 All 56 [LNIND 1955 ALL 100] ; Madhu Limaye v State of Punjab, AIR 1959 Pun 506 .
62. See alsoHitendra Vishnu Thakur v State of Maharashtra, AIR 1994 SC 2623 [LNIND 1994 SC 572] : (1994) 4 SCC
602 [LNIND 1994 SC 572] ; Uday Mohan Acharya v State of Maharashtra, AIR 2001 SC 1910 [LNIND 2001 SC 852] :
(2001) 5 SCC 453 [LNIND 2001 SC 852] .
Page 220 of 320
63. Sanjay Kumar Kedia v Narcotic Control Board, (2009) 17 SCC 631 [LNIND 2009 SC 1706] : (2010) Cr LJ 2054 ;
Hitendra Vishnu Thakur v State of Maharashtra, (supra).
64. Hans Muller v Supdt., (1955) 1 SCR 1284 [LNIND 1955 SC 14] (1291) : AIR 1955 SC 367 [LNIND 1955 SC 14] : 1955
SCJ 324 [LNIND 1955 SC 14] .
65. Collector of Malabar v Ebrahim, AIR 1957 SC 688 [LNIND 1957 SC 40] : (1957) SCR 970 [LNIND 1957 SC 40] .
66. State of Punjab v Ajaib Singh, (1953) SCR 254 [LNIND 1952 SC 68] : AIR 1953 SC 10 [LNIND 1952 SC 68] : 1953 Cr
LJ 180 : 1952 SCJ 664 [LNIND 1952 SC 68] .
67. Anwar v State of J & K, AIR 1971 SC 337 [LNIND 1970 SC 279] : (1971) 3 SCC 104 [LNIND 1970 SC 279] .
68. Abdul v State of W.B., AIR 1969 SC 1028 [LNIND 1969 SC 29] (1032, 1034) : (1969) 3 SCR 479 [LNIND 1969 SC 29]
: (1969) 1 SCC 433 [LNIND 1969 SC 29] .
69. Gunupati v Nafisul, AIR 1954 SC 636 [LNIND 1952 SC 155] : 1954 Cr LJ 1704 ; Ref. under Article 143, AIR 1965 SC
745 (766) : (1965) 1 SCR 413 .
70. Tarapada De v State of West Bengal, (1951) SCJ 233 [LNIND 1951 SC 5] : AIR 1951 SC 174 [LNIND 1951 SC 4] :
1951 SCR 212 [LNIND 1951 SC 4] .
71. Durga Pada Ghosh v State of WB, AIR 1972 SC 2420 : (1972) 2 SCC 656 . See alsoKeshav Nilakanth Joglekar v
Commissioner of Police, AIR 1957 SC 28 [LNIND 1956 SC 61] : (1956) SCR 653 ; Sophia Gulam Mohd. Bham v State
of Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC 693] : (1999) 6 SCC 593 [LNIND 1999 SC 693] : 1999 Cr LJ
4064 ; Solomon Castro v State of Kerala, (2000) 9 SCC 561 : (2000) 2 JT 287 .
72. In Re Madhu Limaye, AIR 1969 SC 1014 : (1969) 1 SCC 292 .
73. Justice Fazal Karim, Judicial Review of Public Actions, commenting on Article 10 of the Pakistan Constitution, which is
similarly worded, p 623.
75. Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] : (1952) SCR 756 [LNIND 1951 SC 13] .
76. Senthamil Selvi v State of Tamil Nadu, (2006) 5 SCC 676 [LNIND 2006 SC 445] : 2006 Cr LJ 4605 : (2006) 6 Scale
462 [LNIND 2006 SC 445] .
77. See Edwin Shorts & Claire de Than, Civil Liberties: Legal Principles of Individual Freedom, 1998 Edn, p 469.
78. Madhu Limaye, in re, AIR 1969 SC 1014 (1019) : (1969) 3 SCR 154 : (1969) 1 SCC 292 .
79. Christie v Leachinsky, (1947) AC 573 .
80. Madhu Limaye, in re, AIR 1969 SC 1014 : (1969) 1 SCC 292 .
81. Christie v Leachinsky, (1947) 1 All ELR 567.
82. Hem Lal Bhandari v State of Sikkim, AIR 1987 SC 762 [LNIND 1987 SC 103] : (1987) 2 SCC 9 [LNIND 1987 SC 103] .
83. Hem Lal Bhandari v State of Sikkim, AIR 1987 SC 762 [LNIND 1987 SC 103] : (1987) 2 SCC 9 [LNIND 1987 SC 103]
(supra).
Page 221 of 320
84. Tara Chand v State of Rajasthan, AIR 1980 SC 1361 [LNIND 1980 SC 67] : (1980) 2 SCC 321 [LNIND 1980 SC 67] .
85. State of Bombay v Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) SCR 167 [LNIND 1951 SC 5] .
86. Pritham Nath Hoon v UOI, AIR 1981 SC 92 [LNIND 1980 SC 376] : (1980) 4 SCC 525 [LNIND 1980 SC 376] : (1981)
1 SCR 682 [LNIND 1980 SC 376] .
87. Alok v State of W.B., AIR 1974 SC 889 : (1974) 4 SCC 599 ; Panna v State of W.B., AIR 1975 SC 863 : (1975) 4
SCC 56 . See alsoGurudev Singh v UOI, (2002) 1 SCC 545 [LNIND 2001 SC 2506] : AIR 2002 SC 10 [LNIND 2001 SC
2506] ; Chowdarapu Raghunandan v State of TN, (2002) 3 SCC 754 [LNIND 2002 SC 211] : AIR 2002 SC 1460
[LNIND 2002 SC 211] : 2002 Cr LJ 1836 ; V.C. Mohan v UOI, AIR 2002 SC 1205 [LNIND 2002 SC 160] ; State of Tamil
Nadu v Kadal Kani, (2002) 9 SCC 611 [LNINDORD 2000 SC 1] : AIR 2003 SC 4388 [LNINDORD 2000 SC 1] ; K.
Vardharaj v State of Tamil Nadu, AIR 2002 SC 2953 [LNIND 2002 SC 507] : (2002) 6 SCC 735 [LNIND 2002 SC 507] :
2002 Cr LJ 4089 .
88. Ram Narayan Singh v State of Delhi, AIR 1953 SC 277 [LNIND 1953 SC 28] .
89. Christie v Leachinsky, (1947) AC 573 .
90. See M.P. Jain, Indian Constitutional Law, 5th Edn, 2003, Vol I, p 1338.
91. Christie v Leachnisky, (1947) AC 573 (supra).
92. See also (1959) 2 Year Book of European Convention (YBEC) 412, where it was observed that information regarding
grounds of arrest need to be given only in general terms.
93. Nainmal v UOI, AIR 1980 SC 2129 : (1980) 4 SCC 427 : 1980 Cr LJ 1479 .
94. Shibban Lal v State of UP, AIR 1954 SC 179 [LNIND 1953 SC 110] : (1954) SCR 418 [LNIND 1979 SC 400] .
95. Devji v Administrator, AIR 1982 SC 1029 [LNIND 1982 SC 76] : (1982) 2 SCC 222 [LNIND 1982 SC 76] .
96. Motilal v State, AIR 1954 Raj. 241 [LNIND 1954 RAJ 58] .
97. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] (1917–18, 1921, 1922) : 1966 Supp SCR 239 :
1966 Cr LJ 1521 .
Page 222 of 320
1. Sukh Das v Union Territory of Arunachal Pradesh, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 [LNIND
1986 SC 60] ; M.H. Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 2 SCC 346 ;
Ram Sarup v UOI, AIR 1965 SC 247 [LNIND 1963 SC 293] : (1964) 5 SCR 931 [LNIND 1963 SC 293] .
2. Sessions Judge, Nellore v Intha Ramana Reddy, (1972) Supp SCR 239; State of Bombay v Atma Ram Sridhar Vaidya,
AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) SCR 167 [LNIND 1951 SC 5] .
3. Joginder Kumar v State of UP, AIR 1994 SC 1349 [LNINDORD 1994 SC 51] : (1994) 4 SCC 260 [LNINDORD 1994
SC 51] .
4. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] (1917–18, 1921, 1922) : 1966 Supp SCR 239 :
1966 Cr LJ 1521 .
5. State of M.P. v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] ; Ramaswarup v UOI, AIR 1965 SC 247 [LNIND
1963 SC 293] .
7. Gideon v Wainwright, (1963) 372 US 335.
8. See alsoDouglas v California, (1963) 372 US 353.
9. Kishore Chand v State of H.P., AIR 1990 SC 2140 [LNIND 1990 SC 468] : (1991) 1 SCC 286 [LNIND 1990 SC 468] .
See alsoRanchod Mathur Vasava v State of Gujarat, AIR 1974 SC 1143 [LNIND 1973 SC 309] : (1974) 3 SCC 581
[LNIND 1973 SC 309] .
10. Chaluvegowda v State, (2012) 13 SCC 538 : (2012) 4 Scale 382 ; see alsoMohd. Sukur Ali v State of Assam, (2011) 4
SCC 729 [LNINDORD 2011 SC 143] : AIR 2011 SC 1222 [LNINDORD 2011 SC 143] ; Mohd. Hussain v State (Govt. of
NCT of Delhi), (2012) 2 SCC 584 [LNIND 2012 SC 14] ; Powell v Alabama, (1932) 287 US 45; Gideon v Wainwright,
(1963) 372 US 335.
2012 SC 1215] .
12. Mohd. Sukur Ali v State of Assam, AIR 2011 SC 1222 [LNINDORD 2011 SC 143] : (2011) 4 SCC 729 [LNINDORD
2011 SC 143] . But seeK.S. Panduranga v State of Karnataka, AIR 2013 SC 2164 [LNIND 2013 SC 389] : (2013) 3
SCC 721 [LNIND 2013 SC 389] .
13. M.K. Haskot v UOI, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 3 SCC 544 [LNIND 1978 SC 199] ; State of
Haryana v Dharshana Devi, AIR 1979 SC 855 [LNIND 1979 SC 114] ; Hussainara Khatoon v Home Secretary, Patna,
AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC 188] ; Ranjan Dwivedi v UOI, AIR 1983
SC 624 [LNIND 1983 SC 126] : (1983) 3 SCC 307 [LNIND 1983 SC 126] .
14. Janardhan v State of Hyderabad, (1951) SCR 244 (See section 303 CrPC 1973).
15. Hansraj v State, AIR 1956 All 641 [LNIND 1956 ALL 102] .
Page 223 of 320
16. Bashira v State of U.P., AIR 1968 SC 1313 [LNIND 1968 SC 122] : (1969) 1 SCR 32 [LNIND 1968 SC 122] : 1968 Cr
LJ 1495 .
17. Tika v State of U.P., (1975) Cr LJ 337 (All).
18. Hollloway v Arkanas, (1978) 435 US 475; Cryler v Sullivan, (1980) 446 US 335.
19. United States v Monsanto, 491 US 600 : (1989) 109 S Ct 2657.
20. Caplin &Drysdele v United States, 491 US 617 : (1989) 109 S Ct 2646.
21. Tika v State of U.P., (1975) Cr LJ 337 (All).
22. State of Gujarat v Shaileshbhai Mansuklal Shah, (2007) 7 SCC 71 [LNIND 2007 SC 2542] .
24. Mohd. Sukur Ali v State of Assam, AIR 2011 SC 1222 [LNINDORD 2011 SC 143] : (2011) 4 SCC 729 [LNINDORD
2011 SC 143] (supra).
25. See alsoBani Singh v State of UP, (1996) 4 SCC 720 [LNIND 1996 SC 1033] : AIR 1996 SC 2439 [LNIND 1996 SC
1033] ; N.S. Giri v Corpn. of Mangalore, (1999) 4 SCC 697 [LNIND 1999 SC 555] : AIR 1999 SC 1958 [LNIND 1999 SC
1466] ; LIC v D.J. Bahadur, (1981) 1 SCC 315 [LNIND 1980 SC 442] ; Pradip Chandra Parija v Pramod Chandru
Patnaik, (2002) 1 SCC 1 [LNIND 2001 SC 2759] : AIR 2002 SC 296 [LNIND 2001 SC 2759] ; Chandra Prakash v State
of UP, (2002) 4 SCC 234 [LNIND 2002 SC 257] : (2002) 3 Scale 311 [LNIND 2002 SC 257] ; Ratiram v State of UP,
(2012) 4 SCC 516 [LNIND 2012 SC 129] ; IOC v Municipal Corpn., (1995) 4 SCC 96 [LNIND 1995 SC 499] : AIR 1995
SC 1480 [LNIND 1995 SC 499] .
27. Jainendra Kumar Vijay Kumar (Dr.) v State of Maharastra, AIR 1990 SC 1224 . See alsoMrunalinidevi v Gaekwad
Investments Corpn. Ltd, (2012) 13 SCC 570 ; Pawan Gupta v State of Delhi, (2012) 12 SCC 323 [LNIND 2012 SC 861]
. But seeK.S. Panduranga v State of Karnataka, AIR 2013 SC 2164 [LNIND 2013 SC 389] : (2013) 3 SCC 721 [LNIND
2013 SC 389] (supra).
28. Supra.
29. See Ratanlal & Dhirajlal, The Code of Criminal Procedure, 18th Edn, 2006, Comments on section 304, p 1074; Also
seeSukh Das v Union Territory, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 2 SCC 401 [LNIND 1986 SC 60] :
(1986) 1 SCR 590 [LNIND 1986 SC 60] .
30. United States v Wade, (1967) 388 US 218; Kirby v Illinois, (1972) 406 US 682, wherein it was held that a person’s 6th
and 14th Amendment right to counsel attaches only at or after the time that adversarial judicial proceedings have been
initiated against him.
31. DD Basu, Criminal Procedure Code, 2nd Edn, PHI, 1992, pp 756–57.
Page 224 of 320
32. Sadhan v State, (1978) Cr LJ (NOC) 131 (Cal).
33. Madhu Limaye, in re, AIR 1969 SC 1014 : (1969) 3 SCR 154 : (1969) 1 SCC 292 (para 11).
34. Sadhan v State, (1978) Cr LJ (NOC) 131 (Cal); Madhu Limaye, in re, AIR 1969 SC 1014 : (1969) 3 SCR 154 : (1969)
1 SCC 292 (para 11).
35. Cf. Ranchod v State of Gujarat, AIR 1974 SC 1143 [LNIND 1973 SC 309] : (1974) 7 SCR 72 : (1974) 3 SCC 581
[LNIND 1973 SC 309] .
36. Hussainara v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1979) 3 SCR 532 [LNIND 1979 SC 188] :
(1980) 1 SCC 98 [LNIND 1979 SC 188] .
37. Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] . See
alsoM.H. Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : (1978) 2 SCC 346 ; Hussainara
Khatoon v State of Bihar, AIR 1979 SC 1369 [LNIND 1979 SC 188] : (1980) 1 SCC 98 [LNIND 1979 SC 188] .
38. Dougles v California, (1963) 372 US 353; see alsoGideon v Wainwright, (1963) 372 US 335.
39. SeeMadhu Limaye, in re., AIR 1969 SC 1014 : (1969) 3 SCR 154 .
40. SeeKishore Chand v State of HP, AIR 1990 SC 2140 [LNIND 1990 SC 468] : (1991) 1 SCC 286 [LNIND 1990 SC 468]
.
41. SeeState of Karnataka v Siddha, 1975 Cr LJ 1159 ; Ranchod Mathur Wasawa v State of Gujarat, AIR 1974 SC 1143
[LNIND 1973 SC 309] : (1974) 3 SCC 581 [LNIND 1973 SC 309] ; Janardana Reddy v State of Hyderabad, AIR 1951
SC 217 [LNIND 1951 SC 19] : (1951) SCR 344 [LNIND 1951 SC 19] .
43. Suk Das v Union Territory, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 1 SCR 590 [LNIND 1986 SC 60] : (1986) 2
SCC 401 [LNIND 1986 SC 60] (para 6) (3 Judges). [Contrary view in Ram Sarup v UOI, AIR 1965 SC 247 [LNIND
1963 SC 293] (250) : (1964) 5 SCR 931 [LNIND 1963 SC 293] , no longer good law].
44. State of Kerala v Kuttan, (1988) Cr LJ 453 (para 9) (Ker).

Page 225 of 320
45. Khatri v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] : (1981) 1 SCC 635 [LNIND 1982 SC 16] ; Suk Das v
Union Territory, AIR 1986 SC 991 [LNIND 1986 SC 60] : (1986) 1 SCR 590 : (1986) 2 SCC 401 [LNIND 1986 SC 60]
(para 6) (3 Judges). [Contrary view in Ram Sarup v UOI, AIR 1965 SC 247 [LNIND 1963 SC 293] (250) : (1964) 5 SCR
931 [LNIND 1963 SC 293] , no longer good law].
46. Nekram v State of M.P., (1988) Cr LJ 1010 (MP); alsoMool Chand v State, (1990) Cr LJ 682 (Del).
47. Police & Criminal Evidence Act, 1984; also see Wade & Bradley, Constitutional and Administrative Law, 10th Edn
(1985), p 479.
48. John Lewis & Co v Times, (1952) AC 676 (HL); Dallison v Caffery, (1965) 1 QB 348 .
49. 2 SCW 385 (445).
50. 3 SCW 53, 59.
51. Brannigan and McBride v UK, (1994) 17 EHRR 539 .
52. Bragon v U.K., (1989) 11 EHRR 117. It was observed that the word “promptly” connotes the meaning of “at once” or
“immediately”.
53. This is secured by section 167(2) of the Criminal Procedure Code.
54. DD Basu, Criminal Procedure Code, 2nd Edn, p 141.
55. Khatri II v State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473] : (1981) 1 SCC 627 [LNIND 1980 SC 473] .
56. AIR 1954 SC 636 [LNIND 1952 SC 155] : (1954) Cr LJ 1704 (SC).
57. AIR 1965 SC 745 : (1965) 1 SCR 413 .
58. Amrik Singh v State of Punjab, 2000 Cr LJ 4305 (P&H); Iqbal Kaur Kwatra v Director General of Police, 1996 Cr LJ
2600 (AP); Gurban Ali v Intilligence Officer, Air Intelligence Unit, 1996 Cr LJ 2420 (Bom); Jayendragiri v Narcotic
Control Bureau, 2005 Cr LJ 3190 (Bom).
59. Gunupati v Nafisul, AIR 1954 SC 636 [LNIND 1952 SC 155] : 1954 Cr LJ 1704 .
60. State of Punjab v Ajaib Singh, AIR 1953 SC 10 [LNIND 1952 SC 68] : (1953) SCR 254 [LNIND 1952 SC 68] .
61. Hariharanand v Jailor, AIR 1954 All 355 [LNIND 1953 ALL 229] . See cf.: Subhashrree Das alias Milli v State of Orissa,
(2012) 9 SCC 729 [LNIND 2012 SC 607] : (2009) 9 Scale 716 [LNIND 2009 SC 1469] .
62. Pragya Singh Thakur v State of Maharashtra, (2011) 10 SCC 445 [LNIND 2011 SC 938] : (2011) 10 Scale 771 [LNIND
2011 SC 938] .
Page 226 of 320
63. Amrik Singh v State of Punjab, (2000) Cr LJ 4305 (P&H).
64. Iqbal Kaur Kwatra v Director General of Police, (1996) Cr LJ 2600 (AP); see alsoGurban Ali v Intelligence Officer,
(1996) Cr LJ 2420 (Bom).
66. State of UP v Abdul Samad, AIR 1962 SC 1506 [LNIND 1962 SC 120] : 1962 (Supp-3) SCR 915.
67. Hariharanand v Jailor, AIR 1954 All 601 [LNIND 1954 ALL 78] .
69. State of MP v Shobharam, AIR 1966 SC 1910 [LNIND 1966 SC 126] : 1966 (Supp) SCC 239.
70. State of UP v Abdul Samad, AIR 1962 SC 1506 [LNIND 1962 SC 120] : 1962 (Supp-3) SCR 915.
71. Bhagan v State of Pepsu, AIR 1955 Pepsu 33 .
72. Manoj v State of M.P., AIR 1999 SC 1403 [LNIND 1999 SC 342] : (1999) 3 SCC 715 [LNIND 1999 SC 342] .
73. Naga Peoples’ Movement of Human Rights v UOI, AIR 1998 SC 431 [LNIND 1997 SC 1511] : (1998) 2 SCC 109
[LNIND 1997 SC 1511] .
74. Natabar Parida v State of Orissa, AIR 1975 SC 1465 [LNIND 1975 SC 159] : (1975) 2 SCC 220 [LNIND 1975 SC 159]
; State of Kerala v Kuttan, 1963 KLT 365 ; Batna Ram v State of HP, 1980 Cr LJ 748 ; Swami Hariharanand v The
Jailor, AIR 1954 All 601 [LNIND 1954 ALL 78] ; State v Ram Avtar Chaudhary, AIR 1955 All 138 [LNIND 1954 ALL 181]
; Gharban Ali Pour Azadi Sekhar Saveoi v Intelligence Officer, Air Intelligent Unit, 1996 Cr LJ 2420 ; Iqbal Kaur Kwatra
v Director General of Police, 1996 Cr LJ 2600 .
75. See alsoVinod Narain v State of UP, 1996 Cr LJ 1309 .
76. Manoj v State of MP, AIR 1999 SC 1403 [LNIND 1999 SC 342] : (1999) 3 SCC 715 [LNIND 1999 SC 342] .
77. P.C. Kakar v Director General of Police, (1986) 1 Crimes 620 (AP); Jayendra Giri v Narcotic Control Bureau, (2005) Cr
LJ 3190 (Bom).
78. Saptawna v State of Assam, (1972) 4 SCC (Notes) 45 : AIR 1971 SC 813 .
79. In State of U.P. ..v Abdul Samad, AIR 1962 SC 1506 [LNIND 1962 SC 120] : 1962 (Supp-3) SCR 915, the Allahabad
High Court had split up a person’s detention into two parts and applied Article 22(2) from a point of time later than the
initial point of time. Though the majority of the Supreme Court did not support any such division of the period of
detention, their Lordships decided the case on the basis of the High Court’s assumption that Article 22(2) could be
applied afresh from the second point of time. But as Subba Rao., J., in the minority, pointed out the initial arrest was
under an order of deportation and Article 22(2) was instantly attracted, if at all, and that the subsequent removal of the
detenu from one place to another had nothing to do with the applicability of Article 22(2). See alsoP.C. Kakar v Director
General of Police, (1986) 1 Crimes 620 (AP).
80. Eshaq v State of U.P., AIR 1957 All 782 .
81. Ram Manohar v Supdt., Central Prison, AIR 1955 All 193 [LNIND 1954 ALL 154] . [Soundness of this decision is open
to question. The words “court of the magistrate” in Article 22(2) should not be overlooked. Can it be said that the City
Page 227 of 320
Magistrate who visited the spot in his executive capacity, was holding his court there? How is the accused to get
opportunity to consult a lawyer, if he is not taken to a court? The fact that the clause extends even to persons arrested
under warrant suggests that the right of production before a Magistrate in his judicial capacity is an independent right
and that the requirement must be strictly complied with. [See, further, DD Basu, Criminal Procedure Code, 1973 , 2nd
Edn, 1992, p 143]. Read with the provisions of the new Code [section 3(l)], the word “Magistrate” in Article 22(2) and
section 57 cannot but refer to a “Judicial Magistrate.”
82. Madhu Limaya, in re, AIR 1969 SC 1014 (1019) : (1969) 3 SCR 154 : (1969) 1 SCC 292 .
83. Saptawna v State of Assam, AIR 1971 SC 813 : 1971 Cr LJ 679 : (1972) 4 SCC (N) 45 : 1971 SCC (Cr) 247 (para 3);
Rohlua v Dy. Commr., (1971) Cr LJ (N) 8 .
84. State of Punjab v Ajaib Singh, (1953) SCR 254 [LNIND 1952 SC 68] (264, 268, 269) : AIR 1953 SC 10 [LNIND 1952
SC 68] : 1953 Cr LJ 180 : 1952 SCJ 664 [LNIND 1952 SC 68] .
85. State of Punjab v Ajaib Singh, (1953) SCR 254 [LNIND 1952 SC 68] (264, 268, 269) : AIR 1953 SC 10 [LNIND 1952
SC 68]: 1953 Cr LJ 180: 1952 SCJ 664 [LNIND 1952 SC 68].
86. Hariharanand v Jailor, AIR 1954 All 601 [LNIND 1954 ALL 78] .
87. H.M.Seervai, Constitutional Law of India, 2nd Vol, 4th Edn, p 1155.
88. Liversidge v Anderson, (1942) AC 206 . See alsoR. v Halliday, (1917) AC 260 (HL).
89. R. v Secretary Ex parte Khawaja, (1984) AC 74 ; R v Inland Revenue Commissioner Ex parte Rossminster Ltd, (1980)
AC 952 .
90. Chester v Bateson, (1920) 1 KB 829 . See alsoRaymand v Honey, (1983) 1 AC 1 .
91. Wilcock v Muckle, (1951) 2 KB 844 .
92. Adelaide Co v Commonwealth, (1943) 67 CLR 116 ; Little v Commonwealth, (1947) 75 CLR 94 ; Australian Communist
Party v Commonwealth, (1951) 83 CLR 1 (195).
93. Cf. Park v Min., (1990) LRC (Const.) 607 (611).
94. 3 SCW 190; ReArticle 26 of the Constitution, (1940) Ir R 470; Laighheis, in re, (1960) IR 93 (SC)—Ireland.
95. 3 SCW 190; ReArticle 26 of the Constitution, (1940) Ir R 470; Laighheis, in re, (1960) IR 93 (SC)—Ireland.
96. Feldman v United States, (1943) 322 US 487 (502); Adamson v California, (1947) 332 US 46 (53); Winship, in re,
(1970) 397 US 358.
1. Lee Man v Min., (1971) 2 Mad LJ 137 (143, 145) FC—Malaysia. [As to the Constitution of Singapore, as amended in
1989, seeTeo Soh v Min., (1990) LRC (Const.) 490 (495)].
2. Cheng v PP, (1979) 1 Malaysia Law Journal 50 (PC).

Page 228 of 320
3. Cf. A.G. Oqun v A.G, Fed., cited in Akande, Nigerian Constitution (1982), p 12.
4. Pawein v Min., (1985) LRC, (Const.) 612 (616)—Zimbabwe; Min v Dabengwa, (1985) LRC (Const.) 581 (587) SC—
Zimbabwe.
5. Uganda v Commr. of Prisons, (1966) EA 514.
6. A.G. v Juma, (1985) LRC (Const.) 526 (532) SC—Zambia.
7. Rep. of Kenya v Commr., (1985) LRC (Const.) 624 (627) Kenya.
8. Braningan v U.K., (1993) 17 EHRR 539 ; Arksay v Turkey, (1996) 23 EHRR 396 .
9. The Lawless case, IV EVB 438 [a case from Eire]; Lawless v Ireland, (1961) 1 EHRR 15 .
10. See alsoIreland v U.K., (1978) ECHR (A).
11. The Lawless case, IV EVB 438 [a case from Eire].
12. State of Bombay v Atmaram, (1951) SCJ 208 [LNIND 1951 SC 5] (223) : AIR 1951 SC 157 [LNIND 1951 SC 5] : 1951
SCR 167 [LNIND 1951 SC 5] , Shastri, J.
13. It may be noted that under Reg. 18-B issued under the English Emergency Power (Defence) Act, 1939, which was a
war-time measure, the detenu was given a right of calling witnesses and to engage a solicitor.
14. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] (240) : AIR 1950 SC 27 [LNIND 1950 SC 22] :
(1950) 1 SCR 88 [LNIND 1950 SC 22] .
15. Black, 7th Edn, 1999.
16. See section 83 of the Code of Civil Procedure, 1989.
17. Burrill Law Dictionary; See P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd Edn, 2005, pp 207, 208.
18. Ex parte Forman, (1917) 87 LJKB 43 .
19. R. v Vine Street Police Station Ex parte Liebman, (1916) 1 KB 268 ; Netz v Ede, (1946) ChD 224 .
20. R. v Home Secretary Ex parte cheblak, (1991) 2 All ER 319 .
21. Johnson v Pedlar, (1921) 2 AC 262 .
22. Porter v Freudenburg, (1915) 1 KB 857 .
23. SeeAdministrator of Austrian Property v Russian Bank for Foreign Trade, (1931) 48 TLR 37 ; Bank Voor Handel en
Scheepraart N.V. v Administrator of Hungarian Property, (1954) AC 584 .
24. R v Bottrill ex parte Kuechemeister, (1947) KB 41 .
25. See Hood Phillips & Jackson, Constitutional & Administrative Law, 8th Edn, Chapter XXIII, paras 19, 20 and 21, pp
513–514.
26. Additional Secretary to Government of India v Alka Subhash Gadia (Smt), 1992 (Supp-1) SCC 496 : 1990 (Supp-3)
SCR 583 : JT (1991) 1 SC 549 [LNIND 1990 SC 845] .
Page 229 of 320
27. The Internal Security Act, 1950, made similar provisions to control spies and saboteurs in times of “war, invasion or
insurrection” (p. 2301, ante).
28. See Schwartz, “Comparative View of Gopalan’s case”, (1950) 3–4 Indian Law Review 276 (283).
29. Statement of Objects and Reasons of Act IV of 1951.
30. Pushpa Devi M. Jatia v M.L Wadhawan, AIR 1987 SC 1748 [LNIND 1987 SC 444] : (1987) 3 SCC 367 [LNIND 1987
SC 444] .
31. Aryya v State of U.P., AIR 1989 SC 364 [LNIND 1988 SC 562] : (1989) 1 SCC 374 [LNIND 1988 SC 562] .
32. Raj Kumar Singh v State of Bihar, AIR 1986 SC 2173 [LNIND 1986 SC 358] : (1986) 4 SCC 407 [LNIND 1986 SC
358] .
33. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] .
34. State of Madras v V.G. Row, AIR 1952 SC 196 [LNIND 1952 SC 23] : (1952) SCR 597 [LNIND 1952 SC 23] .
35. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22] ; Bhim Sen v
State of Punjab, (1952) SCR 18 : AIR 1951 SC 481 [LNIND 1951 SC 54] ; Hemlata v Stateof Maharashtra, AIR 1982
SC 8 [LNIND 1981 SC 422] : (1982) 1 SCR 1028 [LNIND 1981 SC 422] : (1981) 4 SCC 647 [LNIND 1981 SC 422]
(para 5).
36. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22] ; Bhim Sen v
State of Punjab, (1952) SCR 18 : AIR 1951 SC 481 [LNIND 1951 SC 54] ; Hemlata v Stateof Maharashtra, AIR 1982
SC 8 [LNIND 1981 SC 422] : (1982) 1 SCR 1028 [LNIND 1981 SC 422] : (1981) 4 SCC 647 [LNIND 1981 SC 422]
(para 5).
38. Government of East Pakistan v Mrs. Rowshan Bijaya Shaukat Ali, PLD 1966 SC 286 .
39. Gimik Piotr v State of Tamil Nadu, (2010) 1 SCC 609 [LNIND 2009 SC 1992] : AIR 2010 SC 924 [LNIND 2009 SC
1992] : 2010 Cr LJ 877 .
40. UOI v Paul Manickam, AIR 2003 SC 4622 [LNIND 2003 SC 869] : (2003) 8 SCC 342 [LNIND 2003 SC 869] .
41. Dropti Devi v UOI, AIR 2012 SC 2550 [LNIND 2012 SC 369] : (2012) 7 SCC 499 [LNIND 2012 SC 369] ; see
alsoState of Punjab v Sukhpal Singh, (1990) 1 SCC 35 [LNIND 1989 SC 498] ; Sunil Fulchand Shah v UOI, AIR 2000
SC 1023 [LNIND 2000 SC 323] : (2000) 3 SCC 409 [LNIND 2000 SC 323] ; UOI v Venketeshan, (2002) 5 SCC 285
[LNIND 2002 SC 310] : AIR 2002 SC 1890 [LNIND 2002 SC 310] : 2002 Cr LJ 1121 .
42. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
43. See Justice Fazal Karim, Judicial Review of Public Actions, 1st Edn, 2006, p 630.
Page 230 of 320
608 [LNIND 1981 SC 27] : (1981) 2 SCR 516 [LNIND 1981 SC 27] ; See alsoMaliyakkal Abdul Azeez v Assistant
Collector, AIR 2003 SC 928 [LNIND 2003 SC 59] : (2003) 2 SCC 439 [LNIND 2003 SC 59] ; UOI v Paul Manickam,
(2003) 8 SCC 342 [LNIND 2003 SC 869] .
45. Hare Ram Pandey v State of Bihar, (2004) 3 SCC 289 [LNIND 2003 SC 1064] : AIR 2004 SC 738 [LNIND 2003 SC
1064] ; Pawan Bhartiya v UOI, (2003) 11 SCC 479 .
46. Rajesh Gulati v Govt of NCT of Delhi, (2002) 7 SCC 129 [LNIND 2002 SC 532] .
47. SeeRekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
48. SeeKamalesh Kumar Ishwardas Patel v UOI, (1995) 4 SCC 51 [LNIND 1995 SC 521] : (1995) 2 Scale 681 ; Rattan
Singh v State of Punjab, (1981) 4 SCC 481 [LNIND 1981 SC 417] ; Abdul Latif Abdul Wahab Sheikh v B.K. Jha, AIR
1987 SC 725 [LNIND 1987 SC 143] : (1987) 2 SCC 22 [LNIND 1987 SC 143] ; Rekha v State of TN, (2011) 5 SCC 244
[LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
49. SeeGimik Piotr v State of Tamil Nadu, (2010) 1 SCC 609 [LNIND 2009 SC 1992] : AIR 2010 SC 924 [LNIND 2009 SC
1992] : 2010 Cr LJ 877 .
50. SeeUOI v Yumnam Anand M, (2007) 10 SCC 190 [LNIND 2007 SC 466] .
51. State of Bombay v Atma Ram, (1951) SCJ 208 [LNIND 1951 SC 5] (212) : AIR 1951 SC 157 [LNIND 1951 SC 5] :
1951 SCR 167 [LNIND 1951 SC 5] .
52. Lakhinarayan v Prov. of Bihar, (1950) SCJ 32 (43).
53. Nishikanta v State of W.B., (1973) 1 SCR 224 [LNIND 1972 SC 235] (230) : AIR 1972 SC 1497 [LNIND 1972 SC 235]
: (1972) 2 SCC 486 [LNIND 1972 SC 235] ; Kubic v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25] : (1990) 1 SCR 98
[LNIND 1990 SC 25] : (1990) 1 SCC 568 [LNIND 1990 SC 25] (para 20).
54. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22]; Bhimsen v
State of Punjab, (1952) SCR 18 : AIR 1951 SC 481 [LNIND 1951 SC 54]; Hemlata v Stateof Maharashtra, AIR 1982 SC
8 [LNIND 1981 SC 422]: (1982) 1 SCR 1028 [LNIND 1981 SC 422] : (1981) 4 SCC 647 [LNIND 1981 SC 422] (para 5).
55. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
[LNIND 2010 SC 1226] .
271 [LNIND 1981 SC 469] (paras 35–37).

Page 231 of 320
61. SeeMunagala Yadamma v State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] : (2012) Cr LJ 1662 ; K. Nageswara
Rao v Collector & District Magistrate, (2012) 13 SCC 585 : (2012) 11 Scale 409 ; Haradhan Saha v State of WB, (1975)
3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 : (1974) Cr LJ 1479 (SC); Rekha v State of TN, (2011) 5 SCC
244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
62. Liversidge v Anderson, (1942) AC 206 (218). See alsoDemetriadas v Glassgow Corpn., (1951) 1 All ER 457; Carltona
v Commrs., (1943) 2 All ER 564; Greene v Secy. of State, (1942) AC 284; Khwaja v Home Secretary, (1983) 1 All ER
765.
63. SeeKhawaja v Secretary of State, (1983) 1 All ER 765 (HL); IRC v Rossminster, (1980) 1 All ER 80 (HL).
64. R. v Bottill, (1946) 2 All ER 434.
65. Ex ParteLus, (1941) 1 KB 72.
66. R. v Halliday, (1917) AC 260.
67. Liversidge v Anderson, (1942) AC 206 (218). See alsoDemetriadas v Glassgow Corpn., (1951) 1 All ER 457; Carltona
v Commrs., (1943) 2 All ER 564; Greene v Secretary of State, (1942) AC 284; Khawaja v Home Secretary, (1983) 1 All
ER 765.
68. R. v Halliday, (1917) AC 260 .
69. A v Secretary for the Home Department, (2005) 2 AC 68 : (2004) UK HL 56.
70. A v Secretary for the Home Department, (2005) 2 AC 68 : (2004) UK HL 56.
71. Brogan v U.K., (1989) 11 EHRR 177.
72. See alsoBrannigan and McBride v U.K., (1993) 17 EHRR 539.

Page 232 of 320
73. Ex parte Endo, (1944) 323 US 283; Korematsu v U.S., (1944) 323 US 214. See alsoHirabayashi v United States,
(1943) 320 US 81.
75. U.S. v Salerno, (1987) 481 US 739 : 107 S Ct 2095.
76. In the Matter of the Preventive Detention Act, 1958, dated 28-8-1961,—reproduced in App, II of III Jour., No. 2.
77. Ram Krishan v State of Delhi, AIR 1953 SC 318 [LNIND 1953 SC 49] (320) : 1953 SCR 708 [LNIND 1953 SC 49] :
1953 Cr LJ 1241 . See alsoRameshwar v D.M., (1964) II SCA 724.
78. Ma Than v Commr. of Police, (1949) Burma LR I (SC).
79. Sasti v State of W.B., (1973) 1 SCR 467 [LNIND 1972 SC 273] (469) : AIR 1972 SC 1668 [LNIND 1972 SC 273]:
(1972) 3 SCC 826 [LNIND 1972 SC 273]; Salim v State of W.B., AIR 1975 SC 602 [LNIND 1975 SC 37]: (1975) 3 SCR
394 [LNIND 1975 SC 37] : (1975) 1 SCC 653 [LNIND 1975 SC 37] (para 13); Haradhan v State of W.B., AIR 1974 SC
2154 [LNIND 1974 SC 243]: (1975) 1 SCR 778 [LNIND 1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] (CB).
80. AIR 2012 SC 3370 [LNIND 2013 SC 676]: (2012) 7 SCC 533 [LNIND 2013 SC 676] : (2012) Cr LJ 3848.
81. K. Nageswara Rao v Collector & District Magistrate, (2012) 13 SCC 585 : (2012) 11 Scale 409; Rekha v State of TN,
(2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371]; Yumman Ongbi Lembi Leima v
State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888]: (2012) 2 SCC 176 [LNIND 2012 SC 888]; Haradhan Saha v
State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154; Munagala Yadamma v State of AP, (2012)
2 SCC 386 [LNIND 2012 SC 13] : (2012) 1 Scale 132 [LNIND 2012 SC 13] : 2012 Cr LJ 1662; Srilal Shaw v State of
WB, AIR 1975 SC 393 [LNIND 1974 SC 402]: (1975) 1 SCC 336 [LNIND 1974 SC 402].
2010 SC 926].
Page 233 of 320
83. Emp v Sibnath, AIR 1945 PC 156.
84. Liversidge v Anderson, (1942) AC 206.
85. Constituent Assembly Debates III at pp 3, 468.
86. See H.M. Seervai, Constitutional Law of India, 3rd Edn, Vol I, p 1049.
87. A.K. Gopalan v State of Madras, (1950) SCJ 174 [LNIND 1950 SC 22] : AIR 1950 SC 27 [LNIND 1950 SC 22]: (1950)
1 SCR 88 [LNIND 1950 SC 22].
88. Krishnan v State of Madras, AIR 1951 SC 301 [LNIND 1951 SC 35]: (1951) 2 SCR 621 [LNIND 1951 SC 35] : 1951 Cr
LJ 1103.
89. Godavari v State of Bombay, (1953) 4 SCR 210 [LNIND 1952 SC 80] : AIR 1953 SC 52 [LNIND 1952 SC 80].
90. SeeGimik Piotr v State of Tamil Nadu, (2010) 1 SCC 609 [LNIND 2009 SC 1992] : AIR 2010 SC 924 [LNIND 2009 SC
1992]: 2010 Cr LJ 877.
91. Statesman, dated 25 August 1977, p. l.
92. R v Holiday, (1917) AC 268 and Liversidge v Anderson, (1942) AC 2067 (supra).
93. See H.M. Seervai, Constitutional Law of India, 3rd Edn, Vol I, p 1054.
94. Vide UOI v Bhanudas, AIR 1977 SC 1027 [LNIND 1977 SC 49]: (1977) 2 SCR 719 [LNIND 1977 SC 49] : (1977) 1
SCC 834 [LNIND 1977 SC 49]; A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196]: 1976 Supp SCR 172 :
(1976) 2 SCC 521 [LNIND 1976 SC 196].
95. Sunil v UOI, (1989) 3 SCC 236 [LNIND 1989 SC 277] : AIR 1989 SC 1529 [LNIND 1989 SC 277]: (1989) 2 SCR 867
[LNIND 1989 SC 277]; Basheaz v State of Karnataka, (1992) 2 SCC 295 [LNIND 1992 SC 200] : AIR 1992 SC 1353
Page 234 of 320
[LNIND 1992 SC 200]; Abdul v UOI, (1992) 1 SCC 1 [LNIND 1991 SC 521] : AIR 1991 SC 2261 [LNIND 1991 SC 521]:
1991 (Supp-1) SCR 435.
96. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 2 SCR 272 [LNIND 1981 SC 469] : (1982) 1 SCC
271 [LNIND 1981 SC 469] (paras 52, 113).
1. The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (popularly known
as the “ESMA”), has ceased to exist after its expiry on 29-9-1990.
2. Cf. Victoria v Lalmal, (1992) Cr LJ 702 (SC); Rama v Saraf, (1989) 3 SCC 173 [LNIND 1989 SC 307] : AIR 1989 SC
3. Some States have made laws authorising preventive detention relating to subjects within their jurisdiction; e.g., J&K
Public Safety Act, 1977; A.P. Detention Act, 1970; Rajasthan P.D. Act, 1970; U.P. Rashtra Virodhi Tatwa Nivaran
Adhiniyam, 1970; West Bengal Prevention of Violent Activities Act, 1970; M.P. Security and Public Order Maintenance
Act, 1980.
4. Haradhon v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 [LNIND 1974 SC 243] :
(1975) 3 SCC 198 [LNIND 1974 SC 243] (paras 19, 32) (CB); Ram Bali v State of W.B., AIR 1975 SC 623 [LNIND
1974 SC 426] : (1975) 3 SCR 63 [LNIND 1974 SC 426] : (1975) 4 SCC 47 [LNIND 1974 SC 426] ; Babulal v State of
W.B., AIR 1975 SC 606 [LNIND 1975 SC 17] : (1975) 3 SCR 193 [LNIND 1975 SC 17] : (1975) 1 SCC 311 [LNIND
1975 SC 17] .
1992] : 2011 Cr LJ 877 ; see alsoG. Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2011) 10
Scale 224 [LNIND 2011 SC 893] ; Dropti Devi v UOI, (2012) 7 SCC 499 [LNIND 2012 SC 369] : AIR 2012 SC 2550
[LNIND 2012 SC 369] : (2012) 4 CTC 858 .
6. Haradhon v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 : (1975) 3 SCC 198 [LNIND
1974 SC 243] (paras 19, 32) (CB); Ram Bali v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426] : (1975) 3 SCR
63 [LNIND 1974 SC 426] : (1975) 4 SCC 47 [LNIND 1974 SC 426] ; Babulal v State of W.B., AIR 1975 SC 606 [LNIND
1975 SC 17] : (1975) 3 SCR 193 [LNIND 1975 SC 17] : (1975) 1 SCC 311 [LNIND 1975 SC 17] . The view to the
contrary in Biram Chand’s case, AIR 1974 SC 1162 (two Judges), is not good law in view of the later Constitution
Bench decision in Haradhon’s case [AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 [LNIND 1974 SC
243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] (para 34)]; The contrary decision in Srilal v State of W.B., AIR 1975 SC
393 [LNIND 1974 SC 402] : (1975) 2 SCR 913 [LNIND 1974 SC 402] : (1975) 1 SCC 336 [LNIND 1974 SC 402] , does
not notice Haradhon v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 : (1975) 3 SCC 198
[LNIND 1974 SC 243] (CB).
Page 235 of 320
7. The view to the contrary in Biram Chand’s case, AIR 1974 SC 1162 (two Judges), is not good law in view of the later
Constitution Bench decision in Haradhon’s case [AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 [LNIND
1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] (para 34)].
8. John Martin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26] : (1975) 3 SCR 211 [LNIND 1975 SC 26] : (1975)
3 SCC 836 [LNIND 1975 SC 26] (CB).
9. Samir v State of W.B., AIR 1975 SC 1165 [LNIND 1975 SC 132] : (1975) 1 SCC 801 [LNIND 1975 SC 132] (paras 5,
7).
10. SeeDropti Devi v UOI, AIR 2012 SC 2550 [LNIND 2012 SC 369] : (2012) 7 SCC 499 [LNIND 2012 SC 369] ; see
alsoA.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] ;
State of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) 2 SCR 167 [LNIND
1951 SC 5] ; Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 ; Khudiram
Das v State of WB, AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC 386] ; Hemalatha
Kantilal Shah v State of Maharashtra, (1981) 4 SCC 647 [LNIND 1981 SC 422] : AIR 1982 SC 8 [LNIND 1981 SC 422] .
11. Dropti Devi v UOI, AIR 2012 SC 2550 [LNIND 2012 SC 369] : (2012) 7 SCC 499 [LNIND 2012 SC 369] (supra).
3 SCC 836 [LNIND 1975 SC 26] (CB); Samir v State of W.B., AIR 1975 SC 1165 [LNIND 1975 SC 132] : (1975) 1 SCC
801 [LNIND 1975 SC 132] (paras 5, 7).
13. Srilal v State of W.B., AIR 1975 SC 393 [LNIND 1974 SC 402] : (1975) 2 SCR 913 [LNIND 1974 SC 402] : (1975) 1
SCC 336 [LNIND 1974 SC 402] ; Abdul Goffer v State of W.B., AIR 1975 SC 1496 : (1975) 4 SCC 59 ; Bhut Nath v
State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 3 SCR 315 [LNIND 1974 SC 31] : (1974) 1 SCC 645
[LNIND 1974 SC 31] ; Dulal v D. M., AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 3 SCR 186 [LNIND 1975 SC 9] :
(1975) 1 SCC 837 [LNIND 1975 SC 9] (paras 15, 19); Sadhu v State of W.B., AIR 1975 SC 919 [LNIND 1975 SC 31] .
14. Munagala Yadamma v State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] ; see alsoRekha v State of TN, (2011) 5
SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] ; Yumman Ongbi Lembi Leima v State of
Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888] : (2012) 2 SCC 176 [LNIND 2012 SC 888] .
15. Supra.
1975 SC 17] .
1975 SC 17] .
Page 236 of 320
18. State of Punjab v Sukhpal, (1990) 1 SCC 35 [LNIND 1989 SC 498] : AIR 1990 SC 231 [LNIND 1989 SC 498] (para 8).
See alsoState of Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547] : (2008) 3
SCC 613 [LNIND 2008 SC 547] .
19. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] (supra).
20. (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 .
21. Hare Ram Pandey v State of Bihar, AIR 2004 SC 738 [LNIND 2003 SC 1064] : (2004) 3 SCC 289 [LNIND 2003 SC
1064] .
22. Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13]: (1952) 1 SCR 756 [LNIND 1951 SC 13]. See
alsoState of Karnataka v Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 [LNIND 2004 SC 416]: (2004) 4 SCC 684
[LNIND 2004 SC 416].
23. D.M. Nagaraja v Govt. of Karnataka, (2011) 10 SCC 215 [LNIND 2011 SC 924] : AIR 2012 SC 295 [LNIND 2011 SC
924].
24. Abdul Munnaf v State of WB, AIR 1974 SC 2066 : (1975) 3 SCC 239; Laxman Khatik v State of WB, AIR 1974 SC 894;
Md. Sahabuddin v Dt. Magistrate, AIR 1975 SC 1722; Shalini Soni v UOI, AIR 1981 SC 431 [LNIND 1980 SC 429]:
(1980) 4 SCC 544 [LNIND 1980 SC 429] : (1980) Cr LJ 1487; Shiv Pd. Bhatnagar v State of MP, AIR 1981 SC 870
[LNIND 1981 SC 130]; Fitrat Raza Khan v State of UP, AIR 1982 SC 146 [LNIND 1981 SC 449]: (1982) 2 SCC 449
[LNIND 1981 SC 449]; see alsoSubramaniam v State of Tamil Nadu, (2012) 4 SCC 699 [LNIND 2012 SC 135] : (2012)
2 Scale 613; State of Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547]: (2008) 3
SCC 613 [LNIND 2008 SC 547].
25. SeeG. Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2011) 10 Scale 224 [LNIND 2011 SC 893].
26. State of Punjab v Sukhpal, (1990) 1 SCC 35 [LNIND 1989 SC 498] : AIR 1990 SC 231 [LNIND 1989 SC 498](para 8).
1975 SC 17] .
271 [LNIND 1981 SC 469] (paras 35, 86).
Page 237 of 320
29. State of U.P. ..v Mahant Singh, AIR 1986 SC 207 [LNIND 1985 SC 334]: (1985) 4 SCC 624 [LNIND 1985 SC 334]
(para 5); State of Rajasthan v Shamsher, AIR 1985 SC 1082 [LNIND 1985 SC 164]: 1985 (Supp-1) SCR 83 : 1985
Supp SCC 416; Prakash v Govt. of Kerala, AIR 1986 SC 687 [LNIND 1985 SC 125]: (1985) 3 SCR 697 [LNIND 1985
SC 125] : 1985 Supp SCC 144.
30. Samir v State of W.B., AIR 1975 SC 1165 [LNIND 1975 SC 132]: (1975) 1 SCC 801 [LNIND 1975 SC 132] (paras 3, 5,
7).
31. Winterwerp’s case, (1979) ECHR 33.
34. Francis v Administrator, AIR 1981 SC 746 [LNIND 1981 SC 27].
35. State of Bombay v Atma Ram, AIR 1951 SC 157 [LNIND 1951 SC 5]; Chotta v State of W.B., AIR 1974 SC 432
[LNIND 1973 SC 256]; Baidya Nath v State of W.B., AIR 1974 SC 1155.
36. Francis v Administrator, AIR 1981 SC 746 [LNIND 1981 SC 27]: (1981) 1 SCC 608 [LNIND 1981 SC 27] : (1981) 2
SCR 516 [LNIND 1981 SC 27].
7).
38. Rajan Worlikar v State of Karnataka, AIR 2001 SC 2303 [LNIND 2001 SC 1183] : (2001) 5 SCC 295 [LNIND 2001 SC
1183] ; Kamalesh Kumar Ishwardas Patel v UOI, (1995) 4 SCC 51 [LNIND 1995 SC 521] . See alsoDistrict Collector v
Shaik Hasmath Beevi, AIR 2001 SC 1681 [LNIND 2001 SC 1038] : (2001) 5 SCC 401 [LNIND 2001 SC 1038] .
39. A.C. Razia v Govt of Kerala, (2004) 2 SCC 621 [LNIND 2003 SC 513] . See alsoAdishwar Jain v UOI, (2006) 11 SCC
339 [LNIND 2006 SC 861] ; Seetal Manoj Gore v State of Maharashtra, (2006) 7 SCC 560 [LNIND 2006 SC 634] .
Page 238 of 320
41. Manjit Singh Grewal v UOI, 1990 (Supp) SCC 59; Dharwasia Bhagasia v State of Karnataka, 1989 (Supp-2) SCC 155.
See alsoUsha Agarwal v UOI, (2007) 1 SCC 295 [LNIND 2006 SC 908] .
42. Madhab Roy v State of Gujarat, AIR 1982 SC 255 : (1974) 4 SCC 548 ; Ibrahim Ahmed v State of Gujarat, AIR 1982
SC 1500 [LNIND 1982 SC 141] : (1982) 2 SCC 440 [LNIND 1982 SC 152] ; Taramati Chandulal v State of
Maharashtra, AIR 1981 SC 1909 : (1981) 4 SCC 562 .
43. SeeAbdul Latif v B.K. Jha, AIR 1987 SC 725 [LNIND 1987 SC 143] : (1987) 2 SCC 22 [LNIND 1987 SC 143] . For
further discussion see comments on Article 22(5).
44. Cooper v UOI, (1970) 3 SCR 530 [LNIND 1970 SC 40] : AIR 1970 SC 564 [LNIND 1970 SC 40] : (1970) 1 SCC 248
[LNIND 1970 SC 40] .
271 [LNIND 1981 SC 469] (paras 35, 86); State of U.P. ..v Mahant, AIR 1986 SC 207 [LNIND 1985 SC 334] : (1985) 4
SCC 624 [LNIND 1985 SC 334] (para 5); State of Rajasthan v Shamsher, AIR 1985 SC 1082 [LNIND 1985 SC 164] :
1985 (Supp-1) SCR 83 : 1985 Supp SCC 416 ; Prakash v Govt. of Kerala, AIR 1986 SC 687 [LNIND 1985 SC 125] :
(1985) 3 SCR 697 [LNIND 1985 SC 125] : 1985 Supp SCC 144 ; Yusuf v State of J&K, AIR 1979 SC 1925 [LNIND
1979 SC 327] : (1980) 1 SCR 258 [LNIND 1979 SC 327] : (1979) 4 SCC 370 [LNIND 1979 SC 327] (para 16,
Chinnappa, J.) [see p 211, post].
46. Ramesh Yadav v District Magistrate, AIR 1986 SC 315 [LNIND 1985 SC 284]: (1985) 4 SCC 232 [LNIND 1985 SC
284].
47. Rameshwar v District Magistrate, AIR 1964 SC 334 [LNIND 1963 SC 214]; Khagon v State of W.B., AIR 1971 SC
2051; Ashok v Delhi Administration, (1982) 2 SCC 403 [LNIND 1982 SC 96]; Subhash v District Magistrate, (1987) 4
SCC 685 [LNIND 1987 SC 881]; Lallan v Ramamurthi, AIR 1993 SC 396 : (1992) 3 SCC 498.
7).
49. Teh Cheng v P.P., (1980) AC 450 .

Page 239 of 320
50. Vashisht v State of U.P., (1990) 2 SCC 629 [LNIND 1990 SC 190] : AIR 1990 SC 1272 [LNIND 1990 SC 190]: (1990)
2 SCR 212 [LNIND 1990 SC 190].
51. Maulana Shamshunnisa v Addl. Chief Secretary, AIR 2011 SC 1422 [LNIND 2010 SC 1226]: (2010) 15 SCC 72
[LNIND 2010 SC 1226].
52. SeeRekha v State of T.N., (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] (supra).
53. State of U.P. v Mahant Singh, AIR 1986 SC 207 [LNIND 1985 SC 334]: (1985) 4 SCC 624 [LNIND 1985 SC 334] :
State of Rajastan v Shamsher Singh, AIR 1985 SC 1082 [LNIND 1985 SC 164]: 1985 (Supp) SCC 416 : 1985 (Supp-1)
SCR 83; PrakashChandra Mehta v Commissioner of Secretary, Government of Kerala, AIR 1986 SC 687 [LNIND 1985
SC 125]: 1985 (Supp) SCC 144 : (1985) 3 SCR 697 [LNIND 1985 SC 125]; Rajesh Gulathi v Govt of NCT of Delhi,
(2002) 7 SCC 129 [LNIND 2002 SC 532].
54. SeeRekha v State of T.N., (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371].
55. (1987) 2 SCC 22 [LNIND 1987 SC 143].
56. SeeKamaleshkumar Ishwardas Patel v UOI, (1995) 4 SCC 51 [LNIND 1995 SC 521] : (1995) 2 Scale 681.
57. (1981) 4 SCC 481 [LNIND 1981 SC 417].
58. State of Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547]: (2008) 3 SCC 613
[LNIND 2008 SC 547].
59. SeeRekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371].
60. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22].

Page 240 of 320
62. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22]: Casebook
(1), p 447; Ram Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC
24]: 1951 Cr LJ 904 : 1951 SCJ 374.
63. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 2 SCR 272 [LNIND 1981 SC 469] : (1982) 1 SCC
271 [LNIND 1981 SC 469] (paras 36, 71).
271 [LNIND 1981 SC 469] (paras 36, 71); Khudiram v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386] (559) :
65. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 2 SCR 272 : (1982) 1 SCC 271 [LNIND 1981 SC
469] (paras 36, 71).
67. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 2 SCR 272 : (1982) 1 SCC 271 [LNIND 1981 SC
469] (paras 36, 71).
68. Yumman Ongbi Lembi Leima v State of Manipur, AIR 2012 SC 321 [LNIND 2012 SC 888]: (2012) 2 SCC 176 [LNIND
2012 SC 888].
69. Addl. Secy v Alka, (1992) Supp (1) SCC 496 (paras 8, 11) (3 Judges).
70. Rajendran Chingaravelu v R.K. Mishra, (2010) 1 SCC 457 [LNIND 2009 SC 2029] : (2010) 3 CTC 773.
71. Ram Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24]: 1951 Cr
LJ 904 : 1951 SCJ 374.
72. Rustom Cavasjee Cooper v UOI, (1970) 1 SCC 248 [LNIND 1970 SC 40] : AIR 1970 SC 564 [LNIND 1970 SC 40]:
(1970) 3 SCR 530 [LNIND 1970 SC 40].
73. See alsoAshok Kumar Gupta v State of U.P., (1997) 5 SCC 201 [LNIND 1997 SC 523] : JT (1997) 4 SC 251 [LNIND
1997 SC 523].
Page 241 of 320
74. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22]: Casebook
(1), p 447; Ram Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC
24]: 1951 Cr LJ 904 : 1951 SCJ 374.
3 SCC 836 [LNIND 1975 SC 26] (CB).
76. Haradhon v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243]: (1975) 1 SCR 778 [LNIND 1974 SC 243] :
77. Haradhon v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243]: (1975) 1 SCR 778 [LNIND 1974 SC 243] :
78. See alsoUOI v Venketeshan, (2002) 5 SCC 285 [LNIND 2002 SC 310].
79. Addl. Secy v Alka, (1992) Supp (1) SCC 496 (paras 8, 10, 11) (3 Judges).
80. Addl. Secy v Alka, (1992) Supp (1) SCC 496 (paras 8, 10, 11) (3 Judges).
81. Cf. Bapna v UOI, (1992) 3 SCC 512 [LNIND 1992 SC 407] (para 13).
82. Kamlesh Kumar Ishwardas Patel v UOI, (1995) 4 SCC 51 [LNIND 1995 SC 521]. See alsoAbdul Latif Abdul Wahab
Sheikh v B.K. Jha, (1987) 2 SCC 22 [LNIND 1987 SC 143] : AIR 1987 SC 725 [LNIND 1987 SC 143]; UOI v Paul
Manickam, (2003) 8 SCC 342 [LNIND 2003 SC 869].
83. Shalini Soni v UOI, AIR 1981 SC 431 [LNIND 1980 SC 429]: (1980) 4 SCC 544 [LNIND 1980 SC 429].
84. AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 1 SCC 271 [LNIND 1981 SC 469] : 1982 Cr LJ 340.
85. See M.P. Jain, Indian Constitutional Law, 7th Edn, 2014, p 1221.
Page 242 of 320
87. Sodhi Shamser v State of Pepsu, AIR 1954 SC 276 : 1954 Cr LJ 735.
88. Ram Krishna Paul v State of W.B., AIR 1972 SC 863 [LNIND 1972 SC 84].
89. Rajesh Gulathi v Govt of NCT of Delhi, AIR 2002 SC 3094 [LNIND 2002 SC 532]: (2002) 7 SCC 129 [LNIND 2002 SC
532]; See alsoSmt. Pushpa v UOI, AIR 1979 SC 1953 [LNIND 1979 SC 282]: 1979 Cr LJ 1314 : 1980 (Supp) SCC
391; Mehboob Khan Nawab Khan Pathan v Police Commissioner, Ahmedabad, AIR 1989 SC 1803 [LNIND 1989 SC
352]: (1989) 3 SCC 568 [LNIND 1989 SC 352]; Vashisht Narain Karwaria v State of U.P., AIR 1990 SC 1272 [LNIND
1990 SC 190]: (1990) 2 SCC 629 [LNIND 1990 SC 190]; Biran Chand v State of U.P., AIR 1974 SC 1161 [LNIND 1974
SC 125]: (1974) 4 SCC 573 [LNIND 1974 SC 125]; Krishna Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211]:
(1975) 4 SCC 481 [LNIND 1975 SC 211].
90. Subramaniam v State of Tamil Nadu, (2012) 4 SCC 699 [LNIND 2012 SC 135] : (2012) 4 Scale 613.
91. G. Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2012) 10 Scale 224.
92. Darpan Kumar Sharma v State of T.N., AIR 2003 SC 971 [LNIND 2003 SC 65]: (2003) 2 SCC 313 [LNIND 2003 SC
65]. But seeSitthi Zuraina Begum v UOI, AIR 2003 SC 323 [LNIND 2002 SC 730]: (2002) 10 SCC 448 [LNIND 2002
SC 730]. See alsoKishori Mohan Bera v State of W.B., AIR 1972 SC 1749 : (1972) 3 SCC 845.
93. Magan Gope v State of W.B., AIR 1975 SC 953 [LNIND 1975 SC 62]: (1975) 1 SCC 415 [LNIND 1975 SC 62].
1. Rekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371].
2. Cf. Nishikanta v State of W.B., (1973) 1 SCR 224 [LNIND 1972 SC 235] (230) : AIR 1972 SC 1497 [LNIND 1972 SC
235]: (1972) 2 SCC 486 [LNIND 1972 SC 235].
3. Abdul Latif v District Magistrate, Malda, AIR 1975 SC 2213 : (1975) 3 SCC 849.
Page 243 of 320
4. Attorney General of India v Amratlal Prajivandas, AIR 1994 SC 2179 [LNIND 1993 SC 1093]: (1994) 5 SCC 54
[LNIND 1993 SC 1093].
5. SeeDebu Mahto v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135; L.K. Das v State of W.B, AIR 1975 SC 753.
6. Saraswathi Seshagiri v State of Kerala, AIR 1982 SC 1165 [LNIND 1982 SC 74]: (1982) 2 SCC 310 [LNIND 1982 SC
74]. But seeChowdarapu Reghunandan v State of T.N., (2002) 3 SCC 754 [LNIND 2002 SC 211].
7. AIR 1974 SC 832 : (1974) 4 SCC 514.
8. Yahya Ali Ahamed Fahim v State of Maharashtra, (1983) 85 Beng LR 188; see alsoPratap Jeevan Lal v State of
Maharashtra, (1986) Cr LJ 1157 (Bom); Rampur Walah Sharafali v L. Haimgliana, (1991) Cr LJ 190 (Bom); see alsoM.
Mohammed Sultan v Joint Secretary of Govt. of India, (1990) Cr LJ 2473 (SC); Ashok Kumar Lala v Mahendra Prasad,
1995 Cr LJ 1551 (Cal); Gimik Piotr v State of Tamil Nadu, (2010) 1 SCC 609 [LNIND 2009 SC 1992].
9. Makhan Singh v State of Punjab, (1952) SCR 368 [LNIND 1951 SC 68] : 1952 Cr LJ 321 : 1951 SCJ 835 [LNIND 1951
SC 68].
10. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558; see alsoBhut Nath
Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND 1974 SC 31]; S.R.
Venketaraman v UOI, (1979) 2 SCC 491 [LNIND 1978 SC 312].
12. G. Sadanandan v State of Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52]: (1966) 3 SCR 590 [LNIND 1966 SC 52].
13. See alsoSaraswathi Seshagiri v State of Kerala, AIR 1982 SC 1165 [LNIND 1982 SC 74].
14. Bhut Nath v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31]: (1974) 1 SCC 645 [LNIND 1974 SC 31]; See
alsoK.M. Chokshi v State of Gujarat, (1979) 4 SCC 14 [LNIND 1979 SC 289] : (1980) 1 SCR 54 [LNIND 1979 SC 289] :
AIR 1979 SC 1945 [LNIND 1979 SC 289].
Page 244 of 320
15. Ram Bali v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426]: (1975) 4 SCC 47 [LNIND 1974 SC 426].
16. Rekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371].
17. Jaya Mala v Home Secretary, J. & K. Government, AIR 1982 SC 1297 [LNIND 1982 SC 109]: (1982) 2 SCC 538
[LNIND 1982 SC 109]. See alsoL.K. Das v State of WB, AIR 1975 SC 753 : (1975) 4 SCC 62.
18. AdditionalSecretary to Government of India v Alka Subhash Gadia (Smt.), 1992 (Supp-1) SCC 496 : 1990 (Supp-3)
SCR 583.
19. Iqbal v UOI, AIR 1992 SC 1900 : (1992) 1 SCC 434 : 1991 (Supp-3) SCR 515; D’Souza v State of Bombay, (1956)
SCR 382 : AIR 1956 SC 531 [LNIND 1956 SC 36].
20. Krishna Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211]: (1976) 1 SCR 16 [LNIND 1975 SC 211] : (1975) 4
SCC 481 [LNIND 1975 SC 211]; Bhut Nath v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31]: (1974) 3 SCR 315
[LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31].
21. Krishna Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211]: (1976) 1 SCR 16 : (1975) 4 SCC 481 [LNIND 1975
SC 211]; Bhutnath v State of W.B., 1974 SC 806; Khudiram v Stateof W.B., AIR 1975 SC 550 [LNIND 1974 SC 386]:
(1975) 2 SCR 832 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC 386].
22. Sanjeev v UOI, (1990) 3 SCC 309 [LNIND 1990 SC 201] (para 13).
23. Mehboob v Police Commissioner, AIR 1989 SC 1803 [LNIND 1989 SC 352]: (1989) 3 SCC 568 [LNIND 1989 SC 352]
(para 7).
24. Khudiram v Stateof W.B., AIR 1975 SC 550 [LNIND 1974 SC 386]: (1975) 2 SCR 832 [LNIND 1974 SC 386] : (1975)
2 SCC 81 [LNIND 1974 SC 386].
25. SeeState of Gujarat v Adam Kasam Bhaya, AIR 1981 SC 2005 [LNIND 1981 SC 391]: (1981) 4 SCC 216 [LNIND
1981 SC 391] : (1982) 1 SCR 740 [LNIND 1981 SC 391].
Page 245 of 320
26. Madan v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536]: 1989 (Supp-1) SCR 733 : (1990) 1 SCC 81 [LNIND 1989 SC
536] (para 24). See alsoDharamdas Sham Lal Agarwal v Police Commissioner, (1989) 2 SCC 370 [LNIND 1986 SC
191] : AIR 1989 SC 1282 [LNIND 1986 SC 191]; Suresh v State of W.B., AIR 1975 SC 728 : (1975) 3 SCC 554; S.K.
Nizamuddin v State of W.B., (1975) 3 SCC 395 [LNIND 1974 SC 345]. See alsoV.C. Mohan v UOI, AIR 2002 SC 1205
[LNIND 2002 SC 160]: (2002) 3 SCC 451 [LNIND 2002 SC 160].
27. Safiya v State of Kerala, (2003) 7 SCC 46 [LNIND 2003 SC 590].
28. Shakeel v State of Maharashtra, AIR 1983 SC 541 [LNIND 1983 SC 94]: (1983) 2 SCC 392 [LNIND 1983 SC 94].
29. Ashadevi v Shivraj, AIR 1979 SC 447 [LNIND 1978 SC 315]: (1979) 2 SCR 215 [LNIND 1978 SC 315] : (1979) 1 SCC
222 [LNIND 1978 SC 315]; Yusuf v State of J&K, AIR 1979 SC 1925 [LNIND 1979 SC 327](1932) : (1980) 1 SCR 258
31. See alsoBinod Bihari v State of Bihar, AIR 1974 SC 2125 [LNIND 1974 SC 291]: (1975) 3 SCC 238; Kishori Mohan v
State of WB, AIR 1972 SC 1749 : (1972) 3 SCC 845; Ananta Mukhi v State of WB, AIR 1972 SC 1256 [LNIND 1972
SC 85]: (1972) 1 SCC 580 [LNIND 1972 SC 85].
33. Abdul Rehman v UOI, 1986 Cr LJ 1610 (Bom).
34. (1983) 1 Crimes 651.
35. Huidrom Konungjao Singh v State of Manipur, (2012) 7 SCC 181 [LNIND 2012 SC 329] : AIR 2012 SC 2002 [LNIND
2012 SC 329]: (2012) Cr LJ 2935.
2010 SC 926].
Page 246 of 320
37. Srilal Shaw v State of W.B., AIR 1975 SC 393 [LNIND 1974 SC 402]: (1975) 1 SCC 336 [LNIND 1974 SC 402]; Noor
Chand v State of West Bengal, AIR 1974 SC 2120 : (1975) 3 SCC 306; L.K. Das v State of W.B., AIR 1975 SC 753 :
(1975) 4 SCC 62; Jaya Mala v Home Secy. J&K Govt., AIR 1982 SC 1297 [LNIND 1982 SC 109]: (1982) 2 SCC 538
[LNIND 1982 SC 109]; Kanchanlal v State of Gujarat, AIR 1979 SC 1945 [LNIND 1979 SC 289]: (1979) 4 SCC 14
[LNIND 1979 SC 289]; Hemalata v State of Mahrashtra, AIR 1982 SC 8 [LNIND 1981 SC 422]: (1981) 4 SCC 647
[LNIND 1981 SC 422]; Saraswati Seshagiri v State of Kerala, AIR 1982 SC 1165 [LNIND 1982 SC 74]: (1982) 2 SCC
310 [LNIND 1982 SC 74]. See alsoRekha v State of Tamil Nadu, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 4
Scale 387 [LNIND 2011 SC 371].
38. K. Kalawati v State of Tamil Nadu, (2006) 6 SCC 14 [LNIND 2006 SC 453].
39. G. Balaji v State of Tamil Nadu, (2007) 1 Mad LJ (Crl) 663; K.T.M.S. Mohd v UOI, AIR 1992 SC 1831 [LNIND 1992
SC 362]: (1992) 3 SCC 178 [LNIND 1992 SC 362]; Peer Mohammed v State of Tamil Nadu, (2006) 2 Mad LJ (Crl) 492.
40. Abdul Alim v State of Tamil Nadu, (2003) 1 CTC 673 [LNIND 2003 MAD 176] (FB); Varadasaru Ramraj v State of
Tamil Nadu, (2007) 2 Mad LJ (Crl) 62.
41. Krishnan v Secretary to Government, (2007) 1 Mad LJ (Crl) 529.
42. K. Kuppuswamy v Secretary to Government, (2005) Mad LJ (Crl) 891; Vasantha v Secy. to Govt., (2007) 2 Mad LJ
(Crl) 129.
43. Thangmani v State of Tamil Nadu, (2007) 1 Mad LJ 665.
44. K. Raju@Sagaya Arokia Dharmaraj v State of Tamil Nadu, (2007) 1 Mad LJ (Crl) 967.
45. R. Albert v State of T.N., (2007) 1 Mad LJ 996.
46. Mrs. Sarguna Modi v Dt. Collector, (2005) 1 LW (Cri) 380.
47. Sayed Abdul Ala v UOI, (2007) 15 SCC 208 [LNIND 2007 SC 1131] : (2007) 12 Scale 345.
Page 247 of 320
48. Pooja Batra v UOI, AIR 2009 SC 2256 [LNIND 2009 SC 2429]: (2009) 5 SCC 296 [LNIND 2009 SC 2429].
49. Rajesh Vashdev Advani v State of Maharashtra, (2005) 8 SCC 390 [LNIND 2005 SC 990].
50. Abdul Sattar v UOI, (1992) 1 SCC 1 [LNIND 1991 SC 521] : AIR 1991 SC 2261 [LNIND 1991 SC 521]: 1991 (Supp-1)
SCR 435 (para 12).
51. State of T.N. v Kadal Kani, (2002) 9 SCC 611 [LNINDORD 2000 SC 1] : AIR 2003 SC 4388 [LNINDORD 2000 SC 1].
52. P. Saravanan v State of T.N., (2001) 10 SCC 212; Ahmed Nasser v State of T.N., (1999) 8 SCC 473 [LNIND 1999 SC
945].
53. Rajesh Vashdev Adnani v State of Maharashtra, (2005) 8 SCC 390 [LNIND 2005 SC 990]; Jai Singh v State of J&K,
(1985) 1 SCC 561 : AIR 1985 SC 764.
54. Rameshwar v UOI, AIR 1964 SC 334 [LNIND 1963 SC 214]; Khagon v State of W.B., AIR 1971 SC 2051 : (1972) 4
SCC (N) 2; Victoria Fernandez v Lalmal Sowma, AIR 1992 SC 687 [LNIND 1992 SC 51]: (1992) 2 SCC 97 [LNIND
1992 SC 51], with the disjunctive “or” Abhay Shridhar Ambulkar v S.V. Bhave, AIR 1991 SC 397 [LNIND 1990 SC
796]: (1991) 1 SCC 500 [LNIND 1990 SC 796] : 1990 (Supp-3) SCR 552. See alsoJagdish v State of Bihar, AIR 1974
SC 911 [LNIND 1974 SC 41]; Anantha v State of W.B., AIR 1972 SC 1256 [LNIND 1972 SC 85]; State of T.N. v Vela,
55. Bhawarlal Ganeshmalji v State of T.N., (1979) 2 SCR 633 [LNIND 1978 SC 378] : (1979) 1 SCC 465 [LNIND 1978 SC
378] : AIR 1979 SC 541 [LNIND 1978 SC 378]; Iqbal P.U. v UOI, AIR 1992 SC 1900 : (1992) 1 SCC 434 : 1991 (Supp-
3) SCR 515; Rajender Arora v UOI, (2006) 4 SCC 796 [LNIND 2006 SC 179]; Naresh Kumar Goyal v UOI, (2005) 8
SCC 276 [LNIND 2005 SC 790] : AIR 2005 SC 4421 [LNIND 2005 SC 790].
56. Mehboob v Police Commissioner, AIR 1989 SC 1803 [LNIND 1989 SC 352]: (1989) 3 SCC 568 [LNIND 1989 SC 352]
(para 7).
57. Vashist v State of U.P., (1990) Cr LJ 1311 : AIR 1990 SC 1272 [LNIND 1990 SC 190]: (1990) 2 SCR 212 [LNIND
1990 SC 190] : (1990) 2 SCC 629 [LNIND 1990 SC 190] (para 10) (SC). See further under “What are vague grounds”,
post.
Page 248 of 320
58. State of Bombay v Atma Ram, AIR 1951 SC 157 [LNIND 1951 SC 5]: (1951) 2 SCR 167 [LNIND 1951 SC 5];
Tarapada v State of West Bengal, (1951) 2 SCR 212 [LNIND 1951 SC 4] : AIR 1951 SC 174 [LNIND 1951 SC 4].
59. Makhan Singh v State of Punjab, (1952) 1 SCR 368 [LNIND 1951 SC 68] : 1952 Cr LJ 321 : 1951 SCJ 835 [LNIND
1951 SC 68]. See under Article 21, p. 5058, ante.
60. Victoria v Lalmal, (1992) 2 SCC 97 [LNIND 1992 SC 51] .
61. Bhim Sen v State of Punjab, AIR 1951 SC 481 [LNIND 1951 SC 54] : (1952) 1 SCR 18 [LNIND 1951 SC 54] ; A.K.
Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] ; Shibbanlal
v State of HP, (1954) 1 SCR 418 [LNIND 1953 SC 110] : AIR 1954 SC 179 [LNIND 1953 SC 110] .
62. Bhim Sen v State of Punjab, AIR 1951 SC 481 [LNIND 1951 SC 54] : (1952) 1 SCR 18 [LNIND 1951 SC 54] ; A.K.
Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] ; Ghetu v
State of WB, AIR 1975 SC 982 [LNIND 1975 SC 12] ; Ramesh v District Magistrate, AIR 1986 SC 315 [LNIND 1985 SC
284] ; Jainal v District Magistrate, AIR 1975 SC 229 .
63. Abdulla v UOI, (1991) 1 SCC 476 [LNIND 1991 SC 42] ; Hemalatha Kantilal Shah v State of Maharashtra, (1981) 4
64. David v UOI, (1992) 4 SCC 154 ; Saraswati v State of Kerala, (1982) 2 SCC 310 [LNIND 1982 SC 74] ; District
Collector v Smt. Shaik Hussain Bibi, AIR 2001 SC 1681 [LNIND 2001 SC 1038] ; Rajan Warlikar v State of Karnataka,
65. Dwaraka Prasad v State of Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 3 SCC 722 [LNIND 1974 SC 359] .
66. Ghetu Sheik v State of WB, AIR 1975 SC 982 [LNIND 1975 SC 12] : (1975) 1 SCC 334 [LNIND 1975 SC 12] .
67. Rameshwar v D.M., AIR 1964 SC 334 [LNIND 1963 SC 214] : (1964) 4 SCR 921 [LNIND 1963 SC 214] ; Khagen v
State of W.B., AIR 1971 SC 2051 : 1971 Cr LJ 1456 : (1972) 4 SCC (N) 2.
68. Naranjan Singh v State of Punjab, (1952) 1 SCR 395 [LNIND 1952 SC 3] : AIR 1952 SC 106 [LNIND 1952 SC 3] :
1952 Cr LJ 656 : 1952 SCJ 111 [LNIND 1952 SC 3] .
69. Talib v State of J&K, AIR 1971 SC 61 ; Punum v State of J&K, (1975) Cr LJ 626 (SC) (para 11).
70. State of Gujarat v Adam, AIR 1981 SC 2005 [LNIND 1981 SC 391] : (1982) 1 SCR 740 [LNIND 1981 SC 391] : (1981)
4 SCC 216 [LNIND 1981 SC 391] (para 5). See alsoMaulana Shamshunnisa v Addl. Chief Secretary, AIR 2011 SC
Page 249 of 320
71. State of Punjab v Sukhpal, (1990) 1 SCC 35 [LNIND 1989 SC 498] : AIR 1990 SC 231 [LNIND 1989 SC 498] (para 8).
72. Abdulla Kunhi v UOI, (1991) 1 SCC 476 [LNIND 1991 SC 42] : AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCR
102 [LNIND 1991 SC 42] ; Hemalatha v State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422] : (1981) 4 SCC
73. Pooja Batra v UOI, AIR 2009 SC 2256 [LNIND 2009 SC 2429] : (2009) 5 SCC 296 [LNIND 2009 SC 2429] .
74. Hemlata v State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422] : (1982) 1 SCR 1028 [LNIND 1981 SC 422] :
(1981) 4 SCC 647 [LNIND 1981 SC 422] (para 15).
State of W.B., AIR 1971 SC 2051 : 1971 Cr LJ 1456 : (1972) 4 SCC (N) 2; Bhim Sen v State of Punjab, (1952) 1 SCR
18 [LNIND 1951 SC 54] : AIR 1951 SC 481 [LNIND 1951 SC 54] ; Shibban Lal v State of U.P., (1954) 1 SCR 418
[LNIND 1953 SC 110] : AIR 1954 SC 179 [LNIND 1953 SC 110] ; Jainal v D.M., AIR 1975 SC 229 : (1975) 3 SCC 321
; Ghetu v State of W.B., AIR 1975 SC 982 [LNIND 1975 SC 12] : (1975) 1 SCC 334 [LNIND 1975 SC 12] .
76. Subramaniam v State of Tamil Nadu, (2012) 4 SCC 699 [LNIND 2012 SC 135] : (2012) 2 Scale 613 .
77. G. Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2011) 10 Scale 224 [LNIND 2011 SC 893] .
78. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] : AIR 1951 SC 481 [LNIND 1951 SC 54] ; Shibban
Lal v State of U.P., (1954) 1 SCR 418 [LNIND 1953 SC 110] : AIR 1954 SC 179 [LNIND 1953 SC 110] .
79. Sheoraj v State of Bihar, AIR 1975 SC 1143 : (1975) 3 SCC 858 (para 7).
80. Ram Bali v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426] : (1975) 3 SCR 63 [LNIND 1974 SC 426] : (1975) 4
SCC 47 [LNIND 1974 SC 426] (para 13).
81. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] : AIR 1951 SC 481 [LNIND 1951 SC 54] ; Shibban
Lal v State of U.P., (1954) 1 SCR 418 [LNIND 1953 SC 110] : AIR 1954 SC 179 [LNIND 1953 SC 110] .
Page 250 of 320
82. Ram Bali v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426] : (1975) 3 SCR 63 [LNIND 1974 SC 426] : (1975) 4
SCC 47 [LNIND 1974 SC 426] (para 13); Tulsi v State of W.B., AIR 1975 SC 638 [LNIND 1975 SC 36] : (1975) 3 SCR
401 [LNIND 1975 SC 36] : (1975) 3 SCC 845 [LNIND 1975 SC 36] (paras 3, 7).
83. Krishna Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211] : (1975) 4 SCC 481 [LNIND 1975 SC 211] (para 6).
84. Jainal v D.M., AIR 1975 SC 229 : (1975) 3 SCC 321 ; Ghetu v State of W.B., AIR 1975 SC 982 [LNIND 1975 SC 12] :
(1975) 1 SCC 334 [LNIND 1975 SC 12] .
85. A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] : (1982) Cr LJ 340
; Pushpa Devi v M.L. Wadhwan, AIR 1987 SC 1748 [LNIND 1987 SC 444] : (1987) 3 SCC 367 [LNIND 1987 SC 444] .
86. Taraknath Chakroborthy v State of WB, AIR 1972 SC 2388 : (1972) 4 SCC 810 .
87. Vijayh Narain Singh v State of Bihar, AIR 1984 SC 1334 [LNIND 1984 SC 110] : (1984) 3 SCC 14 [LNIND 1984 SC
110] .
88. Noor Chand v State of W.B., AIR 1974 SC 2120 : (1975) 3 SCC 306 ; Anil Dey v State of W.B., AIR 1974 SC 832 :
(1974) 4 SCC 514 ; Dharus Kanu v State of W.B., AIR 1975 SC 571 : (1975) 3 SCC 527 [LNIND 1986 SC 149] ;
Khudiram Das v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC 386] ;
Rajinder Arora v UOI, (2006) 4 SCC 796 [LNIND 2006 SC 179] .
89. Sk. Nizamuddin v State of W.B., AIR 1974 SC 2353 [LNIND 1974 SC 345] ; Suresh Mahato v D.M., AIR 1975 SC 728
: (1975) 3 SCC 554 ; T.A. Abdul Rahman v State of Kerala, AIR 1990 SC 225 [LNIND 1989 SC 413] : (1989) 4 SCC
741 [LNIND 1989 SC 413] : (1989) 3 SCR 945 [LNIND 1989 SC 413] ; Abdul Salam v UOI, AIR 1990 SC 1446 [LNIND
90. L.K. Das v State of WB, AIR 1975 SC 753 : (1975) 4 SCC 62 ; Noor Chand v State of WB, AIR 1974 SC 2120 :
(1975) 3 SCC 306 ; Debu v State of West Bengal, AIR 1974 SC 816 : (1974) 4 SCC 135 .
91. Supra.
92. Saeed Zakir Hussain Malik v State of Maharashtra, AIR 2012 SC 3235 [LNIND 2012 SC 1557] : (2012) 8 SCC 233
[LNIND 2012 SC 1557] : (2012) Cr LJ 4297 .
2012 SC 329] : (2012) Cr LJ 2935 .
Page 251 of 320
2012 SC 888] .
2. Shibban Lal Saxena v State of U.P., AIR 1954 SC 179 [LNIND 1953 SC 110] : (1954) 1 SCR 418 [LNIND 1953 SC
110] ; Gopal Bihari v D.M., AIR 1975 SC 781 [LNIND 1975 SC 15] : (1975) 1 SCC 522 [LNIND 1975 SC 15] ; Dwaraka
Pershad v State of Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] ; Mintu Bhakta v State of W.B., AIR 1972 SC 2132 :
(1973) 4 SCC 85 .
3. Rajendra Kumar v State of Gujarat, AIR 1988 SC 1255 [LNIND 1988 SC 306] .
4. Smt. Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] .
5. D’Souza v State of Bombay, (1956) 1 SCR 382 [LNIND 1956 SC 36] (387) : AIR 1956 SC 531 [LNIND 1956 SC 36] :
1956 SCJ 559 .
1956 SCJ 559 .
7. Dwarika v State of Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702 [LNIND 1974 SC 359] : (1975)
3 SCC 722 [LNIND 1974 SC 359] (para 7).
8. Puranlal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) 1 SCR 460 : 1958 Cr LJ 283 : 1958 SCJ 510 [LNIND
1957 SC 70] ; Ram Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951
SC 24] : 1951 Cr LJ 904 : 1951 SCJ 374 .
9. Ram Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951
Cr LJ 904 : 1951 SCJ 374 .
10. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 ; see alsoBhut Nath
Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND 1974 SC 31] ; S.R.
Venketaraman v UOI, (1979) 2 SCC 491 [LNIND 1978 SC 312] .
2010 SC 926] .
12. L.K. Das v State of W.B., AIR 1975 SC 753 : (1975) 4 SCC 62 ; Noor Chand v State of W.B., AIR 1974 SC 2120 :
(1975) 3 SCC 306 ; Debu v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135 .
State of W.B., AIR 1971 SC 2051 : 1971 Cr LJ 1456 : (1972) 4 SCC (N) 2.
14. Ashutosh v State of Delhi, AIR 1953 SC 451 [LNIND 1950 SC 23] : 1953 Cr LJ 1921 : 1950 SCJ 433 .
15. Ram Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951
Cr LJ 904 : 1951 SCJ 374 ; Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] : 1955 Cr LJ 1408 :
1955 SCJ 669 .
16. SeeState of Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547] : (2008) 3 SCC
613 [LNIND 2008 SC 547] .
Page 252 of 320
17. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] ; see
alsoKamalesh Kumar Ishwardas Patel v UOI, (1995) 4 SCC 51 [LNIND 1995 SC 521] ; Rattan Singh v State of Punjab,
(1981) 4 SCC 481 [LNIND 1981 SC 417] ; Abdul Latif Abdul Wahab Sheikh v B.K. Jha, (1987) 2 SCC 22 [LNIND 1987
SC 143] .
2010 SC 926] ; see alsoMunagala Yadamma v State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] : 2012 Cr LJ 1662 :
(2012) 1 Scale 132 [LNIND 2012 SC 13] .
19. Rameswar Shaw v D.M., AIR 1964 SC 334 [LNIND 1963 SC 214] : (1964) 4 SCR 921 [LNIND 1963 SC 214] .
20. Golam Hussain v Commissioner of Police, AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974
SC 104] .
21. Ram Bali Rajbhar v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426] : (1975) 4 SCC 47 [LNIND 1974 SC 426] ;
Sadhu Roy v State of W.B., AIR 1975 SC 498 [LNIND 1974 SC 360] : (1975) 1 SCC 160 [LNIND 1974 SC 360] ; Noor
Chand v State of W.B., AIR 1974 SC 2120 : (1975) 3 SCC 306 .
22. Dulal Roy v D.M., AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 1 SCC 837 [LNIND 1975 SC 9] .
23. Sasthi v State of W.B., (1973) 1 SCR 468 (469) : AIR 1972 SC 2134 : (1973) 4 SCC 82 ; Arun v State of W.B., (1973)
1 SCR 552 [LNIND 1972 SC 279] (555) : AIR 1972 SC 1858 [LNIND 1972 SC 279] : (1972) 3 SCC 893 [LNIND 1972
SC 279] .
25. Salim v State of W.B., AIR 1975 SC 602 [LNIND 1975 SC 37] : (1975) 3 SCR 394 [LNIND 1975 SC 37] : (1975) 1 SCC
653 [LNIND 1975 SC 37] (para 13).
26. Bidhan Chandra Biswas v State of W.B., AIR 1972 SC 1850 [LNIND 1972 SC 52] : (1972) 2 SCC 666 [LNIND 1972 SC
52] ; Sahib Singh v UOI, AIR 1966 SC 340 [LNIND 1965 SC 179] : (1966) 1 SCR 313 [LNIND 1965 SC 179] : 1966 Cr
LJ 305 .
3 SCC 836 [LNIND 1975 SC 26] (para 10).
28. Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] : 1955 Cr LJ 1408 : 1955 SCJ 669 .
Page 253 of 320
29. The observations of the Constitution Bench in Haradhon’s case [ AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1
SCR 778 [LNIND 1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] (para 32)], however, do not provide any
qualifications.
30. Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] : 1955 Cr LJ 1408 : 1955 SCJ 669 .
31. Samir Chatterjee v State of WB, AIR 1975 SC 1165 [LNIND 1975 SC 132] : (1975) 3 SCC 553 ; State of Maharashtra v
Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547] : (2008) 3 SCC 613 [LNIND 2008 SC 547] .
32. M.S. Khan v C.C. Bose, AIR 1972 SC 1670 : (1972) 2 SCC 607 ; Golam Hussain v Police Commissioner, AIR 1974 SC
1336 [LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974 SC 104] ; Babulal v State of WB, AIR 1975 SC 606
33. Borjahan Gorey v State of WB, AIR 1972 SC 2236 : (1972) 2 SCC 550 [LNIND 1972 SC 339] ; Sahib Singh Dugal v
UOI, AIR 1966 SC 340 [LNIND 1965 SC 179] : (1966) 1 SCR 313 [LNIND 1965 SC 179] ; Mohd. Subrati v State of
WB, AIR 1973 SC 207 [LNIND 1972 SC 544] : (1973) 3 SCC 250 [LNIND 1972 SC 544] ; John Martin v State of WB,
34. Jainal v D.M., (1975) UJSC 27.
35. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] (24) : AIR 1951 SC 481 [LNIND 1951 SC 54] ;
Debu v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135 (para 2) [3 Judges].
36. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] (24) : AIR 1951 SC 481 [LNIND 1951 SC 54] .
37. Abdul Sattar v UOI, (1991) 3 SCJ 405 (para 6).
38. Debu v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135 (para 2) [3 Judges]; Fitrat v State of U.P., AIR 1982 SC
146 [LNIND 1981 SC 449] (148) : (1982) 2 SCC 449 [LNIND 1981 SC 449] .
39. M.P. Jain & S.N. Jain, Principles of Administrative Law, 4th Edn, Reprint 2005, p 565.
Page 254 of 320
40. Niranjan Singh v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3] ; see
alsoState of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) 2 SCR 167 [LNIND
1951 SC 5] .
41. Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) 1 SCR 460 : (1958) Cr LJ 283 .
42. Niranjan Singh v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3]
(supra).
43. Thakur Prasad Bama v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] .
44. Masood Alam v UOI, AIR 1973 SC 897 [LNIND 1973 SC 11] : (1973) 1 SCC 551 [LNIND 1973 SC 11] ; Sahib Singh v
UOI, AIR 1966 SC 340 [LNIND 1965 SC 179] : (1966) 1 SCR 313 [LNIND 1965 SC 179] ; Mohd. Salim Khan v C.C.
Bose, AIR 1972 SC 1670 ; Borjahan Gorey v State of WB, AIR 1972 SC 2236 : (1972) 2 SCC 550 [LNIND 1972 SC
339] .
45. John Martin v State of WB, AIR 1975 SC 775 [LNIND 1975 SC 26] : (1975) 3 SCC 836 [LNIND 1975 SC 26] : (1975)
Cr LJ 637 .
46. Debu v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135 (para 2) [3 Judges].
47. SeePooja Batra v UOI, AIR 2009 SC 2256 [LNIND 2009 SC 2429]: (2009) 5 SCC 296 [LNIND 2009 SC 2429].
48. Sitthi Zuraina Begum v UOI, AIR 2003 SC 323 [LNIND 2002 SC 730]: (2002) 10 SCC 448 [LNIND 2002 SC 730].
49. Darpan Kumar Sharma v State of T.N., AIR 2003 SC 971 [LNIND 2003 SC 65]: (2003) 2 SCC 313 [LNIND 2003 SC
65].
50. See alsoShashi Agarwal v State of U.P., (1988) 1 SCC 436 [LNIND 1988 SC 17] : AIR. 1988 SC 596 : (1988) 2 SCR
593.
51. T. Devaki v Govt of T.N., (1990) 2 SCC 456 [LNIND 1990 SC 141] : AIR 1990 SC 1086 [LNIND 1990 SC 141]: (1990)
1 SCR 836 [LNIND 1990 SC 141].
52. Kishori Mohan Bera v State of W.B., AIR 1972 SC 1749 : (1972) 3 SCC 845; see alsoMagan Gope v State of W.B.,
53. Ramveer Jatar v State of UP, (1987) Cr LJ 321 (SC); see alsoSanawwa v State of UP, (1994) Cr LJ (NOC) 43 (All);
Apda Haran Singh v UOI, (1994) Cr LJ 480 (All); Riaz Ahmed v State of UP, (1987) Cr LJ 436 (All); Israil Sheik v
Page 255 of 320
District Magistrate, AIR 1975 SC 168 [LNIND 1974 SC 385]: (1975) 3 SCC 292 [LNIND 1974 SC 385] : (1975) Cr LJ
259.
54. Buta Singh v State of Punjab, (1991) Cr LJ 116.
55. Attorney General of India v Amratlal Prajivan Das, AIR 1994 SC 2179 [LNIND 1993 SC 1093]: (1994) 5 SCC 54
[LNIND 1993 SC 1093].
56. Kamalabhai v Commissioner of Police, Nagpur, (1993) 3 SCC 384 : JT (1993) 3 SC 666.
57. UOI v Ghoshal, AIR 2005 SC 428 [LNIND 2004 SC 1238]: (2005) 10 SCC 97 [LNIND 2004 SC 1238].
58. Kirti Kumar Nirula v State of Maharashtra, (2005) 9 SCC 65 [LNIND 2004 SC 949]; see alsoChowdarapu
Raghunandan v State of T.N., (2002) 3 SCC 754 [LNIND 2002 SC 211] : AIR 2002 SC 1460 [LNIND 2002 SC 211];
Victoria Fernandez v Lalmal Sowma, AIR 1992 SC 687 [LNIND 1992 SC 51]: (1992) 2 SCC 97 [LNIND 1992 SC 51].
1992]: 2010 Cr LJ 877; Pooja Batra v UOI, AIR 2009 SC 2256 [LNIND 2009 SC 2429]: (2009) 5 SCC 296 [LNIND 2009
SC 2429].
60. Vijay Narain Singh v State of Bihar, (1984) 3 SCC 14 [LNIND 1984 SC 110] : AIR 1984 SC 1334 [LNIND 1984 SC
110]; Vijay Amba Das Diware v Balakrishna Waman Dande, (2000) 4 SCC 126 [LNIND 2000 SC 561] : AIR 2000 SC
1414 [LNIND 2000 SC 561]; Mustakmiya Jabbarmiya Shaikh v M.M. Mehta, (1995) 3 SCC 237 : JT (1995) 4 SC 215;
Ayub v S.N. Sinha, (1990) 4 SCC 552 [LNIND 1990 SC 929] : AIR 1990 SC 2069; R. Kalavathy v State of T. N, (2006)
6 SCC 14 [LNIND 2006 SC 453]. See alsoKanchana v State, (2007) 2 Mad LJ (Crl) 1331; Suguna v State of Tamil
Nadu, (2007) 2 Mad LJ (Crl) 1528. But seeSokkalingam v State of Tamil Nadu, (2007) 2 Mad LJ (Crl) 1138. See alsoG.
Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2012) 1 Scale 422 [LNIND 2012 SC 44].
61. Debu v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135 (para 2) [3 Judges]; Fitrat v State of U.P., AIR 1982 SC
146 [LNIND 1981 SC 449](148) : (1982) 2 SCC 449 [LNIND 1981 SC 449].
62. Vijay v State of Bihar, AIR 1984 SC 1334 [LNIND 1984 SC 110]: (1984) 3 SCR 435 [LNIND 1984 SC 110] : (1984) 3
SCC 14 [LNIND 1984 SC 110]. See alsoMustakmiya Jabbarmiya Shaik v M.M. Mehta, Commr. of Police, (1995) 3 SCC
237.
Page 256 of 320
63. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] (24) : AIR 1951 SC 481 [LNIND 1951 SC 54] ;
Joglekar v Commr. of Police, AIR 1957 SC 28 [LNIND 1956 SC 61] : (1956) 1 SCR 653 [LNIND 1956 SC 61] : 1957 Cr
LJ 10 : 1956 SCJ 539 (715).
64. Naranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3] : 1952 Cr
LJ 656 : 1952 SCJ 111 [LNIND 1952 SC 3] ; Godawari v State of Maharashtra, AIR 1966 SC 1404 [LNIND 1966 SC
321] (1407) : (1966) 3 SCR 314 [LNIND 1966 SC 321] .
1956 SCJ 559 .
66. Puranlal v UOI, (1958) 1 SCR 460 : AIR 1958 SC 163 [LNIND 1957 SC 70] : 1958 Cr LJ 283 : 1958 SCJ 510 [LNIND
1957 SC 70] .
67. Ram Krishna v State of Delhi, AIR 1953 SC 318 [LNIND 1953 SC 49] (319) : (1953) 4 SCR 708 [LNIND 1953 SC 49] ;
Sadanandan v State of Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] : (1966) 3 SCR 590 [LNIND 1966 SC 52] :
1966 Cr LJ 1533 (para 14); Vasisht v State of U.P., (1990) Cr LJ 1311 : AIR 1990 SC 1272 [LNIND 1990 SC 190] :
(1990) 2 SCR 212 [LNIND 1990 SC 190] : (1990) 2 SCC 629 [LNIND 1990 SC 190] (paras 10) (SC); Mehboob v Police
Commissioner, AIR 1989 SC 1803 [LNIND 1989 SC 352] : (1989) 3 SCC 568 [LNIND 1989 SC 352] (para 7).
68. Pushkar v State of W.B., AIR 1970 SC 852 [LNIND 1968 SC 332] (855) : (1969) 2 SCR 635 [LNIND 1968 SC 332] :
(1969) 1 SCC 10 [LNIND 1968 SC 332] .
69. Kishori v State of W.B., AIR 1972 SC 1749 : (1972) 3 SCC 845 ; Binod v State of Bihar, (1974) Cr LJ 1457 (SC) : AIR
291] ; Jagannath v State of Orissa, AIR 1966 SC 1140 [LNIND 1965 SC 396] : (1966) 3 SCR 134 [LNIND 1965 SC
396] : 1966 Cr LJ 817 .
70. Jagdish v State of Bihar, AIR 1974 SC 911 [LNIND 1974 SC 41] : (1974) 3 SCR 369 [LNIND 1974 SC 41] : (1974) 4
SCC 455 [LNIND 1974 SC 41] .
71. Ananta v State of W.B., AIR 1972 SC 1256 [LNIND 1972 SC 85] : (1972) 3 SCR 379 [LNIND 1972 SC 85] : (1972) 1
SCC 580 [LNIND 1972 SC 85] .
72. Suresh v Dist. Magistrate, Burdwan, AIR 1975 SC 728 : (1975) 3 SCC 554 (para 4); Nizamuddin v State of W.B., AIR
345] .
73. Rushikesh Tanaji Bhoite v State of Maharashtra, AIR 2012 SC 890 [LNIND 2012 SC 1531] : (2012) 2 SCC 72 [LNIND
2012 SC 1531] : (2012) Cr LJ 1334 .
Page 257 of 320
74. Dwarika v State of Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702 [LNIND 1974 SC 359] : (1975)
3 SCC 722 [LNIND 1974 SC 359] .
75. Madan v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : 1989 (Supp-1) SCR 733 : (1990) 1 SCC 81 [LNIND 1989 SC
536] (para 32). See alsoState of Punjab v Jagdev Singh, AIR 1984 SC 444 [LNIND 1983 SC 377] ; State of Bombay v
Purushottam Jog Naik, AIR 1952 SC 317 [LNIND 1952 SC 40] ; Ranjit Dam v State of WB, AIR 1972 SC 1753 ; Asghar
Ali v Shah, AIR 1988 SC 723 [LNIND 1988 SC 94] ; Suru Malik v State of WB, AIR 1974 SC 2305 : (1975) 4 SCC 470 .
76. Victoria v Lalmal, (1992) 2 SCC 97 [LNIND 1992 SC 51] : AIR 1992 SC 687 [LNIND 1992 SC 51](para 11).
77. Niranjan v State of M.P., AIR 1972 SC 2215 [LNIND 1972 SC 319]: (1973) 1 SCR 691 [LNIND 1972 SC 319] : (1972)
2 SCC 542 [LNIND 1972 SC 319]; Dulal v D.M., AIR 1975 SC 1508 [LNIND 1975 SC 9](1510) : (1975) 3 SCR 186
78. Ranjit v State of W.B., AIR 1972 SC 1753 : (1972) 2 SCC 516 [LNIND 1952 SC 40]; J.N. Roy v State of W.B., AIR
79. Hanif v State of W.B., AIR 1974 SC 679 [LNIND 1974 SC 24]: (1974) 3 SCR 258 [LNIND 1974 SC 24] : (1974) 1 SCC
637 [LNIND 1974 SC 24]; Samaresh v D.M., AIR 1972 SC 2481 [LNIND 1972 SC 362]: (1973) 1 SCR 859 [LNIND
1972 SC 362] : (1972) 2 SCC 476 [LNIND 1972 SC 362]. See alsoMohimuddin v District Magistrate, Burdwan, AIR
1987 SC 1977 [LNIND 1987 SC 524]: (1987) 4 SCC 58 [LNIND 1987 SC 524]; State of Gujarat v Sunil Fulchand Shah,
AIR 1988 SC 723 [LNIND 1988 SC 94]: (1988) 1 SCC 600 [LNIND 1988 SC 94]; Syed Farooq Mohammed v UOI, AIR
1990 SC 1577.
80. Sadhu v State of WB, AIR 1975 SC 919 [LNIND 1975 SC 31]: (1975) 1 SCC 660 [LNIND 1975 SC 31]; Madan Lal
Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536]: (1990) 1 SCC 81 [LNIND 1989 SC 536]; Gazi Khan v State of
Rajasthan, AIR 1990 SC 1361 [LNIND 1990 SC 285]: (1990) 3 SCC 459 [LNIND 1990 SC 285]; Gulab Mehra v State
of UP, AIR 1987 SC 2332 [LNIND 1987 SC 650]: (1987) 4 SCC 302 [LNIND 1987 SC 650] : (1988) 1 SCR 126 [LNIND
1987 SC 650]; Shaik Hanif v State of WB, AIR 1974 SC 679 [LNIND 1974 SC 24]: (1974) 1 SCC 637 [LNIND 1974 SC
24]; Bhut Nath Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND 1974 SC 31];
Jagdish Prasad v State of WB, AIR 1974 SC 911 [LNIND 1974 SC 41]: (1974) 4 SCC 405 : (1974) 3 SCR 369 [LNIND
1974 SC 41].
81. Munna Tuin v Dt. Magistrate, Lucknow, AIR 1982 SC 878 [LNIND 1982 SC 35]: (1982) 3 SCC 320 [LNIND 1982 SC
35].
Page 258 of 320
83. Frances Corallie v W.C. Khambrq, AIR 1980 SC 849 [LNIND 1980 SC 97]: (1980) 2 SCC 275 [LNIND 1980 SC 97].
84. Sabir v State of J&K, AIR 1971 SC 1713 : (1972) 4 SCC 558 (para 2).
85. Ranbir Singh v T. George Joseph, D.M. Meerut, 1990 (Supp) SCC 54.
86. Victoria Fernandez (Smt.) v Lalmal Sarmel, AIR 1992 SC 687 [LNIND 1992 SC 51]: (1992) 2 SCC 97 [LNIND 1992
SC 51].
87. Tsering Dolker v Administration UT Delhi, AIR 1987 SC 1192 [LNIND 1987 SC 192]: (1987) 2 SCC 69 [LNIND 1987
SC 192].
88. Janendra Nath Roy v State of W.B., AIR 1972 SC 2143 [LNIND 1972 SC 54]: (1972) 4 SCC 50 [LNIND 1972 SC 54].
89. Rajendra v Commissioner of Police, 1994 (Supp-2) SCC 716. See alsoGazi Khan v State of Rajasthan, AIR 1990 SC
1361 [LNIND 1990 SC 285]: (1990) 3 SCC 459 [LNIND 1990 SC 285]; Madan Lal Anand v UOI, AIR 1990 SC 176
[LNIND 1989 SC 536]: (1990) 1 SCC 81 [LNIND 1989 SC 536]; Shaik Hanif v State of W.B., AIR 1974 SC 679 [LNIND
1974 SC 24]: (1974) 1 SCC 637 [LNIND 1974 SC 24]; Bhut Nath v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC
31]: (1974) 1 SCC 645 [LNIND 1974 SC 31]; Gulab Mehra v State of U.P., AIR 1987 SC 2332 [LNIND 1987 SC 650].
90. Sadhu v State of W.B., AIR 1975 SC 919 [LNIND 1975 SC 31]: (1975) 1 SCC 660 [LNIND 1975 SC 31]; Madan Lal
Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536]: (1990) 1 SCC 81 [LNIND 1989 SC 536].
91. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] (24) : AIR 1951 SC 481 [LNIND 1951 SC 54];
Joglekar v Commr. of Police, AIR 1957 SC 28 [LNIND 1956 SC 61]: (1956) 1 SCR 653 [LNIND 1956 SC 61] : 1957 Cr
LJ 10 : 1956 SCJ 539 (715); Naranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3]: (1952) 1 SCR 395
[LNIND 1952 SC 3] : 1952 Cr LJ 656; Godawari v State of Maharashtra, AIR 1966 SC 1404 [LNIND 1966 SC
321](1407) : (1966) 3 SCR 314 [LNIND 1966 SC 321].
Page 259 of 320
92. Bhim Sen v State of Punjab, (1952) 1 SCR 18 [LNIND 1951 SC 54] (24) : AIR 1951 SC 481 [LNIND 1951 SC 54].
93. Wasiuddin v Dt. Magistrate, AIR 1981 SC 2166 : (1981) 4 SCC 521 ; Sonam Yongda (ex-captain) v State of Sikkim,
AIR 1986 SC 1736 : (1986) 3 SCC 594 .
94. (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1974 SC 2154 [LNIND 1974 SC 243] : 1974 Cr LJ 1479 .
95. G. Reddeiah v Govt. of AP, (2012) 2 SCC 389 [LNIND 2011 SC 893] : (2011) 10 Scale 244 .
1992] : 2010 Cr LJ 877 .
3. See alsoSayed Abdul Ala v UOI, (2007) 15 SCC 208 [LNIND 2007 SC 1131] : (2007) 12 Scale 345 .
5. See alsoSubramaniam v State of Tamil Nadu, (2012) 4 SCC 699 [LNIND 2012 SC 135] : (2012) 2 Scale 613 .
6. Wasuiddin Ahmed v District Magistrate, AIR 1981 SC 2166 : (1981) 4 SCC 521 .
7. Suraj Pal Sahu v State of Maharashtra, AIR 1986 SC 2177 [LNIND 1986 SC 351] : (1986) 4 SCC 378 [LNIND 1986
SC 351] .
8. UOI v Vasanbharathi, AIR 1990 SC 1216 : (1990) 2 SCC 275 [LNIND 1990 SC 121] .
9. Johan Martin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26] : (1975) 3 SCR 211 [LNIND 1975 SC 26] :
(1975) 3 SCC 836 [LNIND 1975 SC 26] .
10. Raman Lal Rathi v Commissioner of Police, Calcutta, AIR 1952 Cal 26 [LNIND 1951 CAL 187] . See alsoSahib Singh
Dugal and Jagdev Kumar Gupta v UOI, AIR 1966 SC 340 [LNIND 1965 SC 179] : (1966) 1 SCR 313 [LNIND 1965 SC
179] .
11. Beni Madhab Shaw v State of W.B., AIR 1973 SC 2455 : (1974) 3 SCC 481 . See alsoGolaum Hussain v
Commissioner of Police, AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974 SC 104] (supra).
12. I. Godawary v State of Maharashtra, AIR 1966 SC 1404 [LNIND 1966 SC 321] : (1966) 3 SCR 314 [LNIND 1966 SC
321] .
13. Master Lal Mohd. Sabir v State of J&K, AIR 1971 SC 1713 : (1972) 4 SCC 558 .
14. Masood Khan v UOI, AIR 1973 SC 897 [LNIND 1973 SC 11] : (1973) 1 SCC 551 [LNIND 1973 SC 11] : (1973) 3 SCR
268 [LNIND 1973 SC 11] .
15. Daya Nand Modi v State of Bihar, (1951) Cr LJ 406 .
17. Rajesh Gulathi v Govt of NCT of Delhi, (2002) 7 SCC 129 [LNIND 2002 SC 532] : AIR 2002 SC 3094 [LNIND 2002 SC
532] .
Page 260 of 320
18. Mangalbhai Motiram v State of Maharashtra, AIR 1981 SC 510 [LNIND 1980 SC 410] : (1980) 4 SCC 470 [LNIND
1980 SC 410] ; Khudiram v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC
386] .
19. Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] : (1952) 1 SCR 756 [LNIND 1951 SC 13] .
20. Hemalatha Kanthilal Shah v State of Maharashtra, (1981) 4 SCC 647 [LNIND 1981 SC 422] : (1982) 1 SCR 1028
[LNIND 1981 SC 422] .
21. Lakshman v State of W.B., AIR 1974 SC 1264 : (1974) 4 SCC 1 (para 5); Sonam v State of Sikkim, AIR 1986 SC
1736 : (1986) 3 SCC 594 (para 2).
1736 : (1986) 3 SCC 594 (para 2).
23. AbdulMannaf v State of W.B., AIR 1974 SC 2066 : (1975) 3 SCC 239 .
24. Collector and District Magistrate v Sangala Kandamma, (2005) 3 SCC 666 [LNIND 2004 SC 1224] : AIR 2005 SC 1165
[LNIND 2004 SC 1224] . Also seeDistrict Collector v V. Laxmanna, AIR 2005 SC 2802 [LNIND 2005 SC 288] : (2005) 3
SCC 663 [LNIND 2005 SC 288] .
25. Commissioner of Police v C. Anitha, (2004) 7 SCC 467 [LNIND 2004 SC 829] : AIR 2004 SC 4423 [LNIND 2004 SC
829] . See alsoState of P&H. v Sukpal Singh, AIR 1990 SC 231 [LNIND 1989 SC 498] : (1990) 1 SCC 35 [LNIND 1989
SC 498] .
26. UOI v Arvind Shergill, AIR 2000 SC 2924 [LNIND 2000 SC 1228] : (2000) 7 SCC 601 [LNIND 2000 SC 1228] ;
Phulwari Jagdambaprasad Pathak v R.H. Mendonca, AIR 2000 SC 2527 [LNIND 2000 SC 993] : (2000) 6 SCC 751
[LNIND 2000 SC 993] .
27. Sk. Nizamuddin v State of W.B., AIR 1974 SC 2353 [LNIND 1974 SC 345] .
28. Licil Antony v State of Kerala, (2014) 11 SCC 326 [LNIND 2014 SC 315] : (2014) Cr LJ 2414 .
29. Abdul Salam v UOI, AIR 1990 SC 1446 [LNIND 1990 SC 244] ; T.A. Abdul Rahman v State of Kerala, AIR 1990 SC
225 [LNIND 1989 SC 413] . See alsoManju Ramesh Nahar v UOI, AIR 1999 SC 2622 [LNIND 1999 SC 327] : (1999) 4
SCC 116 [LNIND 1999 SC 331] , for smuggling gold biscuits, the detenu admitted his guilt on December 8, 1997, but
the detention order was passed in November 1998, i.e., after more than 11 months.
30. Ahamed Mohaideen Zabar v State of T.N., AIR 1999 SC 2141 [LNIND 1999 SC 465] : (1999) 4 SCC 417 [LNIND 1999
SC 465] . See alsoRajendar Arora v UOI, (2006) 4 SCC 796 [LNIND 2006 SC 179] .
31. Rajan Worlikar v State of Karnataka, (2001) 5 SCC 295 [LNIND 2001 SC 1183] .
32. Licil Antony v State of Kerala, (2014) 11 SCC 326 [LNIND 2014 SC 315] : (2014) Cr LJ 2414 .
33. M. Mohammed Sultan v Joint Secretary to Government of India, AIR 1990 SC 2222 [LNIND 1990 SC 575] : (1991) 1
SCC 144 [LNIND 1990 SC 575] ; Hare Ram Pandey v State of Bihar, AIR 2004 SC 738 [LNIND 2003 SC 1064] :
(2004) 3 SCC 289 [LNIND 2003 SC 1064] ; UOI v Chaya Ghoshal, AIR 2005 SC 428 [LNIND 2004 SC 1238] : (2005)
10 SCC 97 [LNIND 2004 SC 1238] ; Priyanka Pandit Furlore v State of Maharashtra, (2002) 9 SCC 714 ; P.M. Hari
Kumar v UOI, (1995) 5 SCC 691 [LNIND 1995 SC 869] ; P.U. Iqbal v UOI, AIR 1992 SC 1900 : (1992) 1 SCC 434 ;
Page 261 of 320
K.P.M. Basheer v State of Karnataka, AIR 1992 SC 1353 [LNIND 1992 SC 200] : (1992) 2 SCC 295 [LNIND 1992 SC
200] ; Muljimal Gandhi v L. Himingliana, (1994) 6 SCC 14 [LNIND 1994 SC 755] ; Mustakmiya Jabbarmiya Shaik v
M.M. Mehta Commissioner of Police, (1995) 3 SCC 237 .
35. Subhash Popatlal Dave v UOI, (2014) 1 SCC 280 [LNIND 2013 SC 676] : 2013 Cr LJ 4166 : (2013) 9 Scale 295
[LNIND 2013 SC 676] (by majority).
37. See alsoHare Ram Pandey v State of Bihar, (2004) 3 SCC 289 [LNIND 2003 SC 1064] : AIR 2004 SC 738 [LNIND
2003 SC 1064] ; Vinod K. Chawla v UOI, (2006) 7 SCC 337 [LNIND 2006 SC 1658] ; Bhawarlal Ganeshmalji v State of
Tamil Nadu, (1979) 1 SCC 465 [LNIND 1978 SC 378] ; Sunil Fulchand Shah v UOI, (2000) 3 SCC 409 [LNIND 2000
SC 323] : AIR 2000 SC 1023 [LNIND 2000 SC 323] ; Sayed Taher Bawamiya v Govt. of India, (2000) 8 SCC 630 : 2002
Cr LJ 259 .
38. Sultan Abdul Kader v Joint Secretary to Government of India, (1998) 8 SCC 343 [LNIND 1998 SC 590] ; UOI v
Parasmal Rampuria, (1998) 8 SCC 402 [LNIND 1998 SC 314] : JT (1998) 2 SC 531 [LNIND 1998 SC 314] .
39. D Anuradha v Joint Secretary, (2006) 5 SCC 142 [LNIND 2006 SC 295] . See alsoAbdul Nazar Adam Ismail v State of
Maharashtra, AIR 2013 SC 1376 [LNIND 2013 SC 256] : (2013) 4 SCC 435 [LNIND 2013 SC 256] ; N. Sengodan v
State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 .
40. Kamal v State of W.B., AIR 1975 SC 730 : (1975) 3 SCC 543 . See alsoLicil Antony v State of Kerala, (2014) 11 SCC
326 [LNIND 2014 SC 315] : (2014) Cr LJ 2414 .
1736 : (1986) 3 SCC 594 (para 2); Saha v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR
778 [LNIND 1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] (paras 33–34).
42. Shafiq v D.M. Meerut, (1989) 4 SCC 556 [LNIND 1989 SC 438] : AIR 1990 SC 220 [LNIND 1989 SC 438] : 1989
(Supp-1) SCR 56.
[LNIND 2012 SC 1557] : (2012) Cr LJ 4297 .
44. AIR 1974 SC 1264 : (1974) 4 SCC 1 .
45. Gulam Hussain v Police Commissioner, AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974
SC 104] : (1974) 3 SCR 613 [LNIND 1974 SC 104] ; see alsoPradeep Nilkanth Paturkar v S. Ramamurthi, AIR 1994 SC
656 : 1993 (Supp-2) SCC 61; Rajendra Kumar Natwarlal Shah v State of Gujarat, AIR 1988 SC 1255 [LNIND 1988 SC
306] : (1988) 3 SCC 153 [LNIND 1988 SC 306] .
46. Ram Krishna v State of Delhi, AIR 1953 SC 318 [LNIND 1953 SC 49] (319) : 1953 SCR 708 [LNIND 1953 SC 49] :
1953 Cr LJ 1241 ; Sadanandan v Stateof Kerala, AIR 1966 SC 1925 [LNIND 1966 SC 52] : (1966) 3 SCR 590 [LNIND
1966 SC 52] : 1966 Cr LJ 1533 (para 14).
47. Pushkar v State of W.B., AIR 1970 SC 852 [LNIND 1968 SC 332] (855) : (1969) 2 SCR 635 [LNIND 1968 SC 332] :
(1969) 1 SCC 10 [LNIND 1968 SC 332] .
Page 262 of 320
48. Binod v State of Bihar, (1974) Cr LJ 1457 (SC) : AIR 1974 SC 2125 [LNIND 1974 SC 291] : (1975) 2 SCR 215 [LNIND
1974 SC 291] : (1975) 3 SCC 328 [LNIND 1974 SC 291] .
49. Binod v State of Bihar, (1974) Cr LJ 1457 (SC) : AIR 1974 SC 2125 [LNIND 1974 SC 291] : (1975) 2 SCR 215 : (1975)
3 SCC 328 [LNIND 1974 SC 291] ; Jagannath v State of Orissa, AIR 1966 SC 1140 [LNIND 1965 SC 396] : (1966) 3
SCR 134 [LNIND 1965 SC 396] : 1966 Cr LJ 817 .
50. Jagdish v State of Bihar, AIR 1974 SC 911 [LNIND 1974 SC 41] : (1974) 3 SCR 369 [LNIND 1974 SC 41] : (1974) 4
SCC 455 [LNIND 1974 SC 41] .
51. Ananta v State of W.B., AIR 1972 SC 1256 [LNIND 1972 SC 85] : (1972) 3 SCR 379 [LNIND 1972 SC 85] : (1972) 1
SCC 580 [LNIND 1972 SC 85] .
52. Suresh v Dist. Magistrate, Burdwan, AIR 1975 SC 728 : (1975) 3 SCC 554 (para 4); Nizamuddin v Stateof W.B., AIR
345] .
53. Fendan v State of W.B., AIR 1975 SC 1005 [LNIND 1974 SC 183] : (1975) 1 SCR 483 [LNIND 1974 SC 183] : (1975)
3 SCC 30 [LNIND 1974 SC 183] (CB).
54. Baby Devassy Chully (alias) Bobby v UOI, (2013) 4 SCC 531 [LNIND 2012 SC 641] : AIR 2013 SC 303 [LNIND 2012
SC 641] .
55. D’Souza v State of Bombay, AIR 1956 SC 531 [LNIND 1956 SC 36] (534) : (1956) 1 SCR 382 [LNIND 1956 SC 36] :
1956 SCJ 559 .
56. Ashutosh v State of Delhi, AIR 1953 SC 451 [LNIND 1950 SC 23] (452–53) : 1953 Cr LJ 1921 : 1950 SCJ 433 .
57. Niranjan v State of M.P., AIR 1972 SC 2215 [LNIND 1972 SC 319] : (1973) 1 SCR 691 [LNIND 1972 SC 319] : (1972)
2 SCC 542 [LNIND 1972 SC 319] ; Dulal v D.M., AIR 1975 SC 1508 [LNIND 1975 SC 9] (1510) : (1975) 3 SCR 186
[LNIND 1975 SC 9] : (1975) 1 SCC 837 [LNIND 1975 SC 9] ; Hanif v State of W.B., AIR 1974 SC 679 [LNIND 1974 SC
24] : (1974) 3 SCR 258 [LNIND 1974 SC 24] : (1974) 1 SCC 637 [LNIND 1974 SC 24] ; Samaresh v D.M., AIR 1972
SC 2481 [LNIND 1972 SC 362] : (1973) 1 SCR 859 [LNIND 1972 SC 362] : (1972) 2 SCC 476 [LNIND 1972 SC 362] ;
Ranjit v State of W.B., AIR 1972 SC 1753 : (1972) 2 SCC 516 [LNIND 1952 SC 40] ; J.N. Roy v State of W.B., AIR
1972 SC 2143 [LNIND 1972 SC 54] : (1972) 4 SCC 50 [LNIND 1972 SC 54] ; Sabir v State of J&K, AIR 1971 SC 1713
: (1972) 4 SCC 558 (para 2); Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] (632) : 1955 Cr
LJ 1408 : 1955 SCJ 669 ; Shaik Hanif v State of W.B., AIR 1974 SC 679 [LNIND 1974 SC 24] : (1974) 3 SCR 258
[LNIND 1974 SC 24] ; Gazi Khan v State of Rajasthan, AIR 1990 SC 136 : (1990) 3 SCC 459 [LNIND 1990 SC 285] ;
Gulab Mehra v State of U.,P., AIR 1987 SC 2332 [LNIND 1987 SC 650] : (1988) 1 SCR 126 [LNIND 1987 SC 650] :
(1987) 4 SCC 302 [LNIND 1987 SC 650] .
Page 263 of 320
58. Ranjit v State of W.B., AIR 1972 SC 1753 : (1972) 2 SCC 516 [LNIND 1952 SC 40] ; J.N. Roy v State of W.B., AIR
59. Hanif v State of W.B., AIR 1974 SC 679 [LNIND 1974 SC 24] : (1974) 3 SCR 258 : (1974) 1 SCC 637 [LNIND 1974
SC 24] ; Samaresh v D.M., AIR 1972 SC 2481 [LNIND 1972 SC 362] : (1973) 1 SCR 859 [LNIND 1972 SC 362] :
(1972) 2 SCC 476 [LNIND 1972 SC 362] .
61. Lawrence Joachim Joseph D’Souza v State of Bombay, AIR 1956 SC 531 [LNIND 1956 SC 36] : (1956) 1 SCR 382
[LNIND 1956 SC 36] : 1956 Cr LJ 935 (supra).
62. P.L. Lakhanpal v UOI, AIR 1967 SC 908 [LNIND 1966 SC 197] : (1967) 1 SCR 433 [LNIND 1966 SC 197] .
63. Asgar Ali v District Magistrate, Burdwan, AIR 1974 SC 1814 : (1974) 4 SCC 527 ; Suru Mallick v State of W.B., AIR
1974 SC 2305 : (1975) 4 SCC 470 ; State of Gujarat v Sunil, AIR 1988 SC 723 [LNIND 1988 SC 94] : (1988) 1 SCC
600 [LNIND 1988 SC 94] ; Madanlal Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND
1989 SC 536] .
65. See alsoState of Bombay v Purushottam Jog Naik, AIR 1952 SC 317 [LNIND 1952 SC 40] : (1951) 1 SCR 674 ; Syed
Farooq Muhammed v UOI, AIR 1990 SC 1597 [LNIND 1990 SC 313] : (1990) 3 SCC 537 [LNIND 1990 SC 313] .
66. S.C. Bose v Dt. Magistrate, Burdwan, AIR 1972 SC 2481 [LNIND 1972 SC 362] : (1972) 2 SCC 476 [LNIND 1972 SC
362] .
67. Niranjan Singh v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3] ;
State of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) 2 SCR 167 [LNIND
1951 SC 5] .
69. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 .
70. Sabir v State of J&K, AIR 1971 SC 1713 : (1972) 4 SCC 558 (para 2).
71. Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] (632) : 1955 Cr LJ 1408 : 1955 SCJ 669 . See
alsoNiranjan Singh v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3] .
72. Dulal v D.M., AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 3 SCR 186 [LNIND 1975 SC 9] : (1975) 1 SCC 837
[LNIND 1975 SC 9] (para 6).
73. Dulal v D.M., AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 3 SCR 186 : (1975) 1 SCC 837 [LNIND 1975 SC 9]
(para 6).
74. Rameshwar Shaw v District Magistrate, AIR 1964 SC 334 [LNIND 1963 SC 214] : (1964) 4 SCR 92 : (1964) 1 Cr LJ
257 .
75. Baby Devassy Chully (alias) Bobby v UOI, AIR 2013 SC 303 [LNIND 2012 SC 641] : (2013) 4 SCC 531 [LNIND 2012
SC 641] .
Page 264 of 320
76. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] (supra).
77. Vijay v State of J&K, AIR 1982 SC 1023 [LNIND 1982 SC 69] : (1982) 3 SCR 522 [LNIND 1982 SC 69] : (1982) 2 SCC
43 [LNIND 1982 SC 69] (para 9); Merugu v State of A.P., AIR 1982 SC 1543 [LNIND 1982 SC 148] : (1983) 1 SCR
78. Lal Kamal v State of W.B., AIR 1975 SC 753 : (1975) 4 SCC 62 : 1975 Cr LJ 630 ; Kartik v State of W.B., AIR 1974
SC 2149 : (1975) 3 SCC 490 : 1974 Cr LJ 1474 (para 4).
79. Alijan v D.M., AIR 1983 SC 1130 [LNIND 1983 SC 249] : (1983) 3 SCR 939 [LNIND 1983 SC 249] : (1983) 4 SCC 301
[LNIND 1983 SC 249] (para 9). See alsoRamesh @ Kothari Ramesh v State, (2007) 2 Mad LJ (Crl) 732; Sokkalingam v
State of Tamil Nadu, (2007) 2 Mad LJ (Crl) 1138; Vijaya Kumar v Commissioner of Police, (2007) 2 Mad LJ (Crl) 1855
(Mad–NOC); Suguna w/o Thanvil Selvan v State of Tamil Nadu, (2007) 2 Mad LJ (Crl) 1528; Chinnathai v District
Collector, (2007) 2 Mad LJ (Crl) 1363; Kanchana v State, (2007) 2 Mad LJ (Crl) 1331.
80. Ramakrishna v D.M., AIR 1975 SC 90 [LNIND 1974 SC 316] : (1975) 4 SCC 164 [LNIND 1974 SC 316] : 1975 Cr LJ
46 . See alsoSubodh Kumar Singh v State, 1952 Cr LJ 608 .
81. Chhagan Bhagwan Kahan v N.K. Kalua, AIR 1989 SC 1234 [LNIND 1989 SC 163] : (1989) 2 SCC 318 [LNIND 1989
SC 163] .
82. See alsoGhulam Nabi Zaki v State of J&K, (1969) 3 SCC 851 [LNIND 1969 SC 424] : (1970) 3 SCR 35 [LNIND 1969
SC 424] ; Hadibhandhu Das v District Magistrate, Cuttack, (1969) 1 SCR 227 [LNIND 1968 SC 149] : AIR 1969 SC 43
[LNIND 1968 SC 149] ; Har Jas Dev Singh v State of Punjab, (1973) 2 SCC 575 [LNIND 1973 SC 210] : (1974) 1 SCR
281 [LNIND 1973 SC 210] : AIR 1973 SC 2469 [LNIND 1973 SC 210] ; Chotka Hembram v State of W.B., (1974) 3
SCC 401 [LNIND 1973 SC 256] : (1974) 3 SCC 401 [LNIND 1973 SC 256] : (1974) 1 SCR 563 [LNIND 1973 SC 256] ;
Ibrahim Bachu Bafan v State of Gujarat, (1985) 2 SCC 24 [LNIND 1985 SC 49] : AIR 1985 SC 697 [LNIND 1985 SC
49] : (1985) 2 SCR 24 [LNIND 1984 SC 307] .
83. Abdul Latif v B.K. Jha, AIR 1987 SC 725 [LNIND 1987 SC 143] : (1987) 2 SCC 22 [LNIND 1987 SC 143] : (1987) 2
SCR 203 [LNIND 1987 SC 143] ; Chhagan Bhagwan Kahan v N.K. Kalna, AIR 1989 SC 1234 [LNIND 1989 SC 163]
(supra). See alsoAhmed Hussain Shaik Hussain v Commissioner of Police, Ahmedabad, AIR 1989 SC 2274 [LNIND
1989 SC 458] : (1989) 4 SCC 751 [LNIND 1989 SC 458] ; Jahangir Khan Fazal Khan Pathan v Police Commissioner,
Ahmedabad, AIR 1989 SC 1812 [LNIND 1989 SC 356] : (1989) 3 SCC 590 [LNIND 1989 SC 356] .
2010 SC 926] .
2012 SC 329] : (2012) Cr LJ 2935 ; see alsoRekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3
CTC 222 [LNIND 2011 SC 371] .
2012 SC 888] ; see alsoRekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND
2011 SC 371] ; UOI v Paul Manickam, AIR 2003 SC 4622 [LNIND 2003 SC 869] : (2003) 8 SCC 342 [LNIND 2003 SC
869] ; Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 .
87. M. Kudubdeen v UOI, (2010) 15 SCC 741 .

Page 265 of 320
88. Mohammed Ibrahim Mohammed Sasin v State of Maharashtra, 1987 (Supp) SCC 32. See alsoAvtar Singh v State of
J&K, AIR 1985 SC 581 [LNIND 1985 SC 23] : (1985) 1 SCC 562 [LNIND 1985 SC 23] .
89. See alsoJai Singh v State of J&K, AIR 1985 SC 764 : (1985) 1 SCC 561 ; Pushpa Devi v M.L. Wadhwan, AIR 1987
SC 1748 [LNIND 1987 SC 444] : (1987) 3 SCC 367 [LNIND 1987 SC 444] ; Mehboob Khan v Police Commissioner,
AIR 1989 SC 1803 [LNIND 1989 SC 352] : (1983) 3 SCC 568 .
90. Raj Prakash v ADM., New Delhi, AIR 1978 Del 17 .
91. Naranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] .
92. Chhagan Bhagwan Kahan v N.K. Kalua, AIR 1989 SC 1234 [LNIND 1989 SC 163] : (1989) 2 SCC 318 [LNIND 1989
SC 163] .
93. Ibrahim Bachu v State of Gujarat, AIR 1985 SC 697 [LNIND 1985 SC 49] : (1985) 2 SCC 24 [LNIND 1985 SC 49] .
94. Jahangir Khan v Police Commissioner, AIR 1989 SC 1812 [LNIND 1989 SC 356] : (1989) 3 SCC 590 [LNIND 1989
SC 356] .
1. Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) 1 SCR 460 .
2. Masood Alam v UOI, AIR 1973 SC 897 [LNIND 1973 SC 11] : (1973) 1 SCC 551 [LNIND 1973 SC 11] .
3. Pradip Kumar v State of WB, AIR 1974 SC 2151 [LNIND 1974 SC 170] : (1975) 3 SCC 335 [LNIND 1974 SC 170] .
4. Hadibandhu Das v Dt. Magistrate, Cuttack, AIR 1969 SC 43 [LNIND 1968 SC 149] : (1969) 1 SCR 227 [LNIND 1968
SC 149] ; see alsoKshetra Gogoi v State of Assam, AIR 1970 SC 1664 [LNIND 1969 SC 352] : (1970) 1 SCC 40
[LNIND 1969 SC 352] ; Masood Alam v UOI, AIR 1973 SC 879 : (1973) 1 SCC 551 [LNIND 1973 SC 11] ; Har Jas v
State of Punjab, AIR 1973 SC 2469 [LNIND 1973 SC 210] : (1973) 2 SCC 575 [LNIND 1973 SC 210] .
5. Baidya Nath v State of WB, AIR 1974 SC 1155 : (1974) 3 SCC 489 .
6. AIR 1969 SC 43 [LNIND 1968 SC 149] : (1969) 1 SCR 227 [LNIND 1968 SC 149] (supra).
7. Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] : (1952) 1 SCR 756 [LNIND 1951 SC 13] ;
Sona Ullah v State of J&K, AIR 1972 SC 2431 [LNIND 1972 SC 367] : (1973) 3 SCC 60 [LNIND 1972 SC 367] ; Milan
Banik v State of WB, AIR 1974 SC 1214 [LNIND 1974 SC 122] : (1974) 4 SCC 504 [LNIND 1974 SC 122] .
8. Baby Devassy Chully (alias) Bobby v UOI, (2013) 4 SCC 531 [LNIND 2012 SC 641] : AIR 2013 SC 303 [LNIND 2012
SC 641] .
9. Abdul Sathar v UOI, AIR 1991 SC 2261 [LNIND 1991 SC 521] : (1992) 1 SCC 1 [LNIND 1991 SC 521] : (1991) 3 SCJ
405 (para 12); Kamruunissa v UOI, (1991) Cr LJ 2058 (SC) : AIR 1991 SC 1640 [LNIND 1990 SC 538] : (1991) 1 SCC
128 [LNIND 1990 SC 538] .
10. See alsoRajesh Gulathi v Govt of NCT of Delhi, (2002) 7 SCC 129 [LNIND 2002 SC 532] : AIR 2002 SC 3094 [LNIND
2002 SC 532] ; K. Varadharaj v State of T.N., (2002) 6 SCC 735 [LNIND 2002 SC 507] : AIR 2002 SC 2953 [LNIND
2002 SC 507] ; Amritlal v Union Government, (2001) 1 SCC 341 : AIR 2000 SC 3675 ; Rivadeneyta Ricardo Agustin v
Govt of the NCT of Delhi, 1994 (Supp-1) SCC 594; Abdul Sattar Ibrahim Manik v UOI, (1992) 1 SCC 1 [LNIND 1991 SC
521] : AIR 1991 SC 2261 [LNIND 1991 SC 521] : 1991 (Supp-1) SCR 435; T.V. Saravanan v State, (2006) 2 SCC 664
[LNIND 2006 SC 102] .
Page 266 of 320
11. Rameshwar Shah v District Magistrate Burdwan, AIR 1964 SC 334 [LNIND 1963 SC 214] : (1964) 4 SCR 921 [LNIND
1963 SC 214] .
12. Binod Singh v District Magistrate, Dhanbad, (1986) 4 SCC 416 [LNIND 1986 SC 359] : AIR 1986 SC 2090 [LNIND
1986 SC 359] : (1986) 3 SCR 905 [LNIND 1986 SC 359] .
13. T.V. Sravanan v State, (2006) 2 SCC 664 [LNIND 2006 SC 102] (supra). See alsoAzra Fatima v UOI, AIR 1990 SC
1763 [LNIND 1990 SC 328] : (1991) 1 SCC 76 [LNIND 1990 SC 328] . See alsoIbrahim Nazeer v State of Tamil Nadu,
(2006) 6 SCC 64 [LNIND 2006 SC 484] . A. Geetha v State of Tamil Nadu, AIR 2006 SC 3053 [LNIND 2006 SC 686] :
(2006) 7 SCC 603 [LNIND 2006 SC 686] .
14. Veeramani v State of T.N., (1994) 2 SCC 337 [LNIND 1994 SC 151] : JT 1994 (1) SC 350 [LNIND 1994 SC 151] .
15. Birendra Kumar Rai v UOI, AIR 1993 SC 962 [LNIND 1992 ALL 73] : (1993) 1 SCC 272 .
16. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] ; see alsoT.V.
Saravanan v State, (2006) 2 SCC 664 [LNIND 2006 SC 102] : AIR 2006 SC 1462 [LNIND 2006 SC 102] : 2006 Cr LJ
1619 ; A. Shanti v Govt. of Tamil Nadu, (2006) 9 SCC 711 : (2006) 3 SCC (Cr) 371; Rajesh Gulati v Govt. of NCT of
Delhi, (2002) 7 SCC 129 [LNIND 2002 SC 532] : AIR 2002 SC 3094 [LNIND 2002 SC 532] : 2002 Cr LJ 4299 ; UOI v
Paul Manickam, (2003) 8 SCC 342 [LNIND 2003 SC 869] : AIR 2003 SC 4622 [LNIND 2003 SC 869] : 2003 Cr LJ
4561 .
17. Rivadeneyta Ricardo Agustin v Govt of NCT Delhi, 1994 (Supp-1) SCC 597.
18. Bal Chand Bansal v UOI, AIR 1988 SC 1175 [LNIND 1988 SC 225] : (1988) 2 SCC 527 [LNIND 1988 SC 225] .
19. Shashi Agarwal v State of U.P., AIR 1988 SC 596 [LNIND 1988 SC 17] : (1988) 1 SCC 436 [LNIND 1988 SC 17] . See
alsoGulab Mehra v State of U.P., AIR 1987 SC 2332 [LNIND 1987 SC 650] : (1987) 4 SCC 302 [LNIND 1987 SC 650] ;
Poonam Lata v M.L. Wadhawan, AIR 1987 SC 2098 [LNIND 1987 SC 558] : (1987) 4 SCC 48 [LNIND 1987 SC 558] ;
Masood Alam v UOI, AIR 1973 SC 897 [LNIND 1973 SC 11] : (1973) 1 SCC 551 [LNIND 1973 SC 11] .
Page 267 of 320
20. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] ; Rushikesh
Tanaji Bhoite v State of Maharashtra, AIR 2012 SC 890 [LNIND 2012 SC 1531] : (2012) 2 SCC 72 [LNIND 2012 SC
1531] : (2012) Cr LJ 1334 .
21. (1984) 3 SCC 14 [LNIND 1984 SC 110] .
22. Jainal v D.M., (1975) UJSC 27; Ram Bali v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426] (629) : (1975) 3
SCR 63 [LNIND 1974 SC 426] : (1975) 4 SCC 47 [LNIND 1974 SC 426] ; Ram Ranjan v State of W.B., AIR 1975 SC
609 [LNIND 1975 SC 29] : (1975) 3 SCR 301 [LNIND 1975 SC 29] : (1975) 4 SCC 143 [LNIND 1975 SC 29] (para 11);
Golam v Police Commr., AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 3 SCR 613 [LNIND 1974 SC 104] : (1974)
4 SCC 530 [LNIND 1974 SC 104] .
(1975) 3 SCC 198 [LNIND 1974 SC 243] (CB); Subrati v State of W.B., AIR 1973 SC 207 [LNIND 1972 SC 544] :
(1973) 2 SCR 990 [LNIND 1972 SC 544] : (1973) 3 SCC 250 [LNIND 1972 SC 544] ; Ramayan v State of W.B., AIR
1973 SC 758 : (1973) 3 SCC 315 : 1973 Cr LJ 597 .
24. Samir Chatterjee v State of WB, AIR 1975 SC 1165 [LNIND 1975 SC 132] : (1975) 3 SCC 553 ; see alsoState of
Maharashtra v Bhaurao Punjabrao Gawandi, AIR 2008 SC 1705 [LNIND 2008 SC 547] : (2008) 3 SCC 613 [LNIND
2008 SC 547] .
25. Babulal v State of W.B., AIR 1975 SC 606 [LNIND 1975 SC 17] : (1975) 3 SCR 193 [LNIND 1975 SC 17] : (1975) 1
SCC 311 [LNIND 1975 SC 17] (para 5); Dulal v D.M., AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 3 SCR 186
26. Rameshwar v State of Bihar, (1968) 2 SCR 505 [LNIND 1967 SC 355] (511) : AIR 1968 SC 1303 [LNIND 1967 SC
355] : 1968 Cr LJ 1490 .
27. Cf. Bhut Nath v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 3 SCR 315 [LNIND 1974 SC 31] :
(1974) 1 SCC 645 [LNIND 1974 SC 31] (paras 20, p 21).
28. Ramakrishna v D.M., AIR 1975 SC 90 [LNIND 1974 SC 316] : (1975) 4 SCC 164 [LNIND 1974 SC 316] : 1975 Cr LJ
46 ; Haradhon v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 [LNIND 1974 SC 243] :
(1975) 3 SCC 198 [LNIND 1974 SC 243] (CB); Subrati v State of W.B., AIR 1973 SC 207 [LNIND 1972 SC 544] :
(1973) 2 SCR 990 [LNIND 1972 SC 544] : (1973) 3 SCC 250 [LNIND 1972 SC 544] ; Ramayan v State of W.B., AIR
1973 SC 758 : (1973) 3 SCC 315 : 1973 Cr LJ 597 .
29. Golam Hussain v Police Commissioner, AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974
SC 104] .
30. Dulal Roy v District Magistrate Burdwan, AIR 1975 SC 1508 [LNIND 1975 SC 9] : (1975) 1 SCC 837 [LNIND 1975 SC
9] .
31. Munagala Yadamma v State of AP, (2012) 2 SCC 386 [LNIND 2012 SC 13] : (2012) Cr LJ 1662 ; see alsoRekha v
State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] .
Page 268 of 320
32. Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 3 CTC 222 [LNIND 2011 SC 371] ; K.
Nageswara Rao v Collector & District Magistrate, (2012) 13 SCC 585 : (2012) 11 Scale 409 .
33. Biram Chand v State of U.P., AIR 1974 SC 1161 [LNIND 1974 SC 125] : (1974) 3 SCR 813 [LNIND 1974 SC 125] :
(1974) 4 SCC 573 [LNIND 1974 SC 125] .
34. Methai Lal v D.M., (1975) Cr LJ 295 (paras 13–14).
35. Kanchanlal Maneklal Chokshi v State of Gujarat, AIR 1979 SC 1945 [LNIND 1979 SC 289] : (1979) 4 SCC 14 [LNIND
1979 SC 289] : (1979) Cr LJ 1306 .
36. SeeHaradhan Saha v State of WB, AIR 1975 SC 2154 : (1975) 3 SCC 198 [LNIND 1974 SC 243] .
37. Bidhan Chandra Biswas v Stateof W.B., AIR 1972 SC 1850 [LNIND 1972 SC 52] : (1972) 2 SCC 666 [LNIND 1972 SC
52] ; Sahib Singh v UOI, AIR 1966 SC 340 [LNIND 1965 SC 179] : (1966) 1 SCR 313 [LNIND 1965 SC 179] : 1966 Cr
LJ 305 ; Saha v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1 SCR 778 [LNIND 1974 SC 243] :
(1975) 3 SCC 198 [LNIND 1974 SC 243] (para 32).
38. Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47] : 1955 Cr LJ 1408 : 1955 SCJ 669 ; Ram
Singh v State of Delhi, (1951) 2 SCR 451 [LNIND 1951 SC 24] : AIR 1951 SC 270 [LNIND 1951 SC 24] : 1951 Cr LJ
904 : 1951 SCJ 374 ; John Matrtin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26] : (1975) 3 SCR 211 [LNIND
1975 SC 26] : (1975) 3 SCC 836 [LNIND 1975 SC 26] (para 10).
904 : 1951 SCJ 374 .
40. The observations of the Constitution Bench in Haradhon’s case [AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 1
SCR 778 [LNIND 1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] (para 32)], however, do not provide any
qualifications.
41. M.S Khan v C.C. Bose, AIR 1972 SC 1670 : (1972) 2 SCC 607 ; Golam Hussain v Police Commissioner, AIR 1974 SC
1336 [LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974 SC 104] ; Babulal v State of W.B., AIR 1975 SC 606
[LNIND 1975 SC 17] : (1975) 1 SCC 311 [LNIND 1975 SC 17] . See alsoIsrail Sheik v District Magistrate, AIR 1975 SC
168 [LNIND 1974 SC 385] : (1975) 3 SCC 292 [LNIND 1974 SC 385] : (1975) Cr LJ 259 ; Shri Ramayan Harijan v
State of West Bengal, AIR 1973 SC 758 : (1973) 3 SCC 480 [LNIND 1973 SC 7] ; Milan Banik v State of WB, AIR 1974
SC 1214 [LNIND 1974 SC 122] : (1974) 4 SCC 504 [LNIND 1974 SC 122] ; Sahib Singh Dugal v UOI, AIR 1966 SC
42. Biram Chand v State of U.P., AIR 1974 SC 1611 : (1974) 4 SCC 573 [LNIND 1974 SC 125] (supra).
43. Haradhan Saha v State of W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] .
44. See alsoSrilal Shaw v State of W.B., AIR 1975 SC 393 [LNIND 1974 SC 402] : (1975) 1 SCC 336 [LNIND 1974 SC
402] .
45. Ashim Kumar Roy v State of W.B., AIR 1972 SC 2561 : (1973) 4 SCC 76 .
46. See alsoAbdul Aziz v D.M. Burdwan, AIR 1973 SC 770 [LNIND 1972 SC 489] : (1973) 1 SCC 301 [LNIND 1972 SC
489] .
Page 269 of 320
47. Masood Alam v UOI, AIR 1973 SC 897 [LNIND 1973 SC 11] : (1973) 1 SCC 551 [LNIND 1973 SC 11] (supra).
48. See alsoIndradeo Mahato v State of W.B., (1973) 4 SCC 4 : AIR 1973 SC 1062 .
49. State of Maharashtra v Bhaurao Punjabrao Gawar, (2008) 3 SCC 613 [LNIND 2008 SC 547] . See alsoBorjahan Gorey
v State of W.B., (1972) 2 SCC 550 [LNIND 1972 SC 339] ; Abdul Aziz v District Magistrate, (1973) 1 SCC 301 [LNIND
1972 SC 489] ; Debu Mahato v State of W.B., (1974) 1 SCC 135 .
904 : 1951 SCJ 374 .
51. Serajul v State of W.B., AIR 1975 SC 1517 : (1975) 2 SCC 78 : 1975 Cr LJ 1328 ; Basheer v State of Karnataka,
(1992) 2 SCC 295 [LNIND 1992 SC 200] : AIR 1992 SC 1353 [LNIND 1992 SC 200] (paras10–1l) (3 Judges).
[LNIND 2012 SC 1557] : 2012 Cr LJ 4297 .
2012 SC 1531] : (2012) Cr LJ 1334 .
54. Saeed Zakir Hussain Malik v State of Maharashtra, AIR 2012 SC 3235 [LNIND 2012 SC 1557] : (2012) 8SCC 233 :
(2012) Cr LJ 4297 (supra).
55. Sheik Nizamuddin v State of WB, AIR 1974 SC 2353 [LNIND 1974 SC 345] : (1975) 1 SCC 155 [LNIND 1974 SC 308]
: (1975) 2 SCR 370 [LNIND 1974 SC 308] ; Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC 371] : (2011) 4
Scale 387 [LNIND 2011 SC 371] .
56. A. Mohammed Farook v Joint Secretary to Government of India, (2000) 2 SCC 360 : JT 1999 (10) SC 290 .
57. UOI v Muneesh Suneja, (2001) 3 SCC 92 [LNIND 2001 SC 258] : AIR 2001 SC 854 [LNIND 2001 SC 258] : (2001) 1
SCR 683 .
58. Gora v State of W.B., AIR 1975 SC 473 [LNIND 1974 SC 409] : (1975) 2 SCR 996 [LNIND 1974 SC 409] : (1975) 2
SCC 14 [LNIND 1974 SC 409] ; Golam v Police Commr., AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 3 SCR 613
[LNIND 1974 SC 104] : (1974) 4 SCC 530 [LNIND 1974 SC 104] ; Farooq v UOI, (1990) 2 SCJ 225 (paras 14–16);
Shafiq v D.M., (1989) 3 SCJ 568 ; Abdul v State of Kerala, (1989) 3 SCJ 526 ; Bhanwarlal v Stateof T.N., (1979) 2 SCR
633 [LNIND 1978 SC 378] : AIR 1979 SC 541 [LNIND 1978 SC 378] : (1979) 1 SCC 465 [LNIND 1978 SC 378] .
59. Farooq v UOI, (1990) 2 SCJ 225 (paras 14–16); Shafiq v D.M., (1989) 3 SCJ 568 ; Abdul v State of Kerala, (1989) 3
SCJ 526 ; Bhanwarlal v Stateof T.N., (1979) 2 SCR 633 [LNIND 1978 SC 378] : AIR 1979 SC 541 [LNIND 1978 SC
378] : (1979) 1 SCC 465 [LNIND 1978 SC 378] .
60. Gora v State of W.B., AIR 1975 SC 473 [LNIND 1974 SC 409] : (1975) 2 SCR 996 : (1975) 2 SCC 14 [LNIND 1974
SC 409] ; Golam v Police Commr., AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 3 SCR 613 [LNIND 1974 SC
104] : (1974) 4 SCC 530 [LNIND 1974 SC 104] ; Malwa v State of W.B., AIR 1974 SC 957 : (1974) 4 SCC 127 ; Oila v
State of W.B., AIR 1974 SC 1816 : (1974) 1 SCC 594 .
61. Kamal v State of W.B., AIR 1975 SC 730 : (1975) 3 SCC 543 .
Page 270 of 320
62. Nagen v State of W.B., AIR 1973 SC 844 : (1973) 3 SCC 63 ; Abdul Mannaf v State of W.B., AIR 1974 SC 2066 :
(1975) 3 SCC 239 .
63. Hemlata v State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422] : (1982) 1 SCR 1028 [LNIND 1981 SC 422] :
(1981) 4 SCC 647 [LNIND 1981 SC 422] (para 6); R.N. Shah v State of Gujarat, AIR 1988 SC 1255 [LNIND 1988 SC
306] : 1988 (Supp-1) SCR 287 : (1988) 3 SCC 153 [LNIND 1988 SC 306] ; Farooq v UOI, (1990) 2 SCJ 225 (para 9).
64. Hare Ram Pandey v State of Bihar, AIR 2004 SC 738 [LNIND 2003 SC 1064] : (2004) 3 SCC 289 [LNIND 2003 SC
1064] .
65. UOI v Chaya Ghoshal, AIR 2005 SC 428 [LNIND 2004 SC 1238] : (2005) 10 SCC 97 [LNIND 2004 SC 1238] .
66. SeeSubhash Popatlal Dave v UOI, (2014) 1 SCC 280 [LNIND 2013 SC 676] : 2013 Cr LJ 4166 : (2013) 9 Scale 295
[LNIND 2013 SC 676] .
67. See alsoSayed Taher Bawamiya v Govt. of India, (2000) 8 SCC 630 : (2004) 2 Scale 543 : 2002 Cr LJ 259 ; Hare Ram
Pandey v State of Bihar, (2004) 3 SCC 289 [LNIND 2003 SC 1064] : AIR 2004 SC 738 [LNIND 2003 SC 1064] ; UOI v
Amrit Lal Manchanda, (2004) 3 SCC 75 [LNIND 2004 SC 220] : AIR 2004 SC 1625 [LNIND 2004 SC 220] ; UOI v Vidya
Bagaria, (2004) 5 SCC 577 [LNIND 2004 SC 595] : AIR 2004 SC 2220 [LNIND 2004 SC 595] ; Bhawarlal Ganeshmalji
v State of Tamil Nadu, (1979) 1 SCC 465 [LNIND 1978 SC 378] ; Vinod K. Chawla v UOI, (2006) 7 SCC 337 [LNIND
2006 SC 1658] : AIR 2006 SC 2864 [LNIND 2006 SC 1658] ; UOI v Parasmal Rampuria, (1998) 8 SCC 402 [LNIND
1998 SC 314] : (1998) 2 Scale 367 [LNIND 1998 SC 314] ; Dropti Devi v UOI, AIR 2012 SC 2550 [LNIND 2012 SC
369] : (2012) 7 SCC 499 [LNIND 2012 SC 369] ; UOI v Arvind Shergill, (2000) 7 SCC 601 [LNIND 2000 SC 1228] : AIR
2000 SC 292 : 2000 Cr LJ 4055 ; Shafiq Ahmed v Dt. Magistrate, Meerut, (1989) 4 SCC 566 [LNIND 1989 SC 482] ;
M. Ahmedkutty v UOI, (1990) 2 SCC 1 [LNIND 1990 SC 51] ; Sunil Fulchand Shah v UOI, (2000) 3 SCC 409 [LNIND
2000 SC 323] : AIR 2000 SC 1023 [LNIND 2000 SC 323] .
68. (2014) 11 SCC 326 [LNIND 2014 SC 315] : 2014 Cr LJ 2414 .
69. Ahmed Mohaideen Zabar v State of T.N., AIR 1999 SC 2141 [LNIND 1999 SC 465] : (1999) 4 SCC 417 [LNIND 1999
SC 465] . See alsoAdishwar Jain v UOI, (2007) 2 Mad LJ (Crl) 529 (SC).
70. Manju Ramesh Nahar v UOI, AIR 1999 SC 2622 [LNIND 1999 SC 327] : (1999) 4 SCC 116 [LNIND 1999 SC 331] .
See alsoAbdul Salam v UOI, AIR 1990 SC 1446 [LNIND 1990 SC 244] : (1990) 3 SCC 15 [LNIND 1990 SC 244] ; P.U.
Iqbal v UOI, AIR 1992 SC 1900 : (1992) 1 SCC 434 ; K.P.M. Basheer v State of Karnataka, AIR 1992 SC 1353
[LNIND 1992 SC 200] : (1992) 4 SCC 295 ; State of T.N. v Subramani, AIR 1992 SC 2161 : (1992) 4 SCC 495 ; P.M.
Hari Kumar v UOI, AIR 1996 SC 70 [LNIND 1995 SC 869] : (1995) 5 SCC 691 [LNIND 1995 SC 869] ; Abdul Rehman
v State of Kerala, AIR 1990 SC 225 [LNIND 1989 SC 413] : (1989) 4 SCC 741 [LNIND 1989 SC 413] .
71. S.K. Serajul v State of W.B., AIR 1975 SC 1517 .
72. Bhawarlal Ganeshmaji v State of T.N., AIR 1979 SC 541 [LNIND 1978 SC 378] : (1979) 2 SCR 638 : (1979) 1 SCC
465 [LNIND 1978 SC 378] .
73. Sultan Abdul Kader v Joint Secretary to Government of India, (1998) 8 SCC 343 [LNIND 1998 SC 590] . See alsoA.
Mohammed Farook v Joint Secretary to Government of India, (2000) 2 SCC 360 .
Page 271 of 320
(1992) 2 SCC 295 [LNIND 1992 SC 200] : AIR 1992 SC 1353 [LNIND 1992 SC 200] (paras10–1l) (3 Judges); Rabindra
v State of W.B., (1975) UJSC 451; Lakshman v State of W.B., AIR 1974 SC 1264 : (1974) 4 SCC 1 ; Jagan Nath v
State ofW.B., AIR 1975 SC 1516 : (1975) 4 SCC 115 (para 2); Sahabuddin v D.M., AIR 1975 SC 1722 : (1975) 4 SCC
114 ; AbdulMannaf v State of W.B., AIR 1974 SC 2066 : (1975) 3 SCC 239 ; Salim v State of W.B., AIR 1975 SC 602
[LNIND 1975 SC 37] : (1975) 3 SCR 394 [LNIND 1975 SC 37] : (1975) 1 SCC 653 [LNIND 1975 SC 37] .
77. Bhawarlal v State of T.N., AIR 1979 SC 541 [LNIND 1978 SC 378] : (1979) 2 SCR 633 [LNIND 1978 SC 378] : (1979)
1 SCC 465 [LNIND 1978 SC 378] (para 6).
78. Nirmal v UOI, (1978) 3 SCR 817 [LNIND 1978 SC 145] : AIR 1978 SC 1155 [LNIND 1978 SC 145] : (1978) 2 SCC 508
[LNIND 1978 SC 145] ; Sharad v State of U.P., AIR 1989 SC 764 [LNIND 1989 SC 35] : (1989) 1 SCR 257 [LNIND
1989 SC 35] : (1989) 1 SCC 736 [LNIND 1989 SC 35] . See alsoMicki Khan v State of W.B., AIR 1972 SC 2262 :
(1972) 4 SCC (N) 5; Deb Sadhan Roy v State of W.B., AIR 1972 SC 1924 [LNIND 1971 SC 626] : (1972) 1 SCC 308
[LNIND 1971 SC 626] ; Masuma v State of Maharashtra, AIR 1981 SC 1753 [LNIND 1981 SC 342] : (1981) 3 SCC 566
[LNIND 1981 SC 342] ; Shipada Mukherji v State of W.B., AIR 1972 SC 1356 : (1974) 3 SCC 50 ; Ujjal Mandal v State
of W.B., AIR 1972 SC 1446 [LNIND 1972 SC 48] : (1972) 1 SCC 456 [LNIND 1972 SC 48] ; Satya Deo Prasad Gupta v
State of Bihar, (1975) 3 SCC 736 [LNIND 1974 SC 388] : (1975) 2 SCR 854 [LNIND 1974 SC 388] : AIR 1975 SC 367
[LNIND 1974 SC 388] . In all these cases, it was reiterated that delayed order of confirmation is not valid and any order
of detention cannot be confirmed before the expiry of three months.
79. Navungal Pathumma v UOI, (1998) 7 SCC 287 [LNIND 1998 SC 786] : AIR 1999 SC 142 [LNIND 1998 SC 786] . See
alsoMahalakshmi v Govt of Tamil Nadu, (2007) 2 Mad LJ (Crl) 1634; Duraipandey v Secretary to Govt, (2007) 2 Mad LJ
(Crl) 923; Radha w/o Ramu v Secretary of Govt, (2007) 2 Mad LJ (Crl) 1305.
80. Venmathi Selvam v State of T.N., (1998) 5 SCC 510 [LNIND 1998 SC 593] : JT (1998) 4 SC 393 [LNIND 1998 SC 593]
. See alsoSaeed Zakir Hussain Malik v State of Maharashtra, AIR 2012 SC 3235 [LNIND 2012 SC 1557] : (2012)
8SCC 233 : (2012) Cr LJ 4297 .
[LNIND 2012 SC 1557] : 2012 Cr LJ 4297 .
82. Dinesh @ Deena @ Dinakaran v State of Tamil Nadu, (2007) 2 Mad LJ (Crl) 1879 (Mad–NOC).
83. Ummu Sabeena v State of Kerala, (2011) 10 SCC 781 [LNIND 2011 SC 1167] : (2011) 13 Scale 28 [LNIND 2011 SC
1167] ; see alsoK.M. Abdulla Kunhi v UOI, AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991
SC 42] ; Rajammal v State of Tamil Nadu, (1999) 1 SCC 417 [LNIND 1998 SC 1101] ; Kundanbhai Dulabhai Shaikh v
Page 272 of 320
Dt. Magistrate, (1996) 3 SCC 194 [LNIND 1996 SC 2225] ; Rekha v State of TN, (2011) 5 SCC 244 [LNIND 2011 SC
371] : (2011) 4 Scale 387 [LNIND 2011 SC 371] .
84. Abdul Nazar Adam Ismail v State of Maharashtra, AIR 2013 SC 1376 [LNIND 2013 SC 256] : (2013) 4 SCC 435
[LNIND 2013 SC 256] .
85. Khader Naina Ushman v UOI, (2008) 17 SCC 725 ; Mukesh Tikaji Bora v UOI, (2007) 9 SCC 28 [LNIND 2007 SC 461]
: (2007) 5 Scale 603 [LNIND 2007 SC 461] ; Usha Agarwal v UOI, (2007) 1 SCC 295 [LNIND 2006 SC 908] : (2007) Cr
LJ 39 .
86. Senthamilselvi v State of T.N., (2006) 5 SCC 676 [LNIND 2006 SC 445] .
87. T.A. Abdul Rehman v State of Kerala, AIR 1990 SC 225 [LNIND 1989 SC 413] : (1989) 4 SCC 741 [LNIND 1989 SC
413] : (1989) 3 SCR 945 [LNIND 1989 SC 413] .
88. D. Anuradha v Joint Secretary, (2006) 5 SCC 142 [LNIND 2006 SC 295] . See alsoRashid Kafadia v Medha Gadgil,
(2012) 11 SCC 745 : (2012) 6 Scale 624 ; Mohinuddin v Dt. Magistrate, (1987) 4 SCC 58 [LNIND 1987 SC 524] ;
Harshala Santosh Patil v State of Maharashtra, (2006) 12 SCC 211 : (2007) 1 SCC (Cr) 680.
89. Francis Coralie Mullin v W.C. Khambra, (1980) 2 SCC 275 [LNIND 1980 SC 97] : AIR 1980 SC 849 [LNIND 1980 SC
97] : (1980) 2 SCR 1095 [LNIND 1980 SC 97] . See alsoPritharu Nath Hoon v UOI, (1980) 4 SCC 525 [LNIND 1980 SC
376] : AIR 1981 SC 92 [LNIND 1980 SC 376] : (1981) 1 SCR 682 [LNIND 1980 SC 376] ; L.M.S. Ummu Saleema v
B.B. Gujral, (1981) 3 SCC 317 [LNIND 1981 SC 268] : AIR 1981 SC 1191 [LNIND 1981 SC 268] ; B. Alamedu v State
of T.N., (1995) 1 SCC 306 [LNIND 1994 SC 1299] : AIR 1995 SC 539 [LNIND 1994 SC 1020] .
90. UOI v Manish Bahal, (2001) 6 SCC 36 [LNIND 2001 SC 1291] : AIR 2001 SC 2685 [LNIND 2001 SC 1291] .
1167] ; see alsoPebam Ningol Mikoi Devi v State of Manipur, (2010) 9 SCC 618 [LNIND 2010 SC 926] : (2010) 10
Scale 248 [LNIND 2010 SC 926] ; Pabitra Rana v UOI, AIR 1980 SC 798 [LNIND 1980 SC 40] ; Narendra Purushotham
v Gujral, AIR 1979 SC 420 [LNIND 1978 SC 332] : (1979) 2 SCC 637 [LNIND 1978 SC 332] .
2. UOI v Sneha Khemka, AIR 2004 SC 2938 [LNIND 2004 SC 101] : (2004) 2 SCC 570 [LNIND 2004 SC 101] .
3. UOI v Sneha Khemka, (supra).
4. Aslam Ahmed Zahire Ahmand Sheik v UOI, AIR 1989 SC 1403 [LNIND 1989 SC 846] : (1989) 3 SCC 277 [LNIND
1989 SC 846] ; B. Alamelu v State of TN, AIR 1995 SC 539 [LNIND 1994 SC 1020] : (1995) 1 SCC 306 [LNIND 1994
SC 1299] ; Abdul Salam v UOI, AIR 1990 SC 1446 [LNIND 1990 SC 244] : (1990) 3 SCC 15 [LNIND 1990 SC 244] ;
State of UP v Mahant Singh, AIR 1986 SC 207 [LNIND 1985 SC 334] : (1985) 4 SCC 624 [LNIND 1985 SC 334] ; A.K.
Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] : (1982) Cr LJ 340 .
5. AIR 1981 SC 1752 : (1981) 2 SCC 358 .
6. Virendra Singh v State of Maharashtra, AIR 1981 SC 1752 : (1981) 2 SCC 358 .
7. See alsoMoosa Hussain Sanghar v State of Gujarat, AIR 1994 SC 1479 : (1993) 1 SCC 511 ; Naval Shanker Ishwarlal
Dave v State of Gujarat, AIR 1994 SC 1469 : 1993 (Supp-3) SCC 754.
8. UOI v Diljeet Singh, AIR 1999 SC 1052 [LNIND 1999 SC 1355] : (1999) 2 SCC 672 [LNIND 1999 SC 1355] .
Page 273 of 320
9. AIR 1993 SC 473 : 1993 (Supp-1) SCC 392.
10. Subramanian v State of TN, (2012) 4 SCC 699 [LNIND 2012 SC 135] : 2012 (2) Scale 613 .
11. Master v State of J&K, AIR 1971 SC 1713 (1715) : (1972) 4 SCC 558 .
12. K. Emp v Vimlabai, AIR 1946 PC 123 .
13. Cf. Makhan Singh v State of Punjab, AIR 1964 SC 1120 [LNIND 1963 SC 234] (1124) : (1964) 4 SCR 932 [LNIND
1963 SC 234] .
904 : 1951 SCJ 374 .
15. Sasthi v State of W.B., (1973) 1 SCR 468 (469) : AIR 1972 SC 2134 : (1973) 4 SCC 82 ; Arun v State of W.B., (1973)
1 SCR 552 [LNIND 1972 SC 279] (555) : AIR 1972 SC 1858 [LNIND 1972 SC 279] : (1972) 3 SCC 893 [LNIND 1972
SC 279] .
17. Salim v State of W.B., AIR 1975 SC 602 [LNIND 1975 SC 37] (para 13) : (1975) 3 SCR 394 [LNIND 1975 SC 37] :
(1975) 1 SCC 653 [LNIND 1975 SC 37] .
18. Kanchanlal v State of Gujarat, AIR 1979 SC 1945 [LNIND 1979 SC 289] : (1980) 1 SCR 54 [LNIND 1979 SC 289] :
(1979) 4 SCC 14 [LNIND 1979 SC 289] ; Hemlata v State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422] :
(1982) 1 SCR 1028 [LNIND 1981 SC 422] : (1981) 4 SCC 647 [LNIND 1981 SC 422] (para 9).
19. Jainal v D.M., (1975) UJSC 27.
20. Anil v State of W.B., AIR 1974 SC 832 (834–35) : (1974) 4 SCC 514 ; Saraswathi v State of Kerala, AIR 1982 SC 1165
21. Debu v State of W.B., AIR 1974 SC 816 : (1974) 4 SCC 135 (para 2); Fitrat v State of U.P., AIR 1982 SC 146 [LNIND
22. Bhim Sen v State of Punjab, (1952) SCR 18 (24) : AIR 1951 SC 481 [LNIND 1951 SC 54] ; Joglekar v Commr. of
Police, AIR 1957 SC 28 [LNIND 1956 SC 61] : (1956) 1 SCR 653 [LNIND 1956 SC 61] : 1957 Cr LJ 10 .
Page 274 of 320
23. Naranjan v State of Punjab, AIR 1952 SC 106 [LNIND 1952 SC 3] : (1952) 1 SCR 395 [LNIND 1952 SC 3] : 1952 Cr LJ
656 ; Godawari v State ofMaharashtra, AIR 1966 SC 1404 [LNIND 1966 SC 321] (1407) : (1966) 3 SCR 314 [LNIND
1966 SC 321] .
1956 SCJ 559 ; Dwarika v Stateof Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702 [LNIND 1974 SC
359] : (1975) 3 SCC 722 [LNIND 1974 SC 359] (para 7).
25. Puranlal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : 1958 Cr LJ 283 : 1958 SCJ 510 [LNIND 1957 SC 70] .
26. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 ; see alsoBhut Nath
Mete v State of WB, (1974) 1 SCC 645 [LNIND 1974 SC 31] ; S.R. Venketaraman v UOI, (1979) 2 SCC 491 [LNIND
1978 SC 312] .
28. Lawrence Joachim Joseph D’Souza v State of Bombay, AIR 1956 SC 531 [LNIND 1956 SC 36] : (1956) 1 SCR 382
[LNIND 1956 SC 36] : 1956 Cr LJ 935 .
29. See T.K. Tope, Constitutional Law of India, 3rd Edn, p 242.
30. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950
SCJ 174 [LNIND 1950 SC 22] .
31. Nand Lal Bajaj v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1981) 4 SCC 327 [LNIND 1981 SC 388]
.
32. Akshay Konai v State of W.B., AIR 1973 SC 300 : (1973) 1 SCC 297 ; R. Keshava v M.B. Prakash, AIR 2001 SC 301
33. John Martin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26] : (1975) 3 SCC 836 [LNIND 1975 SC 26] : (1975)
3 SCR 211 [LNIND 1975 SC 26] .
34. Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) SCR 460 (per majority). See alsoA.K.
Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) 1 SCR 88 [LNIND 1950 SC 22] .
35. Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) 1 SCR 460 : 1958 Cr LJ 283 .
36. R. Kesava v M.B. Prakash, (2001) 2 SCC 145 [LNIND 2000 SC 1858] : AIR 2001 SC 301 [LNIND 2000 SC 1858] :
2001 Cr LJ 497 .
38. Abdul Latif v B.K. Jha, AIR 1987 SC 725 [LNIND 1987 SC 143] : (1987) 2 SCC 22 [LNIND 1987 SC 143] .
Page 275 of 320
39. Calcutta Dock Labour Board v Jaffar Inam Brindaban Nayak and Jaumber Patra, AIR 1966 SC 282 [LNIND 1965 SC
92] : (1965) 3 SCR 453 [LNIND 1965 SC 92] .
40. A.K. Roy v UOI, (1982) 1 SCC 271 [LNIND 1981 SC 469] : AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 2 SCR
272 [LNIND 1981 SC 469] ; State of Maharashtra v Shri Ramachandra Rammilan Mishra, (2004) 4 SCC 509 [LNIND
2004 SC 373] : AIR 2004 SC 2682 [LNIND 2004 SC 373] .
41. Kavita v State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] : (1981) 3 SCC 558 [LNIND 1981 SC 313] .
42. Anil Vats v UOI, AIR 1991 SC 979 .
43. K.M. Abdulla Kunhi v UOI, AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991 SC 42] .
44. Jayanarayan Sukul v State of WB, AIR 1970 SC 675 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND 1969 SC 451]
.
45. Puranlal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) 1 SCR 460 : 1958 Cr LJ 283 : 1958 SCJ 510 [LNIND
1957 SC 70] (para 12). See alsoState of W.B. v Ashok Dey, AIR 1972 SC 1660 [LNIND 1971 SC 582] : (1972) 1 SCC
199 [LNIND 1971 SC 582] .
46. Dattatraya v State of Bombay, (1952) SCR 612 [LNIND 1952 SC 22] : AIR 1952 SC 181 [LNIND 1952 SC 22] : 1952
Cr LJ 955 ; Suna Ullah v Stateof J&K, AIR 1972 SC 2431 [LNIND 1972 SC 367] : (1973) 1 SCR 870 [LNIND 1972 SC
367] : (1973) 3 SCC 60 [LNIND 1972 SC 367] .
47. Raman Lal v Commr. of Police, (1951) 56 Cal WN 42.
48. Deb Sadhan v State of W.B., (1972) 2 SCR 787 [LNIND 1971 SC 626] (791–92) : AIR 1972 SC 1924 [LNIND 1971 SC
626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] .
49. Ujjal Mandal v State of WB, AIR 1972 SC 1446 [LNIND 1972 SC 48] : (1972) 1 SCC 456 [LNIND 1972 SC 48] ; see
alsoNirmal Kumar v UOI, AIR 1978 SC 1155 [LNIND 1978 SC 145] : (1978) 2 SCC 508 [LNIND 1978 SC 145] .
50. S.M.D. Kiran Pasha v Govt of Andhra Pradesh, (1990) 1 SCC 328 [LNIND 1989 SC 553] : JT (1989) 4 SC 366 [LNIND
1989 SC 553] : 1989 (Supp-2) SCR 105. See alsoMeena Jayendra Thakur v UOI, (1999) 8 SCC 177 [LNIND 1999 SC
855] : AIR 1999 SC 3517 [LNIND 1999 SC 855] .
51. Nandlal v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1981) 4 SCC 327 [LNIND 1981 SC 388] ;
Meena Jayendra Thakur v UOI, (1999) 8 SCC 177 [LNIND 1999 SC 855] ; Nirmal Kumar Khandelwal v UOI, AIR 1978
SC 1155 [LNIND 1978 SC 145] : (1978) 2 SCC 508 [LNIND 1978 SC 145] ; Abdul Latif Abdul Wahab Sheikh v B.K.
Jha, AIR 1987 SC 725 [LNIND 1987 SC 143] : (1987) 2 SCC 22 [LNIND 1987 SC 143] ; Micki Khan v State of W.B.,
AIR 1972 SC 2262 ; Shibapada Mukerjee v State of W.B., AIR 1972 SC 1356 : (1974) 3 SCC 50 .
52. Nirmal Kumar v UOI, AIR 1978 SC 1155 [LNIND 1978 SC 145] : (1978) 2 SCC 508 [LNIND 1978 SC 145] .
54. Sambhu Nath Sarkar v State of W.B., AIR 1973 SC 1425 [LNIND 1973 SC 138] : (1973) 1 SCC 856 [LNIND 1973 SC
138] .
626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] .
Page 276 of 320
626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] . The position under the J.&K. Preventive Detention Act is different
[Afzal v State of J&K, AIR 1957 SC 173 [LNIND 1956 SC 95] : (1957) 1 SCR 63 [LNIND 1956 SC 95] ]; K.I. Singh v
State of Manipur, AIR 1972 SC 438 [LNIND 1971 SC 524] : (1972) 1 SCR 1022 [LNIND 1971 SC 524] : (1972) 2 SCC
576 [LNIND 1971 SC 524] .
58. Dharam Singh v State of Punjab, AIR 1958 SC 152 [LNIND 1957 SC 128] : (1958) 1 SCR 998 [LNIND 1957 SC 128] :
1958 Cr LJ 282 .
59. Makhan Singh v State of Punjab, AIR 1952 SC 27 [LNIND 1951 SC 68] : (1952) 1 SCR 368 [LNIND 1951 SC 68] ;
Dattatreya Mareshwar v State of Bombay, AIR 1952 SC 181 [LNIND 1952 SC 22] : (1952) 1 SCR 612 [LNIND 1952
SC 22] .
60. State of Rajasthan v Shamsher Singh, AIR 1985 SC 1082 [LNIND 1985 SC 164] : 1985 (Supp) SCC 416.
61. Satar Habib Hamdani v K.S. Dilip Sinhji, AIR 1986 SC 418 [LNIND 1985 SC 366] : (1986) 1 SCC 544 [LNIND 1985
SC 366] : 1985 (Supp-3) SCR 1061.
626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] ; The position under the J&K Preventive Detention Act is different [Afzal
v State of J&K, AIR 1957 SC 173 [LNIND 1956 SC 95] : (1957) 1 SCR 63 [LNIND 1956 SC 95] ]. See alsoMadan Malik
v State of West Bengal, AIR 1972 SC 1878 [LNIND 1972 SC 304] : (1972) 2 SCC 611 [LNIND 1972 SC 304] ; Satya
Deo Prasad v State of Bihar, AIR 1975 SC 367 [LNIND 1974 SC 388] : (1975) 3 SCC 736 [LNIND 1974 SC 388] .
63. See alsoAkshay Konai v State of W.B., AIR 1973 SC 300 : (1973) 1 SCC 297 .
626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] . See alsoMadan Malik v State of W.B., AIR 1972 SC 1878 [LNIND
1972 SC 304] : (1972) 2 SCC 611 [LNIND 1972 SC 304] ; Satya Deo Prasad v State of Bihar, AIR 1975 SC 367
[LNIND 1974 SC 388] : (1975) 3 SCC 736 [LNIND 1974 SC 388] . See alsoD.S. Roy v State of WB, AIR 1972 SC 1924
[LNIND 1971 SC 626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] : (1972) 2 SCR 787 [LNIND 1971 SC 626] .
66. Nandlal v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1981) 4 SCC 327 [LNIND 1981 SC 388] .
67. K.I. Singh v State of Manipur, AIR 1972 SC 438 [LNIND 1971 SC 524] : (1972) 1 SCR 1022 : (1972) 2 SCC 576
[LNIND 1971 SC 524] .
68. Ujjal v State of W.B., AIR 1972 SC 1446 [LNIND 1972 SC 48] : (1972) 3 SCR 165 [LNIND 1972 SC 48] : (1972) 1
SCC 456 [LNIND 1972 SC 48] .
69. S.M.D. Kiran Pasha v Govt of Andhra Pradesh, (1990) 1 SCC 328 [LNIND 1989 SC 553] : JT (1989) 4 SC 366 [LNIND
1989 SC 553] ; Ujjal Mandal v State of W.B., AIR 1972 SC 1446 [LNIND 1972 SC 48] : (1972) 1 SCC 456 [LNIND
1972 SC 48] ; Ranbir Singh v T. George Joseph, 1988 (Supp) SCC 425 : JT 1988 (1) SC 31 (2).
70. Kavitha v State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] : (1981) 3 SCC 558 [LNIND 1981 SC 313] :
1981 Cr LJ 1262 (SC).
Page 277 of 320
71. Akshoy v State of W.B., AIR 1973 SC 300 : (1973) 1 SCC 297 : 1974 Cr LJ 405 .
72. Devji Vallabhai Tandel v Administration, AIR 1982 SC 1029 [LNIND 1982 SC 76] : (1982) 2 SCC 222 [LNIND 1982 SC
76] .
73. Hamida Sarfaraz Qureishi v M.S. Kasbekar, AIR 1981 SC 459 [LNIND 1980 SC 375] : (1980) 4 SCC 478 [LNIND
1980 SC 375] .
74. Kavitha v State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] : (1981) 3 SCC 558 [LNIND 1981 SC 313] .
75. 1986 Cr LJ 578 (Mad).
76. A.K. Roy v UOI, (1982) 1 SCC 271 [LNIND 1981 SC 469] : AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 2 SCR
272 [LNIND 1981 SC 469] ; State of Maharashtra v Shri Ramachandra Rammilan Mishra, AIR 2004 SC 2682 [LNIND
2004 SC 373] : (2004) 4 SCC 509 [LNIND 2004 SC 373] .
77. Shaik Kader v State of W.B., AIR 1972 SC 1647 [LNIND 1972 SC 274] : (1972) SCC 816 .
78. Harbans Lal v M.L. Wadhawan, AIR 1987 SC 217 : (1987) 1 SCC 151 [LNIND 1986 SC 700] . See alsoVijay Kumar v
UOI, AIR 1988 SC 934 [LNIND 1988 SC 141] : (1988) 2 SCC 57 [LNIND 1988 SC 141] .
79. P. Murugesan v State, (1999) 5 SCC 642 : JT (1999) 9 SC 76 ; Akbar Basha alias Rajesh v State, (2000) 3 CTC 8
[LNIND 2000 MAD 528] (Mad).
80. Syed Ali T.M. v State of T.N., (1999) 2 CTC 490 [LNIND 1999 MAD 369] .
81. Fagu Shaw v State of W.B., AIR 1974 SC 613 [LNIND 1973 SC 414] : (1974) 2 SCR 832 [LNIND 1973 SC 414] :
(1974) 4 SCC 152 [LNIND 1973 SC 414] (paras 14–18). See alsoState of WB v Ashok Dey, AIR 1972 SC 1660 [LNIND
1971 SC 582] : (1972) 1 SCC 199 [LNIND 1971 SC 582] ; Sunil Fulchand Shah v UOI, AIR 2000 SC 1023 [LNIND
2000 SC 323] : (2000) 3 SCC 14 [LNIND 2000 SC 324] .
3 SCC 836 [LNIND 1975 SC 26] (para 3); Haradhon v Stateof W.B., AIR 1974 SC 2154 [LNIND 1974 SC 243] : (1975)
1 SCR 778 [LNIND 1974 SC 243] : (1975) 3 SCC 198 [LNIND 1974 SC 243] .
83. Kirtikumar Nirula v State of Maharashtra, AIR 2004 SC 4923 [LNIND 2004 SC 949] : (2005) 9 SCC 65 [LNIND 2004
SC 949] ; UOI v Paul Manickam, (2003) 8 SCC 342 [LNIND 2003 SC 869] : AIR 2004 SC 4622 .
84. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22] .
85. Ram Krishna v State of Delhi, (1953) 4 SCR 708 [LNIND 1953 SC 49] : AIR 1953 SC 318 [LNIND 1953 SC 49] : 1953
Cr LJ 1241 .
86. Devji v Administrator, AIR 1982 SC 1029 [LNIND 1982 SC 76] : (1982) 3 SCR 553 [LNIND 1982 SC 76] : (1982) 2
87. Smt. Shalini Soni v UOI, (1980) 4 SCC 544 [LNIND 1980 SC 429] : AIR 1981 SC 431 [LNIND 1980 SC 429] .
88. SeeKubic Darusz v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25] : (1990) 1 SCC 568 [LNIND 1990 SC 25] .
89. Kubic Darusz v UOI, (1990) 1 SCC 568 [LNIND 1990 SC 25] : AIR 1990 SC 605 [LNIND 1990 SC 25] .
Page 278 of 320
90. District Collector v S.K. Hasmath Beebi, AIR 2001 SC 1681 [LNIND 2001 SC 1038] : (2001) 5 SCC 401 [LNIND 2001
SC 1038] .
91. Halsbury’s Laws of England, 3rd Edn, Vol 26, p 820.
92. UOI v Sneha Khemka, AIR 2004 SC 2938 [LNIND 2004 SC 101] : (2004) 2 SCC 570 [LNIND 2004 SC 101] .
93. UOI v Sneha Khemka, (supra).
94. Balchand Chorasia v UOI, AIR 1978 SC 297 [LNIND 1977 SC 344] : (1978) 1 SCC 161 [LNIND 1977 SC 344] .
95. AIR 1981 SC 1621 [LNIND 1981 SC 56] : (1981) 2 SCC 436 .
96. B.C. Dutta v State of WB, AIR 1972 SC 2605 : (1972) 3 SCC 889 .
1. Kantilal Bose v State of WB, AIR 1972 SC 1623 : (1972) 2 SCC 529 ; see alsoAshok Kumar v State of J&K, AIR 1981
SC 851 : (1981) 2 SCC 73 ; Mehdi Mohammed Joudi v State of Maharashtra, AIR 1981 SC 1752 : (1981) 2 SCC 358 ;
Khatoon Begum v UOI, AIR 1981 SC 1977 : (1981) 2 SCC 480 [LNIND 1981 SC 137] .
2. SeeJayanarayan Sukul v State of West Bengal, AIR 1970 SC 675 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND
1969 SC 451] ; Also seeS.K. Rashid v State of WB, AIR 1973 SC 824 : (1973) 3 SCC 476 ; Smt. Shalini Soni v UOI,
[LNIND 2013 SC 256] ; see alsoFrances Corallie v W.C. Khambrq, AIR 1980 SC 849 [LNIND 1980 SC 97] : (1980) 2
SCC 275 [LNIND 1980 SC 97] ; L.M.S. Ummu Saleema v B.B. Gujral, (1981) 3 SCC 317 [LNIND 1981 SC 268] ; K.M.
Abdulla Kunhi v UOI, (1991) 1 SCC 476 [LNIND 1991 SC 42] ; Ummu Sabeena v State of Kerala, (2011) 10 SCC 781
[LNIND 2011 SC 1167] : (2011) 13 Scale 28 [LNIND 2011 SC 1167] ; D.M. Nagaraja v Govt. of Karnataka, (2011) 10
SCC 215 [LNIND 2011 SC 924] : AIR 2012 SC 295 [LNIND 2011 SC 924] ; Pebam Ningol Mikoi Devi v State of
Manipur, (2010) 9 SCC 618 [LNIND 2010 SC 926] : (2010) 10 Scale 248 [LNIND 2010 SC 926] .
4. Hari Kishen v State of Maharashtra, AIR 1962 SC 911 [LNIND 1962 SC 466] : 1962 (Supp-2) SCR 918. The right to
make a representation flows from Article 22(5) and the detenue must be afforded the earliest opportunity to make a
representation. K.D. Shaikh v D.M. Ahmedabad, AIR 1996 SC 2999 . Where the detenu is illiterate, the ground of
detention should be explained to him in his own language. Sawai Singh v UOI, 1996 AIHC 1549 (Del); Virendra Singh
Yadav v UOI, 1996 AIHC 5245 (Raj); and Virendra Singh Yadav v UOI, 1996 AIHC 1549 (Del). Also, he must also be
confirmed about that right. Brijbhari Shivdarshan Shukla v R.H. Mendonca, 1997 AIHC 2276 (Bom).
5. Khudiram v State of W.B., AIR 1975 SC 446 [LNIND 1974 SC 326] : (1975) 2 SCR 432 [LNIND 1974 SC 326] : (1975)
4 SCC 318 [LNIND 1974 SC 326] (para 5).
6. Hari Kishen v State of Maharashtra, AIR 1962 SC 911 [LNIND 1962 SC 466] : 1962 (Supp-2) SCR 918. The right to
make a representation flows from Article 22(5) and the detenue must be afforded the earliest opportunity to make a
representation. K.D. Shaikh v D.M. Ahmedabad, AIR 1996 SC 2999 . Where the detenu is illiterate, the ground of
Yadav v UOI, 1996 AIHC 5245 (Raj); and Virendra Singh Yadav v UOI, 1996 AIHC 1549 (Del). Also, he must also be
confirmed about that right. Brijbhari Shivdarshan Shukla v R.H. Mendonca, 1997 AIHC 2276 (Bom). See alsoKubic
Darusz v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25] : (1990) 1 SCC 568 [LNIND 1990 SC 25] : 1990 Cr LJ 796 ;
Surjeet Singh v UOI, AIR 1981 SC 1153 [LNIND 1981 SC 151] : (1981) 2 SCC 359 [LNIND 1981 SC 151] : (1981) 3
Page 279 of 320
SCR 205 [LNIND 1981 SC 151] ; Tsering Dolkar v Administrator, UT of Delhi, AIR 1987 SC 1192 [LNIND 1987 SC
192] : (1987) 2 SCC 69 [LNIND 1987 SC 192] .
7. Philippa Anne Duke v State of T.N., AIR 1982 SC 1178 [LNIND 1982 SC 103] : (1982) 2 SCC 389 [LNIND 1982 SC
103] ; Pattammal v District Magistrate, (1995) 1 CTC 335 [LNIND 1995 MAD 71] .
8. Kubic Darusz v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25] : (1990) 1 SCC 568 [LNIND 1990 SC 25] (supra). See
alsoLallubhai Joghibhai Patel v UOI, AIR 1981 SC 728 [LNIND 1980 SC 488] : (1981) 2 SCC 427 [LNIND 1980 SC
488] : (1981) 2 SCR 352 [LNIND 1980 SC 488] ; Pushpa Devi v State of Karnataka, AIR 1980 Kant. 17 [LNIND 1979
KANT 192] .
9. Raziya Umar Bakshi v UOI, AIR 1980 SC 1751 : (1980) 3 SCR 1398 ; Maninman D. Mal Shah v UOI, AIR 1980 SC
2129 ; Surjeet Singh v UOI, AIR 1981 SC 1153 [LNIND 1981 SC 151] : (1981) 2 SCC 359 [LNIND 1981 SC 151] :
(1981) 3 SCR 205 [LNIND 1981 SC 151] .
10. M. Kudubdeen v UOI, (2010) 15 SCC 741 .
11. Nandoli Mohammed Rafeeq v UOI, (2004) 12 SCC 218 : (2005) 9 Scale 602 .
12. Thahira Haris v Govt. of Karnataka, AIR 2009 SC 2184 [LNIND 2009 SC 834] : (2009) 11 SCC 438 [LNIND 2009 SC
834] : (2009) Cr LJ 2451 .
13. UOI v Ranu Bhandari, (2008) 17 SCC 348 [LNIND 2008 SC 1852] : 2008 Cr LJ 4567 .
14. Y. Sonachand Singh v State of Manipur, 1982 Cr LJ 77 (Gau).
15. Shibban Lal v State of U.P., (1954) 1 SCR 418 [LNIND 1953 SC 110] : AIR 1954 SC 179 [LNIND 1953 SC 110] .
16. State of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) 2 SCR 167 [LNIND
1951 SC 5] (Das. J.)
17. District Collector v V. Laxman, AIR 2005 SC 2802 [LNIND 2005 SC 288] : (2005) 3 SCC 663 [LNIND 2005 SC 288] .
18. S. Ravindran v State of Tamil Nadu, (1984) Cr LJ 763 .
19. Subas Das v UOI, (1988) Cr LJ (NOC) 84 (Del).
20. M.P. Jain, Indian Constitutional Law, 5th Edn, 2003, Vol I, p 1345.
1951 SC 5] (supra).
22. Tarapada De v State of W.B., AIR 1951 SC 174 [LNIND 1951 SC 4] : (1951) 2 SCR 212 [LNIND 1951 SC 4] .
23. Ashok Kumar v Delhi Admn., AIR 1982 SC 1143 [LNIND 1982 SC 96] : (1982) 2 SCC 403 [LNIND 1982 SC 96] :
(1982) 8 SCR 707 .
24. Sophia Gulam Mohd. Bham v State of Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC 693] : (1999) 6 SCC 593
[LNIND 1999 SC 693] ; see alsoSolomon Castro v State of Kerala, (2000) 9 SCC 561 : (2000) 2 JT 287 ; Durga Prasad
Ghosh v State of WB, AIR 1972 SC 2420 : (1972) 2 SCC 656 .
Page 280 of 320
25. Madhab Ray v State of W.B., AIR 1975 SC 255 : (1974) 4 SCC 548 ; Ibrahim Ahmed v State of Gujarat, AIR 1982 SC
1500 [LNIND 1982 SC 141] : (1982) 2 SCC 440 [LNIND 1982 SC 152] ; Taramati Chandulal v State of Maharashtra,
AIR 1981 SC 1909 : (1981) 4 SCC 562 ; Shaik Hanif v State of W.B., AIR 1974 SC 679 [LNIND 1974 SC 24] : (1974)
1 SCC 637 [LNIND 1974 SC 24] ; Fogla v State of W.B., AIR 1975 SC 245 : (1974) 4 SCC 301 ; Bhut Nath v State of
W.B., AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31] .
26. Pamna Jadav v State of W.B., AIR 1975 SC 863 : (1975) 4 SCC 56 . See alsoKhudiram Das v State of W.B., AIR
27. Sashit Keot v State of W.B., AIR 1974 SC 525 [LNIND 1974 SC 32] : (1974) 3 SCR 313 [LNIND 1974 SC 32] : (1974)
4 SCC 131 [LNIND 1974 SC 32] .
28. Dharmista Bhagat v State of Karnataka, 1989 (Supp-2) SCC 155.
29. Ichhu Devi v UOI, AIR 1980 SC 1983 [LNIND 1980 SC 372] : (1980) 4 SCC 531 [LNIND 1980 SC 372] ;
Ramachandra A. Kamat v UOI, AIR 1980 SC 765 [LNIND 1980 SC 80] : (1980) 2 SCC 270 [LNIND 1980 SC 80] ;
Kamla Kanyalal Kushalani v State of Maharashtra, AIR 1981 SC 814 [LNIND 1981 SC 1] : (1981) 1 SCC 478 : (1981)
2 SCR 960 ; see alsoSunil Dutt v UOI, AIR 1982 SC 53 : (1982) 3 SCC 405 ; Kirti Kumar v UOI, AIR 1981 SC 1621
[LNIND 1981 SC 56] : (1981) 2 SCC 436 ; Haridas Amarchand Shah v K.L. Verma, AIR 1989 SC 497 [LNIND 1988 SC
578] : (1989) 1 SCC 250 [LNIND 1988 SC 578] .
30. Mehrunnisa v State of Maharashtra, (1981) 2 SCC 709 : AIR 1981 SC 1861 . See alsoM. Ahmed Kutty v UOI, (1990) 1
SCC 1 [LNIND 1989 SC 560] .
31. Bhupinder Singh v UOI, (1987) 2 SCC 234 .
32. Prakash Chandra Mehta v Commissioner and Secretary, Government of Kerala, AIR 1986 SC 687 [LNIND 1985 SC
125] : 1986 Cr LJ 786 : 1985 (Supp) SCC 144.
[LNIND 1999 SC 693] .
34. District Collector v V. Laxmanna, (2005) 3 SCC 663 [LNIND 2005 SC 288] : AIR 2005 SC 2802 [LNIND 2005 SC 288] .
See alsoRaja v State of T.N., (2004) 7 SCC 694 ; M. Ahmed Kutty v UOI, (1990) 2 SCC 1 [LNIND 1990 SC 51] : JT
(1990) 1 SC 143 [LNIND 1990 SC 51] .
1951 SC 5] (supra); see alsoSophia Gulam Mohd. Bham v State of Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC
693] : (1999) 6 SCC 593 [LNIND 1999 SC 693] (supra).
36. Sushila Mdiman v Commr. of Police, AIR 1951 Bom 252 .
37. Radhakrishnan Prabhakaran v State of T.N., (2000) 9 SCC 170 . See alsoFarzana Haji Sumar v State of T.N., (2007) 1
Mad LJ (Crl) 1041.
38. Kamarunnisa v UOI, (1991) 1 SCC 128 [LNIND 1990 SC 538] : AIR 1991 SC 1640 [LNIND 1990 SC 538] : 1990
(Supp-1) SCR 457. See alsoJ. Abdul Hakeem v State of T.N., (2005) 7 SCC 70 [LNIND 2005 SC 639] ; Senthamilselvi
v State of T.N., (2006) 5 SCC 676 [LNIND 2006 SC 445] .
Page 281 of 320
39. Powanammal v State of T.N., (1999) 2 SCC 413 [LNIND 1999 SC 30] : AIR 1999 SC 618 [LNIND 1999 SC 30] . See
alsoAbdul Sarkar Ibrahim Manik v UOI, AIR 1991 SC 2261 [LNIND 1991 SC 521] : (1992) 1 SCC 1 [LNIND 1991 SC
521] ; Prakash (Dr.) v State of T.N., (2002) 7 SCC 759 [LNIND 2002 SC 637] : AIR 2002 SC 3533 [LNIND 2002 SC
637] .
1951 SC 5] (supra).
41. State of Bombay v Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) 2 SCR 167 [LNIND 1951 SC 5] .
42. State of T.N. v Senthil Kumar, AIR 1999 SC 971 [LNIND 1999 SC 1324] : (1999) 2 SCC 646 [LNIND 1999 SC 1324] ;
Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] ; Tarapada De v State of W.B., AIR 1951 SC
174 [LNIND 1951 SC 4] : (1951) 2 SCR 212 [LNIND 1951 SC 4] ; Hansmukh v State of Gujarat, AIR 1981 SC 28
43. State of Rajasthan v Shamsher Singh, AIR 1985 SC 1082 [LNIND 1985 SC 164] : 1985 (Supp) SCC 416; State of
Punjab v Jagdev Singh Talwandi, AIR 1984 SC 444 [LNIND 1983 SC 377] : (1984) 1 SCC 526 ; Wasuiddin Ahmed v
District Magistrate, AIR 1981 SC 2166 : (1981) 4 SCC 521 .
44. Mohammed Alam v State of W.B., (1992) 4 SCC 917 .
45. Beni Madhab Shaw v State of WB, AIR 1973 SC 2455 : (1974) 3 SCC 481 ; see alsoState of Punjab v Jagdev Singh
Talwandi, AIR 1984 SC 444 [LNIND 1983 SC 377] : (1984) 1 SCC 526 ; State of Rajasthan v Shamsher Singh, AIR
1985 SC 1082 [LNIND 1985 SC 164] : 1985 (Supp) SCC 416.
46. Shalini Soni v UOI, AIR 1981 SC 431 [LNIND 1980 SC 429] : (1980) 4 SCC 544 [LNIND 1980 SC 429] .
47. State of Rajasthan v Talib Khan, AIR 1997 SC 1559 [LNIND 1996 SC 1717] .
48. AIR 1991 SC 2261 [LNIND 1991 SC 521] : (1992) 1 SCC 1 [LNIND 1991 SC 521] : (1991) Cr LJ 3291 (SC).
49. See alsoM. Ahmed Kutty v UOI, (1990) 1 SCC 1 [LNIND 1989 SC 560] .
50. SeeRamachandra A. Kamat v UOI, AIR 1980 SC 765 [LNIND 1980 SC 80] : (1980) 2 SCC 270 [LNIND 1980 SC 80] ;
Frances Corallie Milli v W.C. Khamtra, (1980) Cr LJ 548 : AIR 1980 SC 849 [LNIND 1980 SC 97] : (1980) 2 SCC 275
[LNIND 1980 SC 97] ; Ichhu Devi v UOI, AIR 1980 SC 1983 [LNIND 1980 SC 372] : (1980) 4 SCC 531 [LNIND 1980
SC 372] : (1981) 1 SCR 640 [LNIND 1980 SC 372] ; Pritam Nath Hoon v UOI,(1980) Cr LJ 1340 : AIR 1981 SC 92
[LNIND 1980 SC 376] ; Tushar Thakkur v UOI, (1980) Cr LJ 1492 ; Lallu Bhai Jati Bhai Patel v UOI, (1981) Cr LJ 288 ;
Kirti Kumar Chaman Lal v UOI, (1981) Cr LJ 1267 ; Ana Carolina D’Souza v UOI, (1981) Cr LJ 1277 .
51. Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) 1 SCR 460 . See alsoState of Bombay v
Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) 2 SCR 167 [LNIND 1951 SC 5] ; Lawrance
Joachim Joseph D’Souza v State of Bombay, AIR 1956 SC 531 [LNIND 1956 SC 36] : (1956) 1 SCR 382 [LNIND 1956
SC 36] .
52. Jaganath v UOI, AIR 1960 SC 625 [LNIND 1960 SC 15] : (1960) 2 SCR 784 [LNIND 1960 SC 15] .
53. Iqbal Hussain v Asst. Secretary, Govt. of Maharashtra, (1984) Cr LJ 1179 .

Page 282 of 320
54. Wasiuddin Ahmed v Dt. Magistrate, Aligarh, AIR 1981 SC 2166 : (1981) 4 SCC 521 ; Asha v UOI, (1986) Cr LJ 177
(SC).
55. Nitya Rani v State of Tamil Nadu, (1989) Cr LJ (NOC) 139 (Madras).
56. Krishna v State of W.B., AIR 1974 SC 955 [LNIND 1974 SC 57] : (1974) 3 SCR 449 [LNIND 1974 SC 57] : (1974) 3
SCC 783 [LNIND 1974 SC 57] (para 7); Gopal v D.M., AIR 1975 SC 781 [LNIND 1975 SC 15] : (1975) 3 SCR 197
[LNIND 1975 SC 15] : (1975) 1 SCC 522 [LNIND 1975 SC 15] (paras 3–5).
57. Prabhu v Dt. Magistrate, AIR 1974 SC 183 [LNIND 1973 SC 304] : (1974) 2 SCR 12 [LNIND 1973 SC 304] : (1974) 1
SCC 103 [LNIND 1973 SC 304] (para 58).
58. Rabiyathil Pathavia v State Government of Tamil Nadu, (2001) 3 CTC 83 : (2001) Mad LJ (Crl) 788.
59. Hari Kishen v State of Maharashtra, AIR 1962 SC 911 [LNIND 1962 SC 466]: 1962 (Supp-2) SCR 918. See
alsoNainmal Pratap Mal Shah v UOI, AIR 1980 SC 2129 : (1980) 4 SCC 487 [LNIND 1980 SC 395]. The right to make
a representation flows from Article 22(5) and the detenue must be afforded the earliest opportunity to make a
representation. K.K. Shaikh v D.M. Ahmedabad, AIR 1996 SC 2999. Where the detenee is illiterate, the ground of
Yadav v UOI, 1996 AIHC 5245 (Raj); and Virendra Singh Yadav v UOI, 1996 AIHC 1549 (Del). Also, he must be
confirmed about that right. Brijbhari Shivdarshan Shukla v R.H. Mendonca, 1997 AIHC 2276 (Bom). See alsoNafisa
Khalifa Ghanom v UOI, (1982) 1 SCC 422.
60. Deviji v Administrator, AIR 1982 SC 1029 [LNIND 1982 SC 76]: (1982) 3 SCR 553 [LNIND 1982 SC 76] : (1982) 2
SCC 222 [LNIND 1982 SC 76] (para 8).
61. (1983) Cr LJ 1468.
62. See alsoDevji Vallabhbhai Tandel v Administrator of Goa, Daman and Diu, AIR 1982 SC 1029 [LNIND 1982 SC 76]:
(1982) 2 SCC 222 [LNIND 1982 SC 76] : (1982) Cr LJ 799.
63. Surjeet Singh v UOI, AIR 1981 SC 1153 [LNIND 1981 SC 151]: (1981) 2 SCC 359 [LNIND 1981 SC 151]. See
alsoChinnathai v District Collector, (2007) 2 Mad LJ (Crl) 1363; Nowshad v Secretary to Government, (2007) 2 Mad LJ
(Crl) 730.
125]: 1985 (Supp) SCC 144 (supra). See alsoFarzana Haji Sumar v State of T.N., (2006) 5 CTC 487 [LNIND 2006
MAD 2608] (Mad).
Page 283 of 320
65. Hadibandhu v District Magistrate, AIR 1969 SC 43 [LNIND 1968 SC 149]: (1969) 1 SCR 227 [LNIND 1968 SC 149].
66. See alsoChhaju Ram v State of J&K, AIR 1971 SC 263 [LNIND 1970 SC 97]: (1970) 1 SCC 536 [LNIND 1970 SC 97].
See alsoMuruga Thevar v State of Tamil Nadu, (2007) 1 Mad LJ (Crl) 987.
67. Razia v UOI, AIR 1980 SC 1751 : (1980) 3 SCR 1398 : 1980 (Supp) SCC 195.
68. See alsoNainmal v UOI, AIR 1980 SC 2129 : (1980) 4 SCC 427; Lallubhai Jogibhai Patel v UOI, AIR 1981 SC 728
[LNIND 1980 SC 488]: (1981) 2 SCC 427 [LNIND 1980 SC 488]; Ibrahim Ahmed Batti v State of Gujarat, AIR 1982 SC
1500 [LNIND 1982 SC 141]: (1982) 3 SCC 440 [LNIND 1982 SC 141]. Overruled in State of Rajasthan v Talik Khan,
(1996) 11 SCC 393 [LNIND 1996 SC 1717].
69. Tsering v Administrator, UT of Delhi, AIR 1987 SC 1192 [LNIND 1987 SC 192]: (1987) 2 SCC 69 [LNIND 1987 SC
192]; Kubic Darurs v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25]: (1990) 1 SCC 568 [LNIND 1990 SC 25]; Nandoli
Mohd Rafeeq v UOI, (2004) 12 SCC 218.
70. Sheetal Manoj Gore v State of Maharashtra, (2006) 7 SCC 560 [LNIND 2006 SC 634].
71. Moosa Velliate v Asst. Secretary, Govt. of Maharashtra, (1983) Cr LJ 1246.
72. Ranjit Singh v UOI, (1986) Cr LJ 202 (All).
73. Siraj Khan v Hmingliana, (1989) Cr LJ 392 (SC).
74. SeeUOI v Shantaram Gajanan Kanekar, 1994 (Supp-2) SCC 571; V.K. Dharma v UOI, (1990) 1 SCC 606; Rajindra v
Commissioner of Police, 1994 (Supp-2) SCC 715.
75. Dinasekharam v Commr. of Police, (2006) 1 Mad LJ (Crl) 499.
76. Vijay Kumar Dharna v UOI, AIR 1990 SC 1184 : (1990) 1 SCC 606. See alsoSaravanan v State of Tamil Nadu, (1999)
1 CTC 618 [LNIND 1999 MAD 102] (Mad).
Page 284 of 320
77. A. Alangaraswamy v State of T.N., AIR 1987 SC 1725 [LNIND 1987 KER 184]: (1987) 3 SCC 159.
78. Prakash (Dr.) v State of T.N., (2002) 7 SCC 759 [LNIND 2002 SC 637] : AIR 2002 SC 3533 [LNIND 2002 SC 637].
See alsoSheetal Manoj Gore v State of Maharashtra, (2006) 7 SCC 560 [LNIND 2006 SC 634]. But seeKhudiram Das v
State of WB, AIR 1975 SC 550 [LNIND 1974 SC 386]: (1975) 2 SCC 81 [LNIND 1974 SC 386]; Prakash Chandra
Mehta v Commr. & Secretary, Govt. of Kerala, AIR 1986 SC 687 [LNIND 1985 SC 125]: 1986 Cr LJ 786 : 1985 (Supp)
SCC 144; Aswin Kumar B. Halari v State of Maharashtra, (1987) Cr LJ 1798 (Bom).
79. Kamalbhai v Commr. of Police, (1993) 3 SCC 384.
80. (1990) Cr LJ 2473 (SC).
81. Linder Frank Woel Garg v UOI, (1998) Cr LJ 1752.
82. PAS Sayed Mohideen v The Joint Secretary, Govt. of India, (1991) Cr LJ 2679 (Mad).
83. Kundanbhai Dulabhai Sheikh v Dt. Magistrate, Ahmedabad, AIR 1996 SC 2998 [LNIND 1996 SC 2225]: (1996) 3 SCC
194 [LNIND 1996 SC 2225].
84. Devarajan v State, (1999) 2 CTC 175 (Mad).
85. Mahamani v UOI, (2001) 1 CTC 44 : (2000) 1 LW (Crl) 34.
86. Kala v Dt. Magistrate and Collector of North Arcot, (1993) Mad LJ (Crl) 19; see alsoUsha Agarwal v UOI, (2007) 2 Mad
LJ (Crl) 384.
87. State of Bombay v Atma Ram Shridhar Vaidya, (1951) SCR 167 [LNIND 1951 SC 5] (179) : AIR 1951 SC 157 [LNIND
1951 SC 5] , Kania, C.J.
89. AIR 1974 SC 2337 : (1975) 3 SCC 545 .

Page 285 of 320
90. Ganga Ram Chand v Under Secretary, AIR 1980 SC 1744 [LNIND 1980 SC 303] : (1980) 4 SCC 624 [LNIND 1980
SC 303] : (1980) Cr LJ 1263 .
1. Naresh v State of W.B., AIR 1959 SC 1335 [LNIND 1959 SC 131] (1340) : (1960) 1 SCR 412 : 1959 Cr LJ 1501 .
2. Alak v State of W.B., AIR 1974 SC 889 : 1974 Cr LJ 747 (para 3); Hanif v State of W.B., AIR 1974 SC 679 [LNIND
1974 SC 24] : (1974) 3 SCR 258 [LNIND 1974 SC 24] : (1974) 1 SCC 637 [LNIND 1974 SC 24] (para 12); Gopal v
D.M., AIR 1975 SC 781 [LNIND 1975 SC 15] : (1975) 3 SCR 197 [LNIND 1975 SC 15] : (1975) 1 SCC 522 [LNIND
1975 SC 15] (paras 3–5); Panna v State of W.B., AIR 1975 SC 863 : (1975) 4 SCC 56 : 1975 Cr LJ 772 (para 8).
3. Golam v State of W.B., AIR 1976 SC 754 : (1975) 2 SCC 4 : 1976 Cr LJ 630 ; Khudram v State of W.B., AIR 1975 SC
550 [LNIND 1974 SC 386] : (1975) 2 SCR 832 [LNIND 1974 SC 386] : (1975) 2 SCC 81 [LNIND 1974 SC 386] (paras
6, 13).
4. Shamirao v D.M., (1956) SCR 644 [LNIND 1956 SC 60] : AIR 1957 SC 23 [LNIND 1956 SC 60] : 1957 Cr LJ 5 .
5. Khudram v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCR 832 : (1975) 2 SCC 81 [LNIND
1974 SC 386] (paras 6, 13).
6. Panna v State of W.B., AIR 1975 SC 863 : (1975) 4 SCC 56 : 1975 Cr LJ 772 .
7. Bablu v State of W.B., AIR 1975 SC 1513 : (1975) 4 SCC 108 : 1975 Cr LJ 1327 .
8. Joydeb v State of W.B., (1969) 1 UJSC 1 (para 10).
9. Vakil Singh v State of J&K, AIR 1974 SC 2337 (2341) : (1975) 3 SCC 545 : 1975 Cr LJ 7 .
10. S. Arumugham v Commr. of Police, Madras, (1995) Cr LJ 194 .
11. Dhananjay Das v Dt. Magistrate, AIR 1982 SC 1315 [LNIND 1982 SC 118] : (1982) 2 SCC 521 [LNIND 1982 SC 118]
: (1982) Cr LJ 1779 .
12. Dt. Magistate, New Gorg v Sarat Mudai, (1983) Cr LJ 1728 (SC).
14. State of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] (supra).
15. K. Aruna Kumari v Govt of Andhra Pradesh, AIR 1988 SC 227 [LNIND 1987 SC 755] : (1988) 1 SCC 296 [LNIND
1987 SC 755] ; Sonam Yongda v State of Sikkim, AIR 1986 SC 1736 : (1986) 3 SCC 594 .
125] . See alsoHansmukh v State of Gujarat, AIR 1981 SC 28 [LNIND 1980 SC 312] ; UOI v Paul Manickam, (2003) 8
19. (1987) Cr LJ 1798 (Bom).
20. Tsering Dolkar v Administrator, UT of Delhi, AIR 1987 SC 1192 [LNIND 1987 SC 192] : (1987) 2 SCC 69 [LNIND 1987
SC 192] : (1987) Cr LJ 988 (SC).
Page 286 of 320
21. Icchu Devi v UOI, AIR 1980 SC 1983 [LNIND 1980 SC 372] : (1980) 4 SCC 531 [LNIND 1980 SC 372]
22. Kamla Kanyalal Khushalini v State of Maharashtra, AIR 1981 SC 814 [LNIND 1981 SC 1] : (1981) 1 SCC 748 [LNIND
1981 SC 1] ; Dhanasekharan v Commr. of Police, (2006) 1 Mad LJ (Crl) 499; K. Krishnaveni v The Secy. Government
of Tamil Nadu, (2006) 1 Mad LJ (Crl) 222.
23. See alsoPritham Nath v UOI, AIR 1981 SC 92 [LNIND 1980 SC 376] : (1980) 4 SCC 525 [LNIND 1980 SC 376] ;
Gurdip Singh v UOI, AIR 1981 SC 362 : (1981) 1 SCC 419 ; Mangalbhai Motiram v State of Maharashtra, AIR 1981 SC
510 [LNIND 1980 SC 410] : (1980) 4 SCC 470 [LNIND 1980 SC 410] ; Sallubhai Jogibhai v UOI, AIR 1981 SC 728
24. Ram Chandra v UOI, AIR 1980 SC 765 [LNIND 1980 SC 80] : (1980) 2 SCC 270 [LNIND 1980 SC 80] ; Tushar
Thakkar v UOI, AIR 1981 SC 436 : (1980) 4 SCC 499 and in Kirit Kumar v UOI, AIR 1981 SC 1621 [LNIND 1981 SC
56] : (1981) 2 SCC 436
25. Ummu Saleema v B.B. Gujral, AIR 1981 SC 1191 [LNIND 1981 SC 268] : (1981) 3 SCC 317 [LNIND 1981 SC 268] ;
Ibrahim Ahmed v State of Gujarat, AIR 1982 SC 1500 [LNIND 1982 SC 141] : (1982) 3 SCC 440 [LNIND 1982 SC 141]
; Y. Mangibhabu Singh v State of Manipur, AIR 1983 SC 300 : (1982) 3 SCC 18 . See alsoSenthamil Selvi v State of
Tamil Nadu, (2006) 5 SCC 676 [LNIND 2006 SC 445] ; Powanammal v State of Tamil Nadu, (1999) 2 SCC 413 [LNIND
1999 SC 30] ; Sunila Jain v UOI, (2006) 1 Mad LJ (rel) 643 (SC).
26. Abdul Sattar Ibrahim v UOI, AIR 1991 SC 2261 [LNIND 1991 SC 521] : (1992) 1 SCC 1 [LNIND 1991 SC 521] : (1991)
Cr LJ 3291 (SC); see alsoRushikesh Tanaji Bhoite v State of Maharashtra, AIR 2012 SC 890 [LNIND 2012 SC 1531] :
(2012) 2 SCC 72 [LNIND 2012 SC 1531] ; Baby Devassy Chully (alias) Bobby v UOI, (2013) 4 SCC 531 [LNIND 2012
SC 641] ; M. Ahmed Kutty v UOI, (1990) 1 SCC 1 [LNIND 1989 SC 560] ; Sophia Gulam Mohd. Bham v State of
Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC 693] : (1999) 6 SCC 593 [LNIND 1999 SC 693] .
27. Abdul Hakeem v State of T.N., (2005) 7 SCC 70 [LNIND 2005 SC 639] .
28. District Collector v V. Laxmanna, AIR 2005 SC 2802 [LNIND 2005 SC 288] : (2005) 3 SCC 663 [LNIND 2005 SC 288]
.
29. Radhakrishnan Prabhakaran v State of T.N., (2000) 9 SCC 170 .
30. See alsoKamarunnisa v UOI, (1991) 1 SCC 128 [LNIND 1990 SC 538] ; M. Ahmed Kutty v UOI, (1990) 2 SCC 1
[LNIND 1990 SC 51] . See alsoFarzana Haji Sumar v State of T.N., (2000) 5 CTC 487 (Mad HC).
31. Smt. Hemlata Kantilal Shah v State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422] : (1981) 4 SCC 647 [LNIND
1981 SC 422] .
32. Madan Lal Anand v UOI, (1990) 1 SCC 480 [LNIND 1990 SC 37] : AIR 1990 SC 176 [LNIND 1989 SC 536] ; See
alsoSyed Farooq Mohammed v UOI, AIR 1990 SC 1597 [LNIND 1990 SC 313] : (1990) 3 SCC 537 [LNIND 1990 SC
313] ; Suraj Paul Sahu v State of Maharashtra, AIR 1986 SC 2177 [LNIND 1986 SC 351] .
33. Sophia Gulam Mohd. Bhanu v State of Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC 693] : (1999) 6 SCC 593
[LNIND 1999 SC 693] .
34. P. Saravanan v State of T.N., (2001) 10 SCC 212 .
35. Sitthi Zuraina Begam v UOI, AIR 2003 SC 323 [LNIND 2002 SC 730] : (2002) 10 SCC 448 [LNIND 2002 SC 730] .
Page 287 of 320
36. Beni Madhab Shaw v State of WB, AIR 1973 SC 2455 : (1974) 3 SCC 481 .
37. PKM Abubaker v UOI, (1990) Cr LJ 1570 (Kar FB); see alsoMadan Lal Anand v UOI, AIR 1990 SC 176 [LNIND 1989
SC 536] : (1990) 1 SCC 81 [LNIND 1989 SC 536] .
38. Mohd. Zakir v Delhi Admn., (1982) 3 SCC 216 : AIR 1982 SC 17 .
39. Mehrunnisa v State of Maharashtra, AIR 1981 SC 1861 : (1981) 2 SCC 709 .
40. Wasiuddin Ahmed v Administrator, (1983) 2 SCC 252 .
41. State of Punjab v Jagdev Singh Talwadi, AIR 1984 SC 444 [LNIND 1983 SC 377] : (1984) 1 SCC 596 [LNIND 1983
SC 377] . See alsoKamala Kavyala Khusalin v State of Maharashtra, AIR 1981 SC 814 [LNIND 1981 SC 1] : (1981) 1
SCC 748 [LNIND 1981 SC 1] ; Sunil Dutt v UOI, AIR 1982 SC 53 : (1982) 3 SCC 405 ; Ana Carelina D’Souza v UOI,
AIR 1981 SC 1620 : 1981 (Supp) SCC 530; Gurdip Singh v UOI, AIR 1981 SC 962 : (1981) 1 SCC 419 ; State of U.P.
v Kamal Kishore Saini, AIR 1988 SC 208 [LNIND 1987 SC 742] : (1988) 1 SCC 287 [LNIND 1987 SC 742] . See
alsoBaldir Singh v State of J & K, (1995) Cr LJ 636 (J&K); Harjan Dev Singh v State of Punjab, AIR 1973 SC 2469
42. Prabhu v Dt. Magistrate, AIR 1974 SC 183 [LNIND 1973 SC 304] : (1974) 2 SCR 12 [LNIND 1973 SC 304] : (1974) 1
SCC 103 [LNIND 1973 SC 304] (para 58).
43. Joydeb v State of W.B., (1969) 1 UJSC 1 (para 10);
44. Bablu v State of W.B., AIR 1975 SC 1513 : (1975) 4 SCC 108 : 1975 Cr LJ 1327 ; Vakil Singh v State of J&K, AIR
1974 SC 2337 (2341) AIR 1974 SC 2337 : (1975) 3 SCC 545 : 1975 Cr LJ 7 ; Joydeb v State of W.B., (1969) 1 UJSC
1 (para 10); Panna v State of W.B., (1975) UJSC 103; Dhana Ali v State of W.B., (1974) SC dated 11-4-1975.
45. Bhut Nath v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 3 SCR 315 [LNIND 1974 SC 31] : (1974) 1
SCC 645 [LNIND 1974 SC 31] (para 25); Hanif v Stateof W.B., AIR 1974 SC 679 [LNIND 1974 SC 24] : (1974) 3 SCR
46. Haru v State of W.B., AIR 1974 SC 2240 : (1974) 4 SCC 520 .
47. Golam v State of W.B., AIR 1974 SC 895 : (1974) 4 SCC 139 (para 3); Dharman v State of W.B., AIR 1974 SC 897
(898) : (1974) 4 SCC 133 ; Alam v State of W.B., AIR 1974 SC 917 [LNIND 1974 SC 42] : (1974) 3 SCR 379 [LNIND
48. Alak v State of W.B., AIR 1974 SC 889 : 1974 Cr LJ 747 .

Page 288 of 320
49. Vakil Singh v State of J&K, AIR 1974 SC 2337 (2341) : AIR 1974 SC 2337 : (1975) 3 SCC 545 : 1975 Cr LJ 7 ; Ram
Bahadur Rai v State of Bihar, AIR 1975 SC 223 [LNIND 1974 SC 361] : (1975) 3 SCC 710 [LNIND 1974 SC 361] .
50. Har Jas Dev v State of Punjab, (1973) 2 SCC 575 [LNIND 1973 SC 210] (583) : AIR 1973 SC 2469 [LNIND 1973 SC
210] : (1974) 1 SCR 281 [LNIND 1973 SC 210] .
51. Abdul Sattar Ibrahim Malik v UOI, (1992) 1 SCC 1 [LNIND 1991 SC 521] : AIR 1991 SC 2261 [LNIND 1991 SC 521] .
52. Iqbal Hussain v Asst. Secretary, Govt. of Maharashtra, (1984) Cr LJ 1179 .
53. Deb Sadhan v State of W.B., (1972) 2 SCR 787 [LNIND 1971 SC 626] (797) : AIR 1972 SC 1924 [LNIND 1971 SC
626]: (1972) 1 SCC 308 [LNIND 1971 SC 626]; Ibrahim, v State of W.B., AIR 1974 SC 736 [LNIND 1973 SC 408]:
(1974) 2 SCR 803 [LNIND 1973 SC 408] : (1975) 3 SCC 13 [LNIND 1973 SC 408].
54. Gopal Bauri v District Magistrate, Burdwan, AIR 1975 SC 781 [LNIND 1975 SC 15]: (1975) 3 SCR 197 [LNIND 1975
SC 15] : (1975) 1 SCC 522 [LNIND 1975 SC 15] (para 3).
55. Sukhdev Singh v UOI, (1989) Cr LJ 1340 (Del).
56. Khudiram v State of W.B., AIR 1975 SC 550 [LNIND 1974 SC 386] : (1975) 2 SCR 832 [LNIND 1974 SC 386] : (1975)
2 SCC 81 [LNIND 1974 SC 386] (para 17).
57. (1988) 29(1) CrLR 342 (SC).
58. Dharmsta Bhagat v State of Karnataka, 1989 (Supp-2) SCC 155; Bhupinder Singh v UOI, (1987) 2 SCC 234
59. UOI v Mohammed Ahmed Ibrahim, AIR 1992 SC 778 : 1993 (Supp-1) SCC 405.
60. Puranlal v UOI, (1959) SCR 460 : AIR 1958 SC 163 [LNIND 1957 SC 70] : 1958 Cr LJ 283 : 1958 SCJ 510 [LNIND
1957 SC 70] .
61. Rameshwar v State of Bihar, AIR 1968 SC 1303 [LNIND 1967 SC 355] : (1968) 2 SCR 505 [LNIND 1967 SC 355] :
1968 Cr LJ 1490 .
62. State of Bombay v Atma Ram Sridhar Vaidya, (1951) SCR 167 [LNIND 1951 SC 5] : AIR 1951 SC 157 [LNIND 1951
SC 5] .
Page 289 of 320
63. State of Bombay v Atma Ram Sridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] ; Tarapade De v State of W.B.,
AIR 1951 SC 174 [LNIND 1951 SC 4] ; Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] ;
Hansmukh v State of Gujarat, AIR 1981 SC 28 [LNIND 1980 SC 312] : (1981) 2 SCC 175 [LNIND 1980 SC 312] .
64. State of T.N. v Senthil Kumar, AIR 1999 SC 971 [LNIND 1999 SC 1324] : (1999) 2 SCC 646 [LNIND 1999 SC 1324] .
65. Ujagar v State of Punjab, (1950–51) CC 154 (156).
66. Krishnamoorthy Chettiar v Govt of T.N., (1990) 2 CTC 300 (Mad, HC); Michael Joseph Lawrence v District Magistrate,
(1996) 2 CTC 763 [LNIND 1996 MAD 447] .
67. Ramchandra v UOI, AIR 1980 SC 765 [LNIND 1980 SC 80]: (1980) 2 SCR 1072 [LNIND 1980 SC 80] : (1980) 2 SCC
270 [LNIND 1980 SC 80] (paras 5–6).
68. Joynarayan v State of W.B., (1970) 3 SCR 225 [LNIND 1969 SC 451] : AIR 1970 SC 675 [LNIND 1969 SC 451]:
(1970) 1 SCC 219 [LNIND 1969 SC 451]; Sanker v Commr. of Police, (1996) 2 CTC 609 [LNIND 1996 MAD 548]; Vijay
Kumar Dharna v UOI, AIR 1990 SC 1184; Kashinath v R.D. Tyagi, 1997 AIHC 1942 (Bom).
69. M. Mohd. Sultan v Joint Secretary to Government of India, AIR 1990 SC 2222 [LNIND 1990 SC 575].
70. Rangaswamy v District Magistrate, (2000) 1 CTC 18 [LNIND 1999 MAD 595]; Mazahir Abbas v UOI, 1995 AIHC 3799
(Del)). See alsoKanti Bhai B. Bhil v State of Gujarat, 1997 AIHC 3937 (Guj). See alsoVeerammal v The Secy. to
Government, (2005) 2 LW (Crl) 773.
71. Usha Agrawal v UOI, (2007) 1 SCC 295 [LNIND 2006 SC 908].
72. Zakir v Delhi Admn., AIR 1982 SC 696 : (1982) 3 SCC 216 : 1982 SCC(Cr) 695; Kamla v State ofMaharashtra, AIR
1981 SC 814 [LNIND 1981 SC 1]: (1981) 2 SCR 459 [LNIND 1981 SC 1] : (1981) 1 SCC 748 [LNIND 1981 SC 1].
73. Rajeswari v Joint Secretary to Government of India, (2003) 3 CTC 97 : 2000 Mad LJ (Crl) 604.
74. Sitthi Zuraina Begum v UOI, AIR 2003 SC 323 [LNIND 2002 SC 730]: (2002) 10 SCC 448 [LNIND 2002 SC 730].
75. Nafisa Khalifa Ghanem v UOI, (1982) 1 SCC 422; see alsoAbdul Sattar Ibrahim Manik v UOI, AIR 1991 SC 2261
[LNIND 1991 SC 521]: (1992) 1 SCC 1 [LNIND 1991 SC 521]; Ganga Ramchand Bharvani v Under Secretary, Govt. of
Maharashtra, AIR 1980 SC 1744 [LNIND 1980 SC 303]: (1980) 4 SCC 624 [LNIND 1980 SC 303]; Mangalbhai
Motiram Patel v State of Maharashtra, AIR 1981 SC 510 [LNIND 1980 SC 410]: (1980) 4 SCC 470 [LNIND 1980 SC
Page 290 of 320
410]; Taramati Chandulal Sejpal v State of Maharashtra, AIR 1981 SC 1909 : (1981) 4 SCC 562; Sunil Dutt v UOI, AIR
1982 SC 53 : (1981) 1 SCC 608 [LNIND 1981 SC 27]; Ichhu Devi v UOI, AIR 1980 SC 1983 [LNIND 1980 SC 372]:
(1980) 4 SCC 531 [LNIND 1980 SC 372].
76. (2000) 7 SCC 148 [LNIND 2000 SC 1034] : AIR 2000 SC 2662 [LNIND 2000 SC 1034]: 2000 Cr LJ 3961.
77. See alsoBaby Devassy Chully (alias) Bobby v UOI, (2013) 4 SCC 531 [LNIND 2012 SC 641] : AIR 2013 SC 303
[LNIND 2012 SC 641].
78. Ummu v Gujarla, AIR 1981 SC 1191 [LNIND 1981 SC 268](para 5); Abdul v Delhi Admn., AIR 1981 SC 1389; Kamal v
State of Maharashtra, AIR 1981 SC 814 [LNIND 1981 SC 1]: (1981) 2 SCR 459 [LNIND 1981 SC 1] : (1981) 1 SCC
748 [LNIND 1981 SC 1]; Abdul v UOI, AIR 1991 SC 2261 [LNIND 1991 SC 521]: 1991 (Supp-1) SCR 435 : (1992) 1
SCC 1 [LNIND 1991 SC 521] (para 9); Iqbal Hasanali Rupani v State of Maharashtra, 1995 AIHC 1800 (Bom).
79. Kirti Kumar v UOI, AIR 1981 SC 1621 [LNIND 1981 SC 56]: (1981) 2 SCC 436.
80. Relied onRam Chandra v UOI, AIR 1980 SC 765 [LNIND 1980 SC 80]: (1980) 2 SCC 270 [LNIND 1980 SC 80];
Tushar Thakker v UOI, AIR 1981 SC 436 : (1980) 4 SCC 499.
81. Chinna Ponnu v The Secretary Prohibition and Excise Department, (2000) 2 CTC 423 [LNIND 2000 MAD 162] : 2000
Mad LJ (Crl) 555 : (2000) 1 LW (Crl) 474.
82. Haridas Amarchand Shah v K.L. Verma, AIR 1989 SC 497 [LNIND 1988 SC 578]: (1989) 1 SCC 250 [LNIND 1988 SC
578].
83. Ashok Kumar v UOI, (1988) 1 SCC 541 [LNIND 1988 SC 61]; Haridas Amarchand Shah v K.L. Verma, (supra).
84. Ayya alias Ayub v State of UP, AIR 1989 SC 364 [LNIND 1988 SC 562]: (1989) 1 SCC 374 [LNIND 1988 SC 562].
85. Frances Corallie v W.C. Khambrq, AIR 1981 SC 746 [LNIND 1981 SC 27]: (1981) 1 SCC 608 [LNIND 1981 SC 27];
Preetamnath Bundh v UOI, AIR 1981 SC 92 [LNIND 1980 SC 376]: (1981) 4 SCC 525; Tushar Takkur v UOI, AIR
1981 SC 436 : (1980) 4 SCC 499; Lallubhai Joghibhai Patel v UOI, AIR 1981 SC 728 [LNIND 1980 SC 488]: (1981) 2
SCC 427 [LNIND 1980 SC 488]; Kirit Kumar Chamanlal Kundalia v UOI, AIR 1981 SC 1621 [LNIND 1981 SC 56]:
Page 291 of 320
(1981) 2 SCC 436; Ana Carolina D’Souza v UOI, AIR 1981 SC 1620 : 1981 (Supp) SCC 53; Ahmed Mutty, M. v UOI,
(1990) 2 SCC 61 [LNIND 1990 SC 39].
86. Ibrahim v State of Gujarat, AIR 1982 SC 1500 [LNIND 1982 SC 141]: (1983) 1 SCR 540 [LNIND 1982 SC 141] :
(1982) 3 SCC 440 [LNIND 1982 SC 141] (para 12).
87. State of Rajasthan v Talib Khan, AIR 1997 SC 1559 [LNIND 1996 SC 1717]: (1996) 11 SCC 393 [LNIND 1996 SC
1717]overruledIbrahim Ahmed Batti v State of Gujarat, AIR 1982 SC 1500 [LNIND 1982 SC 141]: (1982) 3 SCC 440
[LNIND 1982 SC 141].
89. Hem Lall Bhandari v State of Sikkim, AIR 1987 SC 762 [LNIND 1987 SC 103]: (1987) 2 SCC 9 [LNIND 1987 SC 103].
90. Mulchandani v Govt. of Maharashtra, AIR 1982 SC 1221 [LNIND 1981 SC 25]: (1982) 3 SCC 321 [LNIND 1981 SC
25] : 1982 Cr LJ 1730.
91. Kamarunnissa v UOI, AIR 1991 SC 1640 [LNIND 1990 SC 538]: (1991) 1 SCC 128 [LNIND 1990 SC 538] (para 14).
See alsoAbdul Sattar Ibrahim Manik v UOI, AIR 1991 SC 2261 [LNIND 1991 SC 521].
92. Icchu Devi Chorasia v UOI, AIR 1980 SC 1983 [LNIND 1980 SC 372]: (1980) 4 SCC 531 [LNIND 1980 SC 372].
93. See alsoSunil Batra v Delhi Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215]. See
alsoPeople’s Union for Democratic Rights v UOI, AIR 1982 SC 1470 : (1982) 3 SCC 235 [LNIND 1982 SC 135]; Sarjit
Roy v State of Rajasthan, AIR 1983 SC 378 [LNIND 1983 SC 57]: (1983) 2 SCC 96 [LNIND 1983 SC 57].
94. Ashok Kumar v Delhi Administration, AIR 1982 SC 1143 [LNIND 1982 SC 96] : (1982) 2 SCC 403 [LNIND 1982 SC
96] : (1982) 3 SCR 707 [LNIND 1982 SC 96] , a case under the National Security Act 1980.
95. Abdul Jabar Butt v State of Jammu & Kashmir, AIR 1957 SC 281 [LNIND 1956 SC 96] : (1957) SCR 51 [LNIND 1956
SC 96] , a case under the Jammu and Kashmir Preventive Detention Act, 2011
1. Sophia Gulam Mohd. Bhan v State of Maharashtra, AIR 1999 SC 3051 [LNIND 1999 SC 693] : (1999) 6 SCC 593
[LNIND 1999 SC 693] . See alsoSolomon Castro v State of Kerala, (2000) 9 SCC 561 . See alsoRama Dhondu Borade
v V.K. Saraf, AIR 1989 SC 1861 [LNIND 1989 SC 307] : (1989) 3 SCC 173 [LNIND 1989 SC 307] : (1989) 3 SCR 191
Page 292 of 320
[LNIND 1989 SC 307] ; Shaik Rashid v State of W.B., AIR 1973 SC 824 : (1973) 3 SCC 476 ; State of Rajasthan v
Talib Khan, (1996) 11 SCC 393 [LNIND 1996 SC 1717] : AIR 1997 SC 1559 [LNIND 1996 SC 1717] .
2. Ujagar Singh v State of Punjab, AIR 1952 SC 350 [LNIND 1951 SC 13] : (1952) SCR 756 [LNIND 1951 SC 13] .
3. State of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) SCR 167 [LNIND 1951
SC 5]
4. See alsoIbrahim Ahmed v State of Gujarat, AIR 1982 SC 1500 [LNIND 1982 SC 141] : (1982) 3 SCC 440 [LNIND
1982 SC 141] ; A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] ;
Raghubansh Rai v State of Bihar, 1990 (Supp) SCC 613; Amir Shah Khan v L. Himingliana, AIR 1991 SC 1983
[LNIND 1991 SC 362] : (1991) 4 SCC 39 [LNIND 1991 SC 362] ; David Patrick Word v UOI, (1992) 4 SCC 154 : JT
1992 (5) SC 163 .
5. Additional Secretary to the Government of India v Alka Subhash Gadia (Smt), 1992 (Suppl-1) SCC 496 : 1990 (Supp-
3) SCR 583. But seeSubhash Popatlal Dave v UOI, (2014) 1 SCC 280 [LNIND 2013 SC 676] : (2013) 9 Scale 295
[LNIND 2013 SC 676] : 2013 Cr LJ 4166 .
[LNIND 1999 SC 693] .
7. Rama Dhondu Barade v V.K. Saraf, AIR 1989 SC 1861 [LNIND 1989 SC 307] : (1989) 3 SCC 173 [LNIND 1989 SC
307] (supra).
8. State of Rajasthan v Talib Khan, AIR 1997 SC 1559 [LNIND 1996 SC 1717] : (1996) 11 SCC 393 [LNIND 1996 SC
1717] ; see alsoDurga Pada Ghosh v State of West Bengal, AIR 1972 SC 2420 : (1972) 2 SCC 656 .
9. Raj Bahadur Goul v State of Hydrabad, AIR 1953 Hyd 277 .
12. See alsoHaji Mohammed Akhlaq v Dt. Magistrate, Meerut, 1988 (Supp) SCC 538.
13. Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 29–30) (3 Judges—Ahmadi, Sawant and Agrawal, JJ.); Bapna v
UOI, (1992) 2 UJSC 417 (paras 4, 7, 8) (3 Judges).
14. Kiran Pasha v Govt. of A.P., (1990) 1 SCC 328 [LNIND 1989 SC 553] : 1989 (Supp-2) SCR 105 (paras 13–14) (2
Judges—Saikia and Fathima, JJ.).
15. Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 29–30) (3 Judges—Ahmadi, Sawant and Agrawal JJ.).
16. Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 29–30)—3 Judges (Ahmadi, Sawant abd Agrawal, JJ.); Bapna v
UOI, (1992) 2 UJSC 417 (paras 4, 7, 8)—3 of India.
17. Addl. Secy v Alka, 1992 (Supp-1) SCC 496 (paras 29–30)—3 Judges (Ahmadi, Sawant abd Agrawal, JJ.); Bapna v
UOI, (1992) 2 UJSC 417 (paras 4, 7, 8)—3 of India.
Page 293 of 320
Judges—Saikia and Fathima, JJ.).
19. Jiffri v A.D.E.D, (1992) Cr LJ 3086 (para 27) (Mad). See alsoNaresh Kumar Goyal v UOI, (2005) 8 SCC 276 [LNIND
2005 SC 790] : AIR 2005 SC 4421 [LNIND 2005 SC 790] ; UOI v Muneesh Suneja, (2001) 3 SCC 92 [LNIND 2001 SC
258] : AIR 2001 SC 854 [LNIND 2001 SC 258] , where detention order is passed against more than one person,
individual role of each one of them along with other factors has to be considered separately and no advantage can be
allowed on the basis of proceedings taken against others. UOI v Amritlal Manchanda, AIR 2004 SC 1625 [LNIND 2004
SC 220] : (2004) 3 SCC 75 [LNIND 2004 SC 220] .
20. (2014) 1 SCC 280 [LNIND 2013 SC 676] : (2013) 9 Scale 295 [LNIND 2013 SC 676] : 2013 Cr LJ 4166 .
21. 1992 (Supp-1) SCC 496.
22. Abdul Karim v State of W.B., AIR 1969 SC 1028 [LNIND 1969 SC 29] (1032) : (1969) 3 SCR 479 [LNIND 1969 SC 29]
: (1969) 1 SCC 433 [LNIND 1969 SC 29] .
23. Abdul Karim v State of W.B., AIR 1969 SC 1028 [LNIND 1969 SC 29] (1032) : (1969) 3 SCR 479 [LNIND 1969 SC 29]
: (1969) 1 SCC 433 [LNIND 1969 SC 29] .
24. Jai Prakash v D.M., (1992) 2 UJSC 94 : AIR 1993 SC 473 : 1993 (Supp-1) SCC 392 (para 5)—2 Judges. See
alsoMohammed Badusa v State of Tamil Nadu, (1997) 2 CTC 746 [LNIND 1997 MAD 853] ; Hyder Ali PNA v State of
Tamil Nadu, (1997) 3 CTC 486 [LNIND 1997 MAD 964] ; B. Alamdu v State of Tamil Nadu, AIR 1995 SC 539 [LNIND
1994 SC 1020] .
25. Kundanbhai Dulabhai Shaikh v Dt. Magistrate, (1996) 3 SCC 194 [LNIND 1996 SC 2225] : AIR 1996 SC 2998 [LNIND
1996 SC 2225] .
26. Nutan J. Patel v S.V. Prasad, (1996) 2 SCC 315 [LNIND 1995 SC 1168] : (1995) 6 Scale 700 ; see alsoState of
Maharashtra v Santosh Shanker Acharya, (2000) 7 SCC 463 [LNIND 2000 SC 1031] : AIR 2000 SC 2504 [LNIND 2000
SC 1031] .
27. Masuma v State of Maharashtra, AIR 1981 SC 1753 [LNIND 1981 SC 342] : (1981) 3 SCC 566 [LNIND 1981 SC 342]
28. R.M.G. Jules v State, (1981) 3 SCC 135 .

Page 294 of 320
29. Kavitha v State of Maharashtra, (1981) 3 SCC 558 [LNIND 1981 SC 313] : AIR 1981 SC 1641 [LNIND 1981 SC 313] .
30. Ibrahim Bachu Bafan v State of Gujarat, AIR 1985 SC 697 [LNIND 1985 SC 49] : (1985) 2 SCC 24 [LNIND 1985 SC
49] .
31. Amir Shad Khan v L. Himingliana, AIR 1991 SC 1983 [LNIND 1991 SC 362] : (1991) 4 SCC 39 [LNIND 1991 SC 362] .
32. See alsoUOI v Sneha Khemka, (2004) 2 SCC 570 [LNIND 2004 SC 101] .
33. State of Maharashtra v Sushila Mafatlal Shah, (1988) 4 SCC 490 [LNIND 1988 SC 591] .
34. In Hansaben Jayantilal Shah (Smt) v UOI, (1994) 4 SCC 148 [LNIND 1995 SC 521] . See alsoKamesh Kumar
Ishwardas Patel v UOI, 1995(Supp-3) SCC 732.
35. Veeramani v State of T.N., (1994) 2 SCC 337 [LNIND 1994 SC 151] : JT (1994) 1 SC 350 [LNIND 1994 SC 151] . See
alsoAmir Shad Khan v L. Hmingliana, (1991) 4 SCC 39 [LNIND 1991 SC 362] .
36. K.D. Sheikh v District Magistrate, Ahmedabad, AIR 1996 SC 2998 [LNIND 1996 SC 2225] .
37. Amir Mohd. Qureshi v Commissioner of Police, AIR 1994 SC 1334 [LNIND 1994 SC 112] : (1994) 2 SCC 355 [LNIND
1994 SC 177] . See alsoP. Sekar v UOI, (2007) 1 Mad LJ (Crl) 781.
38. UOI v Paul Manickam, (2003) 8 SCC 342 [LNIND 2003 SC 869] : AIR 2003 SC 4622 [LNIND 2003 SC 869] . See
alsoUOI v Chaya Ghosal, AIR 2005 SC 428 [LNIND 2004 SC 1238] : (2005) 10 SCC 97 [LNIND 2004 SC 1238] . But
seeRehana Begum v State of Andhra Pradesh, 1993 (Supp-2) SCC 341.
39. Rumana Begum v State of Andhra Pradesh, 1993 (Supp-2) SCC 341 : (1992) 3 Scale 27 ; see alsoIfath Sultan v Govt.
of Tamil Nadu, (1992) Cr LJ 1177 (Mad).
40. Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] ; Moosa
Hussein Sanghar v State of Gujarat, AIR 1994 SC 1479 : (1993) 1 SCC 511 ; Kubic Driusz v UOI, AIR 1990 SC 605
Page 295 of 320
41. Raghavendra Singh v Supt., District Jail, Kanpur, AIR 1986 SC 356 : (1986) 1 SCC 650 : (1986) Cr LJ 493 .
42. Devji Vallabhbhai Tender v The Administrator of Goa, (1982) 2 SCC 222 [LNIND 1982 SC 76] : (1982) Cr LJ 799 (SC) :
AIR 1982 SC 1029 [LNIND 1982 SC 76] .
43. M. Selvaraj v Dt. Magistrate, (1996) Cr LJ 2192 (Mad).
44. Amir Shad Khan v Himingliana, AIR 1991 SC 1983 [LNIND 1991 SC 362] : (1991) 4 SCC 39 [LNIND 1991 SC 362] .
45. Moosa Hussain Samsher v State of Gujarat, AIR 1994 SC 1479 : (1993) 1 SC 511 .
46. Smt. Premlata Sharma v District Magistrate, Mathura, (1998) 4 SCC 260 [LNIND 1998 SC 384] : AIR 1998 SC 2212
[LNIND 1998 SC 384] .
47. Abdul Razak Dawood Dharani v UOI, (2003) 9 SCC 652 [LNIND 2003 SC 452] : AIR 2003 SC 4010 [LNIND 2003 SC
452] .
48. Jai Prakash v D.M., (1992) 2 UJSC 94 : AIR 1993 SC 473 : 1993 (Supp-1) SCC 392 (para 5)—2 Judges. See
alsoMohammed Badusa v State of Tamil Nadu, (1997) 2 CTC 746 [LNIND 1997 MAD 853] ; Hyder Ali PNA v State of
Tamil Nadu, (1997) 3 CTC 486 [LNIND 1997 MAD 964] ; B. Alamdu v State of Tamil Nadu, AIR 1995 SC 539 [LNIND
1994 SC 1020] .
3 SCC 836 [LNIND 1975 SC 26] (para 3).
50. Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 : (1974) Cr LJ 1479 ; see
alsoMd. Dhana Ali Khan v State of WB, 1976 Cr LJ 622 (SC).
51. Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 : (1974) Cr LJ 1479 (SC)
(supra).
Page 296 of 320
52. Bhutnath v State of W.B., AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND 1974 SC 31] .
53. Navalshankar Ishwarlal Dour v State of Gujarat, AIR 1994 SC 1496 [LNIND 1993 SC 457] : 1993 (Supp-3) SC 754.
54. M. Mohammed Sultan v Joint Secretary to Government of India, AIR 1990 SC 2222 [LNIND 1990 SC 575] : (1991) 1
SCC 144 [LNIND 1990 SC 575] .
55. Balchand Chorasia v UOI, AIR 1978 SC 297 [LNIND 1977 SC 344] : (1978) 1 SCC 161 [LNIND 1977 SC 344] .
56. Sakawat v State of W.B., AIR 1975 SC 64 [LNIND 1974 SC 619] : (1975) 2 SCR 161 [LNIND 1974 SC 619] : (1975) 3
SCC 249 [LNIND 1974 SC 619] . See alsoVimalchand Jawantraj jain v Pradhan, AIR 1979 SC 1501 [LNIND 1979 SC
280] : (1979) 4 SCC 401 [LNIND 1979 SC 280] ; UOI v Manish Bahal, AIR 2001 SC 2685 [LNIND 2001 SC 1291] :
(2001) 6 SCC 36 [LNIND 2001 SC 1291] : (2001) 3 SCR 810 ; Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND
1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] ; K.M. Abdulla and B.L. Abdul Khader v UOI, JT (1991) 1 SC 216
[LNIND 1991 SC 42] : AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991 SC 42] ; Moosa
Hussein Sanghar v Sate of Gujarat, AIR 1994 SC 1479 : (1993) 1 SCC 511 ; B. Sundara Rao v State of Orissa, (1972)
3 SCC 11 ; UOI v Sneha Khemka, (2004) 2 SCC 570 [LNIND 2004 SC 101] ; Suresh Atmaram v State of Mahrashtra,
1995 AIHC 464 (Bom); Sha Hista v UOI, 1997 AIHC 1688 (Bom); Prem Latha Sharma v District Magistrate, AIR 1998
SC 2212 [LNIND 1998 SC 384] .
SCC 249 [LNIND 1974 SC 619] ; Jayanarayan v State of W.B., AIR 1970 SC 675 [LNIND 1969 SC 451] : (1970) 3
58. Satyapriya Sonkar v Supt., Central Jail, (2000) Cr LJ 1369 (All); see alsoSushil Kumar v Adhikshak Kendriya Karagar,
Allahabad, (1983) Cr LJ 744 (All); Sabir Ahmed v UOI, (1980) 3 SCC 295 [LNIND 1980 SC 198] .
59. Makhan Lal Gokul Chand v The Administrator Union Territory of Delhi, AIR 2000 SC 158 [LNIND 1999 SC 1004] :
(1999) 9 SCC 504 [LNIND 1999 SC 1004] .
60. John Martin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26]: (1975) 3 SCR 211 [LNIND 1975 SC 26] : (1975)
3 SCC 836 [LNIND 1975 SC 26] (para 3). See alsoDhama Ali Khan v State of West Bengal, AIR 1976 SC 734 [LNIND
1975 SC 152]: (1975) 2 SCC 586 [LNIND 1975 SC 152].
Page 297 of 320
61. Moosa Hussain Sanghar v State of Gujarat, AIR 1994 SC 1479 : (1993) 1 SCC 511; Jayanarayan Sukul v State of WB,
AIR 1970 SC 675 [LNIND 1969 SC 451]: (1970) 1 SCC 219 [LNIND 1969 SC 451]; Haradhan Saha v State of WB,
(1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 : (1974) Cr LJ 1479 (SC); K.M. Abdulla Kunhi v UOI, AIR
62. Sakawat v State of W.B., AIR 1975 SC 64 [LNIND 1974 SC 619]: (1975) 2 SCR 161 [LNIND 1974 SC 619] : (1975) 3
SCC 249 [LNIND 1974 SC 619].
63. John Martin v State of W.B., AIR 1975 SC 775 [LNIND 1975 SC 26]: (1975) 3 SCR 211 : (1975) 3 SCC 836 [LNIND
1975 SC 26] (para 3); Sakawat v State of W.B., AIR 1975 SC 64 [LNIND 1974 SC 619]: (1975) 2 SCR 161 : (1975) 3
SCC 249 [LNIND 1974 SC 619]; Jayanarayan v State of W.B., AIR 1970 SC 675 [LNIND 1969 SC 451]: (1970) 3 SCR
225 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND 1969 SC 451]; K.I. Singh v State of Manipur, AIR 1972 SC 438
[LNIND 1971 SC 524]: (1972) 1 SCR 1022 [LNIND 1971 SC 524] : (1972) 2 SCC 576 [LNIND 1971 SC 524].
64. Dhurus v State of W.B., AIR 1975 SC 571 : (1975) 3 SCC 527 [LNIND 1986 SC 149] (para 4).
65. Anand Hanumathsa Katare v Addl. Dt. Magistrate, (2006) 10 SCC 725 [LNIND 2006 SC 854] : 2007 Cr LJ 30 : (2006)
10 Scale 385 [LNIND 2006 SC 854]; Also seeSubramaniam v State of Tamil Nadu, (2012) 4 SCC 699 [LNIND 2012 SC
135] : (2012) 2 Scale 613.
66. Kirit Kumar Chamanlal Kundalia v UOI, AIR 1981 SC 1621 [LNIND 1981 SC 56]: (1981) 2 SCC 436.
67. Satpal v State of Punjab, AIR 1981 SC 2230 : (1982) 1 SC 12 .
68. Abdul Karim v State of W.B., AIR 1969 SC 1028 [LNIND 1969 SC 29] : (1969) 1 SC 433 ; Satya Deo Prasad v State of
Bihar, AIR 1975 SC 367 [LNIND 1974 SC 388] : (1975) 3 SCC 736 [LNIND 1974 SC 388] ; Vimal Chand v Pradhan,
69. Abdul Salam v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND 1989 SC 536] .
70. UOI v Diljeet Singh, AIR 1999 SC 1052 [LNIND 1999 SC 1355] : (1999) 2 SCC 672 [LNIND 1999 SC 1355] .
Page 298 of 320
71. Amir Shad Khan v L. Hmingliana, AIR 1991 SC 1893 [LNIND 1989 SC 339] : (1991) 4 SCC 39 [LNIND 1991 SC 362] ;
see alsoA.C. Razia v Govt. of Kerala, AIR 2004 SC 2504 : (2004) 2 SCC 621 [LNIND 2003 SC 513] .
72. Jusbir Singh v State Governor of Delhi, (1999) 4 SCC 228 [LNIND 1999 SC 427] : JT (1999) 2 SC 638 [LNIND 1999 SC
427] . But seeGracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] .
73. UOI v Manish Bahal, (2001) 6 SCC 36 [LNIND 2001 SC 1291] : AIR 2001 SC 2685 [LNIND 2001 SC 1291] .
SCC 249 [LNIND 1974 SC 619] . See alsoDhana Ali Khan v State of West Bengal, AIR 1976 SC 734 [LNIND 1975 SC
152] : (1975) 2 SCC 586 [LNIND 1975 SC 152] . See alsoVimalchand Jawantraj jain v Pradhan, AIR 1979 SC 1501
[LNIND 1979 SC 280] : (1979) 4 SCC 401 [LNIND 1979 SC 280] ; UOI v Manish Bahal, AIR 2001 SC 2685 [LNIND
2001 SC 1291] : (2001) 6 SCC 36 [LNIND 2001 SC 1291] : (2001) 3 SCR 810 ; Gracy v State of Kerala, AIR 1991 SC
1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] ; K.M. Abdulla and B.L. Abdul Khader v UOI, JT
(1991) 1 SC 216 [LNIND 1991 SC 42] : AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991 SC
42] ; Moosa Hussein Sanghar v Sate of Gujarat, AIR 1994 SC 1479 : (1993) 1 SCC 511 ; B. Sundara Rao v State of
Orissa, (1972) 3 SCC 11 ; UOI v Sneha Khemka, (2004) 2 SCC 570 [LNIND 2004 SC 101] ; Suresh Atmaram v State of
Mahrashtra, 1995 AIHC 464 (Bom); Sha Hista v UOI, 1997 AIHC 1688 (Bom); Prem Latha Sharma v District
Magistrate, AIR 1998 SC 2212 [LNIND 1998 SC 384] .
75. Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] : (1991) 2 SCC 1 [LNIND 1991 SC 90] . See alsoK.M.
Abdulla Kunhi andB.L. Abdul Khader v UOI, AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991
SC 42] ; Moosa Hussain Sanghar v State of Gujarat, AIR 1994 SC 1479 : (1993) 1 SCC 511 .
76. Dhurus v State of W.B., AIR 1975 SC 571 : (1975) 3 SCC 527 [LNIND 1986 SC 149] (para 4).
3 SCC 836 [LNIND 1975 SC 26] (para 3).
78. Gracy v State of Kerala, AIR 1991 SC 1090 [LNIND 1991 SC 90] .
79. Salim v State of W.B., AIR 1975 SC 602 [LNIND 1975 SC 37] : (1975) 3 SCR 394 [LNIND 1975 SC 37] : (1975) 1
SCC 653 [LNIND 1975 SC 37] (para 13).
Page 299 of 320
80. K.I. Singh v State of Manipur, AIR 1972 SC 438 [LNIND 1971 SC 524] : (1972) 1 SCR 1022 [LNIND 1971 SC 524] :
(1972) 2 SCC 576 [LNIND 1971 SC 524] .
81. SeeMeena Jayendra Thakur v UOI, (1999) 8 SCC 177 [LNIND 1999 SC 855] ; S.M.D. Kiran Pasha v Govt of Andhra
Pradesh, (1990) 1 SCC 928 ; A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) SCR 86 -
per KANIA CJ.
82. SeeAbdul Latif Abdul Wahab Sheikh v B.K. Jha, AIR 1987 SC 725 [LNIND 1987 SC 143] : (1987) 2 SCC 22 [LNIND
1987 SC 143] .
83. Nandlal v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] : (1981) 4 SCC 327 [LNIND 1981 SC 388] .
84. Deb Sadhan Roy v State of WB, AIR 1972 SC 1924 [LNIND 1971 SC 626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] :
(1972) 2 SCR 787 [LNIND 1971 SC 626] ; Madan Malik v State of West Bengal, AIR 1972 SC 1878 [LNIND 1972 SC
304] : (1972) 2 SCC 611 [LNIND 1972 SC 304] ; Satya Deo Prasad v State of Bihar, AIR 1975 SC 367 [LNIND 1974
SC 388] : (1975) 3 SCC 736 [LNIND 1974 SC 388] .
85. Pankaj v State of W.B., AIR 1970 SC 97 [LNIND 1969 SC 204]: (1970) 1 SCR 543 [LNIND 1969 SC 204] : (1969) 3
SCC 400 [LNIND 1969 SC 204] (para 12); See alsoGamit Sandhi Sarif Chaku v State of Gujarat, AIR 1992 SC 2204 :
(1992) 1 SCC 217 [LNIND 1991 SC 606]; Joynarayan v State of W.B., AIR 1970 SC 675 [LNIND 1969 SC 451]: (1970)
3 SCR 225 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND 1969 SC 451]; Durga Pada v State of W.B., AIR 1972
SC 2420 : (1972) 2 SCC 656 : 1973 SCC(Cr) 76 (para 5).
86. K.I. Singh v State of Manipur, AIR 1972 SC 438 [LNIND 1971 SC 524]: (1972) 1 SCR 1022 [LNIND 1971 SC 524] :
(1972) 2 SCC 576 [LNIND 1971 SC 524].
87. Sakawat v State of W.B., AIR 1975 SC 64 [LNIND 1974 SC 619]: (1975) 2 SCR 161 [LNIND 1974 SC 619] : (1975) 3
SCC 249 [LNIND 1974 SC 619].
88. K. I. Singh v State of Manipur, AIR 1972 SC 438 [LNIND 1971 SC 524]: (1972) 1 SCR 1022 [LNIND 1971 SC 524] :
(1972) 2 SCC 576 [LNIND 1971 SC 524]; Pankaj v State of W.B., AIR 1970 SC 97 [LNIND 1969 SC 204]: (1970) 1
SCR 543 [LNIND 1969 SC 204] : (1969) 3 SCC 400 [LNIND 1969 SC 204] (para 12); Joynarayan v State of W.B., AIR
1970 SC 675 [LNIND 1969 SC 451]: (1970) 3 SCR 225 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND 1969 SC
451]; Durga Pada v State of W.B., AIR 1972 SC 2420 : (1972) 2 SCC 656 : 1973 SCC(Cr) 76 (para 5). See alsoPankaj
Kumar v State of W.B., AIR 1970 SC 97 [LNIND 1969 SC 204]: (1969) 3 SCC 400 [LNIND 1969 SC 204]; B. Sundara
Page 300 of 320
Rao v State of Orissa, AIR 1972 SC 739 : (1972) 3 SCC 11; Vimal Chand v Pradhan, AIR 1979 SC 1501 [LNIND 1979
SC 280]: (1979) 4 SCC 401 [LNIND 1979 SC 280].
89. Abdul Karim v State of WB, AIR 1969 SC 1028 [LNIND 1969 SC 29]: (1969) 1 SCC 433 [LNIND 1969 SC 29];
Jayanarayan Sukul v State of WB, AIR 1970 SC 675 [LNIND 1969 SC 451]: (1970) 1 SCC 219 [LNIND 1969 SC 451];
Haradhan Saha v State of WB, (1975) 3 SCC 198 [LNIND 1974 SC 243] : AIR 1975 SC 2154 : (1974) Cr LJ 1479 (SC);
Satya Deo Prasad v State of Bihar, AIR 1975 SC 367 [LNIND 1974 SC 388]: (1975) 3 SCC 736 [LNIND 1974 SC 388];
Vimal Chand v Pradhan, AIR 1979 SC 1501 [LNIND 1979 SC 280]: (1979) 4 SCC 401 [LNIND 1979 SC 280].
90. Supra.
91. Saminathan v District Collector and District Magistrate, (2001) 2 CTC 495 . But seeRajendran v UOI, (2000) 2 CTC
469 [LNIND 2000 MAD 421] (FB).
92. Natesan v State of T.N., (2001) 1 CTC 336 ; Chakkrathai v State of T.N., (1997) 2 CTC 428 [LNIND 1997 MAD 778]
(Mad HC); Meena Jayendran Thakur v UOI, AIR 1999 SC 3517 [LNIND 1999 SC 855] : (1998) 8 SCC 177 [LNIND
1998 SC 594] .
93. State of Maharashtra v Santhosh Sankar Acharya, AIR 2000 SC 2504 [LNIND 2000 SC 1031] .
SCC 249 [LNIND 1974 SC 619] .
95. K.M. Abdulla Kunhi v UOI, (1991) 1 SCC 476 [LNIND 1991 SC 42] : AIR 1991 SC 574 [LNIND 1991 SC 42] .
96. See alsoToriyli alias Jabbar v UOI, (1993) Cr LJ 2496 (Del); Ana Maria Pereira v UOI, (1993) Cr LJ 317 (Bom).
97. Sundara Rao v State of Orissa, AIR 1972 SC 739 : (1972) 3 SCC 11 .
98. Ram Bali Rajbhir v State of W.B., AIR 1975 SC 623 [LNIND 1974 SC 426] (627–9) : (1975) 3 SCR 63 [LNIND 1974
SC 426] : (1975) 4 SCC 47 [LNIND 1974 SC 426] ; Samir v State of W.B., AIR 1975 SC 1165 [LNIND 1975 SC 132] :
(1975) 1 SCC 801 [LNIND 1975 SC 132] .
1. Pushpa v UOI, AIR 1979 SC 1953 [LNIND 1979 SC 282] : 1980 (Supp) SCC 391.
2. Makhanlal Gokul Chand v Administrator, Union Territory of Delhi, AIR 2000 SC 158 [LNIND 1999 SC 1004] : (1999) 9
SCC 504 [LNIND 1999 SC 1004] .
3. See alsoAbdul Razak Dawood Dharani v UOI, (2003) 9 SCC 652 [LNIND 2003 SC 452] : AIR 2003 SC 4010 [LNIND
2003 SC 452] .
4. Pankaj v State of W.B., AIR 1970 SC 97 [LNIND 1969 SC 204] : (1970) 1 SCR 543 [LNIND 1969 SC 204] : (1969) 3
SCC 400 [LNIND 1969 SC 204] (para 12); Joynarayan v State of W.B., AIR 1970 SC 675 [LNIND 1969 SC 451] :
(1970) 3 SCR 225 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND 1969 SC 451] ; Durga Pada v State of W.B., AIR
1972 SC 2420 : (1972) 2 SCC 656 : 1973 SCC(Cr) 76 (para 5).
Page 301 of 320
3 SCC 836 [LNIND 1975 SC 26] (para 3).
[LNIND 2013 SC 256] ; see alsoK.M. Abdulla Kunhi v UOI, (1991) 1 SCC 476 [LNIND 1991 SC 42] .
7. Supra.
8. See alsoRajammal v State of Tamil Nadu, (1999) 1 SCC 417 [LNIND 1998 SC 1101] : AIR 1999 SC 684 [LNIND 1998
SC 1101] ; Kundanbhai Dulabhai Shaikh v Dt. Magistrate, (1996) 3 SCC 194 [LNIND 1996 SC 2225] : AIR 1996 SC
2998 [LNIND 1996 SC 2225] .
1167] ; see alsoUOI v Laishram Lincola Singh, (2008) 5 SCC 490 [LNIND 2008 SC 728] : (2008) 9 Scale 462 ; Haji
Mohammed Akhlaq v Dt. Magistrate, Meerut, 1988 (Supp) SCC 538.
1972 SC 2420 : (1972) 2 SCC 656 : 1973 SCC(Cr) 76 (para 5).
12. Satya Deo v State of Bihar, AIR 1975 SC 367 [LNIND 1974 SC 388] : (1975) 2 SCR 854 [LNIND 1974 SC 388] :
(1975) 3 SCC 736 [LNIND 1974 SC 388] ; Raghavendra v Supdt, AIR 1986 SC 356 : (1986) 1 SCC 650 (para 3). See
alsoUsha Agarwal v UOI, (2007) 1 SCC 295 [LNIND 2006 SC 908] .
13. Amulya v State of W.B., (1972) SC [W.P. 118/72, dated 10-7-1972] (delay of 19 days)]. See alsoSridhar v District
Magistrate, (1999) 1 CTC 449 [LNIND 1998 MAD 693] ; Ram Sukrya Mhatre v R.D. Tyagi, AIR 1994 SC 1134 ; Mahesh
Kumar Chauhan v UOI, AIR 1990 SC 1455 [LNIND 1990 SC 287] .
14. Usha Agarwal v UOI, (2007) 1 SCC 295 [LNIND 2006 SC 908] .
15. Amulya v State of W.B., (1972) SC [W.P. 118/72, dated 10-7-1972] (delay of 19 days)]. See alsoSridhar v District
Magistrate, (1999) 1 CTC 449 [LNIND 1998 MAD 693] ; Ram Sukrya Mhatre v R.D. Tyagi, AIR 1994 SC 1134 ; Mahesh
Kumar Chauhan v UOI, AIR 1990 SC 1455 [LNIND 1990 SC 287] .
2012 SC 1531] : (2012) Cr LJ 1334 .
17. Goswami v State of W.B., AIR 1973 SC 757 : (1973) 3 SCC 901 : 1973 Cr LJ 596 ; Casebook 1, p 470; State ofOrissa
v Manilal, AIR 1976 SC 456 : (1976) 2 SCC 808 .
1972 SC 2420 : (1972) 2 SCC 656 : 1973 SCC (Cr) 76 (para 5).
1167] ; see alsoK.M. Abdulla Kunhi v UOI, AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991
Page 302 of 320
SC 42] ; Rajammal v State of Tamil Nadu, (1999) 1 SCC 417 [LNIND 1998 SC 1101] ; Kundanbhai Dulabhai Shaikh v
Dt. Magistrate, (1996) 3 SCC 194 [LNIND 1996 SC 2225] : AIR 1996 SC 2998 [LNIND 1996 SC 2225] : 1996 Cr LJ
1981 .
[LNIND 2013 SC 256] .
21. Kirtikumar Nirula v State of Maharashtra, (2005) 9 SCC 65 [LNIND 2004 SC 949] : AIR 2004 SC 4923 [LNIND 2004
SC 949] .
22. Sayed Abdul Ala v UOI, (2007) 15 SCC 208 [LNIND 2007 SC 1131] : (2007) 12 Scale 345 .
23. A. Maimoona v State of T.N., (2006) 1 SCC 515 [LNIND 2005 SC 975] . See alsoD. Anuradha v Joint Secretary,
(2006) 5 SCC 142 [LNIND 2006 SC 295] ; Sitthi Zuraina Begum v UOI, AIR 2003 SC 323 [LNIND 2002 SC 730] :
(2002) 10 SC 448 .
24. Ahmed Nassar v State of T.N., AIR 1999 SC 3897 [LNIND 1999 SC 945] ; State of T.N. v C. Subramani, AIR 1992 SC
216 ; Vinod K. Chawla v UOI, (2006) 7 SCC 337 [LNIND 2006 SC 1658] .
25. Francis Coralie Mullin v W.C. Khambra, AIR 1980 SC 849 [LNIND 1980 SC 97] : (1980) 2 SCC 275 [LNIND 1980 SC
97] ; Madan Lal Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND 1989 SC 536] .
26. Kamarunnisa v UOI, AIR 1991 SC 1640 [LNIND 1990 SC 538] : (1991) 1 SCC 128 [LNIND 1990 SC 538] ; See
alsoBirendra Kumar Rai v UOI, AIR 1993 SC 962 [LNIND 1992 ALL 73] : (1993) 1 SCC 272 .
27. Noor Salman Makani v UOI, AIR 1994 SC 575 [LNIND 1993 SC 902] : (1994) 1 SCC 381 [LNIND 1993 SC 902] .
28. Birendra Kumar Rai v UOI, AIR 1993 SC 962 [LNIND 1992 ALL 73] : (1993) 1 SCC 272 (supra); Naval Shankar
Iswarlal Dour v Joint Secretary to Government of India, AIR 1994 SC 1496 [LNIND 1993 SC 457] : 1993 (Supp-3) SCC
754
29. D. Anuradha v Joint Secretary, (2006) 5 SCC 142 [LNIND 2006 SC 295] ; UOI v Paul Manickam, (2003) 8 SCC 342
[LNIND 2003 SC 869] .
30. Jayanarayan Sukul v State of West Bengal, AIR 1970 SC 675 [LNIND 1969 SC 451] : (1970) 1 SCC 219 [LNIND 1969
SC 451] ; S.K. Rashid v State of WB, AIR 1973 SC 824 : (1973) 3 SCC 476 ; Smt. Shalini Soni v UOI, AIR 1981 SC
31. Baby Devassy Chully (alias) Bobby v UOI, (2013) 4 SCC 531 [LNIND 2012 SC 641] : (2012) 10 Scale 176 [LNIND
2012 SC 641] .
33. Aslam Ahmed Zahire Ahmand Sheik v UOI, AIR 1989 SC 1403 [LNIND 1989 SC 846] : (1989) 3 SCC 277 [LNIND
1989 SC 846] ; Abdul Salam and Thiyyan v UOI, AIR 1990 SC 1446 [LNIND 1990 SC 244] : (1990) 3 SCC 15 [LNIND
1990 SC 244] ; Ram Sukrya Mhatre v R.D. Tyagi, AIR 1994 SC 1134 : 1992 (Supp-3) SCC 65.
34. Usha Agarwal v UOI, (2007) 1 SCC 295 [LNIND 2006 SC 908] .
Page 303 of 320
35. See in the matter of Durga Shaw, (1970) 3 SCC 696 ; Prabhakar v S.D. Pradhan, (1970) 3 SCC 816 ; Pabitra v UOI,
AIR 1980 SC 798 [LNIND 1980 SC 40] : (1980) 2 SCC 338 [LNIND 1980 SC 40] ; K.I. Singh v State of Manipur, AIR
1972 SC 438 [LNIND 1971 SC 524] : (1972) 2 SCC 576 [LNIND 1971 SC 524] ; Baidyanath v State of W.B., AIR 1972
SC 1198 [LNIND 1972 SC 165] ; Julia Jose Marely, AIR 1992 SC 139 . See alsoT. Padmavathi v The Commr. of
Police, (2005) 2 LW (Crl) 618; D. Meenakshi v The Commissioner of Police, (2005) 2 LW (Crl) 627.
36. Khatoom Begum v UOI, AIR 1981 SC 1077 [LNIND 1981 SC 137] : (1981) 2 SCC 4810 .
37. K.M. Abdullah Khunhi v UOI, AIR 1991 SC 574 [LNIND 1991 SC 42] : (1991) 1 SCC 476 [LNIND 1991 SC 42] ;
Mahindra D. Mathani v C.D. Singh, 1997 AIHC 1701 (Bom).
38. UOI v Chaya Ghoshal, AIR 2005 SC 428 [LNIND 2004 SC 1238] : (2005) 10 SCC 97 [LNIND 2004 SC 1238] .
39. Gauri Shankar v The Secretary to Government of T.N., (2001) 2 CTC (2001) 2 LW (Crl) 788.
40. UOI v Harish Kumar, AIR 2007 SC 1430 [LNIND 2007 SC 322] : (2008) 1 SCC 195 [LNIND 2007 SC 322] . See
alsoSayed Abdul Ala v UOI, (2007) 15 SCC 208 [LNIND 2007 SC 1131] : (2007) 12 Scale 345 (supra).
41. Arun v State of W.B., (1973) 1 SCR 552 [LNIND 1972 SC 279] (561) : AIR 1972 SC 1858 [LNIND 1972 SC 279] :
(1972) 3 SCC 893 [LNIND 1972 SC 279] ; K.I. Singh v State of Manipur, AIR 1972 SC 438 [LNIND 1971 SC 524] :
42. Arun v State of W.B., (1973) 1 SCR 552 [LNIND 1972 SC 279] (561) : AIR 1972 SC 1858 [LNIND 1972 SC 279] :
(1972) 3 SCC 893 [LNIND 1972 SC 279] .
43. State of U.P. ..v Zavad, AIR 1984 SC 1095 [LNIND 1984 SC 150] : (1984) 3 SCR 789 [LNIND 1984 SC 150] : (1984) 3
SCC 505 [LNIND 1984 SC 150] . See alsoD. Anuradha v Joint Secretary, (2006) 5 SCC 142 [LNIND 2006 SC 295] .
44. Tarapada v State of W.B., (1951) SCR 212 [LNIND 1951 SC 4] (218) : AIR 1951 SC 174 [LNIND 1951 SC 4] ; Ram
Krishna v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] : AIR 1953 SC 318 [LNIND 1953 SC 49] : 1953 Cr LJ
1241 .
45. Mohd Yusuf Rathen v State of J&K, AIR 1979 SC 1925 [LNIND 1979 SC 327] : (1979) 4 SCC 370 [LNIND 1979 SC
327] .
SC 5] — per majority.
47. Supra.
48. Naresh Chandra Ganguli v State of WB, AIR 1959 SC 1335 [LNIND 1959 SC 131] : (1960) 1 SCR 411 [LNIND 1959
SC 131] .
49. AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) SCR 460 : (1958) Cr LJ 283 .
50. Ramanathan v State of Hydrabad, AIR 1952 Hyd 186 .

Page 304 of 320
51. Shri Krishna Sharma v State of WB, AIR 1954 Cal 591 .
52. AIR 1954 Punj 133 .
53. See alsoSushila Mdiman v Commr. of Police, AIR 1951 Bom 252 .
54. SeeState of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] : (1951) SCR 167 [LNIND
1951 SC 5] ; see alsoSafatulla Khan v Chief Secretary, WB, AIR 1951 Cal 194 [LNIND 1950 CAL 49] ; Devi Singh v
State of Rajasthan, AIR 1952 Raj. 171 [LNIND 1951 RAJ 218] ; Sangappan v State of Mys, AIR 1959 Mysore 7 .
55. Naresh Chandra Ganguli v State of W.B., AIR 1959 SC 1335 [LNIND 1959 SC 131] : (1960) 1 SCR 411 [LNIND 1959
SC 131] .
56. Lawrence Joachim Joseph D’Souza v State of Bombay, AIR 1956 SC 531 [LNIND 1956 SC 36] : (1968) 3 SCR 382 .
See alsoMotilal Jain v State of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND 1968 SC 89]
.
57. Abdul Razak Nannekhan Pathan v Police Commissioner, (1989) 4 SCC 43 [LNIND 1989 SC 359] ; Jahangirkhan
Fazalkhan Pathan v Police Commissioner, AIR 1989 SC 1812 [LNIND 1989 SC 356] : (1989) 3 SCC 590 [LNIND 1989
SC 356] ; Pushkar Mukherjee v State of W.B., (1969) 1 SCC 10 [LNIND 1968 SC 332] ; Piyush Kantilal Mehta v
Commissioner of Police, Ahmedabad, 1989 (Supp-1) SCC 322 : AIR 1989 SC 491 [LNIND 1988 SC 587] , where full
and better particulars are given, it cannot be said that grounds are vague, State of T.N. v Baskar, (2001) 3 SCC 22
[LNIND 2001 SC 479] : AIR 2001 SC 1543 [LNIND 2001 SC 479] .
58. S.K. Hussain Ali v State of WB, AIR 1972 SC 2590 : (1972) 2 SCC 677 ; see alsoDeb Sadhan Roy v State of WB, AIR
1972 SC 1924 [LNIND 1971 SC 626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] : (1972) 2 SCR 787 [LNIND 1971 SC
626] .
59. Santhumma v State of Hydrabad, (1951) Cr LJ 1402 (FB).
60. Dhananjayan Das v Dt. Magistrate, AIR 1982 SC 1315 [LNIND 1982 SC 118] : (1982) 2 SCC 521 [LNIND 1982 SC
118] : (1982) Cr LJ 1779 .
61. D. Anuradha v Joint Secretary, (2006) 5 SCC 142 [LNIND 2006 SC 295] ; See alsoPrakash Chandra Mehta v
Commissioner & Secretary, Government of Kerala, AIR 1986 SC 687 [LNIND 1985 SC 125] ; A. Sowkath Ali v UOI, AIR
2000 SC 2662 [LNIND 2000 SC 1034] : (2000) 7 SCC 148 [LNIND 2000 SC 1034] . But seePurushotham Khandai v
Dt. Magistrate, (1985) Cr LJ 741 ; Daktar Mudi v State of WB, AIR 1974 SC 2086 [LNIND 1974 SC 276] : (1975) 3
SCC 301 [LNIND 1974 SC 276] .
62. Gulab Mehra v State of U.P., AIR 1987 SC 2332 [LNIND 1987 SC 650] : (1987) 4 SCC 302 [LNIND 1987 SC 650] .
2010 SC 926] .
64. Sheikh Ibrahim v State of WB, AIR 1974 SC 736 [LNIND 1973 SC 408] : (1975) 3 SCC 13 [LNIND 1973 SC 408] :
(1974) Cr LJ 657 .
1951 SC 5] .
Page 305 of 320
66. Ram Krishna v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] : AIR 1953 SC 318 [LNIND 1953 SC 49]: 1953 Cr
LJ 1241.
67. Harikisan v State of Maharashtra, AIR 1962 SC 911 [LNIND 1962 SC 466]: 1962 (Supp-2) SCR 918.
68. Ohab v State of W.B., AIR 1975 SC 1001 : (1975) 3 SCC 561.
1951 SC 5].
70. Thakur Prasad v State of Bihar, AIR 1955 SC 631 [LNIND 1955 SC 47]: 1955 Cr LJ 1408 : 1955 SCJ 669; Puranlal v
UOI, (1958) SCR 460 : AIR 1958 SC 163 [LNIND 1957 SC 70]: 1958 Cr LJ 283 : 1958 SCJ 510 [LNIND 1957 SC 70].
71. Dwarka Dass v State of J&K, (1956) SCR 948 [LNIND 1956 SC 89] : AIR 1957 SC 164 [LNIND 1956 SC 89].
72. Harikisan v State of Maharashtra, AIR 1962 SC 911 [LNIND 1962 SC 466]: 1962 (Supp-2) SCR 918.
73. Ram Singh v State of Delhi, AIR 1951 SC 270 [LNIND 1951 SC 24]: (1951) SCR 451 [LNIND 1951 SC 24] : 1951 Cr
LJ 904 : 1951 SCJ 374.
74. D’Souza v State of Bombay, (1956) SCR 382 (390) : AIR 1956 SC 531 [LNIND 1956 SC 36] : 1956 SCJ 559 .
75. Ujagar Singh v State of Punjab, (1952) SCR 756 [LNIND 1951 SC 13] : AIR 1952 SC 350 [LNIND 1951 SC 13] .
76. Sasthi v State of W.B., AIR 1974 SC 525 [LNIND 1974 SC 32] : (1974) 3 SCR 313 [LNIND 1974 SC 32] : (1974) 4
SCC 131 [LNIND 1974 SC 32] .
77. Ram Bahadur v State of Bihar, AIR 1975 SC 223 [LNIND 1974 SC 361] : (1975) 2 SCR 732 [LNIND 1974 SC 361] :
(1975) 3 SCC 710 [LNIND 1974 SC 361] (para18). See alsoPushkar Mukerjee v State of W.B., AIR 1970 852 : (1969) 2
SCR 635 [LNIND 1968 SC 332] ; Piyush Kantilal Mehta v Commr. of Police, Ahmedabad, AIR 1989 SC 491 [LNIND
1988 SC 587] : 1989 (Supp-1) SCC 322.
78. Tarapada De v State of WB, AIR 1951 SC 174 [LNIND 1951 SC 4] : (1951) SCR 212 [LNIND 1951 SC 4] : (1951) Cr
LJ 400 .
Page 306 of 320
79. (1986) Cr LJ 2102 .
80. See alsoDarshan Lal Sehgal v UOI, (1986) Cr LJ 1857 (Del).
81. Sushanta v State of WB, AIR 1969 SC 1004 [LNIND 1968 SC 385] : (1969) 1 SCC 273 [LNIND 1968 SC 385] : (1969)
3 SCR 138 .
82. Gopalan v State of Madras, (1950) 1 SCR 88 [LNIND 1950 SC 22] (223) : 1950 SCJ 174 [LNIND 1950 SC 22] .
83. Rameshwar Lal Patwari v State of Bihar, AIR 1968 SC 1303 [LNIND 1967 SC 355] : (1968) 2 SCR 505 [LNIND 1967
SC 355] : (1968) Cr LJ 1490 .
84. Lawrence J. Joseph v Bombay State, AIR 1956 SC 531 [LNIND 1956 SC 36] : (1956) SCR 382 : (1956) Cr LJ 935 .
85. State of Bombay v Atma Ram Sridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] (supra).
86. Dwarka v State of Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702 [LNIND 1974 SC 359] : (1975) 3
SCC 722 [LNIND 1974 SC 359] .
87. Mohd. Yousuf Rathor v State of J. & K., AIR 1979 SC 1925 [LNIND 1979 SC 327] : (1979) 4 SCC 370 [LNIND 1979
SC 327] .
88. A.K. Karmakar v State of W.B., AIR 1972 SC 2259 : (1972) 2 SCC 672 ; S.K. Kedar v State of W.B., AIR 1972 SC
89. Sodhi Shamsher Singh v State of Pepsu, AIR 1954 SC 276 ; Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND
1957 SC 70] .
90. Rajesh Gulati v Govt. of NCT of Delhi, (2002) 6 Scale 142 [LNIND 2002 SC 532] : AIR 2002 SC 3094 [LNIND 2002
SC 532] : (2002) 7 SCC 129 [LNIND 2002 SC 532] .
91. N. Sengodan v State of Tamil Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 .
92. Mahboob Khan Nawab Khan Pathan v Police Commissioner, AIR 1989 SC 1803 [LNIND 1989 SC 352] : (1989) 3
SCC 568 [LNIND 1989 SC 352] : (1989) Cr LJ 111 .
1. Dr. Shubhwant Rai Jain v State of UP, (1982) Cr LJ 725 (All); see alsoSesadev Dass v Dt. Magistrate, (1990) Cr LJ
2261 (Ori).
3. See alsoBiram Chand v State of UP, AIR 1974 SC 1161 [LNIND 1974 SC 125] : (1974) 4 SCC 573 [LNIND 1974 SC
125] ; Pushkar Mukherjee v State of WB, AIR 1970 SC 852 [LNIND 1968 SC 332] : (1969) 1 SCC 10 [LNIND 1968 SC
332] : (1970) Cr LJ 852 ; Motilal Jain v State of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587
[LNIND 1968 SC 89] ; Kuso Sah v State of Bihar, AIR 1974 SC 156 [LNIND 1973 SC 324] : (1974) 1 SCC 185 [LNIND
1973 SC 324] .
4. Munna Lal Khanddumal v UOI, (1995) Cr LJ 2870 (Del).
Page 307 of 320
6. Also seeTsering Dolkar v Administrator, UT of Delhi, AIR 1987 SC 1192 [LNIND 1987 SC 192] : (1987) 2 SCC 69
[LNIND 1987 SC 192] : (1987) Cr LJ 988 .
2010 SC 926] .
8. Kuso Shah v State of Bihar, (1974) 1 SCC 185 [LNIND 1973 SC 324] : AIR 1974 SC 156 [LNIND 1973 SC 324] ;
Prabhu Dayal Deorah v Dt. Magistrate, Kamrup, (1974) 1 SCC 103 [LNIND 1973 SC 304] : AIR 1974 SC 183 [LNIND
1973 SC 304] ; Bhupal Chandra Ghose v Arif Ali, AIR 1974 SC 255 [LNIND 1973 SC 338] : (1974) 1 SCC 253 [LNIND
1973 SC 338] .
9. R. v Basudeva, AIR 1950 FC 67 (69).
10. Hans Muller v Supdt, (1955) 1 SCR 1284 [LNIND 1955 SC 14] (1289) : AIR 1955 SC 367 [LNIND 1955 SC 14].
11. See DD Basu, Commentary on the Constitution of India, 8th Edn, 2007, Vol 2, Article 19(8), p 2437.
12. Arun v State of W.B., AIR 1970 SC 1228 (1229) : (1970) 3 SCR 288 [LNIND 1959 SC 215] : (1970) 1 SCC 98; Jaya v
Home Secy, AIR 1982 SC 1297 [LNIND 1982 SC 109]: (1982) 2 SCC 538 [LNIND 1982 SC 109] (para 7).
13. Victoria v Lalmal, (1992) 2 SCC 97 [LNIND 1992 SC 51] : AIR 1992 SC 687 [LNIND 1992 SC 51](para 2); Harpreet v
State of Maharashtra, (1992) 2 SCC 177 [LNIND 1992 SC 967] : AIR 1992 SC 979 [LNIND 1992 SC 59]: (1992) 1 SCR
234 [LNIND 1992 SC 967] (para 18). See alsoKanu Biswas v State of W.B., AIR 1972 SC 1656 [LNIND 1972 SC 282]:
(1972) 3 SCC 831 [LNIND 1972 SC 282]. See alsoHassan Khan Ibne Haider Khan v R.H. Mendnoca, AIR 2000 SC
1146 [LNIND 2000 SC 480]: (2000) 3 SCC 511 [LNIND 2000 SC 480]; Amanulla Khan Kudeathulla Khan Pathan v
State of Gujarat, (1999) 5 SCC 613 [LNIND 1999 SC 578] : AIR 1999 SC 2197 [LNIND 1999 SC 578].
14. Ram Ranjan v State of W.B., AIR 1975 SC 609 [LNIND 1975 SC 29]: (1975) 3 SCR 301 [LNIND 1975 SC 29] : (1975)
4 SCC 143 [LNIND 1975 SC 29] (paras 8–10).
Judges—SAIKIA and FATHIMA, JJ.); Jiffri v A.D.E.D, (1992) Cr LJ 3086 (para 27) (Mad).
16. Dr. Ram Manohar Lohia v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381]; seeRamlila Maidan Incident, In re.,
(2012) 5 SCC 1 : (2012) Cr LJ 3516.
17. Supt., Central Prison v Dr. Ram Manohar Lohia, AIR 1960 SC 633 [LNIND 1960 SC 17]: (1960) 2 SCR 821 [LNIND
1960 SC 17].
Page 308 of 320
19. See alsoMadhu Limaye v Sub Divisional Magistrate, Monghyr, (1970) 3 SCC 746 [LNIND 1970 SC 501].
20. (1972) 3 SCC 831 [LNIND 1972 SC 282].
21. See alsoZameer Ahmed Latifur Rehman v State of Maharashtra, (2010) 5 SCC 246 [LNIND 2010 SC 393] : AIR 2010
SC 2633 [LNIND 2010 SC 393].
22. SeeSubramaniam v State of Tamil Nadu, (2012) 4 SCC 699 [LNIND 2012 SC 135] : (2012) 2 Scale 613; see
alsoPushpa Devi M. Jatia v M.L. Wadhawan, (1987) 1 SCC 367; UOI v Arvind Shergill, (2000) 7 SCC 601 [LNIND 2000
SC 1228] : AIR 2000 SC 2924 [LNIND 2000 SC 1228]; Sunil Fulchand Shah v UOI, (2000) 3 SCC 409 [LNIND 2000 SC
323] : AIR 2000 SC 1023 [LNIND 2000 SC 323]; Commissioner of Police v C. Anita, (2004) 7 SCC 467 [LNIND 2004
SC 829] : AIR 2004 SC 4423 [LNIND 2004 SC 829]: 2004 Cr LJ 4853.
23. Mustakmiya Jabbarmiya Shaikh v M.M. Mehta Commissioner of Police, (1995) 3 SCC 237 : JT (1995) 4 SC 215.
24. Darpan Kumar Sharma v State of T.N., (2003) 2 SCC 313 [LNIND 2003 SC 65] : AIR 2003 SC 971 [LNIND 2003 SC
65].
25. Victoria v Lalmal, (1992) 2 SCC 97 [LNIND 1992 SC 51] : AIR 1992 SC 687 [LNIND 1992 SC 51] (para 2); Harpreet v
State of Maharashtra, (1992) 2 SCC 177 [LNIND 1992 SC 967] : AIR 1992 SC 979 [LNIND 1992 SC 59] : (1992) 1
SCR 234 [LNIND 1992 SC 967] (para 18). See alsoKanu Biswas v State of W.B., AIR 1972 SC 1656 [LNIND 1972 SC
282] : (1972) 3 SCC 831 [LNIND 1972 SC 282] . See alsoHassan Khan Ibne Haider Khan v R.H. Mendnoca, AIR 2000
SC 1146 [LNIND 2000 SC 480] : (2000) 3 SCC 511 [LNIND 2000 SC 480] ; Amanulla Khan Kudeathulla Khan Pathan
v State of Gujarat, (1999) 5 SCC 613 [LNIND 1999 SC 578] : AIR 1999 SC 2197 [LNIND 1999 SC 578] .
26. Commissioner of Police v C. Anitha, AIR 2004 SC 4423 [LNIND 2004 SC 829]: (2004) 7 SCC 467 [LNIND 2004 SC
829]; See alsoKuso Saha v State of Bihar, (1974) 1 SCC 185 [LNIND 1973 SC 324] : (1974) 2 SCR 195 [LNIND 1973
SC 324] : AIR 1974 SC 156 [LNIND 1973 SC 324]; Harpeet Kaur v State of Maharashtra, (1992) 2 SCC 177 [LNIND
1992 SC 967] : AIR 1992 SC 979 [LNIND 1992 SC 59]: (1992) 1 SCR 234 [LNIND 1992 SC 967]; T.K. Gopal v State of
Karnataka, (2000) 6 SCC 168 [LNIND 2000 SC 826] : AIR 2000 SC 1669 [LNIND 2000 SC 826]; State of Maharashtra
Page 309 of 320
v Mohd. Yakub, (1980) 3 SCC 57 [LNIND 1980 SC 99] : AIR 1980 SC 1111 [LNIND 1980 SC 99]: (1980) 2 SCR 1158
[LNIND 1980 SC 99].
27. SeeRomesh Thapar v State of Madras, AIR 1950 SC 124 [LNIND 1950 SC 27]: (1950) SCR 594 [LNIND 1950 SC 27].
28. Arun Ghosh v State of West Bengal, AIR 1970 SC 1228 : (1970) 1 SCC 98.
29. (1970) Cr LJ 852 (SC).
30. Ram Manohar Lohia (Dr.) v State of Bihar, (1996) 1 SCR 709 : AIR 1966 SC 740 [LNIND 1964 SC 381].
31. Commissioner of Police v C. Anitha, AIR 2004 SC 4423 [LNIND 2004 SC 829]: (2004) 7 SCC 467 [LNIND 2004 SC
829]; Kishori Mohan Bera v State of W.B., (1972) 3 SCC 845 : AIR 1972 SC 922 [LNIND 1972 SC 95]; Pushkar
Mukerjee v State of W.B., (1969) 1 SCC 10 [LNIND 1968 SC 332] : (1969) 2 SCR 635 [LNIND 1968 SC 332] : AIR
1970 SC 852 [LNIND 1968 SC 332]; Arun Ghosh v State of W.B., (1970) 1 SCC 98 : (1970) 3 SCR 288 [LNIND 1959
SC 215] : AIR 1970 SC 1228; Nagendra Nath Mondal v State of W.B., (1972) 1 SCC 498 [LNIND 1972 SC 23] : AIR
1972 SC 665 [LNIND 1972 SC 23]: (1972) 3 SCR 75 [LNIND 1972 SC 23]; Babul Mitra v State of W.B., (1973) 1 SCC
393 [LNIND 1972 SC 456] : AIR 1973 SC 197 [LNIND 1972 SC 456]; Milan Banik v State of W.B., (1974) 4 SCC 504
[LNIND 1974 SC 122] : AIR 1974 SC 1214 [LNIND 1974 SC 122].
32. AIR 1990 SC 1086 [LNIND 1990 SC 141].
33. SeeMilan Banik v State of WB, AIR 1974 SC 1214 [LNIND 1974 SC 122]: (1974) 4 SCC 504 [LNIND 1974 SC 122];
Narayan Debonath v State of WB, AIR 1976 SC 780 [LNIND 1974 SC 275]: (1975) 4 SCC 508 [LNIND 1974 SC 275];
Nishi Kanta v State of WB, AIR 1972 SC 1497 [LNIND 1972 SC 235]: (1972) 2 SCC 486 [LNIND 1972 SC 235].
34. Golam Hussain v Police Commissioner, AIR 1974 SC 1336 [LNIND 1974 SC 104]: (1974) 4 SCC 530 [LNIND 1974
SC 104].
35. Ram Bahadur v State of Bihar, AIR 1975 SC 223 [LNIND 1974 SC 361]: (1975) 3 SCC 710 [LNIND 1974 SC 361]; see
alsoMagan Gope v State of WB, AIR 1975 SC 953 [LNIND 1975 SC 62]: (1975) 1 SCC 415 [LNIND 1975 SC 62];
Amanullah Khan Pathan v State of Gujarat, AIR 1999 SC 2193 [LNIND 1999 SC 544]: (1999) 5 SCC 613 [LNIND 1999
SC 578]; Mustakmiyan Jabbarmiya Shaik v M.M. Mehta, Commisisoner of Police, (1995) 3 SCC 237.
Page 310 of 320
36. Ramlila Maidan Incident, In re., (2012) 5 SCC 1 : (2 0120 Cr LJ 3516.
37. Jagadish Prasad v State of Bihar, AIR 1974 SC 911 [LNIND 1974 SC 41]: (1974) 3 SCR 369 [LNIND 1974 SC 41] :
(1974) 4 SCC 455 [LNIND 1974 SC 41].
38. Bankatlal v State of Rajasthan, AIR 1975 SC 522 [LNIND 1974 SC 329]: (1975) 4 SCC 598 [LNIND 1974 SC 329]
(para 18).
39. Madan Gopal Vaish v State of UP, (1984) Cr LJ 844.
40. Atmakuri Venketaraman v District Magistrate, (1982) Cr LJ 2024 (AP).
41. See alsoA.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 1 SCC 271 [LNIND 1981 SC 469].
42. Kamla Prasad v District Magistrate, Saran, AIR 1975 SC 726 : (1975) 1 SCC 314.
43. Gopal Bar v State of W.B., AIR 1975 SC 751 : (1975) 3 SCC 557.
44. Dilip Nayak v District Magistrate, AIR 1975 SC 572 : (1975) 3 SCC 705.
45. Bhim Sen v State of Punjab, AIR 1951 SC 481 [LNIND 1951 SC 54]: (1952) SCR 18.
46. Mohd. Alam v State of W.B., AIR 1974 SC 917 [LNIND 1974 SC 42]: (1974) 4 SCC 463 [LNIND 1974 SC 42].
48. D.M. Nagaraja v Govt. of Karnataka, (2011) 10 SCC 215 [LNIND 2011 SC 924].
Page 311 of 320
49. Shamrao v D.M. Thana, (1952) SCR 683 [LNIND 1952 SC 38] (695) : AIR 1952 SC 324 [LNIND 1952 SC 38].
50. Shamrao v D.M. Thana, (1952) SCR 683 [LNIND 1952 SC 38] (695) : AIR 1952 SC 324 [LNIND 1952 SC 38]; Magan v
State of W.B., AIR 1975 SC 781 [LNIND 1975 SC 15]: (1975) 3 SCR 197 [LNIND 1975 SC 15] : (1975) 1 SCC 522
[LNIND 1975 SC 15] (para 12); Bachan v Stateof Punjab, (1983) 1 SCR 145 [LNIND 1980 SC 261] : AIR 1982 SC 1325
[LNIND 1982 SC 117]: (1982) 3 SCC 24 [LNIND 1982 SC 117]; Angoori v UOI, (1989) 1 SCC 385 [LNIND 1988 SC
573] : AIR 1989 SC 371 [LNIND 1988 SC 573].
51. Kedar v State of W.B., (1973) 1 SCR 488 [LNIND 1972 SC 274] (491) : AIR 1972 SC 1647 [LNIND 1972 SC 274]:
(1972) 3 SCC 816 [LNIND 1972 SC 274].
52. Shamrao v D.M. Thana, (1952) SCR 683 [LNIND 1952 SC 38] (695) : AIR 1952 SC 324 [LNIND 1952 SC 38].
53. Sasthi v State of W.B., (1973) 1 SCR 467 [LNIND 1972 SC 273] (470) : AIR 1972 SC 1668 [LNIND 1972 SC 273] :
(1972) 3 SCC 826 [LNIND 1972 SC 273] ; Arun v State of W.B., (1970) 3 SCR 288 [LNIND 1959 SC 215] : AIR 1970
SC 1228 : (1970) 1 SCC 98 ; Dilip Nayak v D.M., Burdwan, AIR 1975 SC 572 : (1975) 3 SCC 705 .
54. Israil v D.M., AIR 1975 SC 168 [LNIND 1974 SC 385] .
55. Madhab v State of W.B., AIR 1975 SC 255 : (1974) 4 SCC 548 ; Abdul Latif v D.M., AIR 1975 SC 2213 .
56. Gopal v State of W.B., AIR 1975 SC 757 : (1975) 3 SCC 851 .
57. Dhurus v State of W.B., AIR 1975 SC 571 : (1975) 3 SCC 527 [LNIND 1986 SC 149] .
58. Tulsi v State of W.B., AIR 1975 SC 638 [LNIND 1975 SC 36] : (1975) 3 SCR 401 [LNIND 1975 SC 36] : (1975) 3 SCC
845 [LNIND 1975 SC 36] (para 7).
59. Bankatal v State of Rajasthan, AIR 1975 SC 522 [LNIND 1974 SC 329] : (1975) 2 SCR 470 [LNIND 1974 SC 329] :
60. Dinanath v Collector., AIR 1975 SC 1093 [LNIND 1975 SC 139] : 1975 Supp SCR 52 : (1975) 1 SCC 810 [LNIND
1975 SC 139] .
61. Kamla Prasad v D.M., AIR 1975 SC 726 : (1975) 1 SCC 314 .
62. Arun v State of W.B., (1970) 3 SCR 288 [LNIND 1959 SC 215] : AIR 1970 SC 1228 : (1970) 1 SCC 98 ; Dilip v D.M.,
AIR 1975 SC 572 : (1975) 3 SCC 705 .
63. Golam v Police Commr., AIR 1974 SC 1336 [LNIND 1974 SC 104] : (1974) 3 SCR 613 [LNIND 1974 SC 104] : (1974)
4 SCC 530 [LNIND 1974 SC 104] .
64. Kanu v State of W.B., (1973) 1 SCR 546 [LNIND 1972 SC 282] (550) : AIR 1972 SC 1656 [LNIND 1972 SC 282] :
(1972) 3 SCC 831 [LNIND 1972 SC 282] ; Kedar v State of W.B., (1973) 1 SCR 488 [LNIND 1972 SC 274] : AIR 1972
Page 312 of 320
SC 1647 [LNIND 1972 SC 274] : (1972) 3 SCC 816 [LNIND 1972 SC 274] ; Tapan v State of W.B., AIR 1972 SC 840 :
1972 Cr LJ 651 ; Nandlal v State of W.B., AIR 1972 SC 1566 : (1972) 2 SCC 524 : 1972 Cr LJ 1053 .
65. Gora v Govt. of W.B., AIR 1975 SC 473 [LNIND 1974 SC 409] : (1975) 2 SCR 996 [LNIND 1974 SC 409] : (1975) 2
SCC 14 [LNIND 1974 SC 409] (para 3); Dhena v D.M., AIR 1975 SC 1804 [LNIND 1975 SC 149] : (1975) 4 SCC 867
[LNIND 1975 SC 149] : 1975 Cr LJ 1549 .
4 SCC 530 [LNIND 1974 SC 104] .
67. State of W.B. v Ashok, AIR 1972 SC 1660 [LNIND 1971 SC 582] : (1972) 2 SCR 434 [LNIND 1971 SC 582] : (1972) 1
SCC 199 [LNIND 1971 SC 582] .
68. Deb Sadhan v State of W.B., (1972) 2 SCR 787 [LNIND 1971 SC 626] (798) : AIR 1972 SC 1924 [LNIND 1971 SC
626] : (1972) 1 SCC 308 [LNIND 1971 SC 626] .
69. Samir v State of W.B., AIR 1975 SC 1165 [LNIND 1975 SC 132] : (1975) 1 SCC 801 [LNIND 1975 SC 132] (para 8).
70. Milon v State of W.B., AIR 1974 SC 1214 [LNIND 1974 SC 122] : (1974) 3 SCR 789 [LNIND 1974 SC 122] : (1974) 4
SCC 504 [LNIND 1974 SC 122] .
4 SCC 530 [LNIND 1974 SC 104] .
72. Teka v State of W.B., AIR 1975 SC 1000 : (1975) 3 SCC 856 .
73. Ram Ranjan v State of W.B., AIR 1975 SC 609 [LNIND 1975 SC 29] : (1975) 3 SCR 301 [LNIND 1975 SC 29] : (1975)
4 SCC 143 [LNIND 1975 SC 29] .
74. Kuso v State of Bihar, AIR 1974 SC 156 [LNIND 1973 SC 324] : (1974) 2 SCR 195 [LNIND 1973 SC 324] : (1974) 1
SCC 185 [LNIND 1973 SC 324] ; Lal Kamal v State of W.B., AIR 1975 SC 753 : (1975) 4 SCC 62 : 1975 Cr LJ 630 .
75. Gandhi v UOI, AIR 1975 SC 755 : (1975) 4 SCC 142 ; Gora v State of W.B., AIR 1975 SC 473 [LNIND 1974 SC 409]
: (1975) 2 SCR 996 [LNIND 1974 SC 409] : (1975) 2 SCC 14 [LNIND 1974 SC 409] .
76. Jatindra v State of W.B., AIR 1975 SC 1215 : (1975) 4 SCC 250 .
77. Kartic v State of W.B., AIR 1974 SC 2149 : (1975) 3 SCC 490 : 1974 Cr LJ 1474 .
78. Gandhi v UOI, AIR 1975 SC 755 : (1975) 4 SCC 142 ; Gora v State of W.B., AIR 1975 SC 473 [LNIND 1974 SC 409]
: (1975) 2 SCR 996 [LNIND 1974 SC 409] : (1975) 2 SCC 14 [LNIND 1974 SC 409] .
79. Dulal v State of W.B., AIR 1974 SC 2361 [LNIND 1974 SC 343] : (1975) 2 SCR 589 [LNIND 1974 SC 343] : (1975) 3
SCC 404 [LNIND 1974 SC 343] .
80. Babulal v State of W.B., AIR 1975 SC 606 [LNIND 1975 SC 17] : (1975) 3 SCR 193 [LNIND 1975 SC 17] : (1975) 1
SCC 311 [LNIND 1975 SC 17] .
81. Dhana Ali v State of W.B., (1975) SC [J. NO. 145A, dated 11-4-1975].
Page 313 of 320
82. Arun v State of W.B., (1970) 3 SCR 288 [LNIND 1959 SC 215] : AIR 1970 SC 1228 : (1970) 1 SCC 98 ; Manu v State
of W.B., AIR 1973 SC 295 [LNIND 1972 SC 520] : (1973) 2 SCR 842 [LNIND 1972 SC 520] : (1973) 3 SCC 663
[LNIND 1972 SC 520] .
4 SCC 530 [LNIND 1974 SC 104] ; Dipak v State of W.B., AIR 1972 SC 2686 : (1973) 4 SCC 43 : 1973 Cr LR (SC) 54
.
84. Magon v State of W.B., AIR 1975 SC 953 [LNIND 1975 SC 62] : (1975) 3 SCR 531 [LNIND 1975 SC 62] : (1975) 1
SCC 415 [LNIND 1975 SC 62] .
85. Yousaf v State of J&K, (1979) UJSC 708 (para 11).
86. Rashidmiya v Police Commr., AIR 1989 SC 1703 [LNIND 1989 SC 662] : (1989) 3 SCR 182 : (1989) 3 SCC 321
[LNIND 1989 SC 662] .
87. Krishna v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211] : (1976) 1 SCR 16 [LNIND 1975 SC 211] : (1975) 4 SCC 481
[LNIND 1975 SC 211] (para 3).
88. Rameshwar v State of Bihar, AIR 1968 SC 1303 [LNIND 1967 SC 355] : (1968) 2 SCR 505 [LNIND 1967 SC 355] :
1968 Cr LJ 1490 (para 7); Shibban Lal v Staleof U.P., AIR 1954 SC 179 [LNIND 1953 SC 110] : 1954 SCR 418
[LNIND 1979 SC 400] : 1954 Cr LJ 456 .
89. Nathmal v State of Rajasthan, AIR 1975 SC 2198 (para 7).
90. State of Bombay v Atma Ram Shridhar Vaidya, AIR 1951 SC 157 [LNIND 1951 SC 5] (161) : 1951 SCR 167 [LNIND
1951 SC 5] : 1951 Cr LJ 373 ; Dwarka v State of Bihar, AIR 1975 SC 134 [LNIND 1974 SC 359] : (1975) 2 SCR 702
[LNIND 1974 SC 359] : (1975) 3 SCC 722 [LNIND 1974 SC 359] (para 6); Dwarka v State of J&K, AIR 1957 SC 164
[LNIND 1956 SC 89] : 1956 SCR 948 [LNIND 1956 SC 89] : 1957 Cr LJ 316 . See alsoN. Sengodan v State of Tamil
Nadu, (2013) 8 SCC 664 [LNIND 2013 SC 594] : (2013) 4 LW 558 ; Bhut Nath Mete v State of WB, (1974) 1 SCC 645
[LNIND 1974 SC 31] : AIR 1974 SC 806 [LNIND 1974 SC 31] ; S.R. Venketaraman v UOI, (1979) 2 SCC 491 [LNIND
1978 SC 312] .
91. Nathmal v State of Rajasthan, AIR 1975 SC 2198 : (1975) 2 SCC 591 : 1975 Cr LJ 1871 (para 7).
92. Motilal v State of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND 1968 SC 89] : 1969 Cr LJ
33 (para 6) (6 Judges).
1. Ram Krishna v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] : AIR 1953 SC 318 [LNIND 1953 SC 49] : 1953
Cr LJ 1241 .
SCC 722 [LNIND 1974 SC 359] .
3. Bhupal v Arif, AIR 1974 SC 255 [LNIND 1973 SC 338] : (1974) 2 SCR 277 : (974() SCC 253 (para 10); Motilal v State
of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND 1968 SC 89] : 1969 Cr LJ 33 ; Pushkar v
State of W.B., (1969) 2 SCR 635 [LNIND 1968 SC 332] (641) : AIR 1970 SC 852 [LNIND 1968 SC 332] : (1969) 1 SCC
10 [LNIND 1968 SC 332] .
Page 314 of 320
SCC 722 [LNIND 1974 SC 359] (para 6); Dwarka v State of J&K, AIR 1957 SC 164 [LNIND 1956 SC 89] : 1956 SCR
948 [LNIND 1956 SC 89] : 1957 Cr LJ 316 ; Nathmal v State of Rajasthan, AIR 1975 SC 2198 : (1975) 2 SCC 591 :
1975 Cr LJ 1871 (para 7); Motilal v State of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND
1968 SC 89] : 1969 Cr LJ 33 (para 6) (6 Judges); Ram Krishna v State of Delhi, (1953) SCR 708 [LNIND 1953 SC 49] :
AIR 1953 SC 318 [LNIND 1953 SC 49] : 1953 Cr LJ 1241 ; Dwarka v State of Bihar, AIR 1975 SC 134 [LNIND 1974
SC 359] : (1975) 2 SCR 702 [LNIND 1974 SC 359] : (1975) 3 SCC 722 [LNIND 1974 SC 359] ; Bhupal v Arif, AIR 1974
SC 255 [LNIND 1973 SC 338] : (1974) 2 SCR 277 : (974) SCC 253 (para 10); Motilal v State of Bihar, AIR 1968 SC
1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND 1968 SC 89] : 1969 Cr LJ 33 ; Pushkar v State of W.B., (1969)
2 SCR 635 [LNIND 1968 SC 332] (641) : AIR 1970 SC 852 [LNIND 1968 SC 332] : (1969) 1 SCC 10 [LNIND 1968 SC
332] ; Ram Manohar v State of Bihar, (1966) 1 SCR 709 [LNIND 1965 SC 215] (746); Kuso Sah v State of Bihar, AIR
324] (para 4); Magan v State of W.B., AIR 1975 SC 953 [LNIND 1975 SC 62] : (1975) 3 SCR 531 [LNIND 1975 SC 62]
: (1975) 1 SCC 415 [LNIND 1975 SC 62] (para 13); Prabhu v Dt. Magistrate, AIR 1974 SC 183 [LNIND 1973 SC 304] :
(1974) 2 SCR 12 [LNIND 1973 SC 304] : (1974) 1 SCC 103 [LNIND 1973 SC 304] (para 59); Ram Bahadur v State of
Bihar, AIR 1975 SC 223 [LNIND 1974 SC 361] : (1975) 2 SCR 732 [LNIND 1974 SC 361] : (1975) 3 SCC 710 [LNIND
1974 SC 361] (para 24); Tulshi v State of W.B., AIR 1975 SC 638 [LNIND 1975 SC 36] : (1975) 3 SCR 401 [LNIND
1975 SC 36] : (1975) 3 SCC 845 (para 5); section 5A of COFEPOSA and section 5A of the National Security Act, 1980
now provide to the contrary [Prakash v Govt.of Kerala, (1985) Supp. SCC 144 ]. See alsoBiram Chand v State of UP,
7. Shibbon Lal v State of U.P., AIR 1954 SC 179 [LNIND 1953 SC 110] : (1954) SCR 418 [LNIND 1979 SC 400] .
8. See alsoDwarka Das Bhatia v State of J&K, AIR 1957 SC 164 [LNIND 1956 SC 89] : (1956) SCR 948 [LNIND 1956
SC 89] and Rameshwarlal v State of Bihar, AIR 1968 SC 1303 [LNIND 1967 SC 355] , where the above principle was
reiterated.
9. Binod Bihari v State of Bihar, AIR 1972 SC 2128 [LNIND 1972 SC 18] : (1973) 3 SCC 189 [LNIND 1972 SC 18] .
10. AIR 1972 SC 1749 : (1972) 3 SCC 845 .
11. AIR 1973 SC 300 : (1973) 1 SCC 297 .
12. Binod Bihari v State of Bihar, AIR 1974 SC 2125 [LNIND 1974 SC 291] : (1975) 3 SCC 238 .
13. Pushpadevi M. Jatia v M.L. Wadhawan, AIR 1987 SC 1748 [LNIND 1987 SC 444] : (1987) 3 SCC 367 [LNIND 1987
SC 444] .
14. Shafic Ahmed v Dt. Magistrate, Meerut, AIR 1990 SC 220 [LNIND 1989 SC 438] : (1989) 4 SCC 556 [LNIND 1989 SC
438] .
15. SeePrakash Chandra Mehta v Commissioner and Secretary, Govt. of Kerala, AIR 1986 SC 687 [LNIND 1985 SC 125]
: 1985 (Supp) SCC 144; Madan Lal Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND
Page 315 of 320
1989 SC 536] ; A. Sowkath Ali v UOI, AIR 2000 SC 2662 [LNIND 2000 SC 1034] : (2000) 7 SCC 148 [LNIND 2000 SC
1034] .
16. Attorney General for India v Amartlal, AIR 1994 SC 2179 [LNIND 1993 SC 1093] : (1994) 5 SCC 54 [LNIND 1993 SC
1093] .
17. See alsoPrakash Chandra Mehta v Govt of Kerala, AIR 1986 SC 687 [LNIND 1985 SC 125] : 1985 (Supp) SCC 144;
State of Gujarat v Chamanlal Soni, AIR 1981 SC 1480 [LNIND 1981 SC 10] : (1981) 2 SCC 24 [LNIND 1981 SC 10] ;
Yogendra Murali v State of U.P., AIR 1988 SC 1835 [LNIND 1988 SC 367] : (1988) 4 SCC 559 [LNIND 1988 SC 367] ;
Mandanlal Anand v UOI, AIR 1990 SC 176 [LNIND 1989 SC 536] : (1990) 1 SCC 81 [LNIND 1989 SC 536] ; A.
Sowkath Ali v UOI, AIR 2000 SC 2662 [LNIND 2000 SC 1034] : (2000) 7 SCC 148 [LNIND 2000 SC 1034] .
SCC 722 [LNIND 1974 SC 359] ; Bhupal v Arif, AIR 1974 SC 255 [LNIND 1973 SC 338] : (1974) 2 SCR 277 : (1974)
SCC 253 (para 10); Motilal v State of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND 1968
SC 89] : 1969 Cr LJ 33 ; Pushkar v State of W.B., (1969) 2 SCR 635 [LNIND 1968 SC 332] (641) : AIR 1970 SC 852
[LNIND 1968 SC 332] : (1969) 1 SCC 10 [LNIND 1968 SC 332] ; Ram Manohar v State of Bihar, (1966) 1 SCR 709
[LNIND 1965 SC 215] (746); Kuso Sak v State of Bihar, AIR 1974 SC 156 [LNIND 1973 SC 324] : (1974) 2 SCR 195
[LNIND 1973 SC 324] : (1974) 1 SCC 185 [LNIND 1973 SC 324] (para 4); Magan v State of W.B., AIR 1975 SC 953
[LNIND 1975 SC 62] : (1975) 3 SCR 531 [LNIND 1975 SC 62] : (1975) 1 SCC 415 [LNIND 1975 SC 62] (para 13);
Prabhu v Dt. Magistrate, AIR 1974 SC 183 [LNIND 1973 SC 304] : (1974) 2 SCR 12 [LNIND 1973 SC 304] : (1974) 1
SCC 103 [LNIND 1973 SC 304] (para 59); Ram Bahadur v State of Bihar, AIR 1975 SC 223 [LNIND 1974 SC 361] :
(1975) 2 SCR 732 [LNIND 1974 SC 361] : (1975) 3 SCC 710 [LNIND 1974 SC 361] (para 24); Tulshi v State of W.B.,
AIR 1975 SC 638 [LNIND 1975 SC 36] : (1975) 3 SCR 401 [LNIND 1975 SC 36] : (1975) 3 SCC 845 [LNIND 1975 SC
36] (para 5).
19. Bhupal v Arif, AIR 1974 SC 255 [LNIND 1973 SC 338] : (1974) 2 SCR 277 : (1974) SCC 253 (para 10); Motilal v State
of Bihar, AIR 1968 SC 1509 [LNIND 1968 SC 89] : (1968) 3 SCR 587 [LNIND 1968 SC 89] : 1969 Cr LJ 33 ; Pushkar v
State of W.B., (1969) 2 SCR 635 [LNIND 1968 SC 332] (641) : AIR 1970 SC 852 [LNIND 1968 SC 332] : (1969) 1 SCC
10 [LNIND 1968 SC 332] .
20. State of Bombay v Atma Ram Shridhar Vaidya, (1951) SCR 167 [LNIND 1951 SC 5] : AIR 1951 SC 157 [LNIND 1951
SC 5] ; Puranlal v UOI, (1958) SCR 460 : AIR 1958 SC 163 [LNIND 1957 SC 70] : 1958 Cr LJ 283 : 1958 SCJ 510
[LNIND 1957 SC 70] .
22. Lawrence J. Joseph D’Souza v Bombay State, AIR 1956 SC 531 [LNIND 1956 SC 36] : (1956) SCR 382 : (1956) Cr
LJ 935 .
23. Supra.
24. Sheik Ibrahim v State of WB, AIR 1974 SC 736 [LNIND 1973 SC 408] : (1975) 3 SCC 13 [LNIND 1973 SC 408] :
(1974) 2 SCR 803 [LNIND 1973 SC 408] . See alsoChaju Ram v State of Jammu & Kashmir, AIR 1971 SC 263 [LNIND
25. Dr. Ram Krishna Bharadwaj v The State of Delhi, AIR 1953 SC 318 [LNIND 1953 SC 49] : (1953) SCR 708 [LNIND
1953 SC 49] . See alsoMishralal Jain v District Magistrate, (1971) 3 SCC 693 [LNIND 1971 SC 531] ; Gulab Mehra v
Page 316 of 320
State of U.P., AIR 1987 SC 2332 [LNIND 1987 SC 650] : (1987) 4 SCC 302 [LNIND 1987 SC 650] ; Jahangir Khan
Fazal Khan Pathan v Police Commissioner, Ahmedabad, AIR 1989 SC 1812 [LNIND 1989 SC 356] : (1989) 3 SCC
590 [LNIND 1989 SC 356] ; Abdul Razak Nanne Khan Pathan v Police Commissioner, AIR 1990 SC 220 [LNIND 1989
SC 438] : (1989) 4 SCC 43 [LNIND 1989 SC 359] ; Ahmed Hussain Shaik Hussain v Commissioner of Police, AIR 1989
SC 2274 [LNIND 1989 SC 458] : (1989) 4 SCC 751 [LNIND 1989 SC 458] ; Vasisht Narain Karwaria v State of U.P.,
[LNIND 1957 SC 70] ; D’Souza v State of Bombay, (1956) SCR 382 (391) : AIR 1956 SC 531 [LNIND 1956 SC 36] :
1956 SCJ 559 .
28. Section 5A of COFEPOSA and section 5A of the National Security Act, 1980 now provide to the contrary [Prakash v
Govt. of Kerala, (1985) Supp. SCC 144 ].
29. Addl. Secretary to the Government of India v Alka Subhash Godia, 1992 (Suppl-1) SCC 496; Subhash Muljimal Gandhi
v L. Himingliana, (1994) 6 SCC 14 [LNIND 1994 SC 755] ; State of Maharashtra v Bhaurao Punjabrao Gawande,
(2008) 3 SCC 613 [LNIND 2008 SC 547] .
30. 1992 (Supp-1) SCC 496.
31. Subhash Popatlal Dave v UOI, AIR 2012 SC 3370 [LNIND 2013 SC 676] : (2012) 7 SCC 533 [LNIND 2013 SC 676] :
(2012) Cr LJ 3848 ; see alsoSubhash Popatlal Dave v UOI, (2014) 1 SCC 280 [LNIND 2013 SC 676] : 2012 Cr LJ 4166
.
32. State of Tamil Nadu v Shamsuddin, (1992) 3 SCC 523 [LNIND 1992 SC 440] .
[LNIND 1957 SC 70] .
35. Supra.
36. Wasiuddin v Dt. Magistrate, AIR 1981 SC 2166 : (1981) 4 SCC 521 ; Khudiram Das v State of WB, AIR 1975 SC 550
37. Miss Sushila Madiman v Commr. of Police, 52 Cr LJ 437 (Bom); see alsoIn re. Maganlal Jivabhai Patel, 52 Cr LJ 418
(Bom).
38. A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) SCR 88 [LNIND 1950 SC 22] .
39. Safatulla Khan v Chief Secretary of WB, 51 Cr LJ 1569.
SC 5] (supra).
41. Ram Kumar v UOI, (1990) Cr LJ 546 (MP).

Page 317 of 320
42. Bai Amina v State of Gujarat, (1982) Cr LJ 1531 (Guj).
43. Ganga v Govt. of Maharashtra, AIR 1980 SC 1744 [LNIND 1980 SC 303] : (1981) 1 SCR 343 [LNIND 1981 SC 354] :
(1980) Cr LJ 1263 .
44. Amar Nath v UOI, 1989 Allahabad Law Journal 717.
45. Harijan Maganbhai Chaturbhai v District Magistrate, (1999) Cr LJ 4025 (Guj).
46. Jagannath v UOI, AIR 1960 SC 625 [LNIND 1960 SC 15] : (1960) 2 SCR 784 [LNIND 1960 SC 15] .
47. State of Maharashtra v Sushila Mafatlal Shah, AIR 1988 SC 2090 [LNIND 1988 SC 591] : (1988) 4 SCC 490 [LNIND
1988 SC 591] .
48. Ganga Ramchand Bharwani v Govt of Maharashtra, AIR 1980 SC 1744 [LNIND 1980 SC 303] : (1980) 4 SCC 624
[LNIND 1980 SC 303] .
SC 5] ; Puranlal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : 1958 SCR 460 : 1958 Cr LJ 283 : 1958 SCJ 510
[LNIND 1957 SC 70] .
51. State of Rajasthan v Talib Khan, AIR 1997 SC 1559 [LNIND 1996 SC 1717] .
52. For text of this Act with case law, see the Author’s Acts, Rules and Orders under the Constitution’.
53. Shambhu v State of W.B., AIR 1975 SC 1425 (paras 32, 34–36, 38)—seven Judges, overruling Gopalan v State of
Madras, (1950) SCR 88 [LNIND 1950 SC 22] : 1950 SCJ 174 [LNIND 1950 SC 22] contra.
55. Delhi Laws Act, In re., AIR 1951 SC 332 [LNIND 1951 SC 40] : (1951) SCR 747 [LNIND 1951 SC 40] .
56. Krishnan v State of Madras, AIR 1951 SC 301 [LNIND 1951 SC 35] : (1951) SCR 621 [LNIND 1951 SC 35] .
58. AIR 1974 SC 613 [LNIND 1973 SC 414] : (1974) 3 SCC 152 .
59. SeeFagu Shaw v State of WB, AIR 1974 SC 613 [LNIND 1973 SC 414] : (1974) 3 SCC 152 (supra).
Page 318 of 320
60. Puranlal Lakhanpal v UOI, AIR 1958 SC 163 [LNIND 1957 SC 70] : (1958) SCR 460 : (1958) Cr LJ 283 .
62. Alam v State of W.B., AIR 1974 SC 917 [LNIND 1974 SC 42] : (1974) 3 SCR 379 [LNIND 1974 SC 42] : (1974) 4 SCC
463 [LNIND 1974 SC 42] (para 12).
63. Fagu Shaw v State of W.B., AIR 1974 SC 613 [LNIND 1973 SC 414] : (1974) 2 SCR 832 [LNIND 1973 SC 414] :
(1974) 4 SCC 152 [LNIND 1973 SC 414] (paras 25–27).
64. State of W.B. v Ashok Dey, AIR 1972 SC 1660 [LNIND 1971 SC 582] : (1972) 1 SCC 199 [LNIND 1971 SC 582] .
66. Sunil Fulchand Shah v UOI, AIR 2000 SC 1023 [LNIND 2000 SC 323] : (2000) 3 SCC 14 [LNIND 2000 SC 324] .
67. Ghatate v UOI, AIR 1975 Bom 324 [LNIND 1975 BOM 220] (paras 8–9).
68. Vide Statesman, Culcutta, dated 9-1-1976, p 1.
69. Fathima v Ravindran, (1975) Cr LJ 1164 (FB).
70. Ananda v State of Punjab, AIR 1966 SC 657 [LNIND 1965 SC 278] . See alsoJaichand Lal Sethia v State of West
Bengal, AIR 1967 SC 483 [LNIND 1966 SC 142] ; Durgadas Shirali v UOI, AIR 1966 SC 1078 [LNIND 1965 SC 307] .
71. Ananda v State of Punjab, AIR 1966 SC 657 [LNIND 1965 SC 278] ; Yakub v State of J&K, AIR 1968 SC 765 [LNIND
1967 SC 321] : (1968) 2 SCR 227 [LNIND 1967 SC 321] : 1968 Cr LJ 977 .
72. Makkhan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 [LNIND 1963 SC 234]
[para 35(a)].
73. Makhan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797 [LNIND 1963 SC 234]
[para 35(a)]; Jaichand v State of W.B., AIR 1967 SC 483 [LNIND 1966 SC 142] : 1966 Supp SCR 464 : 1967 Cr LJ
520 .
74. Ram Manohar v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] : (1966) 1 SCR 709 [LNIND 1965 SC 215] :
1966 Cr LJ 608 .
75. Jaichand v State of W.B., AIR 1967 SC 483 [LNIND 1966 SC 142] : 1966 Supp SCR 464 : 1967 Cr LJ 520 ; Ram
Manohar v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] : (1966) 1 SCR 709 [LNIND 1965 SC 215] : 1966 Cr
LJ 608 ; Durgadas v UOI, AIR 1966 SC 1078 [LNIND 1965 SC 307] : (1966) 2 SCR 573 [LNIND 1965 SC 307] : 1966
Page 319 of 320
Cr LJ 812 (para 5); Ananda v Chief Secy, AIR 1966 SC 657 [LNIND 1965 SC 278] : (1966) 2 SCR 406 [LNIND 1965
SC 278] : 1966 Cr LJ 586 .
76. Durgadas v UOI, AIR 1966 SC 1078 [LNIND 1965 SC 307] : (1966) 2 SCR 573 [LNIND 1965 SC 307] : 1966 Cr LJ 812
(para 5); Ananda v Chief Secy, AIR 1966 SC 657 [LNIND 1965 SC 278] : (1966) 2 SCR 406 [LNIND 1965 SC 278] :
1966 Cr LJ 586 .
77. Mohan Chaudhary v Chief Commissioner, Tripura, AIR 1964 SC 173 [LNIND 1963 SC 134] : (1964) 3 SCR 442
[LNIND 1963 SC 134] .
78. Mohammed Yacub v State of J&K, AIR 1968 SC 765 [LNIND 1967 SC 321] : (1968) 2 SCR 277 .
79. State of M.P. v Bharat, AIR 1967 SC 1170 [LNIND 1967 SC 16] : (1967) 2 SCR 454 [LNIND 1967 SC 16] ; Krishna
Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC 211] : (1976) 1 SCR 16 [LNIND 1975 SC 211] : (1975) 4 SCC 481
[LNIND 1975 SC 211] . See alsoMohan Choudhary v Chief Commr. Tripura, AIR 1964 SC 173 [LNIND 1963 SC 134] .
80. Ananda v State of Punjab, AIR 1966 SC 657 [LNIND 1965 SC 278] : (1966) 2 SCR 406 [LNIND 1965 SC 278] : 1966
Cr LJ 586 ; Yakub v State of J&K, AIR 1968 SC 765 [LNIND 1967 SC 321] : (1968) 2 SCR 227 [LNIND 1967 SC 321] :
1968 Cr LJ 977 ; Makhan Singh v State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] : (1964) 4 SCR 797
[LNIND 1963 SC 234] [para 35(a)]; Jaichand v State of W.B., AIR 1967 SC 483 [LNIND 1966 SC 142] : 1966 Supp
SCR 464 : 1967 Cr LJ 520 ; Ram Manohar v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] : (1966) 1 SCR
709 [LNIND 1965 SC 215] : 1966 Cr LJ 608 ; Durgadas v UOI, AIR 1966 SC 1078 [LNIND 1965 SC 307] : (1966) 2
SCR 573 [LNIND 1965 SC 307] : 1966 Cr LJ 812 (para 5); Ananda v Chief Secy, AIR 1966 SC 657 [LNIND 1965 SC
278] : (1966) 2 SCR 406 [LNIND 1965 SC 278] : 1966 Cr LJ 586 ; State of M.P. v Bharat, AIR 1967 SC 1170 [LNIND
1967 SC 16] : (1967) 2 SCR 454 [LNIND 1967 SC 16] ; Krishna Murari v UOI, AIR 1975 SC 1877 [LNIND 1975 SC
211] : (1976) 1 SCR 16 : (1975) 4 SCC 481 [LNIND 1975 SC 211] .
81. A.D.M. v Shukla, AIR 1976 SC 1207 [LNIND 1976 SC 196] : 1976 Supp SCR 172 : (1976) 2 SCC 521 [LNIND 1976
SC 196] .
82. T.K. Tope, Constitutional Law of India, 3rd Edn, p 253.
83. Rane Manohar Lohia v State of Bihar, AIR 1966 SC 740 [LNIND 1964 SC 381] .
84. Mushtaq v State of J&K, (1992) Cr LJ 403 (paras 6, 9–11).

Page 320 of 320
85. Altaf v State, (1989) Cr LJ 1276 (para 6).
86. Mushtaq v State of J&K, (1992) Cr LJ 403 (paras 6, 9–11); Altaf v State, (1989) Cr LJ 1276 (para 6); Hamza v State,
(1989) Cr LJ 1500 .
End of Document
Art.23. Prohibition of traffic in human beings and forced labour.-
Constitution of India > PART III FUNDAMENTAL RIGHTS (contd.) > Right against Exploitation
Right against Exploitation
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any
contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes,
and in imposing such service the State shall not make any discrimination on grounds only of religion,
race, caste or class or any of them.
[ART. 23.1] CLAUSE (1) OTHER CONSTITUTIONS (A) U.S.A.—
The Thirteenth Amendment (1865) to the Constitution of the United States says:
U.S.A.
(1) Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to their jurisdiction.
Page 2 of 44
Article 6 of American Convention on Human Rights read as follows:
(1) No one shall be subject to slavery or to involuntary servitude, which one prohibited in all their forms, as are slave
trade and traffic in women.
(2) No one shall be required to perform forced or compulsory labour. This provision shall not be interpreted to mean
that, in those countries in which the penalty established for certain crimes in deprivation of liberty at forced labour, the
carrying out of such sentence imposed by a competent court is prohibited. Forced labour shall not adversely affect the
dignity or the physical or intellectual capacity of the prisoner.
(3) For the purpose of this Article, the following do not constitute forced or compulsory labour:
(a) work or service normally required of a person imprisoned in execution of sentence or formal decision passed
by the competent judicial authority. Such work or service shall be carried out under the supervision and
control of public authorities, and any person performing such work shall not be placed at the disposal of any
private party, company or juridical person;
(b) military services, and in countries in which conscientious objectors are recognised, national services that the
law may provide for in lien of military service;
(c) services extracted in time of danger or calamity that threatens the existence or the well-being of the
community; or
(d) work or services that form of part of normal civic obligation.
“Involuntary servitude” has been interpreted to include any kind of “control by which the personal service of one
man is disposed of or served for another’s benefit.”1. It means the condition of one who is compelled by force,
coercion and against his will, to work for another with or without remuneration.2.
The laws about slaves were derived from the Roman Law. It divided men into two groups – those who were free
Page 3 of 44
and those who were slaves. MOYLE summarises it in these words: “Slavery is a condition of absolute
rightlessness. The slave could have no right against either his master or any one else – a slave was not “a
person at all”. The Roman lawyers looked upon him as “a res” and applied to him, as an object of property, the
same rules which they laid down on to domestic animals … except those that he could be freed by
manumission, i.e., by going through prescribed procedure”.3. Slavery is defined as “the state of entire
subjection of one person to the will of another. The term implies the relation of two persons in the character of
master and slave, the former being defined as one who has another or others under his immediate control, a
lord paramount or employer of slaves and the latter as a person who is the chattel or property of another and is
wholly subject to his will, a bond servant; a serf”.
Slavery, it was said by JUSTICE BROWN in Plessy v Ferguson,4. implies involuntary servitude—a state of
bondage; the ownership of mankind as a chattel, or at least the control of the labour and services of one man
for the benefit of another, and the absence of a legal right to the disposal of his own person, property and
services. An involuntary servitude means the condition of one who is compelled by force, coercion and against
his will, to work for another with or without remuneration.
The involuntary servitude that is forbidden is such as would not be tolerated by the free principles of the
common law and would not include the following: (i) Regulation of service in the domestic relations.5. (ii) A
statute requiring seamen to carry out the terms of their agreement, inasmuch as their employment demands,
special regulations.6. (iii) Duties of citizenship, such as compulsory military service,7. compulsory work on the
public highway;8. compulsory jury service.9. (iv) Forced labour as a punishment for crime,10. or as a part of
prison discipline.11. (v) Punishment for or injunction against an illegal strike.12.
The protection from involuntary servitude is not confined to members of any particular race but extends to every
individual.13.
It follows from the above guarantee that every labourer or worker has the right to quit his work and that he
cannot be compelled to work under any employer, even though he may be liable in damages for breach of
contract.14.
Clause (2) of the Thirteenth Amendment empowers Congress “to enforce this Article by appropriate legislation”.
Under the above provision, Congress has prohibited (1867) “peonage” or the voluntary or involuntary service or
Page 4 of 44
labour of any person in liquidation of any debt or obligation.15. The provisions of the Thirteenth Amendment
have, therefore, to be read along with this statute.
Even where there is a voluntary contract to render service in payment of a debt, the State cannot compel the
debtor to render that service by punishment or other coercive process, though the debtor may be liable in
damages for breach of the contract.15 “It may not make failure to labour in discharge of a debt any part of a
crime. It may not directly command involuntary servitude, even if it was voluntarily contracted for”,16. and the
court would quash a conviction even where the accused pleads guilty to a statute which makes it a crime to
refuse to serve under any such contract.16
LORD DENNING in his book Landmarks in the Law17. has explained what is the nature of slavery:
A man who was a slave was obliged to serve his master for the whole of his life. He received in return food, clothing
and shelter, but no remuneration by way of wages. If he did not obey orders, the master could punish him by whipping
or strokes or putting him on short rations. If the slave grew anything or made anything it belonged to his master. If a
woman slave bore children, of any father—they belonged to her master. The master could sell his slave for money and
transfer all his rights over the slave to the purchaser. If the slave was ill treated, he had no recourse to the courts of law
for redress. He had no rights no locus standi—to sue anyone. He was the property of his master—on the same footing
as his horse or his cow or his table or chair.
(B) Japan.—
Article 18 of the Japanese Constitution, 1946, provides:
Japan
No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited.
(C) West Germany.—
Article 12(2)-(3) of the West German Constitution (1948) provide:

Page 5 of 44
West Germany
2. No one may be compelled to perform a particular kind of work except within the frame work of an established
general compulsory public service equally applicable to everybody.
3. Forced labour shall be admissible only in the event of imprisonment ordered by court.
Other exceptions to the prohibition against compulsory labour have been introduced by subsequent
amendments to the Constitution, introducing Article 12(a).
The various paragraphs of this new Article provide:
(a) Power to compel men aged 18 years and over to serve in the armed forces, subject, of course to
conscientious objection to military service as an armed combatant.
(b) Persons liable to military service may be compelled to perform civilian duties for defence purposes.
(c) Women between the ages of 18 and 55 may be compelled to work in the civilian medical or health
services or in the non-mobile military hospital system, if the need cannot be met on a voluntary basis.
(d) Persons may be compelled to undergo vocational training for the performance of such duties.
(D) Pakistan—
Article11 of Constitution of Pakistan provides thus:
Pakistan
Page 6 of 44
(1) Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form;
(2) All forms of forced labour and traffic in human beings are prohibited;
(3) No child below the age of fourteen years shall be engaged in any factory or mine or any other
hazardous employment;
(4) Nothing in this Article shall be deemed to affect compulsory service –
(a) by any person undergoing punishment for an offence against any law or,
(b) required by law for public purpose; provided that no compulsory service shall be of a cruel nature
or incompatible with human dignity.
Clause (1) of Article 11 has two parts – the first part declares that slavery is non-existent and forbidden. It is
unique in two respects, first, it gives an absolute right and is self-executing and secondly, it is applicable to
private individuals as well as the State. This second aspect is illustrated by the case of Darshan Masih v The
State18. in which relief was sought by what is called “bonded labour” and was granted against the owners of
private brick kilns. The second part is directed to the State only; it forbids the State to make any law permitting
or facilitating the introduction of slavery into Pakistan in any form.
[ART. 23.2] INTERNATIONAL CHARTERS (A) Universal Declaration.—
Article 4 of the Universal Declaration of Human Rights says:
Page 7 of 44
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Freedom from slavery is one of the most fundamental human rights and the Article 4 read above performs an
important declaratory function. But the exceptions to the above article do allow particular categories of persons
to be compelled to perform particular work, citizens may be required to perform national service in States which
(unlike the UK) still so require, prisoners may be expected to work; jury service may be compulsory and
community service is a valid method of official punishment.
There is distinction between slavery and servitude under clause 4(1) and forced labour under clause 4(2).
Slavery denotes total ownership, whereas servitude denotes less far-reaching restraints; it is concerned with
labour conditions and the inescapable nature of the service. Article 4(1) has not generated much case law and
few cases which have been brought have failed.
Paragraph 4(2) is not concerned with the total situation of the claimant concerned; it covers the compulsory
character of service which will usually be temporary and incidental to claimant’s main job or total situation.
Forced or compulsory labour has been held to denote the following:
(1) that the work or service is performed by the worker against his will and
(2) that the requirement that the work or service be performed is unjust or oppressive or the work or
service itself involves avoidable hardship. Most of the case-law arises in the area of professional
obligation arising from certain jobs. For example, a German lawyer complained of having to act as
unpaid or poorly paid defence counsel. The Commission rejected the complaint on the basis that if a
person voluntarily chooses the profession of a lawyer, he must be aware of his obligation, and he can
be taken to have impliedly consented to fulfil the obligation. This argument will apply if the obligations
are a normal part of the profession. Less emphasis was placed on the implied consent of the applicant.
The court took the view that the mere fact that the applicant had impliedly consented to the obligation
was only a factor to be considered; it was not decisive. It decided that, looking at all the factors
including the small amount of time devoted to such work, no breach had occurred.19.
Page 8 of 44
UN Supplementary Convention on Abolition of Slavery (1956) defines debt bondage as the status or condition
arising from a pledge by a debtor of his personal service or those of a person under his control as a security for
a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt
or the length and nature of those services are respectively limited and defined.
In the ILO Report on Stopping Forced Labour (2001), the term “bonded labour” refers to a worker who rendered
service under conditions of bondage arising from economic consideration, notably indebtedness through a loan
or an advance. Where debt is the root cause of bondage, the implication is that the worker (or his defendants or
heirs) are tied to a particular creditor for a specific or unspecified period until the loan is repaid.
Article 8 of the Covenant on Civil and Political Rights, 1966, says:
1. No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
3. (a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as
a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a
competent court;
Page 9 of 44
(c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include:
(i) Any work or service, not referred to in sub-paragraph (b), normally required of a person who is under
detention in consequence of a lawful order of a court, or of a person during conditional release from
such detention;
(ii) Any service of a military character and, in countries where conscientious objection is recognized, any
national service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or well- being of the
community;
(iv) Any work or service which forms part of normal civil obligations.
(C) European Convention.—
Article 4 of the European Convention for Human Rights, 1950 is substantially similar to Article 8 of the
Covenant, just reproduced.
(C) European Convention
Freedom from slavery is one of the most fundamental human rights and performs and important declaratory
functions. But the exceptions to the Article do allow particular categories of persons to be compelled to perform
particular work. Citizen may be required to perform national service in States (unlike the U.K.) still so require;
prisoners may be expected to work; jury service may be compulsory and community service is a valid method
of official punishment.20.
The Human Rights Act, 1998, (Article 4) also prohibits slavery and forced or compulsory labour.
[ART. 23.3] INDIA [Art. 23.3.1] Exploitation
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The right against exploitation of all citizens and non-citizens is provided under Articles 23 and 24. These articles
contain prohibition against traffic in human beings, begar and other similar forms of forced labour and against
employment of children in factories, mines or other hazardous occupation. Apart from fulfilling the pledge made
by our country as one of the original signatories to the United Nations Charter, such specific prohibitions
against exploitation of the weaker section of the society by privileged classes were essential in the “milieu” of
caste system all over the country and the plight to which it had reduced some of our citizens described as
Scheduled Castes and Scheduled Tribes in the Constitution.
Exploitation takes place when a woman or child21. is subjected to the commercial22. or immoral23. purposes
of some powerful man or group,21—taking advantage24. of the natural disability or helplessness of the victim.21
It means the utilisation of persons for one’s own ends is opposed to the dignity of the individual to which the
Preamble to our Constitution refers. It is opposed to the Directive Principles of State Policy, i.e., Article 39(e)
and (f).25.
It means the action of exploiting, i.e., making use of meanly or unjustly for one’s own advantage.26.
It is wrong against human dignity 21 and is a violation of “social justice” which is assured by the very Preamble
of the Indian Constitution
.22
[Art. 23.3.2] Scope of Clause (1): Prohibition of traffic in human beings
The terms “traffic in human beings”, “forced labour” or “begar” appear to be of somewhat modern vintage.
There was however a time in human history when practices like sale of human beings and their “families” of the
Romans which it said was a “State in little consisted of patriarch’s wife, children, slaves, hearth and the
surrounding land. The partriarch or the “pater familias” possessed absolute power (patria potestas) over the
families so as to treat its members more in the nature of chattels or property than as fellow members of a group
or polity. The “patria potestas” of the Roman type also prevailed among the Hindus. Let alone the salves, the
“pater familias” could also sell his children. The ancient society moved very slowly towards eventual
emancipation of women, children and slaves from their automatic status of chattels in a particular “familia” to
human beings capable of entering into contracts in the exercise of their own free will. As a carry over from the
ancient society, certain pockets of slavery, bonded labour and begar still survived quite late into the modern
times. It may now be shocking to many of us to hear, but not so in 1857 for the United States Supreme Court to
decide that the slaves are not included and were not intended to be included under the word “citizen” in the
Page 11 of 44
Constitution (i.e., the US Constitution) and can therefore claim none of the rights and privileges which that
instrument provides for and secures to citizens of the US.
Article 4 of Universal Declaration of Human Rights and Declaration of the Rights of the Child of 1959 are not
treaties and did not have legal force. The General Assembly continued its efforts to give legal force to these
declarations. It was with that end in view that the International Covenant on Civil and Political Rights 1966 and
International Covenant on Economic, Social and Cultural Rights 1966 were framed and agreed upon. On
ratification by the specified minimum of States, the Covenant on Economic, Social and Cultural Rights entered
into force on 3 January 1976. India is one of the States which ratified the Covenant on Civil and Political Rights.
The Protocol to the other Covenant, i.e., the Covenant on Civil and Political Rights entered into force on 23
March 1976. India became a party to the Covenant as well as Protocol to it. The two Covenants therefore have
legal force as treaties imposing legal obligations on the parties including India.
Article 10(3) of the Covenant on Economic, Social and Cultural Rights 1966 provide for special measures and
assistance should be taken on behalf of all children and young persons without any discrimination for reasons
of parentage or other conditions. Children and young persons should be protected from economic and social
exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper
their normal development shall be punishable by law. State should also set age limits below which the paid
employment of child labour should be prohibited and punishable by law.27.
This clause prohibits not only forced labour, but also “traffic in human beings”, which is evidently a very wide
expression. It would include not only the prohibition of slavery but also of traffic in women for immoral or other
purposes.28. Trafficking in human beings has been interpreted to include a contract for sale of a woman to a
man for marriage or concubinage, though not for prostitution even when such sale is supported by caste
custom. The court took the above view taking into consideration Articles 1 and 4 of Universal Declaration and
Article 8 of the International Covenant.29. The expression “trafficking in human beings” is evidently a very wide
expression including the prohibition of trafficking in women for immoral or other purposes. At the same time,
Supreme Court held that it will not be possible or practicable to call for the CBI to make a roving enquiry
throughout the country, but issued directions to various State Governments to take speedy action to eradicate
child prostitution. Direction was also issued for rehabilitation of young girls rescued from brothels.30. A Law for
the suppression of such traffic would be valid by reason of the present Article even though it may restrict the
freedom of business and profession guaranteed by Article 19(1)(g).31.
Page 12 of 44
Though the word “slavery” is not used in this Article, the expression “traffic in human beings” is wide enough to
include “trafficking in slaves”, which expression is used in section 371 of the IPC.32.
Article 23 embodies two declarations – (1) That traffic in human beings, begar and other similar forms of forced
labour are prohibited. The prohibition applies not only to States but also to private persons, bodies or
organisations. (2) Any contravention of the prohibition shall be an offence punishable in accordance with law.
Under Article 35 of the Constitution, laws which punish acts prohibited by this article shall be made only by
Parliament, though existing laws on the subject until altered or repealed by parliament are saved.
Traffic in human beings means to deal in men and women like goods, such as to sell or otherwise dispose
them. It would include traffic in women and children for immoral or other purposes.32 The Immoral Traffic
(Prevention) Act 1956 is a law made by Parliament under Article 35 of the Constitution for the purpose of
punishing acts which result in human beings. (The above legislation was originally known as “Suppression of
Immoral Traffic in Women & Girls Act 1956). [The legislation and law on the subject are discussed in Gourav
Jain v UOI33.].
Under the existing law (see Section 370 of Indian Penal Code) whoever imports, exports, removes, buys, sells
or disposes of person as a slave or accepts, receives or detains against his will any person as a slave shall be
punished with imprisonment.
Again, while the American Constitution (13th Amendment), expressly prohibits slavery or involuntary servitude,
that has not been done under the present Article of the Indian Constitution presumably because section 370 of
the IPC penalises the exportation, buying, selling, use and detention of a person “against his will as a slave”;
and kidnapping a person for the purpose of slavery, is an ‘offence under section 367, IPC.
The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and forced labour
wherever they are found. As the Supreme Court34. explains:
The reason for enacting this provision in the Chapter on fundamental rights is to be found in the socio-economic
condition of the people at the time when the Constitution came to be enacted… the Constitution-makers found that
they had the enormous task before them of changing the socio-economic structure of the country with a view to
Page 13 of 44
reaching, social and economic justice to the common man 34 to creating socio-economic conditions in which every one
would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian, social
and economic frame-work.34
It was further observed in that case that: The Article is clearly designed to protect the individual not only against
the State, but also against private citizens. Article 23 is not limited in its application against the State, but it
prohibits “trafficking in human being and begar and other forms of forced labour” practised by anyone else and
wherever they are found. It is clearly intended to be a general prohibition total in its effect and all pervasive in its
range and it is enforceable not only against the State but also against any other person indulging in any such
practice.
Taking into consideration the importance of the Article, court observed: “ …. Whenever any fundamental right
which is enforceable against the private individual such as a fundamental right enacted in Article 17 or 23 or 24
is being violated, it is the constitutional obligation of the State to take necessary steps for the purpose of
interdicting such violation and ensuring observance of the fundamental right by the private individual who is
transgressing the same and this obligation cannot be absolved merely because the person whose fundamental
right is violated is himself entitled to approach the court for enforcement of his fundamental right, particularly
when he belongs to the weaker section of the society”.
Where Government companies or public sector undertakings were not enforcing Payment of Wages Act or
Minimum Wages Act or other social welfare activities, and the employees were also not paid their wages for
years together, it amounts to violation of human rights embodied in various International Treaties and Charters,
Protection of Human Rights Act, Universal Declaration of Human Rights, etc. The Government which is owning
or controlling the company or public sector undertaking for all intent and purport is responsible in the matter of
enforcement of human rights and is also bound to see that the rights of employees of such corporations are not
infringed. Non-payment of wages for years together amounts to “forced labour”. In such cases, the Government
cannot contend that the companies or public sector undertakings are independent and Government cannot be
made liable for violation of non-payment of wages. It was held that the State has a constitutional obligation to
protect the life and liberty of the employees of Government-owned companies or corporation who are citizens of
India. The State also cannot plead that it is not aware of the actual state of affairs. Taking into consideration the
graveness of the situation, court held that the Government is vicariously liable to pay the wages.35. It was
further held therein that financial stringency may not be a ground when the fundamental rights are violated.
Articles 23 and 24 have been put together under the “Right against Exploitation”. Exploitation which means the
Page 14 of 44
utilisation of persons for one’s own end is opposed to the dignity of the individual to which the Preamble of our
Constitution refers. It is opposed to the Directive Principles of State Policy, as for example, Article 39(e) and (f)
which provide respectively that the State shall secure the health and strength of workers, men and women and
tender age of children are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength; that childhood and youth are protected against exploitation and
against moral and material abandonment.
[Art. 23.3.3] Trafficking in Women: A new form of Slavery International
While the original form of slavery, i.e., purchasing human beings for life-long servitude for labour, has practically
disappeared in modern times, it is surprising that it has been replaced by a new form of slavery which is no less
injurious for human civilisation, viz., the disposal of women for immoral purposes, i.e., a trade in human flesh.
It is an international scourge which operates through markets set up in different countries throughout the world
where women are sold to be prostitutes, menials and even brides,36. and those markets operate through
various modern devices and cause the transportation of women from one country to another.
India
In India, the worst form of trafficking in human beings takes place in the form of disposal of females, children or
adults for the purpose of prostitution or like immoral purposes.
Trafficking in human beings is prohibited by Constitution. Article 23 embodies fundamental right to protection
against exploitation. It prohibits trafficking in human beings. Trafficking in human being would take in any form
of trade disgraceful pushing of human being for favours received either as money or in kind including by barter.
Constitutional concept parked in Article 23 is to provide citizens a right guaranteed as fundamental to protection
against exploitation.37. Where there is traffic in human beings, men and women are treated as goods or
chattels to be bought and sold, a thing not very far removed from buying and selling slaves. As regards traffic in
women, it was held in Shama Bai v State of UP38. that a mere perusal of some of its provisions in Suppression
of Immoral Traffic Act shows that the acts made punishable were acts which resulted in traffic in human beings.
Therefore, quite apart from any question of reasonable restrictions under Article 19(1)(g), those provisions had
been validly enacted by Parliament under Article 23 read with Article 35. If there was a conflict between a
fundamental right guaranteed under Article 19 and what was prohibited under Article 23, the prohibition must
prevail over the fundamental right guaranteed under Article 19. Learned author and eminent Jurist H.M.
SEERVAI has gone further and said that the judgment referred above should have gone further and could have
held that traffic in human being is not entitled to protection of Article 19 at all.39.
The Indian Parliament has, in 1956, enacted the Suppression of Immoral Traffic in Women and Girls Act,
1956,* in order to suppres this form of violation of the dignity and human rights of women, in pursuance of the
International Covenant signed at New York in May, 1956, which has been ratified in India.
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This Act defines “prostitution” as the act of a female offering her body for promiscuous sexual intercourse for
hire and “prostitute” as a person who does such act.
A “brothel” is defined as a place or house or part thereof which is used for purposes of prostitution for the gain
of another person or for the mutual gain of two or more prostitutes.
Section 3 of this Act prescribes punishment for keeping a brothel or allowing any premises to be used as a
brothel.
Section 5 prescribes punishment for inducing or taking a woman or girl for the purpose of prostitution. Section 6
punishes a person who detains a woman or girl in any premises where prostitution is carried on.
Section 9 again, punishes the act of seduction of a woman or girl in custody for the purpose of prostitution.
In this connection, the provisions of sections 370 (Trafficking of person) and 372 (Selling minor for purposes
prostitution, etc.) of the Indian Penal Code are to be noted. These sections punish the acts of buying or
disposing of any persons as a slave or for the purpose of prostitution.
Trafficking in persons can be conceptualised in different ways. The definition is contained in United Nations
Trafficking in Persons Protocol. The protocol is intended to prevent, suppress and punish trafficking in persons,
especially women and children supplementing the United Nations Convention against Transnational Organised
Crimes. According to definition which has been adopted by the 160 UN Member States that have ratified the
protocol, there are three distinct constituent elements of trafficking in persons; the act, the means and purpose.
All three elements must be present in order for a case to be defined as a trafficking in persons offence. Each
element has a range of manifestation. The Trafficking in Persons Protocol specifies “the act” means the
recruitment, transfer, harbouring or receipt of persons. The “means” refers to the method used to lure the
victim. Possible means are the threat or use of force, deception, coercion, abduction, fraud, abuse of power or
a position of vulnerability or giving payment or benefits. These terms are not necessarily precise from the legal
point of view and may be defined differently by different jurisdiction. The “purpose” is always exploitation of
victim, though this can take on different forms including sexual exploitation, forced labour, removal of organs or
a range of other forms.40.
[Art. 23.3.4] “Begar”
Begar means “labour or service exacted by Government or a person in power without giving remuneration for
it”.41.
Page 16 of 44
The word “Begar” may be loosely described as labour or service which a person is forced to give without
receiving any remuneration.42. In Peoples’ Union for Democratic Rights case, it was observed: “The word
‘begar’ in this Article is not a word of common use in English language. It is a word of Indian origin which, like
many other words, has found its way in the English vocabulary. It is very difficult to formulate a precise
definition of the word ‘begar’, but there can be no doubt that it is a form of forced labour under which a person is
compelled to work without receiving any remuneration. Molesworth describes “begar” as labour and services
extracted by a Government or person in power without giving remuneration for it. Wilson’s Glossary of Judicial
and Revenue Terms gives the following meaning for the word “begar” as “a forced labourer one pressed to
carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was
given. The “begari”, though still liable to be pressed for public objects, now receives pay”. In Gurdev Singh v
State of H.P.,43. it was held that it is clearly a form of forced labour”.
Under the Zamindari system, tenants, particularly of the lower classes, were sometimes compelled to render
free service to their landlord.44.
“Begar” is a Persian word which means employing any one without remuneration. Bombay High Court in
Vasudevan v S.D. Mittal45. held that begar means labour or service exacted by Government or a person in
power without giving remuneration for it. Article23 prohibits begar and other similar forms of forced labour.
[Art. 23.3.5] “Similar forms of forced labour”
1. The words “similar forms” indicate that the forced labour, which is prohibited must be similar to begar.46. In
Dulal Samanta v District Magistrate,47. interpreting the expression “other similar forms of forced labour” as
appearing in Article 23(1), court held that the expression is to be interpreted ejusdem generis and it has to be
something in the nature of either trafficking in human being or begar. Conscription for police service or military
service cannot come under either of them. Forced labour as a punishment for a criminal offence is not
prohibited. In State v Jorawar,48. a person was convicted and sentenced for his refusal to carry a load of some
Government property at the behest of the Tahsildar who offered to pay remuneration for such labour. The
conviction was set aside on the view that it was repugnant to the prevention of Article 23(1) in as much as the
imposition of compulsory service for the purpose of carrying a load of Government property in normal times
even on payment of remuneration is hardly distinguishable from “begar”.
2. Similarly, there is no begar or forced labour within the inhibition of Article 23, where the petitioners had
voluntarily agreed to do extra work by entering into a contract for additional remuneration and other benefits.49.
Nor is a law which prohibits strikes in essential services within the prohibition of this Clause.50.
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3. Again a Punjab Civil Service Rule which authorised the Government to continue the services of a
Government servant even after superannuation, for the purpose of holding an inquiry into charges of
misconduct committed by him while in service, does not contravene Article 2351. because—
(a) During the period of continuance he was kept under suspension and was not forced to do any work.
(b) Under Clause (2) of Article 23, even compulsory service was not unconstitutional, if it was imposed for
“public purposes”.
The impugned Service Rule was obviously for a public purpose because it was in the interests of the efficiency
of public service that it should remain under the control of the Government so long as the departmental inquiry
against him on a charge of misconduct was not concluded.52.
4. But where a contract for personal service is enforceable under a penal law, it is within the prohibition of this
Article.53. In that case, the issue before the court was whether the decree obtained by plaintiff against the
defendant from a court of competent jurisdiction declaring that the plaintiff was entitled to enforce his right to
obtain services of the defendant as a labourer was opposed to the provisions of Article 23(1). Disobedience of
the decree was punishable under law as an offence. The court held that making it obligatory for an individual to
perform services against his will on pain of prosecution amounts to “begar” or forced labour. The result is the
same where the penalty for default in rendering the service is founded on custom54. or administrative fiat.55.
A. But a law which prohibits a person from refusing to render personal service to another merely on the
ground that he belongs to a Scheduled Caste does not subject the former to “forced labour”.56.
B. On the other hand, as has been stated at the outset, the word “similar” makes the sweep of Article 23
very wide.57. Thus, the system of “bonded labour”,57 or the non-payment of minimum wages for any
work done by a labourer,58. would be condemned as “forced labour” under Article 23(1).
[Art. 23.3.6] Forced labour

Page 18 of 44
“Forced labour” is a wide expression which may be imputed the same meaning as the American expression
“involuntary servitude”. It is to be noted that section 374 of the IPC makes it an offence to “unlawfully compel
any person to labour against the will of that person”. It is evident that it would be no offence punishable under
this section, where the rendering of service is apparently voluntary and an agreement for this purpose is
entered into by a debtor with his creditor, in liquidation of his debt.59.
Forced labour or compulsory labour denotes the following: firstly, that the work or service is performed by the
worker against his will and secondly, that the requirement that the work or service be performed is unjust or
oppressive or the work or services itself involves avoidable hardship. If a person voluntarily chooses his
profession of lawyer and who is aware of his obligation, then he can be taken to have impliedly consented to
fulfill his obligation. In such case the lawyer cannot complains of having to act as unpaid or poorly paid.60.
A custom requiring one day”s free labour to be given to a village headman for services rendered by him as a
headman is an exaction of forced labour which is prohibited by Article 23(1).61. Madhya Pradesh High Court in
one case laid down that withholding of pay of Government employee as a punishment is not valid in view of
Article 23 which prohibits begar.62.
The expression “traffic in human beings” prohibits traffic in women and children for immoral purposes.
Trafficking in human beings can also be for other exploitative purposes such as begging, camel-jockeying
forced domestic labour, etc. The UN Protocol to prevent, suppress and punish trafficking in persons, especially
women and children supplementing the UN Convention against transnational organised crime includes in
trafficking other form of exploitation apart from prostitution and sexual exploitation. These include forced labour
or services; slavery or similar practices of servitude or removal of organs. Traditional practices like “Devadasi”
are also covered. Supreme Court has given directions in various cases pertaining to prostitutes.63.
In Budhadev Karmaskar (1) v State of WB64. and in several other cases, court said that a woman is compelled
to indulge in prostitution not for pleasure, but because of abject poverty. Court gave various directions to
rehabilitate sex workers, who are also entitled to live with dignity. Supreme Court constituted Sex Workers
Rehabilitation Panel and directed the Central and State Governments to provide funds for its effective
working.65.
The Supreme Court has laid down procedural safeguards for child victims of sexual abuse in Sakshi v UOI.66.
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But American expression shows that servitude may be involuntary even where no physical force or fraud has
been used for entering into such contract. Under the system of “debt bondage”, or “peonage” in the U.S.A., an
employer used to pay to an employee some wages in advance and the latter bound himself to the job, whatever
might be its conditions, until the debt was paid off. Under the general law of contracts, such contract was
enforceable by the courts, until it was condemned by the Supreme Court in 1911 in Bailey’s case.67. In that
case, the court held that peonage or compulsory service in payment of a debt is prohibited by 13th Amendment
and the Alabama statute which made the refusal or failure to perform the act or service without refunding the
money, prima facie evidence of the commission of the crime of entering into a contract of service with intent to
injure or defraud the employer is in conflict with 13th Amendment and is therefore invalid. Interpreting the 13th
Amendment, the Supreme Court has later came to hold that it becomes “involuntary servitude” as soon as the
State accords its sanction to such contract, for, the State cannot “directly or indirectly command involuntary
servitude, even if it was voluntarily contracted for”.68.
Where an employee is made to work without payment of salary or where a person is forced to work under a
system of bonded labour or peshgi (advance) payment, the right is violated.69. Article 11 of Constitution of
Pakistan prohibits forced labour and declares that slavery is non-existent. It was held that where a person
enters into a contract to perform a certain service and that makes liability to work overtime, a term of
employment no question of forced labour within the meaning of the said Article.70. A voluntary agreement to do
extra work for payment is not “begar” or forced labour.71. To ask a person to work and not to pay his wages is
“begar”.72. Similarly the employment on daily wages cannot be treated as forced labour especially when they
have accepted the employment at their own volition and are also getting minimum wages.73.
After having availed the services of a teacher, but refusing to pay as the ground that he is an untrained teacher
or that his appointment is not approved by authorities is violation of this Article.74. The Government demanding
services of teachers for census, election, family planning duties is not violative of Article 23(1). Such services
fall within the meaning of “public purpose” under Article 23(2) and these services can be treated as national
service which is a fundamental duty of every citizen under Article 51A.75.
If a person in his employment, he is certain subject to certain terms and conditions and he can quit his
employment under those terms and conditions only, which cannot be said as violation of Article 23. A provision
that notice should be given before he can quit the employment and a no-objection certificate should be obtained
from the employer concerned before joining the new employer is not violation of this Article.76.
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A work contract was awarded under the impression that only hard soil existed at the site and payment was
agreed to be paid on that basis. The contract also provided in the case strata after that specified is met during
the execution of the work. No payment will be made. It was held that such clause would be violation of Article
23, when if the contractor had to work on a strata discovered under the hard soil. “No payment would amount to
forced labour.”77. Equitable wages must be paid to prisoners. It takes care of rehabilitation of prisoner and
provides compensation to victim. Wages fixed a decade back with no provision for revision is violation of Article
23.78.
In tune with the foregoing observations, our Supreme Court has said that “force” in this context, includes not
only physical force but also mental compulsion under penal sanction or due to hunger, poverty or the like.79. In
the words of BHAGWATI, J.:
Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action
may properly be regarded as force, and if labour or service is compelled as a result of such ‘force’ it would be forced
labour.79
In that case, it was contended that Article 23 should be interpreted as prohibiting not every form of forced
labour, but only such form thereof as was similar to “begar” meaning labour or service which a person is forced
to render without receiving any remuneration at all. Court rejected this narrow view of Article 23 and held, “it is
difficult to imagine that the Constitution makers should have intended to strike only at certain forms of forced
labour leaving it open to the socially or economically powerful section of the community to exploit the poor and
weaker sections by resorting to other forms of forced labour. Where a person is suffering from hunger or
starvation when he has no resources at all to fight disease or to feed his wife and children or even to hide their
nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and
despair and where no other employment is available to alleviate his poverty, he would have no choice but to
accept any work that comes his way, even if the remuneration offered to him is less than the minimum wages.
He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in
doing so, he would be acting not as a free agent with a choice between alternatives, but under the compulsion
of economic circumstances and the labour or service provided by him would be clearly “forced labour”. In
another case, court said that where a person provides labour or service to another for remuneration which is
less than the minimum wage the labour or service provided by him clearly falls within the scope and ambit of
forced labour.80. In Labourers Working on Salal Hydro Project v State of J&K,81. court found after getting
various reports that migrant labourers were not paid minimum wages and the labourers were given other
Page 21 of 44
welfare benefits is violative of Article 23. Various directions were given to the States to implement Article 23.82.
Where the State undertakes famine relief work, it is no doubt true that it does so in order to provide relief to
persons affected by drought and scarcity conditions, but, nevertheless, it is work which enures to the benefit of
the State representing the society and if labour or service is provided by the affected person for carrying out
such work, why the State should pay anything less than minimum wages to the affected person. It is not as if a
bounty is given by the State to the affected person in order to provide relief to them against drought and
scarcity conditions nor is the work to be carried out by affected persons worthless or useless to the society, so
that under the guise of providing work what the State in effect and substance seeks to do is to give a dole or
bounty to the affected person.83. In that case, court also said that the State cannot be permitted to take
advantage of helpless conditions of the affected person and extract labour or service from them on payment of
less than the minimum wage. No work of utility and value can be allowed to construct on the blood and seat of
persons who are reduced to a State helplessness on account of drought and scarcity conditions. The State
cannot under the guise of helping those affected persons extract work of utility and value from them without
paying them the minimum wages. Whenever any labour or services is taken by the State from any person,
whether he be affected by drought or scarcity condition or not, the State must pay, at the least, the minimum
wages to such persons on pain of violation of Article 23 and the Rajasthan Famine Relief works Employees
(Exception from Labour Laws) Act, 1964 in so far as it excludes the application of Minimum Wages Act 1948 to
workmen employed in famine work and permits payment of less than the minimum wage to such workmen must
be held to be invalid as offending the provisions of Article 23. The court emphasized that Article 23 is intended
to eradicate the pernicious practice of “forced labour” and to wipe it out altogether from national scene.
Therefore, the Exemption Act which warranted payment of less than minimum wages on famine relief was held
to be unconstitutional. The court directed the State to pay to those workers the minimum wage and also pay
them the difference between the minimum wage and actual wages paid for the past service.
In that case, it was further observed that ordinarily no one would willingly supply his labour for less than the
minimum wages. He will do so only under the force of some compulsion. It was held that “force” must,
therefore, to be construed to include not only physical or legal force, but also force arising from compulsion of
economic circumstances which leaves no choice of alternative to a person in want and compels him to provide
labour or service even though the remuneration received for it is less than the minimum wages.
But a public employment on temporary, contractual, casual, daily wage, or ad hoc basis do not violate Article
23, since the employer have accepted the employment at their own volition and with eyes open as to the nature
of their employment.84. But in State of Karnataka v Ammerbi,85. Anganwadi workers appointed under Central
Government funded scheme known as Integrated Child Development Service Programme, were held not
entitled to claim minimum wage, living wage or fair wage.
Page 22 of 44
Similar is the case of workers working in a fertilizer factory by a co-operative society. The workers were to
handle urea manually without adequate safeguards and were not paid proper wages. It was held that economic
compulsions, may persuade workman to work under conditions different from those envisaged in the labour
laws and merely because they are working, and not under any physical restraint, will not make it other than
“forced labour”.86.
When there is a contract between the management and teacher, the liability to pay salary completely vests in
the management. Merely because the appointment is not approved by the department, the management cannot
refuse payment. Any justification for the acts of management would be violating Article 23.87.
The right to minimum wages has thus been promoted from its statutory to constitutional status, through Article
23, read with Article 21.88. The above principle was not applied in cases where there is no employer-employee
relationship and the employment is also not a scheduled employment under the Minimum Wages Act.89.
Further, even a contract which compels a person to work for less than minimum wages cannot be enforced
through the court and a writ will issue to cancel such contract even though the respondent is a private person
(paras 12 and 14–17).89
To extract hard labour from convicted prisoners serving rigorous punishment imposed by court is under
authority of law and will not amount to forced labour as provided in Article 23. Such prisoners can be employed
to do hard labour irrespective of their consent. Other prisoners such as prisoners undergoing simple
imprisonment, under-trial prisoners, etc. can also be permitted by the jail authorities to do any work of their
choice on their request. But in such cases, the prisoners are entitled to equitable wages. Even though prisoners
convicted of rigorous imprisonment are bound to do hard labour, and consequent to court’s order and also
under the provisions of Prisons Act and Rules, extracting work from them without payment or on payment, but
below minimum wages, would amount to violation of Article 23(1). It was held that according to modern
thinking, the main objective of punishment is reformation, which is a public purpose, imposition of hard labour
on the convicted prisoner or payment of minimum wages serve the public purpose and hence saved under
Clause (2). From the wages, a reasonable amount could be deducted towards their food, clothing and other
amenities. Majority view in State of Gujarat v Hon’ble High Court of Gujarat,90. but according to WADHWA, J.,
if labour anywhere is forced against the will of a person, then irrespective of the fact whether any wages are
paid or not, it would amount to forced labour. But putting a prisoner to hard labour while he is undergoing a
sentence of rigorous imprisonment awarded by a court of law cannot be equated to “begar” or other kinds of
Page 23 of 44
forced labour, and there is no violation of Article 23(1). Hence even non-payment of wages would not amount to
forced labour or violation of Article 23(1). It was held that “crime does not pay should be maintained and prison
cannot be a place where object of punishment is completely lost”.91. Penal servitude is forbidden, but rigorous
imprisonment with hard labour as a form of punishment on conviction by a court of law is not impermissible.
Prisoners convicted and sentenced are put to work – hard labour. It is not taken to be akin to trafficking in
human beings and begar. The prisoners should be paid wages and should not be put to begar.92.
Penal servitude and imprisonment with hard labour were abolished in England by the Criminal Justice Act 1948.
In India, however, rigorous imprisonment with hard labour is one of the punishments to which offenders guilty of
commission of felonious crimes are still liable under the provisions of IPC. Article 8 of the Covenant on Civil and
Political Rights 1966 which stipulates inter alia that no one shall be required to perform forced or compulsory
labour, provides for an exception in that it further lays down that the said prohibition against forced or
compulsory labour shall not apply in countries where such imprisonment with hard labour may be imposed as a
punishment for a crime by a competent court. Therefore, the punishment of imprisonment with hard labour as
provided in IPC is perfectly in accord with the covenant.
The court issued certain direction to the States to make law for setting apart a portion of wages earned by the
prisoners to be paid as compensation to deserving victims of the offence.93.
In D. Bhuvan Mohan Patnaik v State of A.P.,94. it was held that prisoners are also entitled to the rights
guaranteed under Pt III of the Constitution and much reliance was placed on the above decision also to hold
that convicted persons undergoing rigorous imprisonment are entitled to wages for the work done.
It is also held that any wages less than minimum wages prescribed by Minimum Wages Act 1948 is violative of
Article 23. Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964 was held
unconstitutional and violative of Article 23 in so far as it excludes the applicability of Minimum Wages Act. The
contention of the State that famine relief was for the benefit of the society and hence lesser wages were being
paid was rejected as it had no bearing on the wages to be paid to the workman since there was no reason why
the State should pay anything less than the minimum wages to the affected persons.95.
It was further declared that payment of wages including overtime wages, etc. should be made directly to the
workers in full except with authorised statutory deduction, if any. Payment through contractors was prohibited,
even in cases where such workers are engaged through the contractors. If there are any advances repayable
Page 24 of 44
by workmen to the contractor, or any messing charge are to be paid, they may be paid by the workmen to the
contractor after they receive the full amount due to them.96.
[Art. 23.3.7] The system of Bonded Labour
“Poverty and destitution are almost perennial features of Indian rural life for large numbers of unfortunate ill-
starred humans in this country and it would be nothing short of cruelty and heartlessness to identify and release
bonded labourers merely to throw them at the mercy of the existing social and economic system which denies
to them even the basic necessities of life such as food, shelter and clothing. It is obvious that poverty is a curse
inflicted on large masses of people by our malfunctioning socio-economic structure and it has disastrous effect
of corroding the soul and sapping the moral fibre of a human being by robbing him of all basic human dignity
and destroying in him the higher values and finer susceptibilities which go to make up this wonderful creation of
God upon earth, namely, man. It does not mean mere inability to buy the basic necessities of life, but it goes
much deeper, it deprives a man of all opportunities of education and advancement and increases a thousand
fold his vulnerability to misfortunes which come to him all too often and which is not able to withstand on
account of lack of social and material resources. We, who have not experienced poverty and hunger, wants and
destitution, talk platitudinously of freedom and poverty, but these words have no meaning for a person who has
not even a square meal per day, hardly a roof over his head and scarcely one piece of cloth to cover his
shame. What use are “identification” and “release” to bonded labourers, if after attaining their so-called freedom
from bondage to a master, they are consigned to a life of another bondage, namely, bondage to hunger and
starvation where they have nothing to hope for – not even anything to die for – and they do not know whether
they will be able to secure even a morsel of food to fill the hungry stomachs of their starving children. What
would they prize more freedom and liberty with the hunger of their near and dear ones even at the cost of
freedom and liberty. The answer is obvious. It is therefore imperative that neither the Government nor the court
should be made by them to see that freed bonded labourers are properly and suitably rehabilitated after
identification and release”.1.
That there was such a practice prevalent in certain parts of India2. after Independence, would be evident from
the Statement of Objects and Reasons of a Bill brought by the Rajasthan Legislative Assembly to abolish the
system of sagri or hali, as follows:
The sagri or hali system of advancing loans prevails in some parts of the State. Under this system a creditor gives a
loan to a debtor on the condition that until the loan is repaid with interest the debtor or any other member of his family
shall render labour or personal service to the creditor or any other person nominated by him. By the practice of this
system several families have practically become slaves and the Government considers it desirable to abolish this
system and penalize those who advance money under it.
Page 25 of 44
Similar practices are prevalent in other parts of the country also. Often, a child of family is forced to render such
service. There is a close linkage between bounded labour and child labour. This form of bondage is also more
common among SC/ST who are more marginalised among the poor.
The sweep of “forced labour” in Article 23(1) is wider than that of section 374, IPC, because “forced labour” in
Article 23(1) is to be understood in the context of “begar and other similar forms of” in that Clause. Hence, if a
person enters into a contract to serve another person for a nominal remuneration or without remuneration, that
may not be “unlawful” under section 374, IPC, but may yet contravene Article 23(1). Of course, Article 23(1) is
not self-executory but requires legislation to implement it.3.
The definition of “forced labour” is absent in section 374 IPC. But the Supreme Court while interpreting Article
23 has held thus: “Where a person provides labour or service to another for remuneration which is less than the
minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words
“forced labour” under Article 23. Such a person would be entitled to come to court for enforcement of his
fundamental right under Article 23, by asking the court to direct payment of the minimum wages to him, so that
the labour or service provided by him ceases to be a “forced labour” and the breach of Article 23 is remedied. It
was also held that what Article 23 prohibits is “forced labour”, i.e., labour or services which a person is forced to
provide and “force” which would make such labour or service “forced labour”. Forced labour may arise in
several ways. It may be physical force which may compel a person to provide labour or service to another or it
may be force exerted through a legal provision such as a provision for imprisonment or fine in case the
employee fails to provide labour or services or it may even be compulsion arising from hunger and poverty,
wants or destitution. Any factor which deprives a person of a choice of an alternative and compels him to adopt
one particular course of action may properly be regarded as a “force” and if labour or service is compelled as a
result of such “force”, it would be forced labour”.4.
In Sageer v State of UP,5. court said that bonded labour system as defined in section 2(g) of Bonded Labour
System (Abolition) Act, 1976 shows that it is usually as a result of advances given by way of bonded debt that a
debtor or his dependants or heirs are compelled to provide forced or partly forced labour to the creditor for a
specified or unspecified period for no wage or for nominal wages, to forfeit their right to freely sell their labour in
the market, change their employer or to move about freely in India. Therefore, if any advance was given, it may
have actually been a bonded labour. Section15 of the Act says that when a claim is raised by the debtor that a
particular advance is a bonded debt, the onus lies on the creditor to disprove the claim.
Page 26 of 44
Secondly, even where no force or coercion was physically applied, involuntariness or compulsion may be
inferred by a court from the circumstances, having regard to the relationship between the parties, e.g., debtor
and creditor, and the nature of the services or personal labour stipulated for repayment of the debt.
In fact even if remuneration is paid, but the labour was forced and not supplied willingly, it would violate Article
23.
Bonded labour
Parliament has enacted the comprehensive Bonded Labour System (Abolition) Act, 1976, on these premises.
This Act defines [section 2(g)] the “bonded labour system” as a system of forced, or partly forced, labour under
which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect
that, (i) in consideration of an advance obtained by him or any of his ascendants or descendants; or (ii) in
pursuance of any customary6. or social obligation; or (iii) in pursuance of any obligation devolving on him by
succession; (iv) by reason of birth in a particular caste or community; or (v) for any economic consideration
received by him or by any of his ascendants or descendants the debtor would be bound to do any of the
following acts:
(a) to render to the creditor, for a specified or unspecified period, labour or service to the creditor, by
himself or through any member of the debtor’s family without wages or for nominal wages;
(b) to forfeit his freedom of employment or other means of livelihood;
(c) to forfeit his right to move freely throughout India;
(d) to forfeit the right to appropriate or sell at market value any of his property or anything produced by him
or his family.
This Act abolishes the bonded labour system and discharges all debts and obligation to render labour, etc.,
under any such practice, and makes the enforcement of any such contract by a creditor or other person, an
offence punishable by an Executive Magistrate, and the jurisdiction of civil courts is excluded.
The Supreme Court has held that, in view of Article 21, read with Article 23, it is the constitutional obligation of
the State to take necessary measures not only to release7. bonded labourers from their bondage but also to
rehabilitate8. them so that they may enjoy their constitutional right to live with human dignity.
It was held that if any advance is paid and amount is due to the kiln-owner, from the workmen, that cannot
Page 27 of 44
justify their detention in the premises. They must be allowed to leave the premises. It was further directed that
in case they need any rehabilitation assistance, the District Magistrate will take necessary action.9.
Section 3 of UP Removal of Social Disabilities Act 1947 provides that no person shall refuse to render to any
person merely on the ground that he belongs to a Scheduled Caste, any service which such person already
renders to other Hindus on the terms on which such service is rendered in the ordinary course of business. It
was held that the above provision does not contravene Article 23 of the Constitution because when a person is
prohibited from refusing to render service merely on the ground that the person asking for it belongs to SC/ST,
he is not being subjected to forced labour.10. Rule 326 of Punjab Civil Service Rules which provided that
service of a Government servant could continue in certain circumstances even though he had attained the age
of superannuation was not violative of Article 23. Such service should not be equated with the expression
“begar” or “forced labour” in Article 23.11.
Where one person works for less than the minimum wages, the presumption is that he is working under some
compulsion.12.
Any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of
action may properly be regarded as “force” and if labour or service is compelled as a result of such ‘force, it
would be forced labour.13.
In Sanjit Roy v State of Rajasthan,14. court invalidated the provision of Rajasthan Famine Relief Works
Employees Act 1964, which exempted the application of Minimum Wages Act 1948 to the employment of family
relief works. The law laid down in Peoples’ Union for Democracy v UOI,15. which was followed in Sanjit Roy’s
case (supra) was fully endorsed in Bandhua Mukti Morcha v UOI,16. where the court declared bonded labour
as a crude form of forced labour prohibited by Article 23. The court also held that failure of the State to identify
the bonded labourers to release them from bondage and to rehabilitate them as envisaged by Bonded Labour
System (Abolition) Act, 1976 violates Articles 21 and 23. Supreme Court characterized the system of bonded
labour under which one person is bonded to provide labour to another for years and years under an alleged
debt is supposed to be wiped out which never seems to happen during the lifetime of the bonded labourer as
“totally incompatible with the new egalitarian socio-economic order” which we have promised to build and it is
not only an affront to basic human dignity, but also constitutes gross and revolting violation of constitutional
values. Court has linked Articles 23 and 21 in the context of the bonded labour and observed: “It is the
fundamental right of every one in this country, assured under the interpretation given to Article 21 to live with
dignity, free from exploitation”.17. In that case, court emphasized the importance of rehabilitation of released
bonded labourers, otherwise, their condition would be much worse than before. Court directed the State
Government “to draw up a scheme or programme for a better and more meaningful rehabilitation of the free
labourers”.
Page 28 of 44
In Neeraja Choudhary v State of M.P.,18. direction was given to the State to rehabilitate the bonded labourers
as it was apprehended that if they are not rehabilitated then they would soon relapse in the state of bondage.
The court outlined the method of identification of bonded labourers and held that whenever it is found that any
workman is forced to provide labour for no remuneration or nominal remuneration, the presumption would be
that he is a bonded labourer unless the employer or the State Government is in a position to prove otherwise by
rebutting such presumption. It was held that under Articles 21 and 23, a person is entitled to live with dignity
free from exploitation and when the bonded labourer is released from bondage, they must be suitably
rehabilitated, and any failure to implement Bonded Labour System (Abolition) Act would amount to violation of
Articles 21 and 23 of the Constitution.19. On the above decisions, Supreme Court has given various directions
from time to time to States regarding the rehabilitation of bonded labourers.
In that case, court said that poverty and destitution are almost perennial features of Indian rural life for large
numbers of unfortunate ill-starred humans in this country and it would be nothing short of cruelty and
heartlessness to identify and release bonded labourers merely to throw them at the mercy of the existing social
and economic system which denies to them even the basic necessities of life such as food, shelter and
clothing. It is therefore imperative that neither the Government nor the court should be content with merely
securing identification and release of bonded labourers, but every effort must be made by them to see that
freed bonded labourers are properly and suitably rehabilitated after identification and release. The court also
emphasized that any failure on the part of Government in interpreting the provisions of Bonded Labour System
(Abolition) Act, 1976 would be the clearest violation of Articles 21 and 23. It was further observed that the
above legislation was enacted by Parliament pursuant to the Directive Principles of State Policy with a view to
ensuring basic human dignity to the bonded labourers. In 1997, the court asked the National Human Rights
Commission to take over the monitoring of the implementation of the direction of court and that of the provisions
of the Bonded Labour System (Abolition) Act 1976. In Public Union for Civil Liberties v State of Tamil Nadu,20.
court gave further direction on the issue of rehabilitation. The court acknowledged the role played by non-
governmental organisations and suggested that their services should be utilised for rehabilitating released
bonded labourers.
In Bandhua Mukti Morcha case, the Supreme Court also considered the applicability of workmen under Mines
Act, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, Contract
Labour (Regulation and Abolition) Act, 1970, etc. court finally held that the State cannot be permitted to
repudiate its obligation that though the concerned labourers may be provided forced labour, the State
Government does not owe any obligation to them unless and until they show in any appropriate legal
proceedings conducted according to rules of adversary system of justice that they are bonded labourers. It was
held that certain presumption could be raised that a workman is a “bonded labourer”, for unless he had been
paid as advance a sum of money or any other consideration, especially when most of the workmen are
members of scheduled castes or scheduled tribes or other backward classes. The court was of the view that it
Page 29 of 44
can take judicial notice of the above facts and raise a presumption,21. wherein it was held that financial
assistance given to bonded labourer should be adequate for the purpose of rehabilitation. Grant of Rs 738 per
family as financial assistance was found to be very inadequate.
[Art. 23.3.8] “Prohibited”
The first part of the Article is couched in general language. If an individual imposes begar or forced labour upon
another, he would be punishable according to the law22. which is contemplated by the second part of the
Article. On the other hand, if the State passes a law which, in effect, imposes forced labour23. or gives its
sanction to a contract for forced labour,24. it would be void.
[Art. 23.3.9] “Punishable in accordance with law”
See Article 35(ii), post.
Existing law. Section 374 of the Indian Penal Code says:
Whoever unlawfully compels any person to labour against the will of that person, shall be punished....
Legislation by Parliament. The Bonded Labour System (Abolition) Act, 1976. [See p. 5207, ante].
[ART. 23.4] CLAUSE (2) [Art. 23.4.1] Scope of Clause (2): Compulsory service for public purposes
This clause is an exception to the bar imposed by Clause (1), on the ground of “public purposes”. Under this
clause the State will be free to require compulsory service for public purposes. The latter part of the clause
enjoins that while imposing compulsory service for public purposes, the State cannot exempt anybody simply
on the ground of race, religion, caste or class, and consequently, no citizen shall be entitled to avoid such
service on any of these grounds. Hence, conscription for national defence cannot be avoided on grounds of
religion.25. DR. AMBEDKAR explained in the Constituent Assembly that whenever compulsory labour or
compulsory service is demanded, it shall be demanded from all and if the State demands service from all and
does not pay any, the State is committing a very great irregularity.26. Such compulsory service, however, must
be for a public purpose. It has been held that conscription for social service such as spreading of literacy is a
public purpose.27.
[Art. 23.4.2] “Public purposes”
Page 30 of 44
This expression includes any purpose in which even a fraction of the community may be interested or
benefited.28.
It includes any purpose in which the general interest of the community, as opposed to the particular interest of
individuals is directly and vitally concerned29. the mea-sures included in the Directive Principles in Pt IV,
calculated to promote the welfare of the people.30.
The only authority which may impose compulsory service for purpose is the State and none else. Parliament
has already enacted the National Service Act 1972, empowering the Government to conscript qualified doctors
and engineers for national service. The term “national service” means any service which is likely to assist the
defence of India and Civil defence or the efficient conduct of military operation and includes such social
services as the Central Government may, if it is of opinion that it is necessary for public purposes, so to do, by
notification specified in that behalf.
Thus, there will be no contravention of Article 23(2)—
(i) To compel a cultivator to carry foodgrains to the Government godown, without remuneration for such
labour, in a scheme of procurement of foodgrains as an essential commodity for the community.31. But
a Government servant could not, in normal times, be compelled to carry loads outside his official
duties.32.
Under Rule 125 of Defence of India rules, orders were made imposing compulsory levy of food-
grains on cultivators. Clause (7) of the Order provided for payment of transport charges at the rate
of 10 paise per quintal per mile for the transport of food-grains from the village of the cultivator to
the nearest Government godown. It was contended that the rate of transport charges was grossly
inadequate and amounted for all practical purposes to forced labour for nominal charges and,
therefore, infringed Article 23 of the Constitution. The court rejected the contention, firstly, because
the transport charges were not to be considered in isolation, but were to be added to the price
fixed for the food-grains, as they formed an important element in the amount paid to the seller.
Court also held that even if it were held that the seller was compelled to render service to
Government by being required to bring the food-grains from the village to the Government godown,
Page 31 of 44
the order would be saved under Article 23(2), since it was made for public purpose, namely,
equitable distribution of essential commodities which affected the life of the community.33.
The expression “public purpose” is not defined. But it means a purpose in which the general
interest of the community, as opposed to particular interest of an individual, is directly and vitally
concerned.34. The expression has been held to include compulsory military service.35.
(ii) To compel a Government servant to continue in service even after the age of superannuation, pending
the conclusion of a departmental inquiry, would be valid under this Clause.36.
(iii) Section 17 of the Police Act which requires the resident of a locality to assist the police to suppress
disturbance of the peace in that locality,37. would not be unconstitutional.
(iv) To compel a person to render social services, e.g., as part of a campaign to reduce mass illiteracy,38.
or to render medical or other professional service in remoter parts of the country, as has been provided
by enacting the National Service Act, 1972 (see p. 5213, post).
(v) A prisoner undergoing rigorous imprisonment can be subjected to hard labour. An assurance to him
that his hard labour would eventually snowball into a handsome saving for his own rehabilitation would
help him to get stripped-off the moroseness and desperation in his mind, while toiling the rigours of
hard labour during the period of jail life. Hence they serve a public purpose. A reformative approach
towards the convict through punishment and hard labour attempts to make him a good man and hence
exaction of hard labour from a person undergoing rigorous imprisonment is saved under Article
23(2).39.
The State cannot put the prisoners sentenced to rigorous imprisonment to hard labour without
payment of wages in view of the nature of the sentence they serve. The court in Gurudev Singh v
State of HP,40. disapproved the argument advanced that giving of better facilities and payment of
wages to them would mean creating an atmosphere that committing of crime and going to prison is
a better mode of living and earning wages. Court held that prisoners of various categories in all the
jails in the State are entitled to be paid reasonable wages for the work they are called upon to do in
the jail and outside the jails and the Government must pay minimum wages as notified by the State
Government from time to time under Minimum Wages Act 1948 to the prisoner. The payment of
wages should be equivalent to the minimum wages for the labour provided by the prisoners;
otherwise, it would be “forced labour” within the meaning of Article 23 and payment of wages
below the minimum wages would violate Article 23.
Page 32 of 44
Equitable wages cannot be paid to prisoners and the same is liable to be revised as and when
price/cost index rises.41.
The expression, “public purpose” is not defined; it means a purpose of which the general interest of
the community, as opposed to particular interest of an individual is directly and vitally
concerned.42. The words “public purpose” used in Article 23(2) indicate that the Constitution uses
those words in a very large sense. It was held that all that will be calculated to promote the welfare
of the people as envisaged in the Directive Principles of State- Policy, whatever else the
expression may mean.43.
[Art. 23.4.3] Compulsory military service or conscription (A) England.
U.K.
At common law, the Crown possesses the prerogative to demand personal service within the realm, in case of
sudden invasion or formidable insurrection. In modern times, however, the power of conscription is conferred by
statute. Thus, during World War II, a host of legislation was passed to authorise the Executive to conscribe men
for military service within the UK as well as abroad.44.
(B) U.S.A.
U.S.A.
The power to impose compulsory service has been held to belong to Congress under its power “to raise and
support armies” [Article I, Section 8(12)],45. and this power is not taken away by the Thirteenth Amendment.46.
The expression has been held to include compulsory military service.47.
(C) Australia.
Australia
The power to impose compulsory training does not offend against the “free exercise of religion” guaranteed by
section 116 of the Australian Constitution Act.48.
(D) West Germany.
West Germany
By an amendment of the Constitution, inserting Article 12a,49. power to impose military service upon men aged
18 years and over has been provided, subject to conscientious objection to act as an armed combatant.
Page 33 of 44
(E) India.
India
Under our Constitution, too, Parliament has, under Entry I of List I, the power to raise forces by conscription, if
necessary, for defence or prosecution of war.50. There can be no higher public purpose than the defence of the
State itself. “Just Government includes the reciprocal obligation of the citizen to render military service in case
of need and the right to compel it.”51. For the same reason, it would include police service.
[Art. 23.4.4] Legislation by Parliament
Parliament has enacted the National Service Act, 1972, which empowers the Government to call up
professionals, such as doctors and engineers below the age of 30, for defence services and national causes
such as rural health, family planning, construction of dams, bridges and roads in remote or backward areas, for
a specified period.
Article 4(3)(b) of the European Convention on Human Rights also declare that any services of a military
character or his case of conscientious objectors in countries where they are recognised, services extracted
instead of compulsory military service will not amount to forced or compulsory labour.
1. Bailey v Alabama, (1911) 219 US 207.
2. See P. Ramanatha Aiyar’s, The Advanced Law Lexicon, 3rd Edn, p 2455.
3. See Justice Fazal Karim, Retired Judge of Pakistan Supreme Court, Judicial Review of Public Action, 2006 Edn, p
634.
4. Plessy v Ferguson, 163 US 537 : 41 L Edn 256.
5. Clyatt v U.S., (1905) 197 US 207.

Page 34 of 44
6. Robertson v Baldwin, (1897) 165 US 275.
7. Butler v Perry, (1916) 240 US 328 (333).
8. Selective Draft Law Cases, (1918) 245 US 366 (390); U.S. v Brooks, (1944) 54 F Supp 995; Kennedy v Mendoza,
(1963) 372 US 144 (159–60).
9. Butler v Perry, (1916) 240 US 328 (333).
10. U.S. v Reynolds, (1914) 235 US 133.
11. Ex parte Karstendick, (1876) 93 US 396.
12. Dorchy v Kansas, (1926) 272 US 306; Auto Workers v Wisconsin Board, (1949) 336 US 245.
13. Hodges v U.S., (1906) 203 US 1.
14. International Union v Wisconsin Board, (1949) 336 US 245.
15. Clyatt v U.S., (1905) 197 US 207; U.S. v Reynolds, (1914) 235 US 133.
16. Pollock v Williams, (1944) 322 US 4.
17. Lord Denning, Landmarks in the Law, London: Butterworths, pp 214–219.
18. PLD 1990 SC 513.
19. See Helen Fenwick, Civil Liberties, 1994 Edn, p 40.
20. See Edwin Shorts and Claire De Than, Civil Liberties, Legal Principles and Individual Freedoms, 1998 Edn, p 460.
Page 35 of 44
21. Cf. Article 39(f) of the Constitution of India; Bandhua v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564]: (1984) 2 SCR 67
22. Cf. Peoples’ Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1983) 1 SCR 456 [LNIND 1982 SC 135] : (1982)
3 SCC 235 [LNIND 1982 SC 135] (paras 11–12).
23. Chitan J. Vaswani v State of W.B., AIR 1975 SC 2473 [LNIND 1975 SC 416]: (1976) 2 SCR 300 [LNIND 1975 SC
416] : (1975) 2 SCC 829 [LNIND 1975 SC 416] (para 15).
24. Cf. Black’s Law Dictionary; Webster’s World Dictionary.
25. H. M. Seervai, Constitutional Law of India, Universal Law Publishers, 4th Edn, Vol II, p 1234.
26. P. Ramanatha Aiyer’s, Advanced Law Lexicon, 3rd Edn 2005, Book 2, p 1724.
27. See Constitutional Law of India (1984 Edn.) published by Bar Council of India Trust – article written by Justice K.S.
Sidhu of Rajasthan High Court at pp 522, 523, 524 and 525.
28. See Raj Bahadur v Legal Remembrancer, Govt. of West Bengal, AIR 1953 Cal 522 [LNIND 1953 CAL 30]; Shama Bai
v State of U.P., AIR 1959 All 57 [LNIND 1958 ALL 99].
29. Nikal Singh v Ram Bai, AIR 1987 MP 126 [LNIND 1986 MP 89].
30. Vishal Jeet v UOI, AIR 1990 SC 1412 [LNIND 1998 SC 579]: (1990) 3 SCC 318 [LNIND 1998 SC 579].
31. Shama v State of U.P., AIR 1959 All 57 [LNIND 1958 ALL 99].
32. See Raj Bahadur v Legal Remembrancer, AIR 1953 Cal 522 [LNIND 1953 CAL 30].
Page 36 of 44
34. Cf. People’s Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1983) 1 SCR 456 : (1982) 3 SCC 235 [LNIND
1982 SC 135] (paras 11–12).
35. Kapila Hingorani v State of Bihar, (2003) 6 SCC 1 [LNIND 2003 SC 521].
36. Cf. The Statesman, 4 July 1996.
37. Noushad v State of Kerala, (2011) 4 Ker LT 301 .
38. AIR 1959 All 57 [LNIND 1958 ALL 99] .
39. See H.M. Seervai, Constitutional Law of India, 4th Edn, Vol II, p 1244.
* . Now the Immortal Traffic (Prevention) Act, 1956.
40. See Global Report on Trafficking in Persons, 2014
41. Vasudevan v Mittal, AIR 1962 Bom 53 [LNIND 1961 BOM 5](67); Suraj v State of M.P., AIR 1960 MP 303 [LNIND
1960 MP 118].
42. Peoples’ Union for Democratic Rights v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1982) 3 SCC 235 [LNIND
1982 SC 135]; State of Gujarat v Hon’ble High Court of Gujarat, AIR 1998 SC 3164 [LNIND 1998 SC 920]: (1998) 7
SCC 392 [LNIND 1998 SC 920].
43. Gurdev Singh v State of H.P., AIR 1992 HP 76 [LNIND 1991 HP 42].
44. Cf. Constitutional Proposals of the Sapru Committee, pp 222, 234; see also Constituent Assembly Debates, Vol VII,
pp., 809–11.
Page 37 of 44
45. AIR 1962 Bom 53 [LNIND 1961 BOM 5](supra).
46. State v Banwari, AIR 1951 All 515 [LNIND 1950 ALL 324].
47. Dulal Samanta v District Magistrate, AIR 1958 Cal 365 [LNIND 1958 CAL 9].
48. AIR 1953 HP 18.
49. Dubar v UOI, AIR 1952 Cal 496 [LNIND 1951 CAL 205].
50. Vasudevan v Mittal, AIR 1962 Bom 53 [LNIND 1961 BOM 5](67).
51. Partap v State of Punjab, AIR 1964 SC 72 [LNIND 1963 SC 211]: (1964) 4 SCR 733 [LNIND 1963 SC 211] : (1966) 1
LLJ 458 [LNIND 1963 SC 211] (para 70) (CB).
52. Partap v State of Punjab, AIR 1964 SC 72 [LNIND 1963 SC 211]: (1964) 4 SCR 733 : (1966) 1 LLJ 458 [LNIND 1963
SC 211] (para 70) (CB).
53. Kadar v Muthukoya, AIR 1962 Ker. 138 [LNIND 1961 KER 188].
54. Kahaosan v Simirei, AIR 1961 Mani 1.
55. Chandra v State of Rajasthan, AIR 1956 Raj. 188 [LNIND 1956 RAJ 249].
56. State v Banwari, AIR 1951 All 515 [LNIND 1950 ALL 324] .
57. Neeraja v State of M.P., AIR 1984 SC 1099 [LNIND 1984 SC 153] : (1984) 3 SCC 243 [LNIND 1984 SC 153] .
58. Peoples’ Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135] : (1983) 1 SCR 456 [LNIND 1982 SC 135] : (1982) 3
59. Madan Mohan, (1892) 19 Cal 572.

Page 38 of 44
60. X v Federal Republic of Germany, D&R 18 (1980) at pp 216, 219. See Helen Fenrwick, Civil Liberties, 1995 Edn, p 40.
61. Ruiweinao Kahassan v Ruiweinao Simirci Shailai Khullappa, AIR 1961 Mani 1.
62. Suraj Narain v State of MP, AIR 1960 MP 303 [LNIND 1960 MP 118].
63. Vishal Jeet v UOI, AIR 1990 SC 1412 [LNIND 1998 SC 579]: (1990) 3 SCC 318 [LNIND 1998 SC 579]; Gaurav Jain v
UOI, AIR 1990 SC 292 [LNIND 1989 SC 564]: 1990 (Supp) SCC 709.
64. (2011) 11 SCC 538 [LNIND 2011 SC 176] : 2011 Cr LJ 1684 : (2011) 2 Scale 435 [LNIND 2011 SC 176].
65. Buddhadev Karmasker v State of WB (2), etc, (2011) 11 SCC 538 [LNIND 2011 SC 176] : 2011 Cr LJ 1684.
66. Sakshi v UOI, (2004) 5 SCC 518 [LNIND 2004 SC 657] : AIR 2004 SC 3566 [LNIND 2004 SC 657].
68. Pollock v Williams, (1944) 322 US 4.
69. Darshan Masih v State, PLD 1990 SC 513.
70. Dalmia Cement Co Ltd v Dalmia Cement Factory Workers’ Union, PLD 1958 SC (Pak) 153.
71. Shama Bai v State of U. P., AIR 1959 All 57 [LNIND 1958 ALL 99].
72. Suraj Narain v State of M.P., AIR 1960 MP 303 [LNIND 1960 MP 118]. See also Kapila Hingorani v State of Bihar,
(2003) 6 SCC 1 [LNIND 2003 SC 521].
Page 39 of 44
73. Secretary of State of Karnataka v Umadevi, (2006) 4 SCC 1 : AIR 2006 SC 1806 [LNIND 2006 SC 1944].
74. Ram Lakhan Prasad v State of Bihar, 1994 SCC (L&G) 1128; Bharat Primary School v A. Pauldurai, (2006) 4 Mad LJ
1125. Also see Anandi Mukta Sadguru S.M.V.S.J.M.S. Trust v V.R. Rudani, AIR 1989 SC 1607 [LNIND 1971 SC 236]:
(1989) 2 SCC 691 [LNIND 1989 SC 295].
75. Devendra Nath Gupta v State of MP, AIR 1983 MP 172 [LNIND 1983 MP 178].
76. See Chairman and M.D., Indian Airlines v Binod Kumar Sinha, AIR 2001 SC 3988 [LNIND 2001 SC 932]: (2001) 8
SCC 722 [LNIND 2001 SC 932].
77. Heera Singh v State of Rajasthan, AIR 2007 Raj. 213 [LNIND 2007 RAJ 153].
78. S.P. Anand v State of M.P., AIR 2007 MP 166 [LNIND 2007 MP 140].
79. Peoples’ Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1983) 1 SCR 456 [LNIND 1982 SC 135] : (1982) 3
SCC 235 [LNIND 1982 SC 135] (paras 10, 11, 15).
80. Sanjit Roy v State of Rajasthan, AIR 1983 SC 328 [LNIND 1983 SC 32]: (1983) 1 SCC 525 [LNIND 1983 SC 32] :
(1983) 3 SCR 271.
81. AIR 1984 SC 177 [LNIND 1983 SC 75]: (1983) 2 SCC 184
82. See also Santhal Pargana Antyodaya Ashram v State of Bihar, 1987 (Supp) SCC 141; Gaurav Jain v UOI, AIR 1997
83. Sanjit Roy v State of Rajasthan, AIR 1983 SC 328 [LNIND 1983 SC 32]: (1983) 1 SCC 525 [LNIND 1983 SC 32]
(supra).
84. State of Karnataka v Umadevi, AIR 2006 SC 1806 [LNIND 2006 SC 1944]: (2006) 4 SCC 1.
Page 40 of 44
85. (2007) 11 SCC 68 : (2007) 1 JT (SC) 279.
86. Rohit Vasavada v General Manager, IFFCO, AIR 1984 Guj 102. See also Ram Kumar Misra v State of Bihar, AIR 1984
87. Bharati Primary School v A. Pauldurai, (2006) 4 Mad LJ 1125. See also Anandi Mukta Sadguru S. M.V.S.J.M.S. Trust
v V. R. Rudani, AIR 1989 SC 1607 [LNIND 1971 SC 236]: (1989) 2 SCC 691 [LNIND 1989 SC 295].
88. Peoples’ Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1983) 1 SCR 456 [LNIND 1982 SC 135] : (1982) 3
SCC 235 [LNIND 1982 SC 135] (paras 10, 11, 15). See also Ram Kumar v State of Bihar, AIR 1984 SC 537 [LNIND
1983 SC 262]: (1984) 2 SCC 451 [LNIND 1983 SC 262].
89. Lingegowd Detective and Security Chamber v Mysore Kirloskar Ltd, (2006) 5 SCC 180 [LNIND 2006 SC 357].
90. State of Gujarat v Hon’ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR 1998 SC 3164 [LNIND
1998 SC 920].
91. See the article “Compulsory Hard Prison Labour and Prisoner’s Right to receive Wages – Constitutional Vires and
Judicial Voices”, Journal of Indian Law Institute, Vol 42, p 1.
92. Porla Bhackarva Vijayakumar v State of AP, AIR 1988 AP 295 [LNIND 1987 AP 201].
93. Decision in Prison Reforms Enhancement of Wages of Prisoners, In re., 1983 Ker LT 512 : AIR 1983 Ker. 261 [LNIND
1983 KER 100]; Jails Reforms Committee v State of Gujarat, (1985) Criminal Ref. No. 2 of 1984; Poola Bhaskara
Vijayakumar v State of A.P., AIR 1988 AP 29 approved.
94. D. Bhuvan Mohan Patnaik v State of A.P., (1975) 3 SCC 185 [LNIND 1974 SC 269].
95. Sanjit Ray v State of Rajasthan, AIR 1983 SC 928 : (1983) 1 SCC 525 [LNIND 1983 SC 32] : (1983) 2 SCR 271
[LNIND 1983 SC 32]; Bandhua Mukti Morcha v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564]: (1984) 3 SCC 161
[LNIND 1983 SC 564] : (1984) 2 SCR 67 [LNIND 1983 SC 564]. See also Lingegowd Detective and Security Chamber
Pvt Ltd v Mysore Kirloskar Ltd, AIR 2006 SC 1967 [LNIND 2006 SC 357]: (2006) 5 SCC 180 [LNIND 2006 SC 357].
Page 41 of 44
96. Labourers, Salal Hydro Electric Project v State of J.&K., AIR 1984 SC 177 [LNIND 1983 SC 75]: (1983) 2 SCC 181
[LNIND 1983 SC 75].
1. Justice Bhagavati in Neeraj Choudhary v State of MP AIR 1984 SC 1099 [LNIND 1984 SC 153]: (1984) 3 SCC 213
followed in Sageer v State of UP, 2012 (91) ALR 59 [LNIND 2012 ALL 5059] : 2012 (133) FLR 90..
2. Vide Bonded Labour System (Abolition) Act, 1976.
3. See the Bonded Labour System (Abolition) Act, 1976, above.
4. Peoples’ Union for Democracy v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1982) 3 SCC 235 [LNIND 1982 SC
135] (supra).
5. Sageer v State of UP, 2012 (91) ALR 59 [LNIND 2012 ALL 5059] : 2012 (133) FLR 90.
6. Thangkul v Shailee, AIR 1961 Mani 1 .
7. Bandhua v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564] : (1984) 2 SCR 67 : (1984) 3 SCC 161 [LNIND 1983 SC 564]
(para 10).
8. Neeraja v State of M.P., AIR 1984 SC 1099 [LNIND 1984 SC 153] : (1984) 3 SCC 243 [LNIND 1984 SC 153] (paras
5–6).
9. Ram Pal v Maishi Lal Raj Kumar, (1982) 2 SCC 349 .
10. State v Banwari, AIR 1951 All 615 [LNIND 1951 ALL 15] .
11. S. Pratap Singh v State of Punjab, AIR 1964 SC 72 [LNIND 1963 SC 211] : (1964) 4 SCR 733 [LNIND 1963 SC 211] .
Page 42 of 44
12. Peoples’ Union for Democracy v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135] : (1982) 3 SCC 235 [LNIND 1982 SC
135] .
13. Labourers of Salal Hydro Project v State of J & K, AIR 1984 SC 177 : (1983) 2 SCC 181 [LNIND 1983 SC 75] .
14. AIR 1983 SC 328 [LNIND 1983 SC 32] : (1983) 1 SCC 525 : (1983) 3 SCR 271 .
17. See Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] : (1981) 1 SCC 608 [LNIND
1981 SC 27] .
18. Neeraja Choudhary v State of M.P., AIR 1984 SC 1099 [LNIND 1984 SC 153] : (1984) 3 SCC 243 [LNIND 1984 SC
153] .
19. See also Bandhua Mukti Morcha v UOI, AIR 1984 SC 802 [LNIND 1983 SC 564] : (1984) 3 SCC 161 [LNIND 1983 SC
564] .
21. See also P. Sivaswamy v State of A.P., AIR 1988 SC 1863 [LNIND 1988 SC 377] : (1988) 4 SCC 466 [LNIND 1988
SC 377] .
22. See the Bonded Labour System (Abolition) Act, 1976, above.
23. State v Jarawar, AIR 1953 HP 18 (19).

Page 43 of 44
25. Murdock v Pennsylvania, (1943) 319 US 105; Re Summers, (1945) 324 US 561; Krygger v Williams, (1912) 15 CLR
366.
26. Constitutinal Assembly Debates, Vol VII, p 813.
27. State v Jorawar, AIR 1953 HP 18.
28. Somawanti v State of Punjab, AIR 1963 SC 151 [LNIND 1962 SC 209]: (1963) 2 SCR 774 [LNIND 1962 SC 209].
29. Framjee v Secy. of State, (1914) 39 Bom 279 (PC); see also under Article 31(2), post.
30. Cf. State of Bihar v Kameshwar, AIR 1952 SC 252 [LNIND 1952 SC 44]: 1952 SCR 889 [LNIND 1952 SC 44] : 1952
SCJ 354.
31. Acharaj v State of Bihar, AIR 1967 Pat. 114 (119).
33. Acharaj Singh v State of Bihar, AIR 1967 Pat. 114 .
34. Framji v Secretary of State, AIR 1914 PC 20 .
35. Arver v US, 245 US 366.
36. Partap Singh v State of Punjab, AIR 1964 SC 72 [LNIND 1963 SC 211] (100) : (1964) 4 SCR 733 [LNIND 1963 SC
211] : (1966) 1 LLJ 458 [LNIND 1963 SC 211] .
37. Dulal v D.M.,AIR 1958 Cal 355 .
39. State of Gujarat v Hon’ble High Court of Gujarat, AIR 1998 SC 3164 [LNIND 1998 SC 920] : (1998) 7 SCC 392
[LNIND 1998 SC 920] .
40. AIR 1992 HP 76 [LNIND 1991 HP 42] .
41. S.P. Anand v State of M.P., AIR 2007 MP 166 [LNIND 2007 MP 140] .
42. Transji v Secretary of State, AIR 1914 PC 20 .
43. State of Bihar v Kameshwar Singh, AIR 1952 SC 252 [LNIND 1952 SC 44] : (1952) SCR 889 [LNIND 1952 SC 44] .
Page 44 of 44
44. E.g., The National Service (Armed Forces) Act, 1939; the Armed Forces (Conditions of Service) Act, 1930; the
National Service Act, 1941; the National Service (Foreign Countries) Act, 1942; Wade and Bradley, Constitutional Law,
10th Edn, 1985, pp 557–58.
45. Selective Draft Law Cases, (1918) 245 US 366.
46. Butler v Perry, (1916) 240 US 328 (333); Kennedy v Mendoza, (1963) 372 US 144.
47. Arver v U.S., 245 US 366.
48. Krygger v Williams, (1912) 15 CLR 366 .
49. 3 SCW 220.
50. 3 SCW 220.
51. Partap Singh v State of Punjab, AIR 1964 SC 72 [LNIND 1963 SC 211] (100) : (1964) 4 SCR 733 [LNIND 1963 SC
211] : (1966) 1 LLJ 458 [LNIND 1963 SC 211] .
End of Document
Art.24. Prohibition of employment of children in factories, etc.-
Constitution of India > PART III FUNDAMENTAL RIGHTS (contd.) > Right against Exploitation
Right against Exploitation
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any
other hazardous employment.
[ART. 24.1] OTHER COUNTRIES (A) U.S.A.
U.S.A.
There is no constitutional prohibition against employment of children in any industries. But the authority of
Congress to regulate the employment of children in industries engaged in inter-State commerce has been
upheld by the Supreme Court.1. Thus, the Fair Labour Standards Act of 1938, which has been upheld as
valid,1 excludes from inter-State commerce the commodities in the production of which children under certain
specified ages had worked. Thus, youths between the ages of 16 and 18 are excluded from hazardous
employments, e.g., in explosive plants or coal mines, motor-driving, occupations involving exposure to
radioactive substances.
This Act, as amended in 1951, has prohibited the employment of children engaged in the production of goods
entering into inter-State commerce, which are declared as hazardous by the specified authority.
Page 2 of 13
It is curious to note, however, that a direct measure to prohibit child labour on a national level, by amending the
Constitution, which was proposed in 1924, failed to receive the requisite ratification by the States, and nothing
further has been done in this behalf.
Child Labour Tax Law was passed which imposed tax on child labour. The validity of the enactment ever
challenged. It was held that the act amounts to prohibiting of child labour which is a State subject and is
violation of Tenth Amendment. It was further observed that imposition really amounts to penalty under the guise
of tax and hence invalids.2.
Article 19 of American Convention on Human Rights says that every minor child has the right to the measures
of protection required by his condition as a minor on the part of his family, society and the State.
(B) England.
U.K.
The employment of children in factories and mines is prohibited by the Factories Act, 1937, and the Mines and
Quarries Act, 1954.3. Apart from these, the Children and Young Persons Act, 1933, prohibits the employment
of children in dangerous public performances, driving motor vehicles and the like.
[ART. 24.2] INTERNATIONAL CHARTERS A. International Covenant on Economic, Social and Cultural
Rights.—
Article 10.3 of the International Covenant on Economic, Social and Cultural Rights, 1966, says:
….. Children and young persons should be protected from economic and social exploitation. Their employment in work
harmful to their morals or health or dangerous to life or likely to hamper their normal development should be
punishable by law. States should also set age limits below which the paid employment of child labour should be
prohibited and punishable by law.
B. European Social Charter.—
The European Social Charter, 1961, imposes upon Member States the obligation, inter alia,
Page 3 of 13
to provide that the minimum age of admission to employment shall be 15 years, subject to exceptions for children
employed in prescribed light work, without harm to their health, morals or education.
C. Minimum Age Convention.—
Article 1 of the The Minimum Age Convention, 1973, provides that
Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the
effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a
level consistent with the fullest physical and mental development of young persons.
D. Worst Form of Child Labour Convention.—
The Worst Form of Child Labour Convention, 1999 was adopted on 17 June 1999 by the General Conference
of the International Labour Organization at its eighty-seventh session after considering the need to adopt new
instruments for the prohibition and elimination of the worst forms of child labour, as the main priority for national
and international action and to complement the Convention and the Recommendation concerning Minimum
Age for Admission to Employment, 1973.
E. Convention on the Rights of the Child.—
Article 3 of the Convention on the Rights of the Child, adopted and opened for signature, ratification and
accession by General Assembly resolution 44/25 of 20 November 1989 provides that
…States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being,
taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible
for him or her, and, to this end, shall take all appropriate legislative and administrative measures…
Article 32 of the same convention also provides that:

Page 4 of 13
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing
any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's
health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the
implementation of the present article. To this end, and having regard to the relevant provisions of other
international instruments, States Parties shall in particular:
(a) Provide for a minimum age or minimum ages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present
article.
[ART. 24.3] INDIA [Art. 24.3.1] Prohibition of Child Labour
Our Constitution goes in advance of that of the U.S.A. by laying down a constitutional prohibition against
employment of children (i.e., below 14 years) in (a) factories (b) mines as well as (c) any other hazardous
employment. The expression “any other hazardous employment” has to be construed by the rule of ejusdem
generis. Employments connected with transport would come within this expression. So, a child, in India, has a
fundamental right not to be employed in such hazardous works and anything which may require such
employment would be void.
There are several provisions in our Constitution for the welfare and healthy development of children. Article 24
lays down as a fundamental right that no children below the age of 14 years shall be employed to work in a
factory or mine or engaged in any hazardous employment. Article 39(f) contains a Directive Principle of State
Policy to the effect that the State shall direct its policy securing that children are given opportunities and
facilities to develop in a healthy manner in conditions of freedom and dignity and that childhood and youth are
protected against exploitation. Article 45 contains another Directive Principle of State Policy requiring the State
to make provision for free and compulsory education for all children until they complete the age of fourteen
years. The Employment of Children Act 1938,* the Factories Act 1948, the Mines Act 1952, and Apprentices
Act 1961 are some of the important enactments in the statute book to protect the children from exploitation by
unscrupulous employers.
[Art. 24.3.2] “Hazardous employment”
This expression is to be interpreted in a wide sense, in conformity with Convention No. 59 adopted by the
I.L.O., which has been ratified by India.4.
Page 5 of 13
Electricity is hazardous since it can injure or even kill people if not properly handled.5.
This expression is, therefore, to be interpreted to include “construction work” even though it was not specified in
the Schedule to the Employment of Children Act, 1938 (below).
It follows that the employment of children below the age of 14 years would be a violation of Article 24.6 Hence,
a person whose fundamental right under Article 24 is thus violated, may bring a Writ Petition under Article 32
against the Government of India and its agencies, such as the D.D.A. (who come within the definition of “State”
under Article 12),6. and would protect the persons employed by their contractors (paras 6, 10).6 The right may
be enforced by a PIL.6
It was contended in that case, that construction work is not mentioned in the Schedule to Employment of
Children Act and, therefore, employment of children in such work is not illegal. This contention was rejected on
the ground that even if the Act does not prohibit the employment, Article 24 is a total bar on employment of
children below fourteen years. It was held that construction work is hazardous and employment in such work is
violative of the Article,7. in which case the court thrust upon the Government to provide children of construction
workers of a project which is likely to last for some time, facilities for schooling and transportation.
[Art. 24.3.3] Existing law
Article 15(5) of the Constitution has provided the State with the power to make special provision for women and
children. Article 21A of the Constitution mandates that every child in India shall be entitled to free and
compulsory education upto the age of fourteen years. The word “life” in the context of Article 21 of the
Constitution has been found to include “education” and accordingly the right to education is in fact a
fundamental right. Article 23 of the Constitution prohibits traffic in human beings, begars and other similar forms
of forced labour and exploitation. Although Article 23 does not specifically speak of children, yet it is applied to
them and is more relevant in their context because children are the most vulnerable sections of the society. It is
a known fact that many children are exploited because of their poverty. They are deprived of education, made
to do all sorts of work injurious to their health and personality. Article 24 expressly provides that no child below
the age of fourteen shall be employed to work in any factory or mine or engaged in any hazardous employment.
The Directive Principle of State Policy embodied in the Constitution provides the policy of protection of children
with a self-imposing direction towards securing the health and strength of workers, particularly to see that
children of tender age are not abused, nor they are forced by economic necessity to enter into avocation
unsuited to their strength. Article 45 has provided that State shall endeavour to provide early childhood care
and education for all children until they complete the age of fourteen years. The directive principle signifies that
Page 6 of 13
it is not only confined to primary education, but extends to free education whatever it may be to the age of
fourteen years. Article 45 is supplementary to Article 24 on the ground that the child is not to be employed
before the age of fourteen years; he must be kept occupied in educational institution. It is suggested that Article
24 in turn supplements clauses (e) and (f) of Article 39, thus ensuring distributive justice to children in the
matter of education. Virtually Article 45 recognises the importance of dignity and personality of the child and
directs the State to provide free and compulsory education for all the children upto the age of fourteen years.
The Juvenile Justice (Care and Protection of Children) Act, 2000 [earlier the “Juvenile Act, 1986”] was enacted
to provide for the care, protection, development and rehabilitation of neglected or delinquent juveniles. This is
being ensured by establishing observation homes, juvenile houses, juvenile homes or neglected juvenile and
special homes for delinquent or neglected juveniles. In Vishal Jeet v UOI,8. Supreme Court issued several
directions to the State and Central Government for eradicating child prostitution and for providing adequate
rehabilitation homes well manned by well qualified trained senior workers, psychiatrists and doctors.9.
The Factories Act (LXII of 1948), prohibits the employment of children below 14 years in factories (section 67).
[Art. 24.3.4] Legislation by Parliament
Section 45 of the Mines Act (XXXV of 1952) prohibits the employment of children below 14 years where mining
operations are being carried out or in any mine, below ground.
The Apprentices Act, 1961, which permits the employment of apprentices in a trade, for practical and basic
training in such trade, prohibits the employment of children below 14 as apprentices.
In 1986, Parliament has enacted a comprehensive law,—the Child Labour (Prohibition and Regulation) Act,
1986,—prohibiting the employment of children in certain employments. The definition of a “child” in this Act is a
person who has not completed 14 years (as specified in Article 24 of the Constitution) and the corresponding
definition in all previous enactments has been amended accordingly.
The Schedule to the Act in Pt A lists certain “occupations” and Pt B lists certain “processes” in which
employment of children is prohibited.10.
I. The “occupations” listed in Pt A are:

Page 7 of 13
(1) Transport of passengers, goods or mails by railway;
(2) Cinder picking, clearing of an ash-pit or building operation in the railway premises;
(3) Work in a catering establishment at a railway station, involving the movement of a vender or any
other employee of the establishment from one platform to another or into or out of a moving train;
(4) Work relating to the construction of a railway station or with any other work, where such work is
done in close proximity to or between the railway lines; and
(5) A port authority within the limits of any port.
II. The processes listed as Pt B are:
(1) Bidi-making. (2) Carpet-weaving. (3) Cement manufacture, including bagging of cement. (4) Cloth printing,
dyeing and weaving. (5) Manufacture of matches,10 explosives and fire-works. (6) Mica-cutting and splitting. (7)
Shellac manufacture. (8) Soap manufacture. (9) Tanning. (10) Wool-cleaning. (11) Building and construction
industry.11.
This Act also prescribes the hours of work and other conditions for the employment of children in those
establishments where it is not totally prohibited.
Supreme Court took judicial notice of child labour in Sivakasi, a town in Tamil Nadu, where the provisions of the
Article is being violated. It was held that abolition of child labour is definitely a matter of great public concern
and significance. Court also took note of international commitments (under the Convention on the Rights of the
child which were concluded by U.N. General Assembly on 20 November 1989) and other statutory provisions.
The court held that poverty is the main reason which compels parents of a child despite their unwillingness to
get the child employed. The court said that insisting on compulsory education may to a certain extent solve the
problem. Court took note of Article 39(e) as well as Article 45. The court directed that employers must comply
with the provisions of Child Labour (Prohibition and Regulation) Act, 1986, and made them liable to pay
compensation of Rs 20,000 for every child employed in contravention of the provision. Direction was given to
Government to provide employment to an adult member of the family in lieu of the child belonging to that family
who has been employed in any factory, mine or other hazardous work or it must deposit Rs 5,000 for each
child. In cases where alternative employment is not possible, parent or guardian of the child would be entitled to
be paid per month the income earned on the corpus of Rs 25,000. But the parent or guardian was obliged to
Page 8 of 13
send the child for education failing which the above direction was not to be made effective. In so far as non-
hazardous jobs are concerned, the authorities shall see that the working hours of the child are not more than
four to six hours a day and it receives education at least for two hours each day, and the entire cost shall be
met by the employer.12. In M.C. Mehta v State of TN,13. court also found the reason for failure of legislative
measures to eliminate child labour. The cause of failure of legislative measures to eliminate child labour have
been identified to be – (1) poverty; (2) low wages of the adult; (3) unemployment; (4) absence of schemes for
family allowance (5) migration to urban areas; (6) large families; (7) children being cheaply available; (8) non-
existence of provisions for compulsory education; (9) illiteracy and ignorance of parents; and (10) traditional
attitude.
In Bachpan Bachao Andolan v UOI,14. Supreme Court prohibited employment of children below the age of 18
years in circus and directed the States to prepare scheme for rehabilitation of rescued children from circus.
Employing children under the age of 14 years in any factory would be an offence under section 104(1) of Tamil
Nadu Factories Act and when the prosecution prima facie establishes that age of children is below 14 years, it
is for the accused to prove that the age is above 14.15.
For tackling the problem of child labour, Supreme Court issued direction under the Child Labour (Prohibition
and Regulation) Act 1986, and directed the State Government regarding the fulfillment of legislative intendment
behind the enactment. Court directed that the offending employer must be asked to pay compensation for every
child employed in contravention of the provisions of the Act a sum of Rs 20,000/- and the Inspectors appointed
under the Act must secure the compliance of the Act and see that for each child appointed in contravention of
the provisions of the Act, the concerned employee pays Rs 20,000/- which sum could be deposited in a fund to
be known as Child Labour Rehabilitation-cum-Welfare Fund. The Fund so generated shall form a corpus whose
income shall be used only for the concerned child.16.
Regarding employment of children of age below 14 years in match factories, court said that employment in
connection with manufacturing process should not be given to children, but they could be employed in packing
process which has to be done away from the place of manufacture. The court also considered the scope of
Article 39(f) of the Constitution and directed the State Government to provide educational facilities to the
children and also to create a welfare fund. Direction was also given regarding payment of wages, compulsory
insurance.17.
Page 9 of 13
In Bandhua Mukti Morcha v UOI,18. the decision in M.C. Mehta’s case (supra) was affirmed. Court took note of
employment of children in carpet-weaving centres in Bihar and observed that basic cause for child labour being
poverty, instead of its total prohibition which will have adverse effect, it should be banned progressively in a
planned manner starting from most hazardous and intolerable activities. It directed that primary education to
children, in particular, to the child from poor, weaker sections, Dalits and Tribes and minorities is made
mandatory. The basic education and employment orientated vocational education should be imparted so as to
empower the children within those segments of the society to retrieve them from poverty and thus develop
basic abilities, skills and capabilities to live a meaningful life for economic and social empowerment.
Compulsory education to these children is one of the principal means and primary duty of the State was
directed to implement.
As per Constitution (Eighty-sixth Amendment) Act, 2002, dated 12 December 2002 (w.e.f. 1 April 2010),
Parliament has inserted Article 21(A) whereby fundamental right to compulsory education to all children of the
age of six to 14 years has been guaranteed at the expense of State. The insertion of Article 21A as per
Constitution (86th Amendment) Act was held valid in Pramati Educational and Cultural Trust v UOI.19. The
above decision was overruled in the decision in Society for Unaided Private Schools of Rajasthan v UOI,20. to
the extent where it was held that Right of Children to Free and Compulsory Education Act 2009 will apply to
aided minority schools. The legislation was held ultra vires Article 30(1) of the Constitution. Court said that the
legislation will not apply to minority institutions, whether aided or unaided, for, that will violate Article 30.
[Art. 24.3.5] Analogous provisions of the Constitution for the protection of children
The very Preamble to the Constitution promises to every citizen equality of status and opportunity. This is not
possible to achieve so long as any section of citizens remain underdeveloped or exploited by the more powerful
groups or individuals.
For the purpose of ensuring equality, of opportunity to Women and Children (who suffer from natural
disabilities), Article 15(3) enables the State to make “special provisions” for their protection or benefit, as an
exception to the guarantee of equality to all citizens offered by Article 15(1).
Pursuant to the same policy of offering opportunities for the development of children, various provisions have
been included in Pt IV of the Constitution, imposing obligations upon the State in this behalf.
Clause (f), of Article 39,21. as it stands after the 1976-amendment, thus provides—
Page 10 of 13
“39. The State shall, in particular, direct its policy towards securing
22.(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment.”
Clause (e) of Article 39, again, says:
…and the tender age of children are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength.
As regards the employment of children below the age of 14 years, which would obviously reflect upon their
health and lead to their exploitation, a total ban is imposed as regards employment in hazardous activities.
Side by side with the above, Article 45 enjoins the State to provide free and compulsory education to children
until they complete the age of 14 years. In the words of the Supreme Court.23.
The spirit of the Constitution perhaps is that children should not be employed in factories as childhood is the formative
period and in terms of Art. 45 (now Art. 21-A) they are meant to be subjected to free and compulsory education until
they complete the age of 14 years… all children up to the age of 14 years are supposed to be in school.
[Art. 24.3.6] Legislative Power
See Entry 24 of List III, Sch. VII.

Page 11 of 13
1. U.S. v Darby Lumber Co, (1941) 312 US 100.
2. Bailey v Drexel Flurniture Co, (1922) 259 US 20 : 42 S Ct 449. See also Hammer v Dagenhart, (1918) 247 US 251.
3. Halsbury, Laws of England, 3rd Edn, Vol 21, pp 300–301.
* Now repealed.
4. People’s Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1983) 1 SCR 456 [LNIND 1982 SC 135] : (1982) 3
SCC 235 [LNIND 1982 SC 135] (paras 6, 9, 10, 11, 16).
5. UP State Electricity Board v District Magistrate, Dehradun, AIR 1998 All 1 [LNIND 1997 ALL 190].
6. People’s Union v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1983) 1 SCR 456 : (1982) 3 SCC 235 [LNIND 1982
SC 135] (paras 6, 9, 10, 11, 16).
7. See also Labourers Salal Hydro Project v State of J&K, AIR 1984 SC 177 [LNIND 1983 SC 75]: (1983) 2 SCC 181
[LNIND 1983 SC 75] : (1983) 2 SCR 473 [LNIND 1983 SC 75]. See also Peoples’ Union of Democratic Rights v UOI,
9. See Childline India Foundation v Allan John Waters, (2011) 6 SCC 261 [LNIND 2011 SC 314] : (2011) 3 Scale 639
[LNIND 2011 SC 314] : 2011 Cr LJ 2305.
10. Cf. Mehta v State of T.N., AIR 1991 SC 417 : (1991) 2 SCR 676 [LNIND 1991 SC 261] : (1991) 3 SCC 213 [LNIND
1991 SC 261] (para 3).
Page 12 of 13
SC 135].
12. M.C. Mehta (Child labour matter) v State of Tamil Nadu, (1996) 6 SCC 756 [LNIND 1996 SC 2094].
14. (2011) 5 SCC 1 [LNIND 2011 SC 431] : AIR 2011 SC 3361 [LNIND 2011 SC 431]: (2014) 4 Scale 769.
15. N. Bhageerathan v State, (1999) Cr LJ 632 (Mad).
16. M.C. Mehta v State of Tamil Nadu, AIR 1997 SC 699 [LNIND 1996 SC 2094]: (1996) 6 SCC 756 [LNIND 1996 SC
2094].
17. M.C. Mehta v State of Tamil Nadu, AIR 1991 SC 417 : (1991) 1 SCC 283 [LNIND 1996 SC 2094].
18. Bandhua Mukti Morcha v UOI, AIR 1997 SC 2218 [LNIND 1997 SC 327]: (1997) 10 SCC 549 [LNIND 1997 SC 327].
SC 135].
22. Substituted by the Constitution (42nd Amendment) Act, 1976.
23. Mehta v State of T.N., AIR 1991 SC 417 : (1991) 2 SCR 676 [LNIND 1991 SC 261] : (1991) 3 SCC 213 [LNIND 1991
SC 261] (para 6).
Page 13 of 13
End of Document
APPENDIX I THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976
Constitution of India > APPENDICES
(Act 19 of 1976)
[9th February, 1976]
An Act to provide for the abolition of bonded labour system with a view to preventing the economic and physical
exploitation of the weaker sections of the people and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Twenty-seventh Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
S. 1. Short title, extent and commencement.—(1) This Act may be called the Bonded Labour System (Abolition) Act,
1976.
(2) It extends to the whole of India.
(3) It shall be deemed to have come into force on the 25th day of October, 1975.
S. 2. Definitions.—In this Act, unless the context otherwise requires,—

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(a) “advance” means an advance, whether in cash or in kind, or partly in cash or partly in kind, made by one
person (hereinafter referred to as the creditor) to another person (hereinafter referred to as the debtor);
(b) “agreement” means an agreement (whether written or oral, or partly written and partly oral) between a
debtor and creditor, and includes an agreement providing for forced labour, the existence of which is
presumed under any social custom prevailing in the concerned locality.
Explanation.—The existence of an agreement between the debtor and creditor is ordinarily presumed,
under the social custom, in relation to the following forms of forced labour, namely:—
Adiyamar, Baramasia, Basahya, Bethu, Bhagela, Cherumar, Garru-galu, Hali, Hari, Harwai, Holya,
Jana, Jeetha, Kamiya, Khundit-Mundit, Kuthia, Lakhari, Munjhi, Mat, Munish system Nit-Majoor,
Paleru, Padiyal, Pannayilal, Sagri, Sanji, Sanjawat, Sewak, Sewakia, Seri, Vetti;
(c) “ascendant” or “descendant”, in relation to a person belonging to a matriarchal society, means the person
who corresponds to such expression in accordance with the law of succession in force in such society;
(d) “bonded debt” means an advance obtained, or presumed to have been obtained, by a bonded labourer
under, or in pursuance of the bonded labour system;
(e) “bonded labour” means any labour or service rendered under the bonded labour system;
(f) “bonded labourer” means a labourer who incurs, or has, or is presumed to have incurred, a bonded debt;
(g) “bonded labour system” means the system of forced, or partly forced, labour under which a debtor enters,
or has, or is presumed to have, entered, into an agreement with the creditor to the effect that—
(i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants
(whether or not such advance is evidenced by any document) and in consideration of the interest, if
any, due on such advance, or
(ii) in pursuance of any customary or social obligation, or
(iii) in pursuance of an obligation devolving on him by succession, or
(iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or
(v) by reason of his birth in any particular caste or community,

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he would—
(1) render, by himself or through any member of his family, or any person dependent on him, labour or service
to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either
without wages or for nominal wages, or
(2) forfeit the freedom of employment or other means of livelihood for a specified period or for an unspecified
period, or
(3) forfeit the right to move freely throughout the territory of India, or
(4) forfeit the right to appropriate or sell at market value any of his property or product of his labour or the
labour of a member of his family or any person dependent on him,
and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is
presumed to have, entered, into an agreement with the creditor to the effect what in the event of the failure of the
debtor to repay the debt, he would render the bonded labour on behalf of the debtor;
1.[Explanation.—For the removal of doubts, it is hereby declared that any system of forced, or partly forced labour
under which any workman being contract labour as defined in clause (b) of sub-section (1) of section 2 of the
Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970), or an inter-State migrant workman as defined in
clause (e) of sub-section (1) of section 2 of the Inter-state Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 (30 of 1979), is required to render labour of service in circumstances of the nature
mentioned in sub-clause (1) of this clause or is subjected to all or any of the disabilities referred to in sub-clauses
(2) to (4) is “bonded labour system” within the meaning of this clause.]
(h) “family”, in relation to a person, includes the ascendant and descendant of such person;
(i) “nominal wages”, in relation to any labour, means a wage which is less than,
(a) the minimum wages fixed by the Government, in relation to the same or similar labour, under any law
for the time being in force, and
(b) where no such minimum wage has been fixed in relation to any form of labour, the wages that are
normally paid, for the same or similar labour, to the labourers working in the same locality;
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(j) “prescribed” means prescribed by rules made under this Act.
S. 3. Act to have overriding effect.—The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of
any enactment other than this Act.
CHAPTER II
ABOLITION OF BONDED LABOUR SYSTEM
S. 4. Abolition of bonded labour system.—(1) On the commencement of this Act, the bonded labour system shall
stand abolished and every bonded labourer shall, on such commencement, stand freed and discharged from any
obligation to render any bonded labour.
(2) After the commencement of this Act, no person shall—
(a) make any advance under, or in pursuance of, the bonded labour system, or
(b) compel any person to render any bonded labour or other form of forced labour.
S. 5. Agreement, custom, etc., to be void.—On the commencement of this Act, any custom or tradition or any
contract, agreement or other instrument (whether entered into or executed before or after the commencement of
this Act), by virtue of which any person, or any member of the family or dependant of such person, is required to do
any work or render any service as a bonded labourer, shall be void and inoperative.
CHAPTER III
EXTINGUISHMENT OF LIABILITY TO REPAY BONDED DEBT
S. 6. Liability to repay bonded debt to stand extinguished.—(1) On the commencement of this Act, every obligation
of a bonded labourer to repay any bonded debt, or such part of any bonded debt as remains unsatisfied
immediately before such commencement, shall be deemed to have been extinguished.
(2) After the commencement of this Act, no suit or other proceeding shall lie in any civil court or before any other
authority for the recovery of any bonded debt or any part thereof.
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(3) Every decree or order for the recovery of bonded debt, passed before the commencement of this Act and not
fully satisfied before such commencement, shall be deemed, on such commencement, to have been fully satisfied.
(4) Every attachment made before the commencement of this Act, for the recovery of any bonded debt, shall, on
such commencement, stand vacated; and where, in pursuance of such attachment, any movable property of the
bonded labourer was seized and removed from his custody and kept in the custody of any court or other authority
pending sale thereof, such movable property shall be restored, as soon as may be practicable after such
commencement, to the possession of the bonded labourer.
(5) Where, before the commencement of this Act, possession of any property belonging to a bonded labourer or a
member of his family or other dependant was forcibly taken over by any creditor for the recovery of any bonded
debt, such property shall be restored, as soon as may be practicable after such commencement, to the possession
of the person from whom it was seized.
(6) If restoration of the possession of any property referred to in sub-section (4) or sub-section (5) is not made
within thirty days from the commencement of this Act, the aggrieved person may, within such time as may be
prescribed, apply to the prescribed authority for the restoration of the possession of such property and the
prescribed authority may, after giving the creditor a reasonable opportunity of being heard, direct the creditor to
restore to the applicant the possession of the concerned property within such time as may be specified in the order.
(7) An order made by any prescribed authority, under sub-section (6), shall be deemed to be an order made by a
civil court and may be executed by the court of the lowest pecuniary jurisdiction within the local limits of whose
jurisdiction the creditor voluntarily resides or carries on business or personally works for gain.
(8) For the avoidance of doubts, it is hereby declared that, where any attached property was sold before the
commencement of this Act, in execution of a decree or order for the recovery of a bonded debt, such sale shall not
be affected by any provision of this Act:
Provided that the bonded labourer, or an agent authorised by him in this behalf may, at any time within five years
form such commencement, apply to have the sale set aside on his depositing in court, for payment to the decree-
holder, the amount specified in the proclamation of sale, for the recovery of which the sale was ordered, less any
amount, as well as mesne profits, which may, since the date of such proclamation of sale, have been received by
the decree-holder.
(9) Where any suit or proceeding, for the enforcement of any obligation under the bonded labour system, including
a suit or proceeding for the recovery of any advance made to a bonded labourer, is pending at the commencement
of this Act such suit or other proceeding shall, on such commencement, stand dismissed.
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(10) On the commencement of this Act, every bonded labourer who has been detained in civil prison, whether
before or after judgment, shall be released from detention forthwith.
S. 7. Property of bonded labourer to be freed from mortgage, etc.—(1) All property vested in a bonded labourer
which was, immediately before the commencement of this Act under any mortgage, charge, lien or other
encumbrances in connection with any bonded debt shall, in so far as it is relatable to the bonded debt, stand freed
and discharged from such mortgage, charge, lien or other encumbrances and where any such property was,
immediately before the commencement of this Act, in the possession of the mortgage or the holder of the charge,
lien or encumbrance, such property shall (except where it was subject to any other charge), on such
commencement, be restored to the possession of the boned labourer.
(2) If any delay is made in restoring any property, referred to in sub-section (1), to the possession of the bonded
labourer, such labourer shall be entitled, on and from the date of such commencement, to recover from the
mortgagee or holder of the lien, charge or encumbrance, such mesne profits as may be determined by the civil
court of the lowest pecuniary jurisdiction within the local limits of whose jurisdiction such property is situated.
S. 8. Freed bonded labourer not to be evicted from homestead, etc.—(1) No person who has been freed and
discharged under this Act from any obligation to render any bonded labour, shall be evicted from any homestead or
other residential premises which he was occupying immediately before the commencement of this Act as part of the
consideration of the bonded labour.
(2) If, after the commencement of this Act, any such person is evicted by the creditor from any homestead or other
residential premises, referred to in sub-section (1), the Executive Magistrate in charge of the Sub-Division within
which such homestead or residential premises is situated shall, as early as practicable, restore the bonded labourer
to the possession of such homestead or other residential premises.
S. 9. Creditor not to accept payment against extinguished debt.—(1) No creditor shall accept any payment against
any bonded debt which has been extinguished or deemed to have been extinguished or fully satisfied by virtue of
the provisions of this Act.
(2) Whoever contravenes the provisions of sub-section (1), shall be punishable with imprisonment for a term which
may extend to three-years and also with fine.
(3) The court, convicting any person under sub-section (2) may, in addition to the penalties which may imposed
under that sub-section, direct the person to deposit, in court, the amount accepted in contravention of the provisions
of sub-section (1), within such period as may be specified in the order for being refunded to the bonded labourer.
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CHAPTER IV
IMPLEMENTING AUTHORITIES
S. 10. Authorities who may be specified for implementing the provisions of this Act.—The State Government may
confer such powers and impose such duties on a District Magistrate as may be necessary to ensure that the
provisions of this Act are properly carried out and the District Magistrate may specify the officer subordinate to him,
who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the
local limits within which such powers or duties shall be carried out by the officer so specified.
S. 11. Duty of District Magistrate and other officers to ensure credit.—The District Magistrate authorised by the
State Government under section 10 and the officer specified by the District Magistrate under that section shall, as
far as practicable, try to promote the welfare of the freed bonded labourer by securing and protecting the economic
interests of such bonded labourer so that he may not have any occasion or reason to contract any further bonded
debt.
S. 12. Duty of District Magistrate and officers authorised by him.—It shall be the duty of every District Magistrate
and every officer specified by him under section 10 to inquire whether, after the commencement of this Act, any
bonded labour system or any other form of forced labour is being enforced by, or on behalf of, any person resident
within the local limits of his jurisdiction and if, as a result of such inquiry, any person is found to be enforcing the
bonded labour system or any other of forced labour, he shall forthwith take such action as may be necessary to
eradicate the enforcement of such forced labour.
CHAPTER V
VIGILANCE COMMITTTEES
S. 13. Vigilance Committees.—(1) Every State Government shall, by notification in the Official Gazette,
constitutesuchnumberofVigilanceCommittees in each district and each Sub-Division as it may think fit.
(2) Each Vigilance Committee, constituted for a district, shall consist of the following members, namely:—
(a) the District Magistrate, or a person nominated by him, who shall be the Chairman;
(b) three persons belonging to the Scheduled Castes or Scheduled Tribes and residing in the district, to be
nominated by the District Magistrate.
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(c) two social workers, resident in the district, to be nominated by the District Magistrate;
(d) not more than three persons to represent the official or non-official agencies in the district connected with
rural development, to be nominated by the State Government;
(e) one person to represent the financial and credit institutions in the district, to be nominated by the District
Magistrate.
(3) Each Vigilance Committee, constituted for a Sub-Division, shall consist of the following members, namely:—
(a) the Sub-Divisional Magistrate, or a person nominated by him, who shall be the Chairman;
(b) three persons belonging to the Scheduled Castes or Scheduled Tribes and residing in the Sub-Division, to
be nominated by the Sub-Divisional Magistrate;
(c) two social workers, resident in the Sub-Divisional, to be nominated by the Sub-Divisional Magistrate;
(d) not more than three persons to represent the official or non-official agencies in the Sub-Division connected
with rural development to be nominated by the District Magistrate;
(e) one person to represent the financial and credit institutions in the Sub-Division, to be nominated by the
Sub-Divisional Magistrate;
(f) one offer specified under section 10 and functioning in the Sub-Division.
(4) Each Vigilance Committee shall regulate its own procedure and secretarial assistance, as may be necessary,
shall be provided by—
(a) the District Magistrate, in the case of a Vigilance Committee constituted for the district;
(b) the Sub-Divisional Magistrate, in the case of a Vigilance Committee constituted for the Sub-Division.
(5) No proceeding of a Vigilance Committee shall be invalid merely by reason of any defect in the constitution, or in
the proceedings, of the Vigilance Committee.
S. 14. Functions of Vigilance Committees.—(1) The functions of each Vigilance Committee shall be,—
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(a) to advise the District Magistrate or any officer authorised by him as to the efforts made, and action taken,
to ensure that the provisions of this Act or of any rule made thereunder are properly implemented;
(b) to provide for the economic and social rehabilitation of the freed bonded labourers;
(c) to coordinate the functions of rural banks and co-operative societies with a view to canalising adequate
credit to the freed bonded labourer;
(d) to keep an eye on the number of offences of which cognizance has been taken under this Act;
(e) to make a survey as to whether there is any offence of which cognizance ought to be taken under this Act;
(f) to defend any suit instituted against a freed bonded labourer or a member of his family or any other person
dependent on him for the recovery of the whole or part of any bonded debt or any other debt which is
claimed by such person to be bonded debt.
(2) A Vigilance Committee may authorise on its members to defend a suit against a freed bonded labourer and the
member so authorised shall be deemed, for the purpose of such suit, to be the authorised agent of the freed
bonded labourer.
S. 15. Burden of proof.––Whenever any debt is claimed by a bonded labourer, or a Vigilance Committee, to be a
bonded debt, the burden of proof that such debt is not a bonded debt shall lie on the creditor.
CHAPTER VI
OFFENCES AND PROCEDURE FOR TRIAL
S. 16. Punishment for enforcement of bonded labour.—Whoever, after the commencement of this Act, compels any
person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three
years and also with fine which may extend to two thousand rupees.
S. 17. Punishment for advancement of bonded debt.—Whoever advances, after the commencement of this Act, any
bonded debt shall be punishable with imprisonment for a term which may extend to three years and also with fine
which may extend to two thousand rupees.
S. 18. Punishment for extracting bonded labour under the bonded labour system.—Whoever enforces, after the
commencement of this Act, any custom, tradition, contract, agreement or other instrument, by virtue of which any
person or any member of the family of such person or any dependant of such person is required to render any
service under the bonded labour system; shall be punishable with imprisonment for a term which may extend to
three years and also with fine which may extend to two thousand rupees; and, out of the fine, if recovered, payment
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shall be made to the bonded labourer at the rate of rupees five for each day for which the bonded labourwas
extracted from him.
S. 19. Punishment for omission for failure to restore possession of property to bonded labourers.—Whoever, being
required by this Act to restore any property to the possession of any bonded labourer, omits or fails to do so, within
a period of thirty days form the commencement of this Act, shall be punishable with imprisonment for a term which
may extend to one year, or with fine which may extend to one thousand rupees, or with both; and, out of the fine, if
recovered, payment shall be made to the bonded labourer at the rate of rupees five for each day during which
possession of the property was not restored to him.
S. 20. Abetment to be an offence.—Whoever abets any offence punishable under this Act shall, whether or not the
offence abetted is committed, be punishable with the same punishment as is provided for the offence which has
been abetted.
Explanation.—For the purpose of this Act, “abetment” has the meaning assigned to it in the Indian Penal Code (45
of 1860).
S. 21. Offences to be tried by Executive Magistrates.—(1) The State Government may confer, on an Executive
Magistrate, the powers of a Judicial Magistrate of the first class or of the second class for the trial of offences under
this Act; and, on such conferment of powers, the Executive Magistrate, on whom the powers are so conferred, shall
be deemed, for the purposes of the Code of Criminal Procedure, 1973 (2 of 1974), to be a Judicial Magistrate of the
first class, or of the second class, as the case may be.
(2) An offence under this Act may be tried summarily by a Magistrate.
S. 22. Cognizance of offences.—Every offence under this Act shall be cognizable and bailable.
S. 23. Offences by companies.—(1) Where an offence under this Act has been committed by a company, every
person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by
a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable
to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director,
manager, secretary, or other officer of the company, such director, manager, secretary, or other officer shall be
deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
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Explanation.—For the purposes of this section,—
(a) “company” means anybodycorporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
CHAPTER VII
MISCELLANEOUS
S. 24. Protection of action taken in good faith.—No suit, prosecution or other legal proceeding shall lie against any
State Government or any officer of the State Government or any member of the Vigilance Committee for anything
which is in good faith done or intended to be done under this Act.
S. 25. Jurisdiction of civil courts barred.—No civil court shall have jurisdiction in respect of any matter to which any
provision of this Act applies and no injunction shall be granted by any civil court in respect of anything which is done
or intended to be done by or under this Act.
S. 26. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules
for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the foregoing power, such rules may provide for all or any of the following
matters, namely:—
(a) the authority to which application for the restoration of possession of property referred to in sub-section (4),
or sub-section (5) of section 6 is to be submitted in pursuance of sub-section (6) of that section;
(b) the time within which application for restoration of possession of property is to be made, under sub-section
(6) of 6, to the prescribed authority;
(c) steps to be taken by Vigilance Committees under clause (a) of sub-section (1) of section 14, to ensure the
implementation of the provisions of this Act or of any rule made thereunder;
(d) any other matter which is required to be, or may be, prescribed.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in
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one session or in two or more successive sessions, and if, before the expiry of the session immediately following
the session or successive sessions aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modification or
annulment shall be without prejudice to the validity of anything previously done under that rule.
S. 27. Repeal and saving.—(1) The Bonded Labour System (Abolition) Ordinance, 1975 (17 of 1975), is hereby
repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Ordinance (including any notification
published, direction or nomination made, power conferred, duty imposed or officer specified) shall be deemed to
have been done or taken under the corresponding provisions of this Act.
1. Ins. by Act 73 of 1985, section 2 (w.e.f. 24-12-1985).
End of Document
APPENDIX II THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT,
1986
APPENDIX II THE CHILD LABOUR (PROHIBITION AND REGULATION)

ACT, 1986
(Act 61 of 1986)
[23rd December, 1986]
An Act to prohibit the engagement of children in certain employment and to regulate the conditions of work of
children in certain other employment.
BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:—
PART I
PRELIMINARY
S. 1. Short title, extent and commencement.—(1) This Act may be called the Child Labour (Prohibition and
Regulation) Act, 1986.
(3) The provisions of this Act, other than Part III, shall come into force at once, and Part III shall come into force on
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APPENDIX II THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
such date1. as the Central Government may, by notification in the Official Gazette, appoint, and different dates may
be appointed for different States and for different classes of establishments.
(i) “appropriate Government” means, in relation to an establishment under the control of the Central
Government or a railway administration or a major port or a mine or oil field, the Central Government, and
in all other cases, the State Government;
(ii) “child” means a person who has not completed his fourteenth year of age;
(iii) “day” means a period of twenty-four hours beginning at mid-night;
(iv) “establishment” includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant,
eating house, theatre or other place of public amusement or entertainment;
(v) “family”, in relation to an occupier, means the individual, the wife or husband, as the case may be, of such
individual, and their children, brother or sister of such individual;
(vi) “occupier”, in relation to an establishment or a workshop, means the person who has the ultimate control
over the affairs of the establishment or workshop;
(vii) “port authority” means any authority administering a port;
(viii) “prescribed” means prescribed by rules made under section 18;
(ix) “week” means a period of seven days beginning at mid-night on Saturday night or such other night as may
be approved in writing for a particular area by the Inspector;
(x) “workshop”means any premises (including the precincts thereof) wherein any industrial process is carried
on, but does not include any premises to which the provisions of section 67 of the Factories Act, 1948 (63
of 1948), for the time being, apply.
PART II
PROHIBITION OF EMPLOYMENT OF CHILDREN IN CERTAIN OCCUPATIONS AND PROCESSES
S. 3. Prohibition of employment of children in certain occupations and processes.—No child shall be employed or
permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of
the processes set forth in Part B of the Schedule is carried on:
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Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier
with the aid of his family or to any school established by, or receiving assistance or recognition from, Government.
S. 4. Power to amend the Schedule.—The Central Government, after giving by notification in theOfficial Gazette,
not less than three months’ notice of its intention so to do, may, by like notification,add any occupation or process to
the Schedule and thereupon the Schedule shall be deemed to havebeen amended accordingly.
S. 5. Child Labour Technical Advisory Committee.—(1) The Central Government may, by notification in the Official
Gazette, constitute an advisory committee to be called the Child Labour Technical Advisory Committee (hereafter in
this section referred to as the Committee) to advise the Central Government for the purpose of addition of
occupations and processes to the Schedule.
(2) The Committee shall consist of a Chairman and such other members not exceeding ten, as may be appointed
by the Central Government.
(3) The Committee shall meet as often as it may consider necessary and shall have power to regulate its own
procedure.
(4) The Committee may, if it deems it necessary so to do, constitute one or more sub-committees and may appoint
to any such sub-committee, whether generally or for the consideration of any particular matter, any person who is
not a member of the Committee.
(5) The term of office of, the manner of filling casual vacancies in the office of, and the allowances, if any, payable
to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the
Committee may appoint any person who is not a member of the Committee as a member of any of its sub-
committees shall be such as may be prescribed.
PART III
REGULATION OF CONDITIONS OF WORK OF CHILDREN
S. 6. Application of Part.—The provisions of this Part shall apply to an establishment or a class of establishments in
which none of the occupations or processes referred to in section 3 is carried on.
S. 7. Hours and period of work.—(1) No child shall be required or permitted to work in any establishment in excess
of such number of hours as may be prescribed for such establishment or class of establishments.
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(2) The period of work on each day shall be so fixed that no period shall exceed three hours and that no child shall
work for more than three hours before he has had an interval for rest for at least one hour.
(3) The period of work of a child shall be so arranged that inclusive of his interval for rest, under sub-section (2), it
shall not be spread over more than six hours, including the time spent in waiting for work on any day.
(4) No child shall be permitted or required to work between 7 pm and 8 am.
(5) No child shall be required or permitted to work overtime.
(6) No child shall be required or permitted to work in any establishment on any day on which he has already been
working in another establishment.
S. 8. Weekly holidays.—Every child employed in an establishment shall be allowed in each week, a holiday of one
whole day, which day shall be specified by the occupier in a notice permanently exhibited in a conspicuous place in
the establishment and the day so specified shall not be altered by the occupier more than once in three months.
S. 9. Notice to Inspector.—Every occupier in relation to an establishment in which a child was employed or

permitted to work immediately before the date of commencement of this Act in relation to such establishment shall,
within a period of thirty days from such commencement, send to the Inspector within whose local limits the
establishment is situated, a written notice containing the following particulars, namely: —
(a) the name and situation of the establishment;
(b) the name of the person in actual management of the establishment;
(c) the address to which communications relating to the establishment should be sent; and
(d) the nature of the occupation or process carried on in the establishment.
(2) Every occupier, in relation to an establishment, who employs, or permits to work, any child after the date of
commencement of this Act in relation to such establishment, shall, within a period of thirty days from the date of
such employment, send to the Inspector within whose local limits the establishment is situated, a written notice
containing the particulars as are mentioned in sub-section (1).
Explanation.—For the purposes of sub-sections (1) and (2), “date of commence-ment of this Act, in relation to an
establishment” means the date of bringing into force of this Act in relation to such establishment.
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(3) Nothing in sections 7, 8 and 9 shall apply to any establishment wherein any process is carried on by the
occupier with the aid of his family or to any school establishment by, or receiving assistance or recognition from,
Government.
S. 10. Disputes as to age.—If any question arises between an Inspector and an occupier as to the age of any child
who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a
certificate as to the age of such child granted by the prescribed medical authority, be referred by the Inspector for
decision to the prescribed medical authority.
S. 11. Maintenance of register.—There shall be maintained by every occupier in respect of children employed or
permitted to work in any establishment, a register to be available for inspection by an Inspector at all times during
working hours or when work is being carried on in any such establishment, showing—
(a) the name and date of birth of every child so employed or permitted to work;
(b) hours and periods of work of any such child and the intervals of rest to which he is entitled;
(c) the nature of work of any such child; and
(d) such other particulars as may be prescribed.
S. 12. Display of notice containing abstract of sections 3 and 14.—Every railway administration, every port authority
and every occupier shall cause to be displayed in a conspicuous and accessible place at every station on its railway
or within the limits of a port or at the place of work, as the case may be, a notice in the local language and in the
English language containing an abstract of sections 3 and 14.
S. 13. Health and safety.—(1) The appropriate Government may, by notification in the Official Gazette, make rules
for the health and safety of the children employed or permitted to work in any establishment or class of
establishments.
(2) Without prejudice to the generality of the foregoing provisions, the said rules may provide for all or any of the
following matters, namely:—
(a) cleanliness in the place of work and its freedom from nuisance;
(b) disposal of wastes and effluents;

Page 6 of 16
(c) ventilation and temperature;
(d) dust and fume;
(e) artificial humidification;
(f) lighting;
(g) drinking water;
(h) latrine and urinals;
(i) spittoons;
(j) fencing of machinery;
(k) work at or near machinery in motion;
(l) employment of children on dangerous machines;
(m) instructions, training and supervision in relation to employment of children on dangerous machines;
(n) device for cutting off power;
(o) self-acting machines;
(p) easing of new machinery;
(q) floor, stairs and means of access;
(r) pits, sumps, openings in floors, etc.;
(s) excessive weights;
(t) protection of eyes;
(u) explosive or inflammable dust, gas, etc.;
(v) precautions in case of fire;
(w) maintenance of buildings; and
(x) safety of buildings and machinery.
PART IV
MISCELLANEOUS
Page 7 of 16
S. 14. Penalties.—(1) Whoever employs any child or permits any child to work in contravention of the provisions of
section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may
extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty
thousand rupees or with both.
(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards, he shall be
punishable with imprisonment for a term which shall not be less than six months but which may extend to two years.
(3) Whoever—
(a) fails to give notice as required by section 9, or
(b) fails to maintain a register as required by section 11 or makes any false entry in any such register; or
(c) fails to display a notice containing an abstract of section 3 and this section as required by section 12; or
(d) fails to comply with or contravenes any other provisions of this Act or the rules made thereunder,
shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten
thousand rupees or with both.
S. 15. Modified application of certain laws in relation to penalties.—(1) Where any person is found guilty and
convicted of contravention of any of the provisions mentioned in sub-section (2), he shall be liable to penalties as
provided in sub-sections (1) and (2) of section 14 of this Act and not under the Acts in which those provisions are
contained.
(2) The provisions referred to in sub-section (1) are the provisions mentioned below:—
(a) section 67 of the Factories Act, 1948 (63 of 1948);
(b) section 40 of the Mines Act, 1952 (35 of 1952);
(c) section 109 of the Merchant Shipping Act, 1958 (44 of 1958); and
(d) section 21 of the Motor Transport Workers Act, 1961 (27 of 1961).
S. 16. Procedure relating to offences.—(1) Any person, police officer or Inspector may file a complaint of the
commission of an offence under this Act in any Court of competent jurisdiction.
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(2) Every certificate as to the age of a child which has been granted by a prescribed medical authority shall, for the
purposes of this Act, be conclusive evidence as to the age of the child to whom it relates.
(3) No Court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under
this Act.
S. 17. Appointment of Inspectors.—The appropriate Government may appoint Inspectors for the purposes of
securing compliance with the provisions of this Act and any Inspector so appointed shall be deemed to be a public
servant within the meaning of the Indian Penal Code (45 of 1860).
S. 18. Power to make rules.—(1) The appropriate Government may, by notification in the OfficialGazette and
subject to the condition of previous publication, make rules for carrying into effect theprovisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules mayprovide for all or any
of the following matters, namely:—
(a) the term of office of, the manner of filling casual vacancies of, and the allowances payable to,the Chairman
and members of the Child Labour Technical Advisory Committee and the conditionsand restrictions subject
to which a non-member may be appointed to a sub-committeeunder sub-section (5) of section 5;
(b) number of hours for which a child may be required to permitted to work under sub-section (1)of section 7;
(c) grant of certificates of age in respect of young persons in employment or seeking employment,the medical
authorities which may issue such certificate, the form of such certificate,the charges which may be made
thereunder and the manner in which such certificate may beissued:
Provided that no charge shall be made for the issue of any such certificate if theapplication is
accompanied by evidence of age deemed satisfactory by the authorityconcerned;
(d) the other particulars which a register maintained under section 11 should contain.
S. 19. Rules and notifications to be laid before Parliament or State Legislature.— (1) Every rule made under this Act
by the Central Government and every notification issued under section 4, shall be laid, as soon as may be after it is
made or issued, before each House of Parliament, while it is in session for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in making any
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modification in the rule or notification or both Houses agree that the rule or notification should not be made or
issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case
may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that rule or notification.
(2) Every rule made by a State Government under this Act shall be laid as soon as may be after it is made, before
the Legislature of that State.
S. 20. Certain other provisions of law not barred.—Subject to the provisions contained in section 15, the provisions
of this Act and the rules made thereunder shall be in addition to, and not in derogation of, the provisions of the
Factories Act, 1948 (63 of 1948), the Plantations Labour Act, 1951 (69 of 1951), and the Mines Act, 1952 (35 of
1952).
S. 21. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of this Act, the
Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the
provisions of this Act as appear to it to be necessary or expedient for removal of the difficulty:
Provided that no such order shall be made after the expiry of a period of three years from the date on which this Act
receives the assent of the President.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before the Houses of
Parliament.
S. 22. Repeal and savings.—(1) The Employment of Children Act, 1938 (26 of 1938), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under
the Act so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been
done or taken under the corresponding provisions of this Act.
2.S. 23. Amendment of Act 11 of 1948.—In section 2 of the Minimum Wages Act, 1948,—
(i) for clause (a), the following clauses shall be substituted, namely: —
“(a) “adolescent” means a person who has completed his fourteenth year of age but has not completed his
eighteenth year;
(aa) “adult” means a person who has completed his eighteenth year of age;”
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(ii) after clause (b), the following clause shall be inserted, namely: —
“(bb) “child” means a person who has not completed his fourteenth year of age;”.
3.S. 24. Amendment of Act 69 of 1951.—In the Plantations Labour Act, 1951,—
(a) in section 2, in clauses (a) and (c), for the word “fifteenth”, the word “fourteenth” shall be substituted;
(b) section 24 shall be omitted;
(c) in section 26, in the opening portion, the words “who has completed his twelfth year” shall be omitted.
4.S. 25. Amendment of Act 44 of 1958.—In the Merchant Shipping Act, 1958, in section 109, for the word “fifteen”,
the word “fourteen” shall be substituted.
5.S. 26. Amendment of Act 27 of 1961.—In the Motor Transport Workers Act, 1961, in section 2, in clauses (a) and
(c), for the word “fifteenth”, the word “fourteenth” shall be substituted.
THE SCHEDULE
(See section 3)
PART A
OCCUPATIONS
Any occupation connected with—
(1) Transport of passengers, goods or mails by railway;
(2) Cinder picking, clearing of an ash pit or building operation in the railway premises;
(3) Work in a catering establishment at a railway station, involving the movement of a vendor or any
otheremployee of the establishment from one platform to another or into or out of a moving train;
Page 11 of 16
(4) Work relating to the construction of a railway station or with any other work where such work is done
inclose proximity to or between the railway lines;
(5) A port authority within the limits of any port;
6.[(6) Work relating to selling of crackers and fireworks in shops with temporary licences;]
7.[(7) Abattoirs/slaughter Houses;]
8.[(8) Automobile workshops and garages;
(9) Foundries;
(10) Handling of toxic or inflammable substances or explosives;
(11) Handloom and powerloom industry;
(12) Mines (underground and underwater) and collieries;
(13) Plastic units and fibreglass workshops;]
9.[(14) Employment of children as domestic workers or servants;
(15) Employment of children in dhabas (road side eateries), restaurants, hotels motels, tea shops, resorts, spas
or other recreational centres;]
10.[(16) Diving;]
11.[(17) Circus;
(18) Caring of Elephants.]
PART B
PROCESSES
(1) Bidi-making;
12.[(2) Carpet-weaving including preparatory and incidental process thereof;]
(3) Cement manufacture, including bagging of cement;
13.[(4) Cloth printing, dyeing and weaving including process, preparatory and incidental thereto;]
(5) Manufacture of matches, explosives and fire-works;

Page 12 of 16
(6) Mica-cutting and splitting;
(7) Shellac manufacture;
(8) Soap manufacture;
(9) Tanning;
(10) Wool-cleaning;
14.[(11) Building and construction industry including processing and polishing of granite stones;]
15.[(12) Manufacture of slate pencils (including packing);
(13) Manufacture of products from agate;
(14) Manufacturing processes using toxic metals and substances, such as lead, mercury, manganese,
chromium,cadmium, benzene, pesticides and asbestos;]
16.[(15) “Hazardous process” as defined in section 2(cb) and “dangerous operation” as notified in rules
under section 87 of the Factories Act, 1948 (63 of 1948);
(16) Printing as defined in section 2(k)(iv) of the Factories Act, 1948 (63 of 1948);
(17) Cashew and cashewnut descaling and processing;
(18) Soldering processes in electronics industries;]
17.[(19) “Aggarbatti” manufacturing;
(20) Automobile repairs and maintenance including processes incidental thereto, namely, welding, lathe
work,dent beating and painting;
(21) Brick kilns and roof titles units;
(22) Cotton ginning and processing and production of hosiery goods;
(23) Detergent manufacturing;
(24) Fabrication workshops (ferrous and non-ferrous);
(25) Gem cutting and polishing;
(26) Handling of chromite and managanese ores;
(27) Jute textile manufacture and coir making;
(28) Lime kilns and manufacture of lime;

Page 13 of 16
(29) Lock making;
(30) Manufacturing processes having exposure to lead such as primary and secondary smelting, welding and
cutting of lead-painted metal constructions, welding of galvanized or zinc silicate, polyvinyl chloride, mixing
(by hand) of crystal glass mass, sanding or scrapping of lead paint, burning of lead in enamelling
workshops, lead mining, plumbing, cable making, wire patenting, lead casting, type founding in printing
shops. Store type setting, assembling of cars, shot making and lead glass blowing;
(31) Manufacture of cement pipes, cement products and other related work;
(32) Manufacturing of glass, glassware including bangles, flourescent tubes, bulbs and other similar glass
products;
(33) Manufacturing of dyes and dye stuff;
(34) Manufacturing or handling of pesticides and insecticides;
(35) Manufacturing or processing and handling of corrosive and toxic substances, metal cleaning and photo
engraving and soldering processes in electronic industry;
(36) Manufacturing of burning coal and coal briquettes;
(37) Manufacturing of sports goods involving exposure to synthetic materials, chemicals and leather;
(38) Moulding and processing of fibreglass and plastic;
(39) Oil expelling and refinery;
(40) Paper making;
(41) Potteries and ceramic industry;
(42) Polishing, moulding, cutting, welding and manufacture of brass goods in all forms;
(43) Process in agriculture where tractors, threshing and harvesting machines are used and chaff cutting;
(44) Saw mill—all processes;
(45) Sericulture processing;
(46) Skinning, dyeing and processes for manufacturing of leather and leather products;
(47) Stone breaking and stone crushing;
(48) Tobacco processing including manufacturing of tobacco, tobacco paste and handling of tobacco in any
form;
Page 14 of 16
(49) Tyre making, repairing, re-treading and graphite benefication;
(50) Utensils making, polishing and metal buffing;
(51) “Zari” making (all processes);]
18.[(52) Electroplating;
(53) Graphite powdering and incidental processing;
(54) Grinding or glazing of metals;
(55) Diamond cutting and polishing;
(56) Extraction of slate from miners;
(57) Rag picking and scavenging;]
19.[(58) Processes involving exposure to excessive heat (e.g. working near furnace) and cold;
(59) Mechanised fishing;
(60) Food Processing;
(61) Beverage Industry;
(62) Timber handling and loading;
(63) Mechanical Lumbering;
(64) Warehousing;
(65) Processes involving exposure to free silica such as slate, pencil industry, stone grinding, slate stone
mining, stone quarries, agate industry.]
1. Part III came into force on 26-5-1993, vide Notification No. S.O. 333(E), dated 26-5-1993, published in the Gazette of
India, Extraordinary, 1993, Pt II, section 3(ii).
2. Sections 23 to 26 have been repealed by section 2 and Ist Schedule of the Repealing and Amending Act, 2001 (30 of
2001). The repeal by this Act shall not effect any other enactments in which therepealed enactment has been applied,
incorporated or referred to.
Page 15 of 16
2001). The repeal by this Act shall not effect any other enactments in which the repealed enactment has been applied,
6. Ins. by S.O. 404(E), dated 5-6-1989.
7. Ins. by S.O. 263(E), dated 29-3-1994.
8. Ins. by S.O. 36(E), dated 27-1-1999.
9. Ins. by S.O. 1742(E), dated 10-10-2006.
10. Ins. by S.O. 2280(E), dated 25-9-2008.
11. Ins. by S.O. 2469(E), dated 8-10-2010.
12. Subs. by S.O. 36(E), dated 27-1-1999.
13. Subs. by S.O. 36(E), dated 27-1-1999.
14. Subs. by S.O. 397(E), dated 10-5-2001.
15. Subs. by S.O. 404(E), dated 5-6-1989.
16. Subs. by S.O. 263(E), dated 29-3-1994.

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17. Subs. by S.O. 36(E), dated 27-1-1999.
18. Ins. by S.O. 397(E), dated 10-5-2001.
19. Ins. by S.O. 2280(E), dated 25-9-2008.
End of Document
APPENDIX III THE NATIONAL COMMISSION FOR WOMEN ACT, 1990
(Act 20 of 1990)
[30th August 1990]
An Act to constitute a National Commission for Women and to provide for matters connected therewith or incidental
thereto.
BE it enacted by Parliament in the Forty-first Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
S. 1. Short title, extent and commencement.—(l) This Act may be called the National Commission for Women Act,
1990.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date1. as the Central Government may, by notification in the Official Gazette
appoint.

Page 2 of 9
(a) “Commission” means the National Commission for Women constituted under section 3;
(b) “Members” means a Member of the Commission and includes the Member-Secretary;
(c) “prescribed” means prescribed by rules made under this Act.
CHAPTER II
THE NATIONAL COMMISSION FOR WOMEN
S. 3. Constitution of the National Commission for Women.—(l) The Central Government shall constitute a body to
be known as the National Commission for Women to exercise the powers conferred on, and to perform the
functions assigned to, it under this Act.
(2) The Commission shall consist of—
(a) a Chairperson, committed to the cause of women, to be nominated by the Central Government;
(b) five Members to be nominated by the Central Government from amongst persons of ability, integrity and
standing who have had experience in law or legislation, trade unionism, management of an industry or
organisation committed to increasing the employment potential of women, women’s voluntary
organisations (including women activists), administration, economic development, health, education or
social welfare:
Provided that at least one Member each shall be from amongst person belonging to the Scheduled
Castes and Scheduled Tribes respectively;
(c) a Member-Secretary to be nominated by the Central Government, who shall be—
(i) an expert in the field of management, organisational structure or sociological movement, or
(ii) an officer who is a member of civil service of the Union or of an all-India service or holds a civil post
under the Union with appropriate experience.
Page 3 of 9
S. 4. Term of office and conditions of service of Chairperson and Members.—(1) The Chairperson and every
Member shall hold office for such period, not exceeding three years, as may be specified by the Central
Government in this behalf.
(2) The Chairperson or a Member (other than the Member-Secretary who is a member of civil service of the Union
or of an all-India service or holds a civil post under the Union) may, by writing and addressed to the Central
Government, resign from the office of Chairperson or, as the case may be, of the Member at any time.
(3) The Central Government shall remove a person from the office of Chairperson or a Member referred to in sub-
section (2) if that person—
(a) becomes an undischarged insolvent;
(b) gets convicted and sentenced to imprisonment for an offence which in the opinion of the Central
Government involves moral turpitude;
(c) becomes of unsound mind and stands so declared by a competent court;
(d) refuses to act or becomes incapable of acting;
(e) is without obtaining leave of absence from the Commission, absent from three consecutive meetings of the
Commission; or
(f) in the opinion of the Central Government has so abused the position of Chairperson or Member as to
render that person’s continuance in office detrimental to the public interest:
Provided that no person shall be removed under this clause until that person has been given a
reasonable opportunity of being heard in the matter.
(4) A vacancy caused under sub-section (2) or otherwise shall be filled by fresh nomination.
(5) The salaries and allowances payable to, and the other terms and conditions of service of, the Chairperson and
Members shall be such as may be prescribed.
S. 5. Officers and other employees of the Commission.—(1) The Central Government shall provide the Commission
with such officers and employees as may be necessary for the efficient performance of the functions of the
Commission under this Act.
Page 4 of 9
(2) The salaries and allowances payable to, and the other terms and conditions of service of, the officers and other
employees appointed for the purpose of the Commission shall be such as may be prescribed.
S. 6. Salaries and allowances to be paid out of grants.—The salaries and allowances payable to the Chairperson
and Members and the administrative expenses, including salaries, allowances and pensions payable to the officers
and other employees referred to in section 5, shall be paid out of the grants referred to in sub-section (1) of section
11.
S. 7. Vacancies, etc. not to invalidate proceedings of the Commission.—No act or proceeding of the Commission
shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the
constitution of the Commission.
S. 8. Committees of the Commission.—(1) The Commission may appoint such committees as may be necessary for
dealing with such special issues as may be taken up by the Commission from time to time.
(2) The Commission shall have the power to co-opt as members of any committee appointed under sub-section (1)
such number of persons, who are not Members of the Commission, as it may think fit and the persons so co-opted
shall have the right to attend the meetings of the committee and take part in its proceedings but shall not have the
right to vote.
(3) The persons so co-opted shall be entitled to receive such allowances for attending the meetings of the
committee as may be prescribed.
S. 9. Procedure to be regulated by the Commission.—(1) The Commission or a committee thereof shall meet as
and when necessary and shall meet at such time and place as the Chairperson may think fit.
(2) The Commission shall regulate its own procedure and the procedure of the committees thereof.
(3) All orders and decisions of the Commission shall be authenticated by the Member-Secretary or any other officer
of the Commission duly authorised by the Member-Secretary in this behalf.
CHAPTER III
FUNCTIONS OF THE COMMISSION
S. 10. Functions of the Commission.—(1) The Commission shall perform all or any of the following functions,
namely:—
Page 5 of 9
(a) investigate and examine all matters relating to the safeguards provided for women under the Constitution
and other laws;
(b) present to the Central Government, annually and at such other times as the Commission may deem fit,
reports upon the working of those safeguards;
(c) make in such reports recommendations for the effective implementation of those safeguards for improving
the conditions of women by the Union or any State;
(d) review, from time to time, the existing provisions of the Constitution and other laws affecting women and
recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae,
inadequacies or shortcomings in such legislations;
(e) take up the cases of violation of the provisions or the Constitution and of other laws relating to women with
the appropriate authorities;
(f) look into complaints and take suo motu notice of matters relating to—
(i) deprivation of women’s rights;
(ii) non-implementation of laws enacted to provide protection to women and also to achieve the objective
of equality and development;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and
ensuring welfare and providing relief to women,
and take up the issues arising out of such matters with appropriate authorities;
(g) call for special studies or investigations into specific problems or situations arising out of discrimination and
atrocities against women and identify the constraints so as to recommend strategies for their removal;
(h) undertake promotional and educational research so as to suggest ways of ensuring due representation of
women in all spheres and identify factors responsible for impeding their advancement, such as, lack of
access to housing and basic services, inadequate support services and technologies for reducing drudgery
and occupational health hazards and for increasing their productivity;
(i) participate and advise on the planning process of socio-economic development of women;
(j) evaluate the progress of the development of women under the Union and any State;
Page 6 of 9
(k) inspect or cause to be inspected a jail, remand home, women’s institution or other place of custody where
women are kept as prisoners or otherwise, and take up with the concerned authorities for remedial action,
if found necessary;
(l) fund litigation involving issues affecting a large body of women;
(m) make periodical reports to the Government on any matter pertaining to women and in particular various
difficulties under which women toil;
(n) any other matter which may be referred to it by the Central Government.
(2) The Central Government shall cause all the reports referred to in Clause (b) of sub-section (1) to be laid before
each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such
recommendations.
(3) Where any such report or any part thereof relates to any matter with which any State Government is concerned,
the Commission shall forward a copy of such report or part to such State Government who shall cause it to be laid
before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken
on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such
recommendations.
(4) The Commission shall while investigating any matter referred to in Clause (a) or sub-clause (i) of Clause (f) of
sub-section (1), have all the powers of a civil court trying a suit and, in particular, in respect of the following matters,
namely:—
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents; and
(f) any other matter which may be prescribed.
CHAPTER IV
FINANCE, ACCOUNTS AND AUDIT

Page 7 of 9
S. 11. Grants by the Central Government.—(1) The Central Government shall, after due appropriation made by
Parliament by law in this behalf, pay to the Commission by way of grants such sums of money, as the Central
Government, may think fit for being utilised for the purposes of this Act.
(2) The Commission may spend such sums as it thinks fit for performing the functions under this Act, and such
sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).
S. 12. Accounts and audit.—(1) The Commission shall maintain proper accounts and other relevant records and
prepare an annual statement of accounts in such form as may be prescribed by the Central Government in
consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General at such intervals as
may be specified by him and any expenditure incurred in connection with such audit shall be payable by the
Commission to the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General and any person appointed by him in connection with the audit of the
accounts of the Commission under this Act shall have the same rights and privileges and the authority in connection
with such audit as the Comptroller and Auditor-General generally has in connection with the audit of Government
accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers
and other documents and papers and to inspect any of the offices of the Commission.
(4) The accounts of the Commission, as certified by the Comptroller and Auditor-General or any other person
appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the Central
Government by the Commission.
S. 13. Annual report.—The Commission shall prepare, in such form and at such time, for each financial year, as
may be prescribed, its annual report, giving a full account of its activities during the previous financial year and
forward a copy thereof to the Central Government.
S. 14. Annual report and audit report to be laid before Parliament.—The Central Government shall cause the annual
report together with a memorandum of action taken on the recommendations contained therein, insofar as they
relate to the Central Government, and the reasons for the non-acceptance, if any, of any of such recommendations
and the audit report to be laid as soon as may be after the reports are received, before each House of Parliament.
CHAPTER V
MISCELLANEOUS
Page 8 of 9
S. 15. Chairperson, Members and staff of the Commission to be public servants.—The Chairperson, the Members,
officers and other employees of the Commission shall be deemed to be public servants within the meaning of
section 21 of the Indian Penal Code (45 of 1860).
S. 16. Central Government to consult Commission.—The Central Government shall consult the Commission on all
major policy matters affecting women.
S. 17. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules
for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any
of the following matters, namely:—
(a) salaries and allowances payable to, and the other terms and conditions of service of, the Chairperson and
Members under sub-section (5) of section 4 and of officers and other employees under sub-section (2) of
section 5;
(b) allowances for attending the meetings of the committee by the co-opted persons under sub-section (3) of
section 8;
(c) other matters under Clause (f) of sub-section (4) of section 10;
(d) the form in which the annual statement of accounts shall be maintained under sub-section (1) of section
12;
(e) the form in, and the time at which the annual report shall be prepared under section 13;
(f) any other matter which is required to be, or may be prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that
the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as
the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
Page 9 of 9
1. The Act came into force on 31-1-1992 vide Notification No.S.O. 99(E), dated 31-1-1992.
End of Document
APPENDIX IV THE PROTECTION OF HUMAN RIGHTS ACT, 1993
(Act 10 of 1994)
[8th January 1994]
An Act to provide for the Constitution of a National Human Rights Commission, State Human Rights Commissions
in States and Human Rights Courts for better protection of human rights and for matters connected therewith or
incidental thereto.
BE it enacted by Parliament in the Forty-fourth Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
S. 1. Short title, extent and commencement.—(1) This Act may be called the Protection of Human Rights Act, 1993.
(3) It shall be deemed to have come into force on the 28th day of September, 1993.
S. 2. Definitions.—(1) In this Act, unless the context otherwise requires,—
(a) “armed forces” means the naval, military and air forces and includes any other armed forced of the Union;
Page 2 of 24
(b) “Chairperson” means the Chairperson of the Commission or of the State Commission, as the case may be;
(c) “Commission” means the National Human Rights Commission constituted under section 3;
(d) “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by
the Constitution or embodied in the International Covenants and enforceable by courts in India;
(e) “Human Rights Court” means the Human Rights Court specified under section 30;
1.[(f) “International Covenants” means the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the
United Nations on the 16th December, 1966 and such other Covenant or Convention adopted by the
General Assembly of the United Nations as the Central Government may, by notification, specify;]
2.[(g) “Member” means a Member of the Commission or of the State Commission as the case may be;]
(h) “National Commission for Minorities” means the National Commission for Minorities constituted under
section 3 of the National Commission for Minorities Act, 1992 (19 of 1992);
3.[(i)“National Commission for the Scheduled Castes” means the National Commission for the Scheduled
Castes referred to in Article 338 of the Constitution;]
(ia) “National Commission for the Scheduled Tribes” means the National Commission for the Scheduled Tribes
referred to in Article 338A of the Constitution;]
(j) “National Commission for Women” means the National Commission for Women constituted under section 3
of the National Commission for Women Act, 1990(20 of 1990);
(k) “notification” means a notification published in the Official Gazette;
(1) “prescribed” means prescribed by rules made under this Act;
(m) “public servant” shall have the meaning assigned to it in section 21 of the India Penal Code (45 of 1860);
(n) “State Commission” means a State Human Rights Commission constituted under section 21.
(2) Any reference in this Act to a law, which is not in force in the State of Jammu and Kashmir, shall in relation to
that State be construed as a reference to a corresponding law, if any, in force in that State.
CHAPTER II
THE NATIONAL HUMAN RIGHTS COMMISSION
S. 3. Constitution of a National Human Rights Commission.—(1) The Central Government shall constitute a body to
Page 3 of 24
be known State of Jammu and Kashmir, shall in relation to that State, be conferred upon, and to perform the
functions assigned to, it under this Act.
(2) The Commission shall consist of—
(a) a Chairperson who has been a Chief Justice of the Supreme Court;
(b) one Member who is, or has been, a Judge of the Supreme Court;
(c) one Member who is, or has been, the Chief justice of a High Court;
(d) two Members to be appointed from amongst persons having knowledge of, or practical experience in
matters relating to human rights.
(3) The Chairpersons of the National Commission for Minorities, 4.[the National Commission for the Scheduled
Castes,the National Commission for the Scheduled Tribes] and the National Commission for Women shall be
deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.
(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall
exercise such powers and discharge such functions of the Commission 5.[(except judicial functions and the power
to make regulations under section 40B) as may be delegated to him by the Commission or the Chairperson, as the
case may be].
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of
the Central Government, establish offices at other places in India.
S. 4. Appointment of Chairperson and other Members.—(1) The Chairperson and 6.[the Members] shall be
appointed by the President by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the recommendations of a
Committee consisting of—
(a) the Prime Minister —chairperson;
(b) Speaker of the House of the People —member;
(c) Minister in-charge of the Ministry of —member;

Home Affairs in the Government of India
(d) Leader of the Opposition in the House of —member;

the People
Page 4 of 24
(e) Leader of the Opposition in the Council —member;

of States
(f) Deputy Chairman of the Council of —member:

States
Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be
appointed except after consultation with the Chief Justice of India.
(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any 7.[vacancy of any
member in the Committee referred to in the first proviso to sub-section (1)].
8.[S. 5. Resignation and removal of Chairperson and Members.—(l) The Chairperson or any Member may, by
notice in writing under his hand addressed to the President of India, resign his office.
(2) Subject to the provisions of sub-section (3), the Chairperson or any Member shall only be removed from his
office by order of the President of India on the ground of proved misbehaviour or incapacity after the Supreme
Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure
prescribed in that behalf by the Supreme Court, reported that the Chairperson or the Member, as the case may be,
ought on any such ground to be removed.
(3) Notwithstanding anything in sub-section (2), the President may, by order, remove from office the Chairperson or
any Member if the Chairperson or such Member, as the case may be,—
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is unfit to continue in office by reason of infirmity of mind or body; or
(d) is of unsound mind and stands so declared by a competent court; or
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves
moral turpitude.]
9.[S. 6. Term of office of Chairperson and Members.—(l) A person appointed as Chairperson shall hold office for a
term of five years from the date on which he enters upon his office or until he attains the age of seventy years,
whichever is earlier.
Page 5 of 24
(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon
his office and shall be eligible for reappointment for another term of five years:
Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the
Government of India or under the Government of any State.]
S. 7. Member to act as Chairperson or to discharge his functions in certain circumstances.—(1) In the event of the
occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the
President may by notification, authorise one of the Members to act as the Chairperson until the appointment of a
new Chairperson to fill such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, such one of
the Members as the President may by notification, authorise in this behalf, shall discharge the functions of the
Chairperson until the date on which the Chairperson resumes his duties.
10.[S. 8. Terms and conditions of service of Chairperson and Members.—The salaries and allowances payable to,
and the other terms and conditions of service of, the Chairperson and Members shall be such as may be
prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or
a Member shall be varied to his disadvantage after his appointment.]
S. 9. Vacancies, etc., not to invalidate the proceedings of the Commission.—No act or proceedings of the
Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect
in the Constitution of the Commission.
S. 10. Procedure to be regulated by the Commission.—(1) The Commission shall meet at such time and place as
the Chairperson may think fit.
11.[(2) Subject to the provisions of this Act and the rules made thereunder, the Commission shall have the power to
lay down by regulations its own procedure.]
(3) All orders and decisions of the Commission shall be authenticated by the Secretary-General or any other officer
of the Commission duly authorised by the Chairperson in this behalf.
S. 11. Officers and other staff of the Commission.—(1) The Central Government shall make available to the
Commission—
Page 6 of 24
(a) an officer of the rank of the Secretary to the Government of India who shall be the Secretary-General of the
Commission; and
(b) such police and investigative staff under an officer not below the rank of a Director General of Police and
such other officers and staff as may be necessary for the efficient performance of the functions of the
Commission.
(2) Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint
such other administrative, technical and scientific staff as it may consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2)
shall be such as may be prescribed.
CHAPTER III
FUNCTIONS AND POWERS OF THE COMMISSION
S. 12. Functions of the Commission.—The Commission shall perform all or any of the following functions, namely
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf12.[or on a direction
or order of any court], into complaint of—
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court
with the approval of such court;
13.[(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or
other institution under the control of the State Government, where persons are detained or lodged for
purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof
and make recommendations thereon to the Government;]
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the
protection of human rights and recommend measures for their effective implementation;
Page 7 of 24
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend
appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make recommendations for their
effective implementation;
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness of the safeguards
available for the protection of these rights through publications, the media, seminars and other available
means;
(i) encourage the efforts of non-governmental organisations and institutions working in the field of human
rights;
(j) such other functions as it may consider necessary for the promotion of human rights.
S. 13. Powers relating to inquiries.—(1) The Commission shall, while inquiring into complaints under this Act have
all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in
respect of the following matters, namely:
(a) summoning and enforcing the attendance of witnesses and examining them an oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that
person under any law for the time being in force, to furnish information on such points or matters, as in the opinion
of the Commission, may be useful for, or relevant to the subject matter of the inquiry and any person so required
shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177
of the Indian Penal Code (45 of 1860).
(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf
by the Commission may enter any building or place, where the Commission has reason to believe that any
document relating to the subject-matter of the inquiry may be found, and may seize any such document or take
Page 8 of 24
extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973(2 of
1974), insofar as it may be applicable.
(4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175,
section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860) is commuted in the view
or presence of the Commission, the Commission may, after recording the facts constituting the offence and the
statement of the accused as provided for in the Code of Criminal Procedure, 1973(2 of 1974), forward the case to a
Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed
to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code
of Criminal Procedure, 1973(2 of 1974).
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of
sections 193 and 228 and for the purposes of section 196, of the Indian Penal Code(45 of 1860), and the
Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973(2 of 1974).
14.[(6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint
filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in
accordance with the provisions of this Act:
Provided that no such complaint shall be transferred unless the same is one respecting which the State
Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State Commission
as if it were a complaint initially filed before it.].
S. 14. Investigation.—(1) The Commission may, for the purpose of conducting any investigation pertaining to the
inquiry, utilise the services of any officer or investigation agency of the Central Government or any State
Government with the concurrence of the Central Government or the State Government, as the case may be.
(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services
are utilised under sub-section (1) may, subject to the direction and control of the Commission,—
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.
Page 9 of 24
(3) The provisions of section 15 shall apply in relation to any statement made by a person before any officer or
agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a
person in the course of giving evidence before the Commission.
(4) The officer or agency whose services are utilised under sub-section (1) shall investigate into any matter
pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by
the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at
in the report submitted to it under-section (4) and for this purpose the Commission may make such inquiry
(including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.
S. 15. Statement made by persons to the Commission.—No statement made by a person in the course of giving
evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceeding
except a prosecution for giving false evidence by such statement:
Provided that the statement—
(a) is made in reply to the question, which he is required by the Commission to answer; or
(b) is relevant to the subject-matter of the inquiry.
S. 16. Persons likely to be prejudicially affected to be heard.—If, at any stage of the inquiry, the Commission—
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry,
it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his
defence:
Provided that nothing in this section shall apply where the credit of a witness is being impeached.
CHAPTER IV
PROCEDURE
Page 10 of 24
S. 17. Inquiry into complaints.—The Commission while inquiring into the complaints of violations of human rights
may—
(i) call for information or report from the Central Government or any State Government or any other authority
or Organisation subordinate thereto within such time as may specified by it:
Provided that—
(a) if the information or report is not received within the time stipulated by the Commission, it may proceed
to inquire into the complaint on its own;
(b) if on receipt of information or report, the Commission is satisfied either that no further inquiry is
required or that the required action has been initiated or taken by the concerned Government or
authority, it may not proceed with the complaint and inform the complainant accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature
of the complaint, initiate an inquiry.
15.[S. 18. Steps during and after inquiry.—The Commission may take any of the following steps during or upon the
completion of an inquiry held under this Act, namely:—
(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of
violation of human rights or abetment thereof by a public servant, it may recommend to the concerned
Government or authority—
(i) to make payment of compensation or damages to the complainant or to the victim or the members of
his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit
against the concerned person or persons;
(iii) to take such further action as it may think fit.

Page 11 of 24
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that court
may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such
immediate interim relief to the victim or the members of his family as the Commission may consider
necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his
representative;
(e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned
Government or authority and the concerned Government or authority shall, within a period of one month, or
such further time as the Commission may allow, forward its comments on the report, including the action
taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the concerned Government
or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority
on the recommendations of the Commission.]
S. 19. Procedure with respect to armed forces.—(1) Notwithstanding anything contained in this act, while dealing
with complaints of violations of human rights by members of the armed forces, the Commission shall adopt the
following procedure, namely:
(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;
(b) after the receipt of the report, it may either not proceed with the complaint or, as the case may be, make its
recommendations to that Government.
(2) The Central Government shall inform the Commission of the action taken on the recommendations within three
months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the Central Government
and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his
representative.
S. 20. Annual and special reports of the Commission.—(1) The Commission shall submit an annual report to the
Central Government and to the State Government concerned and may at any time submit special reports on any
Page 12 of 24
matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the
annual report.
(2) The Central Government and the State Government, as the case may be, shall cause the annual and special
reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the
case may be, along with the memorandum of action taken or proposed to be taken on the recommendations of the
Commission and the reasons for non-acceptance of the recommendations, if any.
CHAPTER V
STATE HUMAN RIGHTS COMMISSIONS
S. 21. Constitution of State Human Rights Commissions.—(1) A State Government may constitute a body to be
known as the......... (name of the State) Human Rights Commission to exercise the powers conferred upon, and to
perform the functions assigned to a State Commission under this Chapter.
16.[(2) The State Commission shall, with effect from such date as the State Government may by notification specify,
consist of—
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of
seven years experience as District Judge;
(c) one Member to be appointed from among persons having knowledge of or practical experience in matters
relating to human rights.]
(3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise
such powers and discharge such functions of the State Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be at such place as the State Government may, by notification
specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the
Entries enumerated in List II and List III in the Seventh Schedule to the Constitution:
Provided that if any such matter is already being inquired into by the Commission or any other Commission duly
constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:
Page 13 of 24
Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have
effect as if for the words and figures “List II and List III”, the words and figures “List III, as applicable to the State of
Jammu and Kashmir” had been substituted.
17.[(6) Two or more State Governments may, with the consent of a Chairperson or Member of a State Commission,
appoint such Chairperson or, as the case may be, such Member of another State Commission simultaneously if
such Chairperson or Member consents to such appointment:
Provided that every appointment made under this sub-section shall be made after obtaining the recommendations
of the Committee referred to in sub-section (1) of section 22 in respect of the State for which a common
Chairperson or Member, or both, as the case may be, is to be appointed.]
S. 22. Appointment of Chairperson and 18.[Members] of State Commission.—(1) The Chairperson and
19.[Members] shall be appointed by the Governor by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a
Committee consisting of—
(a) the Chief Minister —Chairperson
(b) Speaker of the Legislative Assembly —member
(c) Minister in-charge of the Department of —member

Home in that State
(d) Leader of the Opposition in the —member

Legislative Assembly
Provided further that where there is a Legislative Council in a State, the Chairman of that Council and the Leader of
the Opposition in that Council shall also be members of the Committee;
Provided also that no sitting Judge of High Court or a sitting district judge shall be appointed except after
consultation with the Chief Justice of the High Court of the concerned State.
(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of
20.[any vacancy of any Member in the Committee referred to in sub-section (1).]
21.[S. 23. Resignation and Removal of Chairperson or a Member of the State Commission].—22.[(1) The
Page 14 of 24
Chairperson or a Member of a State Commission may, by notice in writing under his hand addressed to the
Governor, resign his office.
(1A) Subject to the provisions of sub-section (2), the Chairperson or any Member of the State Commission shall
only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after
the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the
procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such Member, as the
case may be, ought on any such ground to be removed.]
(2) Notwithstanding anything in 23.[sub-section (1A)], the President may by order remove from office the
Chairperson or any 24.[Member] if the Chairperson or such 25.[Member], as the case may be,—
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves
moral turpitude.
26.[S. 24. Term of office of Chairperson and Members of the State Commission.—(1) A person appointed as
Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he
attains the age of seventy years, whichever is earlier.
(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon
his office and shall be eligible for re-appointment for another term of five years:
Government of a State or under the Government of India.]
S. 25. Member to act as Chairperson or to discharge his functions in certain circumstances.—(1) In the event of the
occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the
Governor may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a
new Chairperson to fill such vacancy.
Page 15 of 24
(2) When the Chairperson is unable to discharge, his functions owing to absence on leave or otherwise, such one of
the Members as the Governor may by notification, authorise in this behalf, shall discharge the functions of the
Chairperson until the date on which the Chairperson resumes his duties.
27.[S. 26. Terms and conditions of service of Chairperson and Members of State Commissions.—The salaries and
allowances payable to, and other terms and conditions of service of, the Chairperson and Members shall be such
as may be prescribed by the State Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or
a Member shall be varied to his disadvantage after his appointment.]
S. 27. Officers and other staff of the State Commission.—(1) The State Government shall make available to the
Commission—
(a) an officer not below the rank of a Secretary to the State Government who shall be the Secretary of the
State Commission; and
(b) such police and investigative staff under an officer not below the rank of an Inspector General of Police and
such other officers and staff as may be necessary for the efficient performance of the functions of the State
Commission.
(2) Subject to such rules as may be made by the State Government in this behalf, the State Commission may
appoint such other administrative, technical and scientific staff as it may consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2)
shall be such as may be prescribed by the State Government.
S. 28. Annual and special reports of State Commission.—(1) The State Commission shall submit an annual report
to the State Government and may at any time submit special reports on any matter which, in its opinion, is of such
urgency or importance that it should not be deferred till submission of the annual report.
(2) The State Government shall cause the annual and special reports of the State Commission to be laid before
each House of State Legislature, where it consists of two Houses, or where such Legislature consists of one House,
before that House along with a memorandum of action, taken or proposed to be taken on the recommendations of
the State Commission and the reasons for non-acceptance of the recommendations, if any.
S. 29. Application of certain provisions relating to National Human Rights Commission to State Commissions.—The
Page 16 of 24
provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission and shall have effect,
subject to the following modifications, namely:
(a) references to “Commission” shall be construed as references to “State Commission”;
(b) in section 10, in sub-section (3) for the word “Secretary-General”, the word “Secretary” shall be substituted;
(c) in section 12, clause (f) shall be omitted;
(d) in section 17, in clause (i), the words “Central Government or any” shall be omitted.
CHAPTER VI
HUMAN RIGHTS COURTS
S. 30. Human Rights Courts.—For the purpose of providing speedy trial of offences arising out of violation of human
rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification
specify for each district a Court of Session to be a Human Rights Court to try the said offences:
Provided that nothing in this section shall apply if—
(a) a Court of Session is already specified as a special court; or
(b) a special court is already constituted, for such offences under any other law for the time being in force.
S. 31. Special Public Prosecutor.—For every Human Rights Court, the State Government shall, by notification
specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than
seven years, as a Special Public Prosecutor for the purpose of conducting cases in that court.
CHAPTER VII
FINANCE, ACCOUNTS AND AUDIT
S. 32. Grants by the Central Government.—(1) The Central Government shall, after due appropriation made by
Parliament by law in this behalf, pay to the Commission by way of grants such sums of money as the Central
Government may think fit for being utilised for the purposes of this Act.
(2) The Commission may spend such sums as it thinks fit for performing the functions under this Act and such sums
shall be treated as expenditure payable out of the grants referred to in sub-section (1).
Page 17 of 24
S. 33. Grants by the State Government.—(1) The State Government shall, after due appropriation made by
Legislature by law in this behalf, pay to the State Commission by way of grants such sums of money as the State
Government may think fit for being utilised for the purposes of this Act.
(2) The State Commission may spend such sums as it thinks fit for performing the functions under Chapter V, and
such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).
S. 34. Accounts and audit.—(1) The Commission shall maintain proper accounts and other relevant records and
prepare an annual statement of accounts in such form as may be prescribed by the Central Government in
consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General at such intervals as
may be specified by him and any expenditure incurred in connection with such audit shall be payable by the
Commission to the Comptroller and Auditor-General.
accounts of the Commission under this Act shall have the same rights and privileges and the authority in connection
with such audit as the Comptroller and Auditor-General generally has in connection with the audit of Government
accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers
and other documents and papers and to inspect any of the offices of the Commission.
(4) The accounts of the Commission, as certified by the Comptroller and Auditor-General or any other person
appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the Central
Government by the Commission and the Central Government shall cause the audit report to be laid, as soon as
may be after it is received, before each House of Parliament.
S. 35. Accounts and audit of State Commission.—(1) The State Commission shall maintain proper accounts, and
other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the
State Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the State Commission shall be audited by the Comptroller and Auditor-General at such intervals
as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the
State Commission to the Comptroller and Auditor-General.
accounts of the State Commission under this Act shall have the same rights and privileges and the authority in
connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of
Page 18 of 24
Government accounts and, in particular, shall have the right to demand the production of books, accounts,
connected vouchers and other documents and papers and to inspect any of the offices of the State Commission.
(4) The accounts of the State Commission, as certified by the Comptroller and Auditor-General or any other person
appointed by him in this behalf, together with the audit report thereon, shall be forwarded annually to the State
Government by the State Commission and the State Government shall cause the audit report to be laid, as soon as
may be, after it is received, before the State Legislature.
CHAPTER VIII
MISCELLANEOUS
S. 36. Matters not subject to jurisdiction of the Commission.—(1) The Commission shall not inquire into any matter
which is pending before a State Commission or any other Commission duly constituted under any law for the time
being in force.
(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the
date on which the act constituting violation of human rights is alleged to have been committed.
S. 37. Constitution of special investigation teams.—Notwithstanding anything contained in any other law for the time
being in force, where the Government considers it necessary so to do, it may constitute one or more special
investigation teams, consisting of such police officers as it thinks necessary for purposes of investigation and
prosecution of offences arising out of violations of human rights.
S. 38. Protection of action taken in good faith.—No suit or other legal proceeding shall lie against the Central
Government, State Government, Commission, State Commission or any Member thereof or any person acting
under the direction either of the Central Government, State Government, Commission or the State Commission in
respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any
order made thereunder or in respect of the publication by or under the authority of the Central Government, State
Government, Commission or the State Commission of any report, paper of proceedings.
S. 39. Members and officers to be public servants.—Every Member of the Commission, State Commission and
every officer appointed or authorised by the Commission or the State Commission to exercise functions under this
Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
S. 40. Power of Central Government to make rules.—(1) The Central Government may by notification, make rules
to carry out the provisions of this Act.
Page 19 of 24
(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any
of the following matters, namely:
(a) the salaries and allowances and other terms and conditions of service of the 28.[Chairperson and
Members] under section 8;
(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the
Commission and the salaries and allowances of officers and other staff under sub-section (3) of section 11;
(c) any other power of a civil court required to be prescribed under clause (f) of sub-section (1) of section 13;
(d) the form in which the annual statement of accounts is to be prepared by the Commission under sub-section
(1) of section 34; and
(e) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that
the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as
the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
29.[S. 40A. Power to make rules retrospectively.—The power of make rules under clause (b) of sub-section (2) of
section 40 shall include the power to make such rules or any of them retrospectively from a date not earlier than the
date on which this Act received the assent of the President, but no such retrospective effect shall be given to any
such rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.]
30.[S. 40B. Power of Commission to make regulations.—(1) Subject to the provisions of this Act and the rules made
thereunder, the Commission may, with the previous approval of the Central Government, by notification, make
regulations to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all
or any of the following matters, namely:—
(a) the procedure to be followed by the Commission under sub-section (2) of section 10;
Page 20 of 24
(b) the returns and statistics to be furnished by the State Commissions;
(c) any other matter which has to be, or may be, specified by regulations.
(3) Every regulation made by the Commission under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in
one session or in two or more successive sessions, and if, before the expiry of the session or the successive
sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the
regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that regulation.]
S. 41. Power of State Government to make rules.—(1) The State Government may by notification, make rules to
carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any
of the following matters, namely,
(a) the salaries and allowances and other terms and conditions of service of 31.[the Chairperson and
Members] under section 26;
(b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the
State Commission and the salaries and allowances of officers and other staff under sub-section (3) of
section 27;
(c) the form in which the annual statement of accounts is to be prepared under sub-section (1) of section 35.
(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made,
before each House of the State Legislature, where it consists of two Houses, or where such Legislature consists of
one House, before that House.
S. 42. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of this Act, the
Central Government may by order published in the Official Gazette, make such provisions, not inconsistent with the
provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of the period of two years from the date of
commencement of this Act.
Page 21 of 24
(2) Every order made under this section shall, as soon as may be after it is made be laid before each House of
Parliament.
S. 43. Repeal and savings.—(1) The Protection of Human Rights Ordinance,1993 (Ord. 30 of 1993) is hereby
repealed.
(2) Notwithstanding such repeal anything done or any action taken under the said Ordinance shall be deemed to
have been done or taken under the corresponding provisions of this Act.
1. Subs. by Act 43 of 2006, section 2(w.e.f. 23-11-2006). Before substitution, Clause (f) stood as under:
“(f) “International covenants” means the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the
16th December, 1966.”
2. Subs. by Act 43 of 2006, section 2 (w.e.f. 23-11-2006). Before substitution, Clause (g) stood as under:
“(g) “Member” means a Member of the Commission or of the State Commission as the case may be, and includes the
Chairperson.”
3. Subs. by Act 43 of 2006, section 2 (w.e.f. 23-11-2006). Before substitution, Clause (i) stood as under:
“(i) “National Commission for the Scheduled Castes and Scheduled Tribes” means the National Commission for the
Scheduled Castes and Scheduled Tribes referred to in Article 338 of the Constitution.”
4. Subs. by Act 43 of 2006, section 3, for the words “the National Commission for the Scheduled Castes and Scheduled
Tribes” (w.e.f. 23-11-2006).
5. Subs. by Act 43 of 2006, section 3, for the words “as it may delegate to him” (w.e.f. 23-11-2006).
6. Subs. by Act 43 of 2006, section 4, for the words “other members” (w.e.f. 23-11-2006).
7. Subs. by Act 43 of 2006, section 4, for the words“vacancy in the Committee” (w.e.f. 23-11-2006).
8. Subs. by Act 43 of 2006, section 5 (w.e.f. 23-11-2006). Before substitution, it stood as under :
“Section 5. Removal of a Member of the Commission.—(1) Subject to the provisions of sub-section (2), the
Chairperson or any other Member of the Commission shall only be removed from his office by order of the President on
the ground of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it by the
President has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court,
reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.
Page 22 of 24
(2) Notwithstanding anything in sub-section (1), the President may by order remove from office the Chairperson or any
other Member if the Chairperson or such other Member, as the case may be,—
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral
turpitude.”
9. Subs. by Act 43 of 2006, section 6 (w.e.f. 23-11-2006). Before substitution,it stood as under :
“Section 6. Term of office of Members.—(1) A person appointed as Chairperson shall hold office for a term of five
years from the date on which he enters upon his office or until he attains the Age of seventy years, whichever is earlier.
(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his
office and shall be eligible for re-appointment for another term of five years:
(3) On ceasing to hold office, a Chairperson or a Member, shall be ineligible for further employment under the
Government of India or under the Government of any State.”
10. Subs. by Act 43 of 2006, section 7(w.e.f. 23-11-2006). Before substitution, it stood as under :
“Section 8. Terms and conditions of service of Members.—The salaries and allowances payable to, and other terms
and conditions of service of the Members shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be
varied to his disadvantage after his appointment.”
11. Subs. by Act 43 of 2006, section 8 (w.e.f. 23-11-2006). Before substitution,it stood as under:
“(2) The Commission shall regulate its own procedure.”
13. Subs. by Act 43 of 2006, section 9 (w.e.f. 23-11-2006). Before substitution,it stood as under :
“(c) visit, under intimation to the State Government, any jail or any other institution under the control of the State
Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study
the living conditions of the inmates and make recommending thereon;”
15. Subs. by Act 43 of 2006, section 11(w.e.f. 23-11-2006). Before substitution,it stood as under:
Page 23 of 24
“Section 18. Steps after Inquiry.—The Commission may take any of the following steps upon the completion of an
inquiry held under this Act, namely:
(1) where the inquiry discloses, the commission of violation of human rights, it may recommend to the concerned
Government or authority the initiation of proceedings for prosecution or such other action as the Commission may
deem fit against the concerned person or persons;
(2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that court may
deem necessary;
(3) recommend to the concerned government or authority for the grant of such immediate interim relief to the victim or
the members of his family as the Commission may consider necessary;
(4) subject to the provisions of clause (5) provides a copy of inquiry report to the petitioner or his representative;
(5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned
government or authority and the concerned government or authority shall, within a period of one month, or such
further time as the Commission may allow, forward its comments or the report including the action taken or
proposed to be taken thereon, to the Commission;
(6) the Commission shall publish its inquiry report together with the comments of the concerned government or
authority, if any, and the action taken or proposed to be taken by the concerned, government or authority on the
recommendations of the Commission.”
16. Subs. by Act 43 of 2006, section 12(w.e.f. 23-11-2006). Before substitution,it stood as under :
“(2) The State Government shall consist of—
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been a Judge of a High Court;
(c) one Member who is, or has been a district judge in that State;
(d) two members to be appointed from amongst persons having knowledge of, or practical experience in matters
relating to human rights.”
18. Subs. by Act 43 of 2006, section 13 for the words “other Members” (w.e.f. 23-11-2006).
20. Subs. by Act 43 of 2006, section13 for the words “any vacancy in the Committee” (w.e.f. 23-11-2006).
21. Subs. by Act 43 of 2006, section 14, for the words “Removal of a Member of the State Commission” (w.e.f. 23-11-
2006).
Page 24 of 24
22. Subs. by Act 43 of 2006, section 14 (w.e.f. 23-11-2006). Before substitution, it stood as under:
“(1) Subject to the provisions of sub-section (2), the Chairperson or any other Member of the State Commission shall
only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the
Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the
procedure prescribed in that behalf by the Supreme Court reported that the Chairperson or such other Member as the
case may be, ought on any such ground to be removed.”
23. Subs. by Act 43 of 2006, section 14, for the words and figure “sub-section (1)” (w.e.f. 23-11-2006).
26. Subs. by Act 43 of 2006, section 15 (w.e.f. 23-11-2006). Before substitution,it stood as under:
“Section 24. Term of office of Members of the State Commission.—(1) A person appointed as Chairperson shall hold
office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy
years, whichever is earlier.
(2) A person appointed as a Member shall hold office for a term of five years from date on which he enters upon his
office and shall be eligible for re-appointment for another term of five years:
Government of a State or under the Government of India.”
27. Subs. by Act 43 of 2006, section 16(w.e.f. 23-11-2006). Before substitution, it stood as under:
“Section 26. Terms and conditions of service of Members of the State Commission.—The salaries and allowances
payable to, and other terms and conditions of service of the Members shall be such as may be prescribed by the State
Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be
varied to his disadvantage after his appointment.”
28. Subs. by Act 43 of 2006, section 17 for the word “Members” (w.e.f. 23-11-2006).
31. Subs. by Act 43 of 2006, section 19 for the word “the Members” (w.e.f. 23-11-2006).
End of Document
APPENDIX V THE RIGHT OF CHILDREN TO FREE AND COMPULSORY
EDUCATION ACT, 2009
APPENDIX V THE RIGHT OF CHILDREN TO FREE AND COMPULSORY

EDUCATION ACT, 2009
(Act 35 of 2009)
[26th August 2009]
An Act to provide for free and compulsory education to all children of the age of six to fourteen years.
BE it enacted by Parliament in the Sixtieth Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
S. 1. Short title, extent and commencement.—(1) This Act may be called the Right of Children to Free and
Compulsory Education Act, 2009.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date1. as the Central Government may, by notification in the Official Gazette,
appoint.
Page 2 of 22
APPENDIX V THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009
2.[(4) Subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of this Act shall apply to
conferment of rights on children to free and compulsory education.
(5) Nothing contained in this Act shall apply to Madrasas, Vedic Pathsalas and educational institutions primarily
imparting religious instruction.]
(a) “appropriate Government” means—
(i) in relation to a school established, owned or controlled by the Central Government, or the administrator
of the Union territory, having no legislature, the Central Government;
(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory
of—
(A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;
(b) “capitation fee” means any kind of donation or contribution or payment other than the fee notified by the
school;
(c) “child” means a male or female child of the age of six to fourteen years;
(d) “child belonging to disadvantaged group” means 3.[a child with disability or] a child belonging to the
Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group
having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other
factor, as may be specified by the appropriate Government, by notification;
(e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual
income is lower than the minimum limit specified by the appropriate Government, by notification;
4.[(ee) “child with disability” includes,—

Page 3 of 22
(A) a child with “disability” as defined in clause (i) of section 2 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);
(B) a child, being a person with disability as defined in clause (j) of section 2 of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
(44 of 1999);
(C) a child with “severe disability” as defined in clause (o) of section 2 of the National Trust for Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of
1999).]
(f) “elementary education” means the education from first class to eighth class;
(g) “guardian”, in relation to a child, means a person having the care and custody of that child and includes a
natural guardian or guardian appointed or declared by a court or a statute;
(h) “local authority” means a Municipal Corporation or Municipal Council or Zila Parishad or Nagar Panchayat
or Papchayat, by whatever name called, and includes such other authority or body having administrative
control over the school or empowered by or under any law for the time being in force to function as a local
authority in any city, town or village;
(i) “National Commission for Protection of Child Rights” means the National Commission for Protection of
Child Rights constituted under section 3 of the Commissions for Protection of Child Rights Act, 2005 (4 of
2006);
(j) “notification” means a notification published in the Official Gazette;
(k) “parent” means either the natural or step or adoptive father or mother of a child;
(l) “prescribed” means prescribed by rules made under this Act;
(m) “Schedule” means the Schedule annexed to this Act;
(n) “school” means any recognised school imparting elementary education and includes—
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate
Government or the local authority;
(iii) a school belonging to specified category; and

Page 4 of 22
(iv) an unaided school, not receiving any kind of aid or grants to meet its expenses from the appropriate
Government or the local authority;
(o) “screening procedure” means the method of selection for admission of a child, in preference over another,
other than a random method;
(p) “specified category”, in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya
Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by
notification, by the appropriate Government;
(q) “State Commission for Protection of Child Rights” means the State Commission for Protection of Child
Rights constituted under section 3 of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
CHAPTER II
RIGHT TO FREE AND COMPULSORY EDUCATION
S. 3. Right of child to free and compulsory education.—5.[(1) Every child of the age of six to fourteen years,
including a child referred to in clause (d) or clause (e) of section 2, shall have the right to free and compulsory
education in a neighbourhood school till the completion of his or her elementary education.]
(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which
may prevent him or her from pursuing and completing the elementary education:
6.[***]
7.[(3) A child with disability referred to in sub-clause (A) of clause (ee) of section 2 shall, without prejudice
to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (1 of 1996), and a child referred to in sub-clauses (B) and (C) of clause (ee) of
section 2, have the same rights to pursue free and compulsory elementary education which children with
disabilities have under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995:
Provided that a child with “multiple disabilities” referred to in clause (h) and a child with “severe
disability” referred to in clause (o) of section 2 of the National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999) may also have the
right to opt for home-based education.]
Page 5 of 22
S. 4. Special provisions for children not admitted to, or who have not completed, elementary education.—Where a
child above six years of age has not been admitted in any school or though admitted, could not complete his or her
elementary education, then, he or she shall be admitted in a class appropriate to his or her age:
Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in
order to be at par with others, have a right to receive special training, in such manner, and within such time-limits,
as may be prescribed:
Provided further that a child so admitted to elementary education shall be entitled to free education till completion of
elementary education even after fourteen years.
S. 5. Right of transfer to other school.—(1) Where in a school, there is no provision for completion of elementary
education, a child shall have a right to seek transfer to any other school, excluding the school specified in sub-
clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.
(2) Where a child is required to move from one school to another, either within a State or outside, for any reason
whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-
clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.
(3) For seeking admission in such other school, the Head-teacher or in-charge of the school where such child was
last admitted, shall immediately issue the transfer certificate:
Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in
such other school:
Provided further that the Head-teacher or in-charge of the school delaying issuance of transfer certificate shall be
liable for disciplinary action under the service rules applicable to him or her.
CHAPTER III
DUTIES OF APPROPRIATE GOVERNMENT, LOCAL AUTHORITY AND PARENTS
S. 6. Duty of appropriate Government and local authority to establish school.—For carrying out the provisions of this
Act, the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood,
as may be prescribed, a school, where it is not so established, within a period of three years from the
commencement of this Act.
Page 6 of 22
S. 7. Sharing of financial and other responsibilities.—(1) The Central Government and the State Governments shall
have concurrent responsibility for providing funds for carrying out the provisions of this Act.
(2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation
of the provisions of the Act.
(3) The Central Government shall provide to the State Governments, as grants-in-aid of revenues, such percentage
of expenditure referred to in sub-section (2) as it may determine, from time to time, in consultation with the State
Governments.
(4) The Central Government may make a request to the President to make a reference to the Finance Commission
under sub-clause (d) of clause (3) of Article 280 to examine the need for additional resources to be provided to any
State Government so that the said State Government may provide its share of funds for carrying out the provisions
of the Act.
(5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking into consideration the
sums provided by the Central Government to a State Government under sub-section (3), and its other resources,
be responsible to provide funds for implementation of the provisions of the Act.
(6) The Central Government shall—
(a) develop a framework of national curriculum with the help of academic authority specified under section 29;
(b) develop and enforce standards for training of teachers;
(c) provide technical support and resources to the State Government for promoting innovations, researches,
planning and capacity building.
S. 8. Duties of appropriate Government.—The appropriate Government shall—
(a) provide free and compulsory elementary education to every child:
Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a
school other than a school established, owned, controlled or substantially financed by funds provided
directly or indirectly by the appropriate Government or a local authority, such child or his or her parents
Page 7 of 22
or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of
expenditure incurred on elementary education of the child in such other school.
Explanation.—The term “compulsory education” means obligation of the appropriate Government to—
(i) provide free elementary education to every child of the age of six to fourteen years; and
(ii) ensure compulsory admission, attendance and completion of elementary education by every child of
the age of six to fourteen years;
(b) ensure availability of a neighbourhood school as specified in section 6;
(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not
discriminated against and prevented from pursuing and completing elementary education on any grounds;
(d) provide infrastructure including school building, teaching staff and learning equipment;
(e) provide special training facility specified in section 4;
(f) ensure and monitor admission, attendance and completion of elementary education by every child;
(g) ensure good quality elementary education conforming to the standards and norms specified in the
Schedule;
(h) ensure timely prescribing of curriculum and courses of study for elementary education; and
(i) provide training facility for teachers.
S. 9. Duties of local authority.—Every local authority shall—
(a) provide free and compulsory elementary education to every child:
Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a
school other than a school established, owned, controlled or substantially financed by funds provided
directly or indirectly by the appropriate Government or a local authority, such child or his or her parents
or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of
expenditure incurred on elementary education of the child in such other school;
Page 8 of 22
(b) ensure availability of a neighbourhood school as specified in section 6;
(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not
discriminated against and prevented from pursuing and completing elementary education on any grounds;
(d) maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner
as may be prescribed;
(e) ensure and monitor admission, attendance and completion of elementary education by every child residing
within its jurisdiction;
(f) provide infrastructure including school building, teaching staff and learning material;
(g) provide special training facility specified in section 4;
(h) ensure good quality elementary education conforming to the standards and norms specified in the
Schedule;
(i) ensure timely prescribing of curriculum and courses of study for elementary education;
(j) provide training facility for teachers;
(k) ensure admission of children of migrant families;
(l) monitor functioning of schools within its jurisdiction; and
(m) decide the academic calendar.
S. 10. Duty of parents and guardian.—It shall be the duty of every parent or guardian to admit or cause to be
admitted his or her child or ward, as the case may be, to an elementary education in the neighbourhood school.
S. 11. Appropriate Government to provide for pre-school education.—With a view to prepare children above the age
of three years for elementary education and to provide early childhood care and education for all children until they
complete the age of six years, the appropriate Government may make necessary arrangement for providing free
pre-school education for such children.
CHAPTER IV
RESPONSIBILITIES OF SCHOOLS AND TEACHERS
S. 12. Extent of school’s responsibility for free and compulsory education.—(1) For the purposes of this Act, a
school,—
Page 9 of 22
(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary
education to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary
education to such proportion of children admitted therein as its annual recurring aid or grants so received
bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least
twenty-five per cent, of the strength of that class, children belonging to weaker section and disadvantaged
group in the neighbourhood and provide free and compulsory elementary education till its completion:
Provided further that where a school specified in clause (n) of section 2 imparts pre-school education,
the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.
(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary
education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent
of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in
such manner as may be prescribed:
Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-
clause (1) of clause (n) of section 2:
Provided further that where such school is already under obligation to provide free education to a specified number
of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a
concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by the appropriate Government or the local
authority, as the case may be.
S. 13. No capitation fee and screening procedure for admission.—(1) No school or person shall, while admitting a
child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.
(2) Any school or person, if in contravention of the provisions of sub-section (1),—

Page 10 of 22
(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee
charged;
(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five
thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions.
S. 14. Proof of age for admission.—(1) For the purposes of admission to elementary education, the age of a child
shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Births,
Deaths and Marriages Registration Act, 1886 (6 of 1886) or on the basis of such other document, as may be
prescribed.
(2) No child shall be denied admission in a school for lack of age proof
S. 15. No denial of admission.—A child shall be admitted in a school at the commencement of the academic year or
within such extended period as may be prescribed:
Provided that no child shall be denied admission if such admission is sought subsequent to the extended period:
Provided further that any child admitted after the extended period shall complete his studies in such manner as may
be prescribed by the appropriate Government.
S. 16. Prohibition of holding back and expulsion.—No child admitted in a school shall be held back in any class or
expelled from school till the completion of elementary education.
S. 17. Prohibition of physical punishment and mental harassment to child.—(1) No child shall be subjected to
physical punishment or mental harassment.
(2) Whoever contravenes the provisions of sub-section (1) shall be liable to disciplinary action under the service
rules applicable to such person.
S. 18. No School to be established without obtaining certificate of recognition.—(1) No school, other than a school
established, owned or controlled by the appropriate Government or the local authority, shall, after the
commencement of this Act, be established or function, without obtaining a certificate of recognition from such
authority, by making an application in such form and manner, as may be prescribed.
(2) The authority prescribed under sub-section (1) shall issue the certificate of recognition in such form, within such
period, in such manner, and subject to such conditions, as may be prescribed:
Page 11 of 22
Provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under
section 19.
(3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing,
withdraw recognition:
Provided that such order shall contain a direction as to which of the neighbourhood school, the children studying in
the derecognised school, shall be admitted:
Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such
school, in such manner, as may be prescribed.
(4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to
function.
(5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a
school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of
continuing contraventions, to a fine often thousand rupees for each day during which such contravention continues.
S. 19. Norms and standards for school.—(1) No school shall be established, or recognised, under section 18,
unless it fulfils the norms and standards specified in the Schedule.
(2) Where a school established before the commencement of this Act does not fulfil the norms and standards
specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period
of three years from the date of such commencement.
(3) Where a school fails to fulfil the norms and standards within the period specified under, sub-section (2), the
authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the
manner specified under sub-section (3) thereof.
(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.
(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may
extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day
during which such contravention continues.
Page 12 of 22
S. 20. Power to amend Schedule.—The Central Government may, by notification, amend the Schedule by adding
to, or omitting therefrom, any norms and standards.
S. 21. School Management Committee.—(1) A school, other than a school specified in sub-clause (iv) of clause (n)
of section 2, shall constitute a School Management Committee consisting of the elected representatives of the local
authority, parents or guardians of children admitted in such school and teachers:
Provided that atleast three-fourth of members of such Committee shall be parents or guardians:
Provided further that proportionate representation shall be given to the parents or guardians of children belonging to
disadvantaged group and weaker section:
Provided also that fifty per cent, of Members of such Committee shall be women.
(2) The School Management Committee shall perform the following functions, namely:—
(a) monitor the working of the school;
(b) prepare and recommend school development plan;
(c) monitor the utilisation of the grants received from the appropriate Government or local authority or any
other source; and
(d) perform such other functions as may be prescribed.
8.[Provided that the School Management Committee constituted under sub-section(1) in respect of—
(a) a school established and administered by minority whether based on religion or language; and
(b) all other aided schools as defined in sub-section (ii) of clause (n) of section 2,
shall perform advisory function only.]
S. 22. School Development Plan.—(1) Every 9.[School Management Committee, except the School Management
Committee in respect of a school established and administered by minority, whether based on religion or language
Page 13 of 22
and an aided school as defined in sub-clause (ii) of clause (n) of section 2, constituted] under sub-section (1) of
section 21, shall prepare a School Development Plan, in such manner as may be prescribed.
(2) The School Development Plan so prepared under sub-section (1) shall be the basis for the plans and grants to
be made by the appropriate Government or local authority, as the case may be.
S. 23. Qualifications for appointment and terms and conditions of service of teachers.—(1) Any person possessing
such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by
notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers
possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the
Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for
appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid
down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as
may be prescribed.
S. 24. Duties of teachers and redressal of grievances.—(1) A teacher appointed under sub-section (1) of section 23
shall perform the following duties, namely:—
(a) maintain regularity and punctuality in attending school;
(b) conduct and complete the curriculum in accordance with the provisions of sub-section (2) of section 29;
(c) complete entire curriculum within the specified time;
(d) assess the learning ability of each child and accordingly supplement additional instructions, if any, as
required;
(e) hold regular meetings with parents and guardians and apprise them about the regularity in attendance,
ability to learn, progress made in learning and any other relevant, information about the child; and
(f) perform such other duties as may be prescribed.

Page 14 of 22
(2) A teacher committing default in performance of duties specified in sub-section (I), shall be liable to disciplinary
action under the service rules applicable to him or her:
Provided that before taking such disciplinary action, reasonable opportunity of being heard shall be afforded to such
teacher.
(3) The grievances, if any, of the teacher shall be redressed in such manner as may be prescribed.
S. 25. Pupil-Teacher Ratio.—(1)10.[Within three years] from the date of commencement of this Act, the appropriate
Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is
maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school
shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those
specified in section 27.
S. 26. Filling up vacancies of teachers.—The appointing authority, in relation to a school established, owned,
controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a
local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent. of
the total sanctioned strength.
S. 27. Prohibition of deployment of teachers for non-educational purposes.—No teacher shall be deployed for any
non-educational purposes other than the decennial population census, disaster relief duties or duties relating to
elections to the local authority or the State Legislatures or Parliament, as the case may be.
S. 28. Prohibition of private tuition by teacher.—No teacher shall engage himself or herself in private tuition or
private teaching activity.
CHAPTER V
CURRICULUM AND COMPLETION OF ELEMENTARY EDUCATION
S. 29. Curriculum and evaluation procedure.—(1) The curriculum and the evaluation procedure for elementary
education shall be laid down by an academic authority to be specified by the appropriate Government, by
notification.
Page 15 of 22
(2) The academic authority, while laying down the curriculum and the evaluation procedure under sub-section (1),
shall take into consideration the following, namely:—
(a) conformity with the values enshrined in the Constitution;
(b) all round development of the child;
(c) building up child’s knowledge, potentiality and talent;
(d) development of physical and mental abilities to the fullest extent;
(e) learning through activities, discovery and exploration in a child friendly find child-centered manner;
(f) medium of instructions shall, as far as practicable, be in child’s mother tongue;
(g) making the child free of fear, trauma and anxiety and helping the child to express views freely;
(h) comprehensive and continuous evaluation of child’s understanding of knowledge and his or her ability to
apply the same.
S. 30. Examination and completion certificate.—(1) No child shall be required to pass any Board examination till
completion of elementary education.
(2) Every child completing his elementary education shall be awarded a certificate, in such form and in such
manner, as may be prescribed.
CHAPTER VI
PROTECTION OF RIGHT OF CHILDREN
S. 31. Monitoring of child’s right to education.—(1) The National Commission for Protection of Child Rights
constituted under section 3, or, as the case may be, the State Commission for Protection of Child Rights constituted
under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006), shall, in addition to the
functions assigned to them under that Act, also perform the following functions, namely:—
(a) examine and review the safeguards for rights provided by or under this Act and recommend measures for
their effective implementation;
Page 16 of 22
(b) inquire into complaints relating to child’s right to free and compulsory education; and
(c) take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of
Child Rights Act.
(2) The said Commissions shall, while inquiring into any matters relating to child’s right to free and compulsory
education under clause (c) of sub-section (1), have the same powers as assigned to them respectively under
sections 14 and 24 of the said Commissions for Protection of Child Rights Act.
(3) Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate
Government may, for the purpose of performing the functions specified in clauses (a) to (c) of sub-section (1),
constitute such authority, in such manner and subject to such terms and conditions, as may be prescribed.
S. 32. Redressal of grievances.—(1) Notwithstanding anything contained in section 31, any person having any
grievance relating to the right of a child under this Act may make a written complaint to the local authority having
jurisdiction.
(2) After receiving the complaint under sub-section (1), the local authority shall decide the matter within a period of
three months after affording a reasonable opportunity of being heard to the parties concerned.
(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for
Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.
(4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights
or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of
sub-section (1) of section 31.
S. 33. Constitution of National Advisory Council.—(1) The Central Government shall constitute, by notification, a
National Advisory Council, consisting of such number of Members, not exceeding fifteen, as the Central
Government may deem necessary, to be appointed from amongst persons having knowledge and practical
experience in the field of elementary education and child development.
(2) The functions of the National Advisory Council shall be to advise the Central Government on implementation of
the provisions of the Act in an effective manner.
(3) The allowances and other terms and conditions of the appointment of Members of the National Advisory Council
shall be such as may be prescribed.
S. 34. Constitution of State Advisory Council.—(1) The Slate Government shall constitute, by notification, a State
Page 17 of 22
Advisory Council consisting of such number of Members, not exceeding fifteen, as the Slate Government may
deem necessary, to be appointed from amongst persons having knowledge and practical experience in the field of
elementary education and child development.
(2) The functions of the State Advisory council shall be to advise the State Government on implementation of the
provisions of the Act in an effective manner.
(3) The allowances and other terms and conditions of appointment of Members of the Stale Advisory Council shall
be such as may be prescribed.
CHAPTER VII
MISCELLANEOUS
S. 35. Power to issue directions.—(1) The Central Government may issue such guidelines to the appropriate
Government or, as the case may be, the local authority, as it deems fit for the purposes of implementation of the
provisions of this Act.
(2) The appropriate Government may issue guidelines and give such directions, as it deems tit, to the local authority
or the School Management Committee regarding implementation of the provisions of this Act.
(3) The local authority may issue guidelines and give such directions, as it deems fit, to the School Management
Committee regarding implementation of the provisions of this Act.
S. 36. Previous sanction for prosecution.—No prosecution for offences punishable under sub-section (2) of section
13, sub-section (5) of section 18 and sub-section (5) of section 19 shall be instituted except with the previous
sanction of an officer authorised in this behalf, by the appropriate Government, by notification.
S. 37. Protection of action taken in good faith.—No suit or other legal proceeding shall lie against the Central
Government, the State Government, the National Commission for Protection of Child Rights, the State Commission
for Protection of Child Rights, the local authority, the School Management Committee or any person, in respect of
anything which is in good faith done or intended to be done, in pursuance of this Act, or any rules or order made
thereunder.
S. 38. Power of appropriate Government to make rules.—(1) The appropriate Government may, by notification,
make rules, for carrying out the provisions of this Act.
Page 18 of 22
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or
any of the following matters, namely:—
(a) the manner of giving special training and the time-limit thereof, under first proviso to section 4;
(b) the area or limits for establishment of a neighbourhood school, under section 6;
(c) the manner of maintenance of records of children up to the age of fourteen years, under clause (d) of
section 9;
(d) the manner and extent of reimbursement of expenditure, under subsection (2) of section 12;
(e) any other document for determining the age of child under subsection (1) of section 14;
(f) the extended period for admission and the manner of completing study if admitted after the extended
period, under section 15;
(g) the authority, the form and manner of making application for certificate of recognition, under sub-section (1)
of section 18;
(h) the form, the period, the manner and the conditions for issuing certificate of recognition, under sub-section
(2) of section 18;
(i) the manner of giving opportunity of hearing under second proviso to sub-section (3) of section 18;
(j) the other functions to be performed by School Management Committee under clause (d) of sub-section (2)
of section 21;
(k) the manner of preparing School Development Plan under sub-section (1) of section 22;
(l) the salary and allowances payable to, and the terms and conditions of service of, teacher, under sub-
section (3) of section 23;
(m) the duties to be performed by the teacher under clause (f) of sub-section (1) of section 24;
(n) the manner of redressing grievances of teachers under sub-section (3) of section 24;
(o) the form and manner of awarding certificate for completion of elementary education under sub-section (2)
of section 30;
(p) the authority, the manner of its constitution and the terms and conditions therefor, under sub-section (3) of
section 31;
Page 19 of 22
(q) the allowances and other terms and conditions of appointment of Members of the National Advisory
Council under sub-section (3) of section 33;
(r) the allowances and other terms and conditions of appointment of Members of the State Advisory Council
under sub-section (3) of section 34.
(3) Every rule made under this Act and every notification issued under sections 20 and 23 by the Central
Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in
session, for a total period of thirty days which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the
rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form
or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule or notification.
(4) Every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it
is made; before the State Legislatures.
11.[S. 39. Power of Central Government to remove difficulties.—(1) If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such
provisions not inconsistent with the provisions of this Act, as may appear to it to be necessary for removing the
difficulty:
Provided that no order shall be made under this section after the expiry of three years from the commencement of
the Right of Children to Free and Compulsory Education (Amendment) Act, 2012.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of
Parliament.]
THE SCHEDULE
(See sections 19 and 25)
NORMS AND STANDARDS FOR A SCHOOL
Sl. No. Item Norms and Standards
1. Number of teachers:
(a) For first class to fifth class Admitted children Up to Sixty Number of teachers
Page 20 of 22
Between sixty-one to ninety Two
Between Ninety-one to one Three

hundred and twenty
Four
Between One hundred and
twenty-one to two hundred Five
Above One hundred and fifty Five plus one Head-Teacher

children
Pupil-Teacher Ratio
Above Two hundred children (excluding Headteacher) shall
not exceed forty.
(b) For sixth class to eighth

class
(1) At least one teacher per class so that there shall be

at least one teacher each for—
(i) Science and Mathematics;
(ii) Social Studies;
(iii) Languages.
(2) At least one teacher for every thirty-five children.
(3) Where admission of children is above one hundred—
(i) a full time head-teacher;
(ii) part time instructors for—
(A) Art Education;
(B) Health and Physical Education;
(C) Work Education.

Page 21 of 22
2. Building All-weather building consisting of—
(i) at least one class-room for every teacher and an

office-cum-store- cum-Head teacher’s room;
(ii) barrier-free access;
(iii) separate toilets for boys and girls;
(iv) safe and adequate drinking water facility to all

children;
(v) a kitchen where mid-day meal is cooked in the

school;
(vi) Playground;
(vii) arrangements for securing the school building by

boundary wall or fencing.
3. Minimum number of working

days/instructional hours in an
academic year
(i) two hundred working days for first class to fifth class;
(ii) two hundred and twenty working days for sixth class
to eighth class;
(iii) eight hundred instructional hours per academic year

for first class to fifth class;
(iv) one thousand instructional hours per academic year

for sixth class to eighth class.
4. Minimum number of working forty-five teaching including preparation hours.

hours per week for the
teacher
5. Teaching learning equipment Shall be provided to each class as required.

Page 22 of 22
6. Library There shall be a library in each school providing newspaper,

magazines and books on ail subjects, including story-books.
7. Play material, games and Shall be provided to each class as required.

sports equipment
1. The Act came into force on 1-4-2010 vide Notification No. S.O. 428(E), dated 16-2-2010.
5. Subs. by Act 30 of 2012, section 4 (w.e.f. 1-8-2012). Before substitution, sub-section(1) stood as under:
“(1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a
neighbourhood school till completion of elementary education.”
6. Omitted by Act 30 of 2012, section 4 (w.e.f. 1-8-2012). Before omission, proviso stood as under:
“Provided that a child suffering from disability, as defined in clause (i) of section 2 of the Persons with Disabilities
(Equal Opportunities, Protection and Full Participation) Act, 1996 (1 of 1996), shall have the right to pursue free and
compulsory elementary education in accordance with the provisions of Chapter V of the said Act.”
9. Subs. by Act 30 of 2012, section 6 for the words “School Management Committee, constituted” (w.e.f. 1-8-2012).
10. Subs. by Act 30 of 2012, section 7 for the words “Within six months” (w.e.f. 1-8-2012).
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Date and Time: Sunday 26 December 2021 1:46:00 AM IST

Job Number: 160603507

1. Art. 20. Protection in respect of conviction for offences.-

Commentary on the Constitution of India

PART III FUNDAMENTAL RIGHTS (contd.)

Art. 20. Protection in respect of conviction for offences.-

Article I, section9(3) of the Constitution of the U.S.A. says—

No... ex post facto law shall be passed.

Art. 20. Protection in respect of conviction for offences.-

There is a similar prohibition against the States in Article I, section 10.

Art. 20. Protection in respect of conviction for offences.-

To the above 4 rules, COOLEY10.adds two others:

Art. 20. Protection in respect of conviction for offences.-

Article 9 of the American Convention on Human Rights read as follows:

Art. 20. Protection in respect of conviction for offences.-

(B) England.— U.K.

Nevertheless, BLACKSTONE29.denounced this method of legislation as “unreasonable”:

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Article 15(5) of the Constitution of 1937 says:

ArticleXXXIX of the Japanese Constitution of 1946 says—

Government of India, Act, 1935

Art. 20. Protection in respect of conviction for offences.-

Article II(2) of the Universal Declaration of Human Rights 1948, says:

Article 7 of the European Convention read thus:

Covenant on Civil and Political Rights

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

On the other hand,—

Art. 20. Protection in respect of conviction for offences.-

It follows, therefore, that the guarantee has no application to retrospective legislation—

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Applicability to law of procedure

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

(a) changes the place of trial;31 or

(b) abolishes courts and creates new ones;34. or

(c) confers upon the State a right of appeal;35.

(e) changes the qualifications for jurors;37.

(g) renders admissible evidence which was previously inadmissible;39. or

Art. 20. Protection in respect of conviction for offences.-

In Shiv Bahadur v State of V.P.,44.our Supreme Court has observed:

(a) the place of trial;43

(b) the mode of execution or carrying out of the sentence,47. or

(c) mollifying the rigours of a criminal law.48.

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

None of the clauses of Article 20 applies unless there is an “offence”.67.

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

Art. 20. Protection in respect of conviction for offences.-

(i) Forfeiture of property for a statutory offence, ordered by an administrative authority.13.

(v) Eviction from unauthorised occupation of public property.13

(vi) Externment of habitual criminals.18.