CONSTITUTIONAL LAW OF INDIA NOTES

ROYAL COLLEGE OF LAW

By- Dr. Kapil Dev Mishra
Question 1 :- What is Preamble? Discuss in detail of
Preamble of Indian Constitution and its objects and
significance. How can you say that according to Preamble,
India is a sovereign, socialist, secular and democratic
republic. How these are applied by the courts. Refer to some
decided cases? How the various ideals and goals enshrined in
the preamble have been realised in the constitution? Refer
some decided cases.
PREAMBLE OF THE CONSTITUTION:- The preamble of an Act sets out the
purpose and object for which a statute is enacted. The Preamble
of the constitution declares :-
We the people of India having solemnly resolved to constitute of
India into a sovereign, socialist, secular democratic Republic and
to secure to all its citizens. :- i) Liberty of thoughts, expression,
belief, faith and worship. Ii) Justice, social, economics and
political. Iii) Equality of Status and opportunity and to promote
among them all.. iv) Fraternity assuring dignity of the individual
and the unity an integrity of the Nation.
I our constitution Assembly this twenty sixth day of November,
1949 do hereby adopt enact and give to ourselves this
constitution.
The Purpose of Preamble:- The Preamble to the constitution is a
key to open the mind of the makers for which they made several
provisions in the constitution. In constitution preamble occupies
an important place &
The constitution should be interpreted in the light of the ideals
mentioned in the preamble.Keswanand Bharti v.State of Kerla
1973.
In Berubari case SC held that preamble is not a part of the
constitution and therefore it was never regarded as the source of
limitations powers. But in Keswanand Bharti case the SC held
that Preamble is a part of the Constitution and all importance is to
be attached to it in interpreting the constitution.
The Preamble to the constitution serves the following purposes:-
i) It discloses the source of the constitution.
ii) It lays down the date of the commencement of the constitution.
iii) It sets out the rights and freedoms which the people of India
wished to secure for themselves.
iv) It declares the nature of the government which it wishes to
establish in the country.
Preamble declares that people of India are the source of the
constitution of India. The govt., derives all its authority from the
people of India. Administrators are elected by the People of India.
The nature of the govornment, which the preamble establishes is
a sovereign, socialist, secular, democratic republic. Sovereign
because const., does not recognise the legal supremacy of any
other country. A democratic because govornment of the people,
by the people and for the people. Secular because it treats all the
religions equally. It does not recognise any religion as a State
Religion. Socialist because it implies economic equality
and equitable distribution of income. In such state important
means of production is controlled by the State. And republic
because the Head of State is not a hereditary Monarch, political
sovereignty resides in the people and Head of State is President
of India who is elected by the people for a fixed term.
Objectives of the Constitution:- The objectives is to secure to its
people, justice. Liberty, and fraternity, the dignity of the
individual and the unity and integrity of the nation. // In
keswaanand Bharti case it has been held that the preamble is the
part of the constitution and therefore it can be amended by the
Parliament under its amending power under article 368 with the
condition that it should not exercise it amending power so as to
destroy the basic features in the preamble. By 42nd amendment
of the constitution of India, Parliament did amend the Preamble
inserting the words “ socialist secular” before” Democratic
Republic and “ integrity”before of the nation. Spirit of these
amendments only expressly stated what was already present in the
constitution impliedly, the additions did not impair the basic
features.In //Aruna Roy v. Union of India 2003 secularism has
been held to be knowledge of and respect for all religions and
fostering feeling of respect for them. Although socialism has
nowhere been defined in the constitution.//In D.S.Nakara v.
Union of India 1983 it has been taken to mean raising the living
standard of the weaker section and labourers and to guarantee for
them lifelong social security while Excel Wear v. Union of India
1979, it was held that the effect of adding the word Socialist is
that the court should give more effect to nationalisation and state
ownership. In brief our socialism is a unique combination of
Maxism.

Question 2 :- “Article 14 permits classification, but prohibits

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

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

THE WAIVER
?

Protection Against Self-Incrimination

It is a trite law in English & American Jurisprudence that no one
should be compelled to give evidence or be witness against
himself. Article 20(3) of constitution provides,” no person
accused of any offence shall be compelled to be a witness against
himself.” This means that no accused shall be compelled to make
confessions which might lead to his conviction.
i) It is the right pertaining to a person “accused of an offender”
The privilege under article 20(3) is confined only to an accused
i.e. a person against whom there is a formal accusation relating to
commission of an offence, which in the normal course may result,
in prosecution (R.K.Dalmia v. Delhi Administration
1962) Where a custom Officer arrests a person and informs him
of the ground for the purpose of holding enquiry there is no formal
accusation of an offence. ( Veer Ibrahim v. State of Maharashtra,
1976)
ii) It is protection against compulsion to be witness.
The phrase used in Art.20(3) is “ to be witness” and not “appear
as witness". Every possible volitional act which furnishes
evidence is testimony and testimonial compulsion connotes a
coercion which procures the positive volitional evidentiary acts
of the person as opposed to the negative attitude of silence or
submission on his part. Case : M.P.Sharma v. Satish Chandra
1954. The interpretation of the phrase,“ to be witness” given in
above case is too wide and requires a qualification. Self
incrimination can only mean conveying information based upon
personal knowledge of the person giving information and cannot
include merely mechanical process of providing documents in
court.
iii) The Prohibition is only against the compulsion of the accused
to give evidence against himself.
There is not constitutional disability against an accused being a
witness on his own behalf. Case Nandini Satpathi v. P.L.Dhani-
1978, It is laid down that the phrase, compelled testimony” must
be read as evidence procured not merely by a physical threats or
violence but also by phychic torture. In case: Yusafali v. State of
Maharashtra-1968. Production of a tape-recorded statement of the
accused recorded without his knowledge and without use of force
or oppression was held to be not hit by art. 20(3) and hence
admissible in evidence.
PROTECTION FROM EX-POST FACTO LAW
Article 20(1) of the constitution says, “ No person shall be
convicted of any offence except for violation of a law in force at
the time of the commission of the act charged as an offence, nor
he subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of commission of the
offence.
Article 20(1) corresponds to the provisions against ex-post-facto
laws of the American constitution. Ex-post-facto-laws are laws
which impose and enhanced penalties upon acts already done i.e.
retrospectively. This means that person can only be convicted of
an offence if the act was charged against him was an offence
under the law in force at the date of commission of the
act. However it does not prohibit the imposition of civil liabilities
retrospectively. So a tax can be imposed with effect from a past
date. This first part of art.20(1) simply means that if an act is not
an offence at the date of its commission, it cannot be made an
offence at any date subsequent to its commission. The second part
of the clause provided that a person cannot be subjected to a
penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.
Case: Shiv Bahadur singh v. State of U.P.-1958 : The prohibition
:- it will be noted, extends not only to the passing of ex-post-facto
laws but also the conviction or the sentence under such laws. It
was held that penalty means penalty for the offence committed.
In case : Venkataraman v. Union of India.1954: -such a trial under
a procedure different from what obtained at the time of the
offence or by a court different from that which had the
competence at the time cannot ipso facto be held to be
unconstitutional. Protection of cause(1) or article 20 cannot be
claimed in cases of preventive detention.
PROTECTION FROM DOUBLE JEOPARDY
English and American laws bar second prosecution of an accused
for the same offence whether he was convicted or acquitted as a
result of the first prosecution. No one should be vexed twice for
the same act. But art.20(2) of the constitution of India has
adopted this principle to a rather narrower extent as its protection
against prosecution for which the accused has already been
prosecuted and punished. Art.20(2) provides “ No person shall be
prosecuted for the same offence more than once.”
The constitutional protection against double jeopardy is
available to the citizens and non citizens of India. Thus the Indian
provision enumerates only the principle of autrefois convict but
not that of autrefois acquit. In England and the USA both these
rules operate and a second trial is barred even when the accused
was acquitted at the first trial for that offence.
In order to bring the case of a person within the prohibition
of art.20(2) it must be shown that he had been (i) Prosecuted
before a court. (ii)Punished by it (iii) The punishment was for ,”
the same offence “ for which he is being prosecuted again.
Accordingly there can be no constitutional bar to a second
prosecution and punishment for the same offence unless the
accused had already been punished in the first instance, in a case
Kalawati v. State of M.P.-1953. The word prosecution has no
fixed meaning and is susceptible of both wider and narrower
meanings as laid down in Venkataraman v. Union of India 1954,
but as used in art.20(2) it embodies four essentials :
1. There must be a person accused of an offence.
2. The proceedings of the prosecution should have taken place
before a court or judicial tribunal and not the executive or
administrative action.
Case : Maqbool Hussain v. State of Bombay 1953 & H.H.Advani
v. State of Maharashtra 1971.
3. The proceeding should have been taken before the judicial
tribunal or court in reference to the law which creates offences.
Case:Venkatraman v. Union of India.-1954 & Leo Roy v. Supdt.
Of District Jail- 1958.
4. The person must have been not only prosecuted but also
punished in the previous proceeding.
Likewise, clause (2) of article 20 does not apply when the person
prosecuted and punished for the second time and subsequent
proceeding is a mere continuation of the previous proceedings,
e.g. in the case of an appeal against acquittal. Case: State of M.P.
vs. Veereshwar-1957.
Similarly the conviction of the accused under section 304 IPC
for the death of deceased does not deprive the wife of the
deceased to claim compensation. A decree of damages is not a
punishment and the rule of double jeopardy has no application,
Case : Suba Singh v. Devender kaur,2011.
Question :- Discuss the importance of the speech and
expression. Does the constitution permits its curtailment? If
so on what ground and o what extent?
OR
Examine the scope of freedom of speech and expression under
the constitution of India. Is right to information implies in
Article 19(1)(a)?
OR
What is the scope of the right to freedom of speech and
expression? On what grounds can this right be restricted?
Answer:- INRODUCTION:- Freedom of speech and expression
is a fundamental right given under Art 19(1) A in the part III of
the constitution of India. Article 19 itself contains certain
freedom for the individual. In a case LIC v/s Manu Bhai D.Shah,
the apex court held that,” That a speech is Gods- gifted to
mankind. Through speech a human being conveys thoughts,
sentiments and feeling o others, freedom speech and expression
is thus a natural right which a human being acquires on
birth. Art.19(2) imposes certain reasonable restrictions on these
freedom. As a general rule of law, all constitution of the world
have given certain freedoms to their individuals. The preamble
of our constitution also gives the object of the freedom of
speech and expression.
Meaning :- Two things are following:-
i) right of speech
(ii) expression
Speech:- Means a speak. It means one has the freedom to speak.
But this freedom is no absolute or complete, no one can speak in
such a manner which is injurious to others and on such a matter
which is prohibited by law itself.
Expression :- It means to express or propagate a
thing. Expression may be done through written or through other
legal means. The communication of speech and expression is a
must. So the freedom of communication of speech and
expression is also guaranteed under Art.19(1)A.
In National Anthem Case 1986 :- It was held that the right to
speak aso incudes the right not to speak. In this case, three
students of Jehyesh’s school were expelled by the governing body
of this school on he ground of not speaking national anthem with
other students. The challenged it in the court. The SC held that
the freedom of speech and expression also includes not speaking
and not expressing. One cannot be compelled to speak or express.
In other case l995 In the Election Petition of Maharashtra Chief
Minister. In the Election of Manohar Joshi was challenged on the
ground of freedom of religion and freedom of speech and
expression. The petitioner argued that Mr.Manohar Joshi used
some words like Hindu and Hinduism during this election. These
words are against the right of freedom or religion and also against
provisions of people representative Act. 1950. In other wards, to
ask for vote in the name of religion is illegal. Bu in this case SC
held that to ask votes in the name of Hindu’s or Hinduism is not
in the name of religion. The word Hindu or Hinduism do not
denote or represent religion. These words are used for particular
community residing in India. However, the statement
of Balthakery chief of shiv sena, was held against religion. So in
this case two question of freedom of speech discussed Mr. Joshi
was also protected due to the freedom of speech and expression.
Art.19(1)(a) guarantees right to freedom of speech and
expression to its citizens not only within India but even outside
it. If the state action sets up barriers to its citizens freedom of
speech and expression in any country of the world such action is
violative of Article 19(1) (a) as such expression is within the
country. (Per Justice Bhagwati in Menka Gandhi v. Union of
India l978)
Territorial Extent of the right :- The right of freedom & expression
is available even out of India. Case: Menka Gandhi v/s Union of
India 1978. The govt argued that this right can be restricted on
the ground of out of the territory of India because this right is
available only within India. It cannot be enforced in the foreign
countries. But in this case SC held that this right could not be
restricted on the ground of territorial extent. It includes the
freedom of speech and expression even out of India.
FREEDOM OF PRESS :- The right of speech and expression
includes the freedom of press. The idea of the freedom can be
expressed by the way of press. Pres is the fourth estate of the
democracy the fourth essential condition or the fourth piller of the
democracy. So no restriction can be imposed on the freedom of
press. The word expression means no interference in there shall
be the freedom of press. The freedom of press shall not be
violating to Art.19(1) A.
Case: Indian Express Newspaper v/s Union of India 1985:- Even
imposing sales taxes on the sale of newspaper has been held
violative of Art.19(1) A. No sales Tax can be imposed on the
newspaper because the newspapers are the mode of expression or
of the views of the public so there should be no restriction on such
freedom
1 Decency and morality : Any such speech expression which is
against morality can be restricted under this right. To show film
is also a mode of freedom of speech and expression qarb of film.
Any such thing or scene or speech which is injurious to the society
will be prohibited under art. 19(2). Morality means some ethical
rules of the society and some form of the society by which the
status of the society is maintained.
1. Public Order: Any such speech which is dangerous to the unity
of country can be restricted under ar. 19(2).
2. Contempt of Court:-Any-thing said against the interest of the
court can be prohibited, if any one interferes in courts business it
is offence & Punishable.
3. Friendly relation with foreign states: Ist amendment 1951
friendly relation should be maintained with other countries.
4. Defamation:- Any statement which gives injuries to man’s
status under sec.499 IPC
5. Incitement for an offence:- Abetment or to provoke through
speech It is an offence under section 107 IPC.
6. Sovereignty & Integrity of India: By 10th amendment so any
such speech which can be dangerous to he Unity & integrity of
India can be restricted
So in this way these are the reasonable restrictions, which can be
imposed on the right of freedom and speech & expression.

Question :- Define the word ,” State” as used in context of

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

Question: What is right to life and personal liberty ? How the new
dimension Has been given to it by Judiciary?
OR
Explain the concept of personal liberty and upto what extent it has
been moulded in modern times?
OR
No person shall be deprived of the right of life and personal
liberty except according to procedure established by law under
Aar.21? Comment.
Ans. Introduction:- Personal liberty means freedom of person or
body. The right of life means to live in the world. These two
things the right of life and personal liberty are the most important
rights of a person. No one has the right to take away the personal
liberty of a person. The rights are protected by the constitution
itself under article 21. The concept of personal liberty borrowed
from the American constitution. Even at international level, there
wee declarations which granted personal liberty and right of life
to human beings. Article 21, has been explained now a days very
liberally by the SC.
 In a case P.N. Bhagwati on behalf of S. Court gave decision
for the people of certain local of Himachal Pradesh, for enforcing
the right of personal liberty. In this trial village people were
prohibited during raing days bringing essential commodities,
such as, food, clothes, shelter due to water-course on the way. The
court held govt., was liable for constructing a bridge on the water-
course.
Right of life and personal liberty:- Art.21 “ No person shall be
deprived of the right of life a personal liberty except according to
the procedure established by law"
No Person: means that any person whether citizen or non-citizen
Deprived : means to take away or to finish or to arrogate a thing.
Right of Life : Life means to live in the world. For living in the
world mainly three things Roti- Kapra and Makan are necessary.
These things are under the right of life.
Personal Liberty: It consisted two things i) Personal ii)
Liberty. Personal means relating to person or body. Liberty
means freedom. So personal liberty means the freedom of the
body or bodily freedom in art. 19 there are certain freedoms, but
art 21 contains certain other types of freedoms which are
particularly related with body. For exp. To eat, sleep and sit etc.,
according to one’s own choice.
In A.K. Gopalan v/s State of Madras:- This freedom was
restricted to bodily freedom only but later on in Kharak Singh
case, Menka Gandhi case and in certain other cases, this concept
of personal liberty was applied very widely by the Supreme
Court.
Case : A.K.Gopalan v/s State of Madras: 1950 : The meaning of
term personal liberty was taken very narrowly. The court held the
term liberty is lin ked with the term personal so personal freedom
is only bodily freedom. In this case certain persons including the
petitioner, A.K.Gopalan was aarrested under the Preventive
Detention Act 1950. It was held by s. Court that the arrest and the
imprisonment of the accused under this act is not against Art.21.
Right of Privacy:-Case : Kharak Singh v/s State of U.P.-1963.: In
this case the police of UP state suspected that the petitioner has
links with certain Dacoits. For the purpose of investigation, the
police interfered in the personal life of Kharak singh. Police even
searched his house at night and police used to ask from the
petitioner at midnight about his whereabouts. The petitioner
challenged these actions of the police under art.21. He argued
that these actions of the police infringe his personal liberty.
The Supreme Court held that the police could not interfere
in the private life of the petitioner without the procedure
established by law. A human being want to live with privacy.
Thus in this case, the right of privacy was included in the right of
liberty.
A case Govind v/s State of M.P. 1975 in this case the same
activities of M.P. state police were held valid because they had
force of law. The state govt., formed certain regulations after
taking power from police act.
A case Raj gopal v/s State of Tamil Nadu 1994 :- The S. Court
held that the right of privacy is a fundamental right under art.21
of the constitution and a citizen has the right to safe guard the
privacy of his own family, marriage, procreation, motherhood,
child bearing and education among another matters" No one can
punish anything mentioned above without his consent.
RIGHT TO TRAVEL TO ABROAD:- A case Satwant
Singh v/s Delhii Pass Port Officer 1967 in this case the passport
of the petitioner was confiscated by the Passport authority of
Delhi without giving any reason. The petitioner challenged this
action and argued that the travel to abroad also comes under the
right of personal liberty. The petitioner was some business in the
foreign country so he used to go to abroad from time to
time. Supreme Court held that to travel to abroad also come under
the right of personal liberty.
Menka Gandhi v/s Union of India. 1978 in this case also the
passport of the petitioner was confiscated by the Passport
authorities giving no reason for confiscation to the
petitioner. The petitioner challenged it on the ground of personal
liberty. The passport authorities argued that there is a law for this
purpose, In this law, it is not necessary to give reason for
impounding the passport. It is also not in the interest of public to
give reasons of impounding the passport.
But S. Court rejected all these arguments and said law should
also be based on the principle of natural justice. The procedure
established by the law should be reasonable & According to
natural justice and the opposite party should be given opportunity
of hearing. So this case changed the concept of personal liberty
dynamically.
Right of Livelihood :- A case People of democratic v/s Delhi
Administration 1982 The workers of Asaid Village 1982 were
paid very minimum wages. A public interest litigation was filed
for this purpose. The petitioner said that reasonable wages are
necessary for livelihood. Therefore outright of live hood has been
broken. This right comes under the right of personal liberty. The
S. Court held that the right of livelihood comes under the right of
personal liberty under art. 21, but in another case Sadan Singh v/s
New Delhi Municipal Committee 1989 the S.C, held that right to
carry on any trade or business is not included in the concept of
life and personal liberty. The petitioner who was doing he
business on the pavement of the roads of Delhi had claimed the
refusal by the Municipal authorities to them, to carry on business
for their livelihood resulting in the violation of their right of
livelihood under art. 21 of the constitution. The court
distinguished the ruling of the court in Ollga-Tell’s case and held
that it is not applicable in this case. In another case D.K.Yadav
v/s J.N.A Industries-1993: In this case SC held that the right of
life under art.21, includes right of live-hood and therefore before
terminating the service of an employee a fair plea requires that a
reasonable opportunity should be given to him to explain his case.
RIGHT TO DIE : A case Marui Sripati Dubal v/s State of
Maharashtra 1986 the Bombay High court held in case that the
right to die also comes under the right of personal liberty. So
committing to suicide should not be taken as an offence. It is a
freedom of human beings to live or to die. Therefore section 309
of IPC is against Art. 21. In this case a police constable due to
adverse family circumstances tried to commit suicide. He was
prosecuted for this act. The court held that he was not liable under
section 309 of IPC. Another case of P.Rathanam and Nag
Bhushan Patnaik v/s.Union of India 1944 : The S. Court
confirmed the decision of Bombay High Court and held that the
right to live also includes the right to die, so it is personal liberty
of a person to finish his life. But still there is a controversy about
the mercy death. The view of some writers is that this death
should be included under the right of personal liberty.
Gian Kaur v/s State of Punjab 1996:- The S. Court held that ‘right
to life’ under article 21 of the constitution does not include, ‘right
to die’, right to life is natural right embodied in art. 21 which
means to die a natural death and does not include the right to
commit suicide which is a unnatural extinction of life and
inconsistent with the concept of right to life.
RIGHT OF EDUCATION: A CASE MISS MOHINI JAIN V/S
STATE OF KARNATKA-1992 In this case the petitioner could
not get admission in the professional course due to high capitation
fees. There are some orders of the Govt., of Karnataka for taking
capitation fees. This fee was Rs.60,000/-for the out state
candidates. The petitioner could not arrange this amount of
money. She challenged it on the ground that the right of
education also come under the right of personal liberty. The S.C.
held its decision according to the petitioner’s argument. In
Unikrishanan v/s State of Andhra Pradesh 1993 the
court modified the scheme laid down in Mohini Jain case in
relation to NRI students and held that out of entire the seats only
5% seats can be filled up by NRI students, on the basis of merit,
to be judged by the management of the college concerned and not
on the basis of entrance examination.
Case : All India Imam Organization and others v/s Union of India
The Imams of various mosques in India challenged their wages
etc., under the right of personal liberty. Their wages were very
low on which they could no exist in the world. They had no other
source of income. They were engaged in this service for the whole
life time. The S. Court held that the right to live in world is the
first most important right of personal living. Here also their rights
of life had been infringed. The court ordered the Waqif Board of
India for giving sufficient wages to these Imams for their living
in this world. On source basis now a day a system of Rain Basera
( Lodging system for poor) has been started by the Rajasthan
Govt., on the orders of the Rajasthan High Court.
PROFESSIONAL DOCTOR LIABILITY:- In PARMANAND
KARTARA V/S UNION OF INDIA 1989 it has been made a rule
now there is no need to file FIR, according to the rules of Cr.PC
for the purpose of curing the wounded person in an accident. In
this case, the SC held that it is a duty of professional doctor
whether private or govt., to cure(care) the wounded person firt
and to report to police afterwards.
SUSPENSION OF ARRTICLE 21 DURING EMERGENCY:-
During National emergency( under article 352) article 21 can be
suspended. It means no one can claim personal liberty under
article 21 during national emergency. There was done in
1962(Chiana attack) in 1971 (Pakistan) and 1975 emergency in
India. This has also been confined in the Case of : ABM
JABALPUR V/S STATE OF U.P.-1976: This case is known as
‘ Habeas Corpus’ case. In this case the SC held that during
emergency Art.21 can be suspended. But in 44th amendment
1978 it has been added that Art.21 cannot be suspended during
emergency of Indian government. There were many authorities to
the person. This amendment adopted the dissented views of
justice Khanna given in the above mentioned cases. Thus if there
is a reasonable procedure established by law then personal liberty
can be taken, otherwise not.

Question: Constitution of India Provides freedom of Religion

or Secularism to all person. What are the restrictions which
can be imposed by the State on this freedom? OR
India is a secular state? Do you agree with it.? OR There is a
guarantee of freedom of conscience and right to profess,
practice and propagate the religion under article 25(1).
Comments. Give its exceptions also.
Answer: Introdction : Right of freedom of religion is contained
from Art. 25 to28 of constitution of India, these articles are
contained in the part III of the constitution. As part III is related
with the fundamental rights, Art 25(1) gives the conditions for the
freedom of religion. Under Art.2(2)there are certain restrictions
on this freedom of religion. Art.26 is related the management of
the religious affairs and the maintenance of religious
institution. Art.27 says that the income earned by the way of
religious activities shall not be taxable, Art.28 says that the Govt.,
shall not give any aid for the religious activities. These four
Articles give the ideas of secularism. The preamble of the
constitution also says that our constitution is secular. There is
freedom of thought, expression, belief and faith. That is why India
is a secular state.
DEFINITION OF RELIGION: On the basis of religious concept
a state may be divided into three categories :-
i) Anti-Religious State : A state, which is anti religious. It means
where there is no recognition to any religion in the state. In other
words, the persons of that state can not follow or adopt any
religion.
ii) Religious State : A State, which has its own religion or where
there is recognition of only one religion. All people are bound to
follow that one religion. For example Pakistan, and other Muslim
countries.
iii) Secular state :- A State, which is neither anti religious, nor
religious. It means such a state has not its own religion but it does
not prohibit any person for adopting any religion. Modern
Democratic countries are mostly secular states. For example,
America, England & India etc.
WHAT IS RELIGION : Now question is arises that what is
religion? It is very difficult to difine in certain words of term
‘religion’ because it is based upon faith and belief. It is a matter
of inner conscience or spiritual matter. Though in various cases
the SC of India has said that,” Religion is a doctrine of belief.
Religion is related with the manners, living manners of getting
peace in this world, including the manners of talking, eating even
types of dress. So religion is a variety of different things in the
life of a person, which are related with spiritual or inner
conscience matters.
RIGHT TO FREEDOM OF RELIGION: According to article
25(1) there is guarantee to every person for the freedom
conscience and right to profess, practice and propagate the
religion. The words of this article give the right for the freedom
of religion. Art. 25(1) gives the guarantee for the freedom of
religion. This article mainly contains the following two things:
i) Freedom of conscience.
ii) Right to profess, practice and propagate the religion.
Freedom of Conscience: Every person has the freedom of
conscience. It means to think according to one’s own
will. Conscience is an internal matter upon which there is no
control of any other person, even a father cannot control his son
for the purpose of religion. A person is free to adopt any religion
or he is free to adopt no religion. He may be antitheist or anti
God. But it does not, mean that it is violative of any provision of
the constitution or of any law. He is free to follow any section or
any branch of religion.
RIGHT TO PROFESS, PRACTICE & PROPAGAE : Profess
means to accept any thing. A person is free to accept any religion
and to declare it openly. There is no restriction on him for this
purpose. Practice Means o perform he religious activities. I mean
one is free o follow the customs or ceremonies or other activities
of a religion. Propagate means o spread the religion it means one
has the right to expend or spread his religion. It means one has
the freedom to make others as his followers in this religion. For
this purpose one has the right to express his thoughts or ideas
about his religion but propagation of this does not mean the
conversion of the religion. Conversion is an interference in the
propagation of another religion. In a case, conversion is allowed.
1. Case : National Anthem’s case 1984, in this case the SC held
that it is the freedom of Religion and one cannot compel any other
person for obeying he directions relating with another
religion.” It is also said that the right to speak also includes right
of not to speak. So this order was held violative of Art.2(1)being
against the right of freedom of religion. Case: Ramesh v/s Union
of India 1988, a PIL was filed, SC rejected this agreement and
held that it does not infringes the right of freedom of religion
under article 25(1), even said that by this serial the true picture of
the partition of India comes in the knowledge of the public which
will be in the benefit of the public.
RESTRICTION OVER THE FREEDOM OF
RELIGION:- Freedom of religion is neither right nor absolute
freedom. Some restrictions may be imposed on this right in the
interest of public. The article 25(2) it self lays down certain
restrictions.
Restriction in the interest of public morality and health:-To
maintain law & order is prime duty of the government. The
government may impose certain reasonable restriction on the
religious activities. If they are dangerous to the public. For
example: to arrange route of the religious, procession, even the
force-able conversion is not in the interest of the public. Case:
Gulam Abbas V/s State of UP 1984 : The SC rejected this
argument and held that to decide a dispute between two sections
such acts petition come under the reasonable restrictions.
* Recently in election of Maharashtra Chief Minister: During
Dec., 1995 the election of Mr. Murli Manohar Joshi was
challenged on the ground of religion and freedom of speech &
expression. The petitioner argued that Mr.Joshi used some words
like Hindu or Hinduism during his election speech.
SC held that o ask for votes in the name of Hindu or
Hinduism do not denote or represent religion. These words are
used for a particular community residing in India. However the
statement of Bal Thakry chief of shiv-sena was held against
religion. Mr joshi was protected due to the freedom of religion
and freedom of speech and expression.
1 Morality : To Practice or propagate any such activity in the
name of religion which effects the morality of persons shall be
restricted. That is to practice or propagate prostitution in the
name of religion, is not valid.
2 Health :- In the shia act, there is a provision for slaughtering the
cows in the public place because of its effects on the health. So
this is not reasonable even if to be related with religion.
3 Economic or secular of administrative activities : means
monitory or financial matters. Some reasonable restrictions may
be imposed on the financial matters of the religious activities.
There are certain secular activities which have no link with the
religion can be prohibited under section 25(2). Case : SP Mittal
v/s Union of India 1983. In this court held that certain reasonable
restrictions could be imposed in the administrative activities of
any religion. In other case :State of W.Sbegal v/s Ashutosh Lohri
-1995, The SC held that the decision of the Mohd. Hanif &
Qureshi v/s state of Bihar, the slaughtering of cows no the
essential elements of Muslim religion.
4 Social Welfare Reform : Certain restricitions may be imposed
for the purpose of social reforms, for example Sati Pratha which
is considered as a religious activity under Hindu religion has been
prohibited by passing the sati pratha prevention act. Similarly in
south Devdasi Pratha according to this pratha the girls were sent
to the temple for entertain of the guests in the temple under this
practice, there were incidents by which these girls were misused,
so the restrictions in the name of social reforms imposed on this
pratha under section 25(2).
Article 26 Freedom to manage religious Affairs : Says that any
denomination has the freedom to manage the affairs of its
religion. For this purpose, following rights have been given:
1. To establish and maintain institution for religious or charitable
purposes.
2. To maintain the religious affair in these institutions.
3. To acquire and hold movable and immovable property for these
institutions.
4. To dispose of such properties according to law.
Article 2 says that no tax can be imposed upon religious income.
Even state can also not impose tax on any person o property for
the promotion of religion. However Private and govt. Aided
educational institutions can give such directions for the purpose
of religion but in case of govt educational institutions no religious
directions or aid can be given by the state. There is complete
freedom of religion in India except certain restrictions as
explained above. India is a secular state.
Article 25 to 28 are peculiar and most important articles which
adjust all types of religious communities castes in India that is
why it is said that ,” There is unity in diversity in India.”