SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: B.A. LL.B.

Batch: 2021-26

Semester: II

Course Name: Constitutional Law

PRN:
D 21010125327
v

Name of the Student: Shivangi Mishra

INSTRUCTIONS

1. Mention your details only in the space provided above. If any other details name, contact
detail etc. are written anywhere else in the answer script it will be treated as adoption of
unfair means.
2. Use diagrams and sketches wherever required.
3. Submission must be done by the student through google form link provided by the
examination department and all submissions must be in the word format only(.doc/.docx).
Submission of any other format will not accepted.
4. Submission will not be accepted beyond the deadline given by the examination
department in each subject. Student will be marked absent in case of late submission.
5. Formatting guidelines: Font size & name: 12 & Times New Roman; Line spacing 1.5;
Justified; Page size: A4; No borders
6. Write your answer in your own language and do not copy paste from any source. Read
the question carefully and write your answer fulfilling the requirements of the question.
7. If the students copy from each other’s assignment, it will be considered as unfair means
case and performance will be treated as null and void for the entire examination.
Q. 1 Auto Dada was charged and tried for as many as six murders. Auto Dada wrote his
autobiography “Amaar Jibon” running into 300 pages while confined in Hooghly sub-
jail during the year 1991. The autobiography was handed over by him to his wife, Smt
Dadi, with the knowledge and approval of the jail authorities, for being delivered to his
advocate, Shri Gareeb. The prisoner requested his advocate to ensure that his
autobiography is published in a magazine. The autobiography sets out the close nexus
between Auto Dada and several IAS, IPS and other officers, some of whom were indeed
his partners in several crimes. The IG of Police in light of the same prevented Auto
Dada from publishing his autobiography.

Discuss whether a citizen of this country can prevent another person from writing his
life story or biography? Does such 1nauthorized writing infringe the citizen’s right to
privacy? Whether the freedom of press guaranteed by Article 19(1) (a) entitles the press
to publish such authorized account of a citizen’s life and activities and if so to what
extent and in what circumstances? What are the remedies open to a citizen of this
country in case of infringement of his right to privacy and further in case such writing
amounts to defamation? Elaborate your answers with relevant case laws.

Press freedom is a part of the right to free speech and expression. Because it acts as a
watchdog over the legislative, executive, and judicial branches of government, press freedom
is essential for a democracy. The freedom of journalists is yet constrained. The restrictions
outlined in Article 19(2) of the Constitution place restrictions on it. The following grounds
for restriction are listed in Article 19(2):-

1) The sovereignty and integrity of India

2) State Security

3) Goodwill toward other nations

4) Upholding the law 

5) Morality or decency

6) Ignorance of the law

7) Public Order

The idea of the right to privacy as an independent and distinct concept initially emerged in
the realm of tort law, which recognised a new cause of claim for damages resulting from an
unauthorised invasion of privacy. The two aspects of this right that are merely two sides of
the same coin are the general law of privacy, which allows a tort action in court resulting
from an unauthorised invasion of privacy, and the constitutional recognition of the right to
privacy, which provides protection against unauthorised governmental intrusion. When, for
instance, a person’s name or likeness is used for marketing or non-advertising purposes
without his consent or when, on that subject, his life story is written, whether laudatory or
otherwise, and published without his consent, as explained below; the first aspect of this right
has been violated. However, this right now has legal standing under the Constitution.

In the case of public officials, it should go without saying that their actions and conduct in the
course of carrying out their official duties do not give rise to a right to privacy or, for that
matter, a remedy of action for damages. Even if the publication is based on false facts and
assertions, this is true unless the official establishes that the release was made (by the
defendant) with casual disregard for truth.

In such a scenario, the defendant (press or media person) would only need to show that his
actions followed a reasonable analysis of the facts; he would not need to show that the
information he published is correct. If it were proven that the publication was false and
motivated by revenge or personal animosity, the defendant would have had no defence and
would be liable for damages.

The facts of our case do not fit any of the following criteria. In an effort to protect the
reputation of his fellow police officers, the IG denies Auto Dada his right to free expression.
In R. Rajagopal v. State of Tamil Nadu, the right to freedom of the press under Article 19(1)
(a) was argued. The publication asserted their authority to release the aforementioned
autobiography. It was asserted that the convicted prisoner also has the right to have his life
story published and that this freedom cannot be curtailed. The court determined that the
petitioners may publish the book as long as they do not infringe upon his right to privacy; if
they do, they will be held liable.

In the instance of Auto Dada, there are no sensationalised or overstated allegations meant to
cause public commotion. As a result, the IG lacks a solid justification for restricting the
convict's rights. Additionally, the IG's meddling went against Auto Dada's right to privacy
because he had already received approval from the jail authorities. The right to privacy is one
of these rights since Article 21's right to life is freely defined to include all facets of a
person's existence that enhance their quality of life.
It also goes without saying that under circumstances unrelated to the discharge of his duties, a
public official is entitled to the same protection as any other citizen. It must be resolved
whether the petitioners, even without Auto Dada’s consent or approval, have the right to
publish what they describe as his life story or autobiography as it is preserved in the public
records. But if they go any farther and reveal his whole story, they might be infringing on his
right to privacy and could face legal repercussions. The state and its authorities are also
helpless to stop or limit the disputed publishing. The public figure’s remedy, if any, is
available following publication under the same Article

Q. 2 How far do you agree with the statement that the term ‘other authority’ as
provided within the definition of state as provided under Article 12 of the Indian
Constitution has been given a wide interpretation by the courts?

As per Article 12 of the Constitution, a “state” contains the following:

a. The Government and the Parliament of India

b. A state’s legislature and executive branch

c. All local governments

d. Any other authorities operating on Indian soil or under Central Government supervision.

These Other Authorities are of the utmost importance because the constitution makes no
reference of what falls under Other Authorities. As a result, the Supreme Court developed
criteria through its rulings that specify what falls under the scope of Other Authorities.

The Madras High Court established the principle of “ejusdem generis,” which means “of
similar nature”. In the case of University of Madras v Shanta Bai it was stated that those
authorities that perform functions that are similar to the functions performed by the
governmental organisation can be termed as state under the Other Authorities. Later, the
Supreme Court ruled in Rajasthan Electricity Board v Mohan Lal that authorities established
by statute or the constitution and to whom legal authority has been granted may be included
in other authorities, whether or not they perform governmental functions.

In subsequent cases, the Airport Authority under Ramanna D. Shetty v International Airport
Authority and the Electricity Board under Rajasthan State Electricity Board v Mohanlal were
both excluded from the definition of “state” under Article 12 because they were merely
functional instruments of the government. However, in the case of Som Prakash v Union Of
India, the company was found to fall under Article 12 because it was a “functional
instrumentality of the state.”

All government agencies are regarded as states under Other Authority, the Supreme Court
ruled in the landmark case of Ajay Hasia v Khalid Mujib. They also established the following
criteria to assess whether a body can qualify as a government instrumentality or not; if the
corporation meets these criteria, it can be referred to as a government instrumentality and,
consequently, as another authority under Article 12:

1. If the government owns all of the shares in the organisation, that organisation is an
instrument of the state.

2. If the government provides financial assistance that is sufficient to cover practically all of
the body’s expenses, the body acquires governmental characteristics and becomes an
instrument of the government.

3. A body is an instrument of the state if it has monopoly status that is safeguarded by the
State.

4. The organisation is a tool of the government if there is a strong and pervasive

governmental control.

5. The entity must be regarded as a government tool if it carries out important public duties
that are closely related to those of the government.

The definition of “State” has been expanded by the court’s rulings to cover a number of
statutory and non-statutory organisations. To designate the party responsible for upholding
such rights, it is necessary to ascertain what constitutes state in the legal sense. Additionally,
the definition of state in Article 12 includes a number of terms like “local authorities,”
“control of government,” “other authorities,” and others that may or may not have specific
definitions. In their rulings, the courts have defined the article’s scope by defining a test and
contesting the terms’ meanings.

Q.3 What do you mean by the term ‘law’ as provided in Article 13(3) of the Indian
Constitution? Whether personal laws are a part of ‘law’ for the purpose of Article 13
(3) of the Indian Constitution? Elaborate your answer with the help of decided cases
and relevant provisions.

The Indian Constitution, which is among the longest in the world, comprises numerous
sections that support the division of powers and duties among State institutions as well as a
safeguard for the rights and interests of the people. Article 13 is the provision of our
Constitution’s Part III that protects individual rights. Article 13 effectively mandates that all
proposed laws and laws now in existence must be in accordance with the fundamental rights
of the people.

Any law that was in force in India before to the adoption of the Constitution that infringes
fundamental rights after that point is ruled invalid to the extent of the violation. It is
imperative to stress that just the portion of a law that is found to be at odds with fundamental
rights may be pronounced void; the entire statute cannot be deemed illegal.

The phrases “law” and “laws in force” are defined in paragraph (3) of the article. No matter if
they were passed by the legislature directly or by lesser authorities acting under their given
legislative authority, statutes are included in the definition. These laws include rules,
notifications, orders, regulations, and bye-laws that were passed in accordance with delegated
legislation.

Administrative orders of the executive adopted in accordance with statutory authority would
unquestionably fall within the definition of “law” under this paragraph if they have an impact
on people’s legal rights. These administrative directives, however, would not be regarded as
“law.” because they are only intended to guide its personnel. It should be emphasised that
although the term “law” encompasses “custom” and “usage” with legal force, this statement
does not apply to personal laws like Hindu and Islamic law.

Article 13(3) (a) refers to any “law, ordinance, order, bye-law, rule, regulation, notification,
custom, or usage that has legal effect on Indian Territory.” In effect, the Clause includes all
laws that violate fundamental rights even though it does not specifically list any of them.
Article 13(3) applies to legislation passed or made by the legislature or another competent
body in the Indian subcontinent prior to the commencement of this Constitution that has not
yet been repealed (b). It refers to the same concept as Article 372, which defines “existing
law.” in the Indian Constitution.
When read with Clauses (2) and (3) (a) of Article 13, Clause (2) states that the State shall not
enact any legislation that violates a person’s fundamental rights. Clause (3) (a) defines law as
include usage and custom. The issue is one of local usage and tradition, which is outside the
jurisdiction of the local government. So, how does it fit into the definition of law in its
broadest sense? Here, the text of the statutes is interpreted differently. Even the interpretation
itself still has certain discrepancies.

In the case of State of Bombay v Narasu Appa Mali, the Bombay High Court had to decide
whether the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was legitimate.
The Court responded to the query of whether personal laws would qualify as “laws in force”
under Article 13(3) (a). In this instance, the Court determined that the expansive meaning of
“law” established by Article 13 could not encompass personal laws.

However, the Supreme Court held in Ahmedabad Women’s Action Group v Union of India
that the codification of laws must be for the fundamental rights if religious personal laws are
incorporated. The issue that first emerged in the Narasu case still exists in the Triple Talaq
decision and even after that, further obscuring the definition of law and “law in force” in
Article 13(3)(a), as well as and the application of that law to certain situations in clause (b)

In the case of Shayara Bano v Union of India and Ors, the Supreme Court had the
opportunity to see how personal laws were added to Article 13, commonly referred to as the
Triple Talaq ruling. However, the Court ruled that because Shariat law is a statutory law that
has been codified by the central legislative assembly, Muslim men’s powers to pronounce
triple talaq and obtain divorces are arbitrary and unjustifiable. As a result, the Indian
Constitution was deemed to be irreconcilable with the Triple Talaq Act. Justice Nariman also
questioned the relevance of the Narusu Judgment’s distinction between the two types of laws.

In 2018, this topic was addressed in the Sabarimala Case, also known as Indian Young
Lawyers Association v The State of Kerala. According to the Court’s ruling in this case, the
“person,” is the central concept of the Indian Constitution, and Article 13 may apply to any
law that affects that person. (3). The Constitution’s Article 13(3) (a) clearly states that “law,”
includes “custom or practise” and “would have the force of law.” according to the Court. The
Court had found that prohibiting women between the ages of 10 and 50 from attending the
Sabarimala Temple is neither rational nor “universal”. Additionally, all legal rules must be
“reasonable, certain, and consistent.”
The term “personal law” is not used in Article 13 for the reason that it was never intended for
personal laws to be covered by Part III of the Constitution. They must have realised that these
personal laws needed to be changed in a number of different ways, and in reality, they sought
to do away with all of the many personal laws in favour of establishing a single,
comprehensive code. They did not want the provisions of these personal laws to be
challenged because of the fundamental rights protected by Part III of the Constitution; hence
they did not wish to include them in the concept of “laws in force”

Q.4 Discuss secularism in the context of the Indian Constitution. Critically appraise the
Judiciary’s role in protecting religious freedom with special emphasis on the hijab
controversy in Karnataka wherein the state government issued an order stating that
uniforms must be worn compulsorily and no exception can be made for the wearing of
the hijab.

The Vedic conception of “secularism” which denotes the State’s indifference for religion is
comparable to the idea of “Dharma nirapekshata,” which is akin to that idea. It is supported
by two ideas:

1) The state’s administration and the adoption of policies shouldn’t be influenced by religion.

2) In terms of the law, the constitution, and governmental rules, everyone is treated equally.

This secularism strategy has been adopted by some western societies with wholly secular
governments. The Indian ideology of secularism is linked to the “Sarva Dharma Sambhava”
which means to treat all religions with the same emotional emotions, fervour, and passion
regardless of the religion a person chooses to follow. More importantly, it supports the
impression of mankind and humanity. This philosophy, which they referred to as “positive
secularism,” which encapsulates the prevailing ethos of Indian culture, was endorsed and
promoted by great individuals like Swami Vivekananda and Mohandas Karamchand Gandhi.
Togetherness, compassion, and even faith have been a combination of India’s core principles.

Undoubtedly, throughout history, thousands of Indians of various religious backgrounds

coexisted, with religious upheavals, capitalist exploitation, and social oppression serving as
major contributing factors on occasion. Four of the major world religions with roots in India
are Hinduism, Jainism, Buddhism, and Sikhism. Despite this, India is one of the nations with
the widest range of religions and spiritualties. India is a country that emerged from the ruins
of a largely agnostic civilization. The Preamble of the Indian Constitution states that it is
India’s intention to become a “Sovereign, Socialist, and Democratic Republic”

Realizing that no state can be really secular simply by utilising the word “secularism” in its
official papers is crucial. Therefore, the complete worldview should be implemented equally
for everyone and with grace. The government’s power to assist any unethical strategies
employed by religious organisations to seek influence must also be constrained. In the matter
of Amnah Bint Basheer and Ors. v CBSE and Ors, the Kerala High Court explained that the
Hijab is needed for Muslim women in accordance with the Quran and Hadiths and is
therefore to be considered an important practise.

Given how absurd it is, it is essential that the court inquires as to whether a school uniform is
itself unlawful—a question that neither anybody else nor the court could pose. However, this
summary enables the court to ignore the main argument in favour of the sanctity of the real
uniform, which is that wearing the hijab with a school uniform is consistent with the larger
purposes of constitutionalism and education.

Reading the decision closely demonstrates how uniforms plagued the court's imagination on
every page, leading to the court's historically significant declaration that "no sensible mind
can imagine a school without uniforms." The decision's unspoken justification is that
adopting the hijab would preclude the possibility of a school uniform because the case for
wearing one is made against the idea of uniforms in general. The judgement should be
overturned upon request because this omission causes the court to intentionally misinterpret
and corrupt a recognised range of religious criteria.

Three protected grounds were considered by the court while deciding to uphold the hijab ban.
The first is that the hijab is not a "fundamental strict practise" in Islam, so it is not protected
from the state's administrative force; the second is that the boycott is a reasonable restriction
on the exercise of the rights to freedom of expression and security to the extent that wearing
the hijab is a part of those rights; and the third is that the public authority request at issue is
neutral on the surface and does not discriminate.

The court's examination of this matter is not particularly significant because it finds that the
applicants have failed to show that wearing the hijab is fundamental to Islam, that is, that it is
required, non-optional, and that Islam would cease to exist if women did not wear it. As a
matter of strict opportunity, the court is willing to draw the conclusion that the choice to wear
the hijab is not protected by state law.
The fact that the test successfully prevents the Muslim women from approaching their
argument as one of rigorous decision and instead wants them to argue in the language of strict
impulse suggests that there is a problem with it. When we take into account the "right to strict
opportunity" this is especially humorous because the fundamental strict practises test as it has
developed in recent years is firmly to blame. Until that test is invalidated, there is obviously
no way out of this mess.

At the end, there are two crucial points to remember.

The first is that the court specifically said that its decision was applicable to homerooms (i.e.,
not even school premises, yet study halls). This point is addressed explicitly on page 124,
following some rather (in my opinion) awful statements about how constraining the
headpiece is emancipatory "for women in general and Muslim women in particular,": As they
are allowed to wear whatever they like outside the study hall, it hardly needs to be said that
this does not undermine women's independence or their right to an education.

The sanctity of the uniform is elevated above both the training goals and the exercise of holy
freedoms as a result, creating a general structure of mind. I contend that making the necessary
adjustments requires us to acknowledge that learning environments in a plural and diverse
society should represent both its majority and diversity, and that making use of the freedom
to choose and express oneself is a crucial way to do this. This approach adheres more closely
to our constitution.

Q. 5 ‘The right of Equality Before Law and the Equal Protection of Laws in the Indian
Constitution has been interpreted as to prohibit discrimination but permit
classification’. Comment on the above statement and point out the basis on which such
classification many be founded. Substantiate your answer with case-law.

Article 14 states that “The state shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India”. It is a basic feature of the
Constitution as declared under Indra Sawhney v Union of India and also comes under the
Rule of Law. Even though it is often considered a negative right of a person not to be
discriminated against in public offices, places, or matters, the Indian constitution preserves
the right to equality expansive in comparison to other constitutions.
English common law is where the phrase “equality before the law” originated. Article 14
protects everyone, including non-citizens, juristic persons like companies and transgender
people. The first element of Article 14 uses the word “law” in a purely philosophical and
general sense. The term “laws” in the latter refers to certain laws and statutes. As a result,
they can’t be combined or utilised interchangeably.

As a result, “Equal Protection of Laws” is now interpreted as a duty on the part of the State to
ensure equal protection of the law by implementing the necessary social and economic
changes. Ensuring that everyone enjoys equality under the law and is not denied or left
behind in receiving the rights guaranteed as citizens of the nation. If the State does not give
this equality, it violates its fundamental obligations to ensure that everyone is treated fairly by
the law.

The doctrine of reasonable classification was first pointed out in State of West Bengal v
Anwar Ali Sarkar. According to the doctrine, a classification can be said to be reasonable if
three conditions are fulfilled. They are:

a. To distinguish between individuals or objects that are grouped together and those that are
not, classification must be based on an understandable differential.

b. The discrepancy must be rationally related to the goal that the act is attempting to achieve.

c. The classification must be legitimate and established in the best possible good faith.

Right to Equality prohibits discrimination by applying the doctrine of reasonable

classification to ensure that the people who are different but in similar circumstances their
kind of people, are not discriminated against each other. This not only furthers the scope of
Article 14 but also ensures that there is a nexus between the object that is sought to be
achieved and the problem in question. The doctrine also ensures that the scope of Article 14
stands maintained by preventing the infringement of private rights of individual through the
basis of reasonable classification.

To ensure prohibition against discrimination, there are a number of classifications that have
been put in place to allow everyone to enjoy their right freely. Firstly the law prohibits single
person legislation which determines whether a person or a group of people has been singled
out or used as a basis for classification of their own without a legitimate and legal purpose,
and has a connection to the idea of reasonable classification. By giving the justification of
being “reasonably different” from others, this aids the courts in determining if Article 14 is
being contested. This connection was established in the case of Ameerunnisa Begum v
Mahboob.

While Charanjit Lal Choudhary v Union of India established the constitutionality

presumption as one of the criteria for fair classification, it also stated that the specifics of how
single people would be protected from negative discrimination would vary case by case. This
is why single person laws are a clear violation of Article 14 because they target only one
person and completely rule out the possibility of targeting any other person, even if they
share the same traits. Instead, they focus on one person and completely rule out the
possibility of targeting any other person, even if they share the same traits.

The courts considers the stance that when laws are deemed to fall beyond the purview of
Article 14, it is either because there was no differentiation made in the categorization or
because the classification was unrelated to the Act’s objectives. The classification process
outlined in Article 14 differs from the reservation described in Article 15(6) of the
constitution in that 15(6) deals with reservation for the advancement of communities, the
weaker, and certain genders. Legislation for juristic persons is covered by the doctrine of
justifiable categorization under Article 14, which eliminates classification based on pointless
demarcation and ensures that unnecessary discrimination is prohibited.

The courts have also developed certain general rules of fair procedure from Article 14 aside
from the general rule that procedural discrimination violates Article 14. In Erusian
Equipment and Chemicals Ltd. v State of West Bengal, the Supreme Court overturned the
decision to immediately blacklist the petitioner whose name appeared on the approved list of
the D.G.S & D (Directorate General of Supplies and Disposals) because it had the unintended
consequence of denying someone the chance to compete for public contracts.

It is acknowledged that when the State takes a negative action toward a person, that action
must be justified by law. In this case, it was emphasised that while it is true that citizens have
no right to contract with the government, they still have a right to fair treatment when it
comes to bids for tenders or quotes. Fairness and equality are demanded of the government
because its operations have a public component. In contrast to a regular person, the
government is not permitted to choose to exclude people through discrimination, as was the
case with blacklisting. The State should behave lawfully and sensibly, even while bestowing
largesse.
Therefore, a realistic classification is not only acceptable but also required for society to
advance. The exclusion of one from this privilege and the inclusion of the other cannot be
justified by any reasonable or significant distinction and the courts have been mindful of the
same. By employing various methods of procedural fairness, special courts and such, the law
has been ensured to only create a classification that is reasonable and non-violative of the
scope, intent and meaning of Article 14.

Q.6 Write a short note on any two of the following

a) Doctrine of non-waiver of Fundamental Rights

The idea of waiver refers to the wilful or intentional renunciation of a recognised right. When
someone intentionally and actively decides not to exercise a right they would otherwise have
or knowingly gives that right away, it is considered a waiver. When a person waives a right,
they lose the ability to use it and lose the right to contest the validity of the law for which the
right was waived. This way of thinking is predicated on the notion that given all the facts, a
person should be able to decide for themselves because they are the greatest arbiters of their
own interests.

In India, a person may give up their statutory and contractual rights, but they cannot give up
their rights that are guaranteed by the constitution or by the constitution itself. Fundamental
Rights are enshrined in the Constitution not only for the benefit of individuals, but also as a
matter of national policy. Rights that are safeguarded by public policy cannot be waived.
Furthermore, the state is required by the Constitution to protect these rights.

In Basheshar Nath v CIT, the question of whether a fundamental right might be renounced by
the possessor emerged. When his case was referred to the Investigation Commission pursuant
to Section 5(1) of the Taxation of Income (Investigation Commission Act, 1947), it was found
that the petitioner had disguised a sizeable percentage of his income. The petitioner agreed to
pay 3 lakhs as part of a settlement under Section 8-A in monthly instalments for back taxes
and penalties in order to avoid a worse punishment.

In the interim, the Supreme Court determined in a different case that Section 5(1) of the
Taxation of Income (Investigation Commission) Act of 1947 was unconstitutional and thereby
violated Article 14 of the Constitution. The petitioner urged to the court to declare the
settlement for payment unlawful due to the Act’s unconstitutionality and free him from his
obligations under it, basing his request on this decision. The respondent, on the other hand,
claimed that even if Section 5(1) were unconstitutional, the assesse had waived his right to a
guarantee under Article 14 by agreeing to a resolution of the conflict.

S.R. Das CJ and Kapur J. restricted their ruling to the fundamental right. According to
Bhagwati and Subba Rao JJ, who were really involved in the case and determined that the
right under Article 14 could not be waived as it was not feasible for a citizen to waive-off any
of the fundamental rights guaranteed by Part III of the Constitution. In his dissenting opinion,
S.K. Das J. said that a right or privilege guaranteed by the Constitution that is inherent in the
individual and principally intended for that person may be waived, provided that doing so is
legal and does not violate public morals or public policy. He used the US Constitution as an
illustration for his claim. According to established legal precedent, the fundamental rights
cannot be waived.

A person cannot waive a right unless they are aware of it, according to a court decision in a
non-fundamental right case. In Basheshar Nath v CIT, Justice S.K. Das held that a source of
right, whether contractual, statutory, or constitutional, should not act as the basis for
permitting waiver. Instead, the key question is whether the right is being granted for the
benefit of society as a whole or for personal gain. He claimed that a right that is advantageous
to an individual may be waived. However, some rights are outlined in the Constitution and
are regarded as fundamental. They cannot be treated equally with other rights because of their
elevated status.

In Olga Tellis v Bombay Municipal Corporation, it was further determined that there cannot
be any estoppel against the Constitution. No citizen may bargain away their fundamental
rights in India, which is described as a democratic republic in the Preamble of the
Constitution.

The idea of waiver is essential, because the exclusion of constitutional rights from its
application places a fundamental limit on legislative authority. If the idea was true, it might
be necessary for someone to renounce their rights in exchange for particular government
benefits. The idea might be made applicable in the Indian legal system through judicial
interpretation.

Allowing someone to utilise the benefits of the Act before challenging its constitutionality is
irrational. The rule of ignoranceia juris states that a person cannot be forgiven for claiming
ignorant of the law’s applicability.
But assuming that everyone is aware of the law is unreasonable, especially when it is applied
retroactively or a statute is deemed invalid retroactively. It might be incredibly unreasonable
to deny such a person legal protection. The use of the theory might also enable some people
who have relinquished their rights to enforce laws that would otherwise be unenforceable.

d) Double Jeopardy

Nemo debet bis vexari, which states that a man shall not be put in danger twice for the same
offence, is the foundation for the right guaranteed by clause (2). A person might enter the
plea of autrefois acquit or autrefois convict if they are charged with the same offence again
and receive a previous acquittal or conviction as a complete defence. This clause is also
found in the US Constitution and is codified in the 5th Amendment, which states that no one
shall be twice put in danger of losing life or limb for the same offence. Section 300 of the
CrPC and the General Clauses Act, 1897 both recognise this notion, which is also codified in
Indian law.

Although these sources served as the foundation for the fundamental right outlined in Article
20(2) of the Constitution, its scope and content are far more limited than those of English
common law, the US Constitution’s “double jeopardy” doctrine, or Section 300 of the
Criminal Procedure Code. In Rao Shiva Bahadur Singh v State of Vindhya Pradesh, this
analysis was presented. No matter how the initial prosecution turns out, the constitutional
hurdle in the US applies to the second prosecution. Additionally, the common-law standard is
the same. However, the rule is different under the Indian Constitution. It must be proven that
a person has been “prosecuted” before a court and “punished” by it for the “same offence” for
which they are being prosecuted again in order to bring their case within the prohibition of
Article 20(2).

Therefore, unless the accused was previously punished in the first instance, there cannot be a
constitutional barrier to a second prosecution and punishment for the same offence. The
Supreme Court has expressly said that sub-clause (2) of the Article does not apply if there is
no penalty for the offence as a result of the prosecution. One instance of this is Zahira
Habibullah H. Sheikh v State of Gujarat. There must be a prosecution in each instance,
subject to this restriction. Prosecution has no fixed definition and might have both a broad
and a narrow interpretation.
The offence must be the same as the one being prosecuted under section (2). The prohibition
against double jeopardy does not apply if the offences are separate. Therefore, when the
accused is seeking punishment for an offence under Section 105 of the Insurance Act of 1938
after being tried and found guilty for an offence under Section 409 of the Indian Penal Code,
they are not receiving punishment for the “same offence.” The bar of Article 20(2) is not
applicable because it relates to two separate offences made up of different elements. If the
elements were the same, the offence would have the same meaning. In numerous cases,
including Sangeetaben Mahendrabhai Patel v State of Gujarat, the judiciary has maintained
this stance.

For clause (2) to take effect, the first trial had to take place in front of a court that was
qualified to hear the matter, decide it, and record a conviction or acquittal verdict. A person
cannot be said to have been prosecuted and punished for the same offence if the court is not
qualified to handle the case.