About this Magazine

Welcome to this special edition of our

publication brought to you by Vis Legis Law
Practice, Advocates.
We are delighted to recognize and commend all
the committed attorneys who played an
instrumental role in our impactful initiative, titled
"Rights, Judgements and Attorneys: The
Constitution Challenge."
Our team of legal experts, representing our
reputable offices in Mumbai, New Delhi, Pune,
and Hyderabad, volunteered their time and
expertise to shed light on the Fundamental
Rights that form the cornerstone of the Indian
Constitution.
This initiative was not merely academic; it was a
meaningful step towards broadening the public's
understanding of their constitutional rights.
Originally disseminated through a series of
articles on our firm's LinkedIn page, we were
thrilled to receive an overwhelming amount of
positive feedback and engagement from the
community. Inspired by this response, we
decided to compile all these articles into a single
magazine.
This format makes it convenient for you to
access this invaluable information in one
consolidated source.
We hope this magazine serves as an invaluable
resource for legal professionals and laypeople
alike.
Designed to be not just informative but also a
catalyst for insightful discussions, it provides
insights into our constitution and the legal
framework that governs us.
Thank you for taking the time to engage with this
content.
We encourage you to read, share, and delve
deep into the insightful articles that await you.
 Index

1. EQUALITY BEFORE LAW

04
2. PROHIBITION OF DISCRIMINATION ON GROUNDS OF
05
RELIGION, RACE, CASTE, SEX, PLACE OF BIRTH
3. EQUALITY OF OPPORTUNITY IN MATTERS RELATING TO
PUBLIC EMPLOYMENT 07
4. ABOLITION OF UNTOUCHABILITY 09
5. FREEDOM OF SPEECH AND EXPRESSION 11
6. FREEDOM OF ASSEMBLY 13
7. ASSOCIATION RIGHTS IN INDIA
15
8. FREEDOM OF MOVEMENT
17
9. FREEDOM OF RESIDENCE
1 0 .F R E E D O M TO PRACTICE ANY PROFESSION OR
19
OCCUPATION 20
11.PROHIBITION OF FORCED LABOUR 22
1 2 .P R O H I B I T I O N O F C H I L D L A B O U R 23
1 3 .P R O H I B I T I O N O F T R A F F I C I N H U M A N B E I N G S 25
1 4 .F R E E D O M O F C O N S C I E N C E
27
1 5 .F R E E D O M T O P R O F E S S , P R A C T I C E A N D P R O P O G A T E
29
RELIGION
1 6 .F R E E D O M T O M A N A G E R E L I G I O U S A F F A I R S 31
1 7 .R I G H T O F E V E R Y R E L I G I O U S O R L I N G U I S T I C M I N O R I T Y T O 33
CONSERVE ITS CULTURE, LANGUAGE AND SCRIPT
1 8 .F R E E D O M T O E S T A B L I S H A N D M A I N T A I N E D U C A T I O N A L 35
INSTITUTIONS
1 9 .R I G H T TO MOVE THE SUPREME COURT FOR THE 37
ENFORCEMENT OF FUNDAMNETAL RIGHTS
 EQUALITY BEFORE LAW:
A CORNERSTONE OF JUSTICE AND DEMOCRACY
The Indian Constitution recognizes and
protects natural rights, enshrining a plethora
of Fundamental Rights that are considered
inherent and inalienable. At the heart of
these rights lies the principle of equality
before the law, which serves as a
fundamental pillar of justice and democracy
in the nation.
Renowned Jurist Upendra Baxi aptly
described the Indian Constitution as
grounded in the belief of the dignity and
worth of each individual. It acknowledges
and safeguards fundamental rights, such as
the right to life, liberty, and equality before
the law. These rights form the bedrock for
safeguarding individual liberties and
freedoms, compelling the State to uphold
and protect them.
The concept of natural law plays a crucial
role in limiting the powers of the State and
preventing infringement upon the natural
rights of individuals. As highlighted by legal
scholar Brian Tierney, natural law ensures
that no human authority can violate the
inherent rights of individuals. In essence, the
State is duty-bound to protect these rights,
rendering any laws or actions that violate
them as illegitimate. These rights serve as
ethical and moral principles that guide the
recognition and preservation of individual
rights while restraining the State from
violating them.
Article 14 (1) of the Constitution of India
extends the right to equality before the law
to all persons, encompassing not only
citizens but also foreigners, statutory
corporations, companies, registered
societies, and other legal entities.
Within the contractual realm, principle of
equality before the law translates into a fair
and unbiased approach by the State. The
government cannot show favoritism or
Authored by Ms Naincee Jain, Senior Attorney
Rights, Judgements, and Attorneys: The Constitutional Challenge
discrimination while entering into or
enforcing contracts. Contracts must be
executed without any undue influence or
bias, treating all parties involved with equal
respect and consideration.
A recent case, the Madras Aluminium Co.
Ltd. vs The Tamil Nadu Electricity Board
(2023 SCC OnLine SC 783), serves as a
relevant example. The Hon’ble Supreme
Court reiterated that even in contractual
matters, the State must comply with Article
14 of the Constitution of India. The judges
emphasized that the presence of a contract
does not exempt the State from adhering to
the requirements of equality before the law.
The States’ actions must be fair, reasonable,
non-discriminatory, transparent, non-
capricious, and without favoritism or
nepotism. The Apex Court stressed that any
"governmental policy" formulated in
contractual matters must conform to these
parameters. The bench of Justices B. R.
Gavai, Sanjay Karol and Aravind Kumar,
clarified that Article 14 permits reasonable
classification but not arbitrary selection
within the same category. The criteria or
procedure for such selection should be
based on reason, fair play, and non-
arbitrariness.
In conclusion, the Madras Aluminium case
serves as a reminder that the principles
enshrined in the Constitution of India,
particularly equality before the law, form the
cornerstone of a just, fair, and democratic
society. Upholding these principles ensures
the protection of every citizen's rights and
freedoms, fostering a more harmonious and
equitable nation. Equality before the law is
not just a legal concept but a moral
imperative that governs the actions of the
State and promotes the ideal of a truly
democratic and inclusive society.
04
 PROHIBITION OF DISCRIMINATION ON GROUNDS OF
RELIGION, RACE, CASTE, SEX, PLACE OF BIRTH
Considering India has many religions,
beliefs, languages, cultures, etc., and has a
diverse population, discrimination is likely to
occur in such a country. In India, religion
and caste-based discrimination has existed
evidently for a long time through
untouchability or division of upper and lower
castes causing emotional pain, mental
distress, and social isolation. The purpose of
Article 15 is to therefore protect the rights
and interests of the citizens by restricting
discrimination based on the religion, the
ethnicity, the caste, the gender and the
birthplace of a citizen of India.
This means that the State cannot deny an
individual a job, admission to an educational
institution, or access to public services,
solely based on their religion, race, caste,
sex, or place of birth and is established in
Part III of the Indian Constitution as
Fundamental Rights. Discrimination
persists, but consequences are now
harsher.
The following clauses specify types of
discrimination strictly prohibited under
Article 15.
Clause 1
Article 15(1) prohibits discrimination based
on religion, race, caste, gender, or place of
birth for Indian citizens. In the case of DP
Joshi v/s State of Madhya Bharat AIR 1955
SC 334 , a writ petition filed before the
Hon’ble Supreme Court claimed that the rule
of a medical college allowing students living
in Madhya Bharat (Madhya Pradesh) need
not pay the capitation fees but all non-
domicile students would have to pay
violation of this article. It was held that the
rule was not in violation of the Fundamental
rights enshrined under this article since
“Place of Birth” and “Place of Residence”
are two different and distinct things both in
facts and law and the imposition of
capitation fees was based
Rights, Judgements, and Attorneys: The Constitutional Challenge
on “Place of Residence” rather than “Place
of birth”.
Clause 2
An Indian citizen is not allowed to
discriminate against another Indian citizen
for the reasons listed in Clause 1. According
to Article 15(2) (a), People should not be
denied entrance to public places because of
their religion, race, caste, gender, place of
birth, or any other similar factor. This
includes stores, restaurants, hotels, and
other places that are open to the general
public. According to Article 15(2) (b), No
person may prevent another person from
using septic tanks, wells, roads, or any other
public facility that is maintained with state
funds or that is specifically intended for use
by the general public on the grounds of
religion, race, caste, gender, or place of
birth.
Clause 3
According to Article 15(3), the state may not
forbid itself from passing laws that make any
special provisions for women and children.
For instance, the Maternity Benefit
(Amendment) Act 2017 and the Child Labor
(Prohibition & Regulation) Act.
Clause 4
Article 15(4) is an exception to clauses (1)
and (2), granting discretionary provisions to
aid underprivileged socioeconomically and
educationally disadvantaged groups.
Clause 5
Article 15 and Article 19(1)(g) enables the
government to frame special laws for the
advancement of socially and educationally
disadvantaged individuals, except for
minority rights under Article 30(1).
Additional rules may apply to the admission
of backward classes, SCs, and STs to state-
funded educational institutions, both public
and private.
05
 Clause 6
The government is given the power to
create specific policies, including
reservations in educational institutions, for
the advancement of "economically weaker
sectors" of society who do not fall under
clause 15(4) and 15(5) reservations.
The 103rd amendment to the Constitution
added in 2019 states that 10% of the
reservation must be set aside for EWS
members who are not covered under SC,
ST or OBC. The 103rd amendment was
challenged before the Hon’ble Supreme
Court and the question before the Hon’ble
Apex court was “Whether the EWS
reservation would be violating the basic
structure of the Indian Constitution and
whether it breaches the 50% ceiling of
reservations as per already settled
Supreme Court Judgments?”.
The Hon’ble Supreme Court vide its recent
judgement dated 07.11.2022 passed in the
matter of Janhit Abhiyan v. Union of India
& Ors., (2022) SCC OnLine 1540 held that
the 10% reservation would give due
importance and acknowledgment to those
poor from upper castes, who always aspire
to get some help from the Government but
were always ignored by the governmental
benefits in the name of being from the
Upper Caste. The stigma that the
reservation is always granted according to
caste is removed with an insertion of
clause 6 to Article 15.
Article 15 breaks caste discrimination, an
extension of Article 14 promoting equality
and empowering Article 15's objectives.

Authored by Ms Radha Ved, Principal Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

06
 EQUALITY OF OPPORTUNITY IN MATTERS
RELATING TO PUBLIC EMPLOYMENT
In India, Article 16 of the Constitution
guarantees equal opportunities in public
employment. The Supreme Court of
India has played a pivotal role in
interpreting the provisions in this article.
In the case of Rajeev Kumar Gupta v
Union of India (2016 13 SCC 153), the
Court clarified that reservations for
Persons with Disabilities (PwDs) fall
under the broader aim of ensuring
'equality of opportunity' in Article 16(1),
as long as the considerations are not
those listed in Article 16(2), such as
religion, race, caste, etc.
Article 16(3) and is an exception to
clause (2) allows Parliament to give
special rights to people from a specific
state or union territory. This article lets
Parliament make laws that control how a
state can deviate from the earlier
principle. In short, Parliament can set
rules for how much a state can go
against the principle mentioned before
this article.
Article 16(4) specifically allows for
reservation to eliminate discrimination
and promote representation for persons
with disabilities. Reservation for PWDs in
public employment is a significant policy
adopted by numerous countries,
including India, to ensure equal
opportunities and representation in
government and public sector jobs. This
provision contributes to social justice,
inclusivity, and diversity in a diverse and
evolving society like India.
Article 16 (5) is an exception to clauses
(1) and (2). Clause (5) excludes a law
from being subjected to the rules stated
in clauses (1) and (2). This clause
stipulates that a person holding a
specific position must possess religious
qualifications for their appointment. In
simpler terms, Clause (5) allows a law to
Rights, Judgements, and Attorneys: The Constitutional Challenge
to bypass the requirements mentioned in
clauses (1) and (2) that mandate religious
qualifications for certain appointments.
Clause (6), added by the 103rd
Amendment in 2019, empowers the State
to reserve government job positions for
Economically Weaker Sections (EWS)
from January 14, 2019. These
reservations should stay within a 10%
cap, combined with existing quotas. In
essence, Clause (6) enables the
government to allocate some jobs for
economically disadvantaged individuals,
without surpassing a total 10% reserved
positions limit.
Later, in Siddaraju vs. State of Karnataka
(2020 19 SCC 572), the Court upheld
that PwDs have the right to reservation in
promotions, distinguishing them from the
rule in Indra Sawhney vs. Union of India
(AIR 1993 SC 477), which barred
reservation in promotions to maintain
administrative efficiency.
n the recent case of RBI vs. A.K. Nair &
Ors. (2023 SCC Online SC 801), the
Hon’ble Supreme Court analysed the
promotion rights of people with
disabilities. The court highlighted that
even though the Disabilities Act, 1995
doesn't explicitly mention reservation in
promotions, it suggests that disabled
individuals should not be denied
promotions. The court reaffirmed that the
government must keep reserved
promotion vacancies for persons with
disabilities, even without a specific
mandate. Using its authority under
Article 142 of the Indian Constitution, the
Hon’ble Supreme Court directed RBI to
promote an employee with a disability.
07
 Although Hon’ble Justice Ravindra Bhat
concurred with this reasoning, he
indicated that in absence of such
statutory power the inclusion of the
same as a matter of right contradicts
the verdict in Indra Sawhney & Others v.
Union of India AIR 1993 SC 477 . He
expressed concerns about extending
reservation to other groups beyond
those identified under Article 16(4A). He
noted that introducing reservation in
promotions without statutory backing
could conflict with the precedent set by
Indra Sawhney, which aims to maintain
service efficiency and equality. While
praising the purpose of the PwD Act,
2016, he cautioned against the influx of
requests for reservation in promotional
positions from individuals already
benefiting from different horizontal
reservations.
These insights underscore the need for
meticulous implementation, monitoring,
and evaluation of reservation policies.
While noble in intent, reservation
policies must be carefully balanced to
ensure they fulfil their objectives
without compromising efficiency or
creating unintended consequences. By
heeding such cautions, India can strive
for a more equitable and diverse
workforce while upholding principles of
fairness and inclusivity.

Authored by Ms Shivangi Dixit, Senior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

08
 ABOLITION OF UNTOUCHABILITY
“First they came for the socialists, and I
did not speak out — because I was not a
socialist.
Then they came for the trade unionists,
and I did not speak out — because I was
not a trade unionist.
Then they came for the Jews, and I did not
speak out — because I was not a Jew.
Then they came for me—and there was no
one left to speak for me.”
- Martin Niemöller
History remains a silent spectator as the
practice of untouchability has become
entrenched in the social fabric of India.
Individuals, deemed as having inherited a
“lower” caste identity, have been subject
to marginalisation and a blanket denial of
human rights, with no accessible recourse.
The Dalit community is no stranger to the
exclusionary practices of inter alia access
barriers to public places and remaining
confined to menial labour.
The incorporation of Article 17 of the
Constitution of India not only abolished
the practice of untouchability, but also
made its enforcement punishable,
reflecting the proactive stance of the
Constituent Assembly (Durga. Das Basu,
Commentary on the Constitution of India,
Calcutta, S.C. Sarkar and Sons Ltd.,
1956). Under the authority of Article 17,
the legislature passed the Untouchability
(Offences) Act in 1955, subsequently
renamed as the Protection of Civil Rights
Act, 1955. The Act prescribes penalties
for preventing a person from entering a
public place or from enjoying any benefit
intended for the public on the ground of
untouchability.
The term “untouchability” remains
undefined in the Constitution, with its
meaning inferred from the Constituent
Assembly's intent and subsequent judicial
interpretation.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Judicial decisions like Devarajiah v P.
Padmanna (AIR 1958 Kant 84) have
clarified that untouchability does not
cover temporary social boycott, but
addresses the historical practice of
caste-based discrimination.
The Sabarimala Effect:
The Sabarimala judgment (India Young
Lawyers Association v The State of
Kerala, (2019) 11 SCC 1) marked a
significant shift in understanding
untouchability. The case revolved
around the constitutionality of
restricting menstruating women from
entering the Sabarimala Temple.
Chandrachud J., in his decision,
expanded the term's scope, associating
caste discrimination with menstrual
stigmatisation. The Court held that
Article 17 aimed to protect victims of
discrimination and social exclusion, not
only to abolish social hierarchy.
However, Indu Malhotra J., in her
dissent, argued that "untouchability"
solely connoted the disabilities imposed
on socially excluded sections along
caste lines. She opined that a common
legal remedy for the exclusion of Dalits
in public spaces and women from
temples was misconceived.
Scope:
While the traditional understanding of
the Article was limited to caste-based
discrimination, recent interpretations
have broadened its scope, making it a
versatile safeguard against more covert
and insidious forms of social ostracism.
The essence of Article 17 lies in its
adaptability and relevance in
contemporary times.
09
The Madras High Court, in a landmark The apex court of India, has in the case
judgment of Elephant G Rajendran v The of State of Karnataka v Appa Balu
Registrar General and others, (2023 SCC Ingale and Others, (AIR 1993 SC 1126),
OnLine Mad 4095) , provided a fresh has observed that social transformation
perspective on the scope of the Article. The cannot be brought about without the
Court observed that untouchability active participation of society. With the
encompasses a broader spectrum, including passage of time, it becomes imperative
all forms of social exclusion that find their to reassess and redefine the
roots in ritualistic ideas of purity, hierarchy, boundaries of fundamental rights. This
and subordination. ensures that they remain relevant,
effective, and true to the spirit of the
Conclusion: Constitution, which envisions an India
The interpretation of Article 17 of the free from the shackles of prejudice.
Constitution of India over the years reflects the
changing societal norms and a holistic
understanding of discrimination. While the
traditional notion of untouchability was
intrinsically linked with caste, the modern
interpretation, backed by judicial
pronouncements, has broadened to cover a
wider range of social ostracism. For Article 17
to be truly effective, the enforcement hurdles
must be systematically addressed, coupled
with initiatives for societal reform.

Authored by Ms Afreen Thanewala, Junior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

10
 FREEDOM OF SPEECH AND EXPRESSION
Free speech's origins are ancient:
England's 1689 Bill of Rights, the 1789
French Declaration of Rights, and the
1948 Universal Declaration of Human
Rights solidified it. This right is vital in
global and regional human rights law,
seen in International Covenant on Civil
and Political Rights ICCPR's Article 19.
The Declaration's Article 11 emphasises
free expression's value while holding
individuals accountable for abuses
defined by law.
In a country as diverse as India, what is
the power to exercise the right to
freedom of expression? Article 19(1)
states that all citizens of India have the
right to express their views through
“writing, speaking, drawing, or any
other gesture or form”. The 1895
Constitution of India Bill introduced the
initial freedom of speech provision,
allowing free expression while also
holding citizens accountable for
misuse, as determined by Parliament.
This right has changed over time, but
it's crucial to recognize that the
constitution doesn't provide unlimited
freedom of speech and expression.
According to Article 19(2), the
government has some reasonable
restrictions too which are as follows:
Security of State: Limits on freedom of
speech exist for state security,
addressing major disruptions like
rebellion, not minor issues.
Friendly Relations with Foreign States:
The Constitution (First Amendment)
Act, 1951 prevents harmful propaganda
against friendly foreign states,
safeguarding positive relations.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Public Order: Introduced by the
Constitution (First Amendment) Act,
1951, "Public Order" relates to peaceful
state due to government-enforced
regulations.
Decency or Morality: These subjective
terms depend on prevailing societal and
temporal moral standards.
Contempt of Court: Limits on speech are
possible if they breach fair limits and
amount to contempt of court.
Defamation: Harming reputation through
speech is defamation, reflecting
negatively and causing societal disdain.
Incitement to Offence: Added by the
Constitution (First Amendment) Act,
1951, freedom of speech doesn't allow
provoking crimes.
According to this section, a person or
group cannot say or do any act that hurts
the feelings or religious belief of another
person or group.
A common viewpoint is that this section
should be eliminated. This is influenced
by the example of several European
countries like France, where religious
parodies are permitted. The main reason
is that many disgruntled people misuse
this clause to vent their anger because
they feel that their faith has been
violated in some way.
Let's take a situation where freedom of
speech is restricted in some way.
Let's say you're at a stand-up comedy
show. A comic makes a joke about
something and a group in the audience
suddenly says “don't make that joke”.
After that point, if the comic stops
making that joke, it's a loss of freedom of
speech. This is called the "heckler's
veto".
11
 This is where the crowd decides what
can and cannot be said in the public
domain. It literally means surrendering
to the crowd for its own good. This is a
great quote from Justice Krishna Iyer,
“We can’t let mobs and obdurate people
and unreasonable people decide what
can and can’t be said in public” To
accept the heckler's veto would only be
to surrender to blackmail and
intimidation.
In the case Viacom 18 Media Private
Limited & ors. v Union of India & Ors. (AIR
2018 SCC 86), involving the film
"Padmavati," a writ petition was filed. The
Hon’ble Supreme court didn't accept it,
citing the pending certification and
examination by the Central Board of Film
Certification and that the court cannot
pre-judge the matter. Films are artistic
creations, blending reality and
imagination. The Hon’ble Supreme court
recognized reasonable freedom of
speech, particularly in artistic expression,
permitting the film's exhibition eventually.

Authored by Mrs. Arundhati Korale, Senior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

12
 FREEDOM OF ASSEMBLY
Fundamental rights are among the
strengthening pillars of our constitution.
These rights and duties collectively shape
our democracy, making it one of the
largest democracies in the world. The
constitution defines our state as Socialist,
Sovereign, Secular, and Democratic
Republic. It also enlists our key
objectives, which include Liberty, Justice,
Fraternity, and Equality.
Freedom is inherent in human nature. Our
state ensures that everyone is free from
shackles that encroach upon their
freedom. Specifically, Article 19 (1) (b)
stipulates:
“Protection of certain rights regarding
freedom of speech etc.
(1) All citizens shall have the right
(b) to assemble peaceably and without
arms.”
This right ensures that the people of this
country can assemble peacefully and
protest against actions or decisions by
the Government or other governmental
authorities that they disagree with. A
hallmark of any democracy is the
acceptance of legitimate disagreement.
The primary focus isn't the correctness of
the protesters' concerns but the right
given to the impacted individuals in a
democracy to voice their grievances.
Thus, the Constitution safeguards the
essential right to peaceful demonstrations
and protests. Simply put, the freedom of
assembly encompasses the right to hold
public meetings, form groups, organise
assemblies, functions, celebrations,
conduct marches, protests, and take out
processions. However, the assembly must
remain peaceful, devoid of arms, and
cannot be held on government premises
or private property owned by others.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Fundamental rights, including the right to
assembly, have faced challenges due to
abuses of power and conflicting interests.
In the case of Himmat Lal v. Police
Commissioner, Bombay (1973 AIR 87),
the Supreme Court invalidated a rule
allowing the police commissioner to
entirely prohibit public meetings and
processions. The state can only impose
reasonable restrictions in the interest of
public order but cannot prohibit all
meetings or processions entirely.
In the case of Mazdoor Kisan Shakti
Sanghatan vs. Union Of India (AIR 2018
SC 3476), the petitioner's grievance
was regarding the repetitive issuance
of orders under Section 144 of the
Cr.P.C. Each order would last 60 days,
and upon its expiry, another similar
order would be issued, effectively
banning public meetings and peaceful
assemblies.
The court observed, “Undoubtedly,
holding peaceful demonstrations to air
grievances and to ensure that these
grievances are heard in the relevant
quarters, is its fundamental right. This
right is specifically enshrined under
Articles 19(1)(a) and 19(1)(b) of the
Constitution of India. Article 19(1)(a)
confers a very valuable right”.
For an assembly to enjoy protection, it
must remain peaceful and avoid
causing public disorder.
13
 If an assembly becomes disorderly or
incites violence, it no longer benefits
from the protection of Article 19 (1) (b).
Reasonable restrictions can then be
applied as per Article 19 (3) to maintain
India's sovereignty, integrity, or public
order. Under Article 19 (3), a magistrate
can, through Section 144 of the
Criminal Procedure Code (1973), halt
an assembly, meeting, or procession if
it poses a risk to human life, health,
safety, or might disturb public peace or
incite violence.
In essence, while the Indian
Constitution ardently champions the
fundamental right of its citizens to
peacefully assemble and voice their
grievances, this right is not absolute.
Assemblies must remain non-violent
and not jeopardise public safety or
order. The balance between
safeguarding democratic values and
ensuring public security exemplifies the
complexities of governing one of the
world's largest democracies. It
underscores the importance of
responsible citizenship and judicious
governance.

Authored by Mr. Harsimran Bindra, Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

14
 ASSOCIATION RIGHTS IN INDIA
In Dr. B.R Ambedkar’s words,
“An ideal society should be mobile,
should be full of channels for
conveying a change taking place in one
part to the other parts. In an ideal
society there should be many interests
consciously communicated and shared.
There should be varied and free points
of contract with other modes of
association.”
During colonial times, the British limited
gatherings to stifle the freedom
movement, which obstructed
organization and democracy. Such
curbs allowed state power to grow,
eroding constitutional values. In
constitutional democracies, assembly
and association rights are vital,
enabling collective goals and political
involvement. These rights are
significant constraints on governments.
The Indian Constitution secures these
liberties, permitting free assembly and
association.
Article 19(1)(c) of the Indian
Constitution grants citizens the
freedom to form lawful associations
and unions. This encompasses various
rights, such as starting or joining
associations, with reasonable
restrictions for national integrity, public
order, and morality. Such activities can
range from businesses to clubs. It
includes both creating and joining
associations, as well as the right not to
do so. The right of association allows
forming and joining groups for shared
interests, including political parties and
unions.
Rights, Judgements, and Attorneys: The Constitutional Challenge
It encompasses starting and
maintaining organizations, granting
the freedom to decide participation.
It concerns the choice to either
create or abstain from creating
associations, both in formal and
informal manners.
The Indian Constitution safeguards
association rights, but they are not
absolute, subject to regulation under
Article 19 like other Fundamental
Rights. Article 19(4) allows for state-
imposed limitations in the interest of
public order, morality, or national
integrity. Courts assess the legality
and purpose of restrictions. Citizens
can form lawful associations, with
exceptions like industrial laws on
strikes. Police can’t unionize under
the 1966 Act. Parliament can restrict
political associations for certain
professions.
Essential Elements for Restriction:
Law’s authority is necessary.
Justifiability is crucial.
Courts assess legality based on
reasonableness and alignment
with authorized reasons.
15
As it was rightly held in Suresh Swami
vs. State of Rajasthan, AIR 2001 Raj
244, the right to form an Association
or Union, being a fundamental right of
every citizen including the students of
the colleges, can only be curtailed or
put under cloud by legislative action.
The State Government has no
authority to pass executive orders
regarding amendment or alteration in
the eligibility criteria for contesting the
elections of the Student’s Union or
Associations.
In Damayanti vs. Union of India, 1971
AIR 966, the Supreme Court held that
“The right to form an association”, the
Court said, “necessarily ‘implies that
the person forming the association has
also the right to continue to be
associated with only those whom they
voluntarily admit in the association.
Any law by which members are
introduced in the voluntary association
without any option being given to the
members to keep them out, or any law
which takes away the membership of
those who have voluntarily joined it,
will be a law violating the right to form
an association.”
Authored by Ms. Gayatri Mane, Junior Attorney
Rights, Judgements, and Attorneys: The Constitutional Challenge
In O.K. Ghosh vs. E.X. Joseph, 1963 AIR
812, a government employee, faced
investigation for participating in
demonstrations related to a strike,
which violated Central Civil Services
(Conduct) Rules 1955. The Supreme
Court ruled that being part of
demonstrations and preparations didn’t
equate to actually striking. Restrictions
imposed by the rules were found invalid,
as they violated Article 19(1)(c).
Undoubtedly, the freedom to form
associations serves as the lifeblood of
democracy, since without it, political
parties that are essential to the
operation of a democracy cannot be
founded. It is the enabling right, at the
heart of democracy and the rule of law,
to allow effective participation of non-
state players in economic and social
policies. It ensures that both workers
and employers have a voice and are
represented, which is critical for the
efficient operation of both labor
markets and general governance
systems in a country.
16
 FREEDOM OF MOVEMENT
The right to freedom of movement is a
fundamental human right that allows
individuals to travel and reside freely
within the boundaries of a country. This
right is protected in India under Article
19(1)(d) of the Indian Constitution,
which states that every citizen has the
freedom “to move freely throughout the
territory of India.” The importance of
the right to freedom of movement in the
Indian setting is explored in this article,
along with significant case law and
modifications that have influenced its
interpretation.
A democratic society’s foundational
principle is the freedom of movement,
which guarantees that people can make
use of numerous opportunities,
resources, and services offered
throughout the nation. It empowers
individuals to pursue greater economic
opportunities, education, healthcare,
and other essential services without
excessive limitations. Additionally, the
freedom to travel around contributes to
the advancement of intercultural
dialogue and racial harmony.
The way in which the right to freedom
of movement is interpreted has
changed over time due to amendments
and legal advancements. Article 19(1)
(d) was expanded by the 44th
Amendment Act (1978) with the
addition of the phrase “or to reside and
settle in any part of the territory of
India.” This amendment recognized that
the freedom to choose one’s residence
is intrinsic to the right to move.
Rights, Judgements, and Attorneys: The Constitutional Challenge
The right to freedom of movement
is essential but can be limited.
Article 19 (5) was added by the
Constitution 69th Amendment Act
(1991), allowing restrictions on this
right for public order, sovereignty,
and integrity. The basis for these
restrictions includes national
security, public order, and crime
prevention. Balancing individual
rights with national interests
remains a challenge for politicians
and the judiciary.
The right to freedom of movement
is globally safeguarded by the
Universal Declaration of Human
Rights and International Covenant
on Civil and Political Rights
(ICCPR) Article 12. International
human rights law recognizes
government responsibility for
public health. During threats to life
or security, governments can
impose reasonable restrictions for
public well-being. The phrase
“Extraordinary times call for
extraordinary measures” came to
life during the pandemic with
limitations on daily life, from
movement to assembly and
expression. Lockdowns affected
public places like restaurants and
malls.
17
The significance of the right to freedom of The right to freedom of movement is a
movement has been continuously upheld vital component of the democratic fabric
by Indian courts. The Supreme Court of of India. It empowers citizens to explore
India noted in Maneka Gandhi v. Union of opportunities, pursue education, and
India AIR 1978 SC 597, that the right to seek a better life across the country. The
move freely includes the right to live with Indian legal system, through case law and
dignity in addition to freedom of physical amendments, has ensured that this right
movements. The Court further ruled that is upheld while also considering the
any limitations on this freedom must pass broader interests of the nation. As India
the reasonableness requirement of Article continues to evolve, the delicate balance
19(2). between individual rights and national
interests will remain a focal point of legal
In the case of Govind v. State of M.P 1975 and social discourse.
AIR 1378, the petitioner contended that
regulations given under the Police Act of
M.P., i.e., Madhya Pradesh Police
Vidheyak, 2002, violated his fundamental
right to privacy. This right to privacy is a
part of the right to free movement which
falls under both Article 21 and Article 19.
The police officials conducted numerous
domiciliary visits and maintained secret
surveillance, which hampered his privacy.
It was alleged that the petitioner led a
criminal life. The Supreme Court held that
this was a reasonable restriction by police
officials, as the regulations of the Act
itself can only be enforced if there was a
determination, based on available
material, showing a criminal background
at the end of the person’s life. The
regulations were held to be constitutional
and not violative of Article 21.

Authored by Mr. Hariom Baghel, Junior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

18
 FREEDOM OF RESIDENCE
Freedom of residence is a fundamental right
guaranteed under Article 19 (1)(e) of the
Indian Constitution. According to this Article,
every citizen of India has the right to reside
and settle throughout the territory of India.
India is a diverse country with many cultures
and religions, and to protect the culture,
some reasonable restrictions are provided to
protect and safeguard the culture and
ethnicity of tribal people. Article 19 (e)
provides for reasonable restrictions to
protect the interest of the public at large and
to protect their health and culture.
The prime example of this was the
restrictions imposed during Covid-19 by the
Government. The general public was
restricted from moving from one state to
another during this period for safety, and as
a precautionary measure, to protect the
health of the citizens.
Citizens are banned from entering or even
visiting the Northern Sentinel Island of
Andaman and Nicobar by the Government of
India. The tribal population of these islands
is isolated and can’t communicate with the
rest of the world, as they have not learned
the languages that are spoken by us, making
it impossible to communicate with them.
Their bodies have not developed the
immunity to fight viruses like our bodies and
may not survive after coming into contact
with 21st-century humans. Therefore, the
restrictions imposed on us are for their
safety and to protect their culture and
health.
Sometimes the Government can also impose
restrictions on some places to provide
security to diplomats and foreign consulates,
and to provide security at important places
like Parliament, Assembly, airport &
Supreme Court, etc., where residing and
entering within the buffer zone limits are
restricted for unauthorized persons.
Authored by Mr. Affan Rizwan, Junior Attorney
Rights, Judgements, and Attorneys: The Constitutional Challenge
Residing near a National Monument like
India Gate or within a regulated area is
also restricted, and the construction of
private bodies is illegal. Any person who
wants to construct private property
within the regulated areas of centrally
protected monuments has to take prior
NOC from CAs of the National Monument
Authority of India.
the Indian Constitution previously
granted special provisions to the state of
Jammu and Kashmir through Article 370,
including exceptions to Article 19 (1) (e)
to protect its distinct rights and culture.
This allowed the state to impose
restrictions on non-residents. However,
on August 6, 2019, the Indian
government revoked Article 370, ending
Jammu and Kashmir’s special status and
autonomy, which had been in place to
safeguard its unique identity. In Mr. Louis
De Raedt & Ors vs Union Of India And
Ors, 1991 AIR 1886, it was said that “The
fundamental right of the foreigner is
confined to Article 21 for life and liberty
and does not include the right to reside
and settle in this country, as mentioned
in Article 19(1)(e), which is applicable
only to the citizens of this country.”
Every right comes with an exception; no
right can be an absolute right but is
subject to reasonable restrictions which
are provided in exception clauses. The
restrictions are determined by the court
of law and imply the limitations alike; the
freedom of residence is also subjected to
the reasonable restriction defined under
Article 19 (1) (e) of the Indian
Constitution.
19
 FREEDOM TO PRACTICE ANY
PROFESSION OR OCCUPATION
The Constitution of India recognises the
importance of work and guarantees a
fundamental right under Article 19(1)(g)
to practise any profession, carry out an
occupation, trade, or business for all
citizens within the country's jurisdiction
subject to Art. 19 (6) which enumerates
the nature of restriction that can be
imposed by the state upon the above
right of the citizens. Enshrined in Part III
of the Constitution, this provision plays a
crucial role in upholding economic liberty
and individual autonomy. Over the years,
the Supreme Court of India has
interpreted and clarified the terms
mentioned in this article, shaping the
contours of this essential right.
Trade: The term 'trade' signifies the
interchange of goods for goods or
money, involving profit-driven activities,
whether manual or commercial in nature.
It is distinct from liberal arts, learned
professions, and agriculture. In its
primary sense, trade involves the
exchange of goods for goods or money,
and in its secondary sense, it denotes
repeated profit-oriented activity within
the scope of business, manual or
commercial, as opposed to liberal arts,
learned professions, or agriculture.
Profession: A profession involves
specialised knowledge, skills, and
expertise in a particular field. Professions
typically require formal education and
training, and individuals in professions
are usually regulated by relevant
professional bodies. Examples include
doctors, lawyers, and engineers.
Business: Business encompasses
commercial activities conducted with the
aim of making a profit. It includes a wide
range of economic activities, such as
manufacturing, services, and investment
in various sectors.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Occupation: Occupation refers to any
activity that a person engages in to earn a
livelihood. It is a broader term that covers
a variety of endeavours, ranging from
traditional occupations to modern
vocations.
Key Rulings of the Hon’ble Supreme Court
of India
State of Tamil Nadu v. K. Balu (2017) 2
SCC 281:
In this case, the Supreme Court held that
a complete ban on sale and consumption
of liquor along national and state
highways is a valid regulatory measure to
ensure road safety and protect the lives
of citizens. The Court recognized that
while Article 19(1)(g) protects the right to
carry on a trade or business, such rights
can be reasonably restricted in the larger
public interest.
TMA Pai Foundation v. State of Karnataka
(2002) 8 SCC 481:
While primarily focusing on the right to
establish and administer educational
institutions under Article 19(1)(g), this
case reiterated that reasonable
restrictions can be imposed on this right
to ensure proper standards in education
and to prevent commercialization of
education.
Indian Hotel and Restaurant Association
v. State of Maharashtra (2019) 3 SCC
429:
The Court dealt with the issue of the state
government imposing restrictions on
dance performances in bars and
restaurants. The Court held that dance
performances are a form of expression
protected by Article 19(1)(a), but the state
can impose reasonable restrictions on
these performances to prevent obscenity
and maintain public order.
20
 While Article 19(1)(g) guarantees the
freedom to engage in trade, profession,
business, or occupation, it is essential to
recognize that this right is not unlimited.
The state has the authority to impose
reasonable restrictions in the interest of
public order, morality, health, and the
general welfare. The Supreme Court's
judgments have consistently emphasised
the need to strike a balance between
individual rights and the broader societal
well-being.
Article 19(1)(g) of the Indian Constitution
embodies the essence of economic freedom
and individual choice. The terms trade,
profession, business, and occupation are
central to this provision and have been
elucidated by the Supreme Court through
various landmark judgments. The court's
interpretations reaffirm the principle that
while individuals have the right to pursue
their economic aspirations, it is vital to
maintain a harmonious equilibrium between
individual interests and the greater public
good. As India's legal landscape continues
to evolve, the interpretation of Article 19(1)
(g) will continue to play a pivotal role in
shaping the boundaries of economic liberty.

Authored by Mr. Arvind Jadhav, Associate Partner

Rights, Judgements, and Attorneys: The Constitutional Challenge

21
 PROHIBITION OF FORCED LABOUR

Forced labour is any kind of work or At least minimum wages should be paid to
service wherein a person is coerced or an employee working in an organisation as
forced to do against their will. Any kind of a fundamental right and anything less than
such labour is prohibited under the Indian that would be nothing but an act amounting
laws. It takes away the dignity and to forceful labour and begging.
freedom of a person, the freedom for
which Indians have fought for over 150 Additionally, in the case of Deena vs. Union
years. of India AIR 1983 SCC 1155, the Court held
that a prisoner being forced to work in a jail
The rights against forced labour are without providing any remuneration is
enshrined in Article 23 of the Constitution violative of Article 23 of the Constitution,
of India and protects its people from as even the prisoners are entitled to
exploitation. Article 23 enshrines the receive reasonable wages for their labour.
prohibition of human trafficking, begging
and any other form of forced labour. The However, even where labour is forced upon
Supreme Court has, in various judgments, a person, irrespective whether the person is
held that forced labour strips one off of being paid minimum wages or higher than
the dignity that every person is born with that, Article 23 will be violated. Any amount
and is provided as such under the of remuneration paid to a person will be
Constitution. immaterial if labour is forced upon him.
In a landmark judgement of the Hon’ble Article 23(2) however, is an exception to
Supreme Court, Peoples Union for this exploitation. Article 23 (2) does not
Democratic Rights v. Union of India, AIR prevent the state from imposing
1982 SC 1943, the Apex Court observed compulsory services for public purposes.
that the word “force” has a wider But in doing so, the state shall not make
meaning. It includes physical force, legal any discrimination on grounds of religion,
force and other economic factors which race, caste, class or any of them.
forces a person to provide labour at a Therefore, in the matter of Dulal Samanta
wage less than the minimum wage. vs D.M. Howrah, the Apex Court held that
Hence, if a person is forced to provide the special notice received by a person for
labour for less than the minimum wage, his appointment as a police officer for a
just because of poverty, want, destitution period of 3 months is not violative of Article
or hunger, it would be accounted for as 23.
forced labour.
Therefore, any form of forced labour is
The Court also clarified the meaning of looked down upon and highly discourages
“all similar forms of forced labour” in and prevents a person from living his life
Article 23. It said that not only begging with liberty and freedom. If all employers
but all forms of forced labour are are mindful of the basic human rights in
prohibited. This means that it would not India, and the dignity each and every
matter if a person is given remuneration person possesses, we can definitely strive
or not as long as he is forced to supply for an equal and a much better India.
labour against his will. This is essential so
as to ensure that the employer does not
take advantage of the helpless conditions
of the people in India, being forced into
labour.
Authored by Ms. Aditi Hambarde, Senior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

22
 PROHIBITION OF CHILD LABOUR
Our Constitution-makers, wise and
sagacious as they were, had known that
India of their vision would not be reality if
the children of the country are not nurtured
and educated. It is this need, which has
found manifestation in Article 24, which is
one of the two provisions in Part IV of the
Constitution of India on the fundamental
right against exploitation.
The Article 24, forbids the employment of
children below the age of 14 in any
hazardous industry or factories or mines.
Article 39 directs the State to form its policy
towards ensuring that the tender age of
children is not abused and that they are not
forced by the economic constraints to enter
into places unsuited to their age or health.
The Judgment of the Hon’ble Supreme Court
in M.C. Mehta v. State of Tamil Nadu (1996)
6 SCC 756, is a historic judgement on child
labour, which elaborated the situation of
child labour in India. It outlines the vision of
the Constitution with respect to children.
The Apex Court acknowledged that despite
the presence of such provisions in our
Constitution, children are still exploited and
forced into child labour. The judgement
highlighted the relation between poverty and
child labour and also shed light on how the
state has failed to eradicate child labour,
and its lack of zeal to deal with it. The Apex
Court, relying on Article 39(e) and 39(f) and
Article 45 of the Constitution, gave certain
directions to improve the quality of life of
children employed in the factories.
There are a number of laws for the welfare
and prosperity of children in order to fulfil
the requirements imposed by Article 24 as
well as accession of India to various
international accords such as the
requirements imposed by Article 24 as well
as accession of India to various international
accords such as the UN Convention on the
Rights of the Child.
Rights, Judgements, and Attorneys: The Constitutional Challenge
The major legislative initiatives have been
undertaken at both Center and State
Government levels including the
following:
Factories Act, 1948
Mines Act, 1952
Juvenile Justice (Care and Protection)
of Children Act, 2000
Right to Education Act, 2009
National Child Labour
Programme(Project), 1988
Child Labour (Prohibition and
Regulation) Amendment Act, 2016
Child Labour (Prohibition and
Regulation) Amendment Rules, 2017
The Government of India has enacted the
Child Labour (Prohibition & Regulation)
Act, 1986 to prohibit the engagement of
children in certain employments and to
regulate the conditions of work of
children in certain other employments.
Recently, with the enactment of the Child
Labour (Prohibition & Regulation)
Amendment Act 2016 prohibiting the
employment of Children below 14 years in
all employment and also with the
provisions for prohibition on employment
of adolescents (14-18 Years) in the
scheduled hazardous occupations and
processes.
23
 The problem of child labour continues to
pose a challenge before the nation.
Government has been taking various
proactive measures to tackle this problem.
However, considering the magnitude and
extent of the problem and that it is
essentially a socio-economic problem
inextricably linked to poverty and illiteracy,
it requires concerted efforts from all
sections of the society to make a dent in
the problem.
A shift of attitudes is needed among those
directly concerned with the child labour -
children, parents, enforcement machinery,
employers, and society as a whole. Once
society recognizes that child labour is a
problem, the stage would have been set to
eradicate its manifestations. To solve
challenges like child labour, the country
must work to educate everyone, regardless
of their socio-economic status and should
propose initiatives to assist in appreciating
education in their special ways.

Authored by Mr. Chirag Bhavsar, Associate Partner

Rights, Judgements, and Attorneys: The Constitutional Challenge

24
 PROHIBITION OF TRAFFIC IN HUMAN BEINGS
The Indian Constitution's Article 23 of Part
III guarantees citizens' fundamental rights
by addressing the unlawful practice of
forced labour and human trafficking.
Article 23 aims to protect people from
being victims of activities similar to slavery
and to foster equality and integrity among
all citizens. It strives to prevent
exploitation of people by embracing their
intrinsic worth and liberty. Human
trafficking can occur through tactics such
as fraud, manipulation or coercion.
Traffickers often prey on vulnerabilities
such as economic hardships, lack of
education or immigration status to exploit
individuals, promising a fancy job with a
better life and then trapping victims into
situations of exploitation.
The following practices are expressly
forbidden by Article 23:
Beggar: This is an example of forced
labour, which involves unpaid and
involuntary work, where individuals are
compelled to work against their will
without compensation.
Bonded labour: Article 23 prohibits
debt bondage, a form of forced labour
where individuals work to repay debts,
often receiving minimal wages and
passing these debts to future
generations.
Human trafficking: It means the illegal
trade in humans, involving women and
children, encompasses slavery, even if
not explicitly mentioned in Article 23.
The Suppression of Immoral Traffic in
Women and Girls Act, 1956, was
enacted under Article 23 to criminalise
human trafficking.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Types of Human Trafficking:
Sexual trafficking is the exploitation of
individuals and forcing them into
performing sexual acts as a condition of
the traffickers facilitating or arranging
their movement.
The transfer of workers for the purpose
of involuntary labour or services,
including domestic or involuntary
servitude, bonded or child labour, is
known as Labour trafficking.
Child Trafficking is described as the
selection of minors for enslavement,
forced labour, or other forms of
exploitation and their transportation,
harbouring, transfer, or forced labour. It is
still widespread in our nation, and is very
challenging.
Organ trafficking varies, with victims
either forced to donate or choosing to sell
organs for money or goods, often
receiving little or no compensation from
traffickers.
Marriage Trafficking i.e forced marriage,
violates the victims' autonomy and
freedom. The United Nations has
designated it a violation of human rights.
This article prohibits any conduct
mentioned in Article 23, except for
Article 23(2), which allows the state to
require mandatory public services like
national defence, education, and public
utilities. However, such mandates cannot
discriminate based on religion, race,
caste, or class.
.
25
Smuggling individuals is distinct from
human trafficking. Smuggling breaches
destination country immigration laws
without violating rights, while trafficking
involves rights violation through
compulsion and exploitation, constituting
a crime against people.
In the case of Gaurav Jain v. Union of
India, the Supreme Court ruled that
although trafficked individuals have the
right to live in dignity, doing so is often
difficult due to the trauma or suffering
they have experienced. So that they might
also have equal possibilities and can live
their lives with dignity, the Court
commanded the creation of a commission
for the rehabilitation of the trafficking
persons and their children who become
the victims.
The Immoral Trafficking Prevention Act
(ITPA) in India mandates sentences from
seven years to life imprisonment for
human trafficking for commercial sexual
exploitation.
Authored by Ms. Almira Lasrado, Senior Attorney
Rights, Judgements, and Attorneys: The Constitutional Challenge
The Prevention of Child from Sexual
Offenses Act of 2012 (POCSO) specifically
protects children from sexual abuse. The
2013 Criminal Law Amendment Act
introduced sections 370 and 370A in the
Indian Penal Code, addressing human
trafficking. Bonded Labour System
(Abolition) Act, 1976: imprisonment up to 3
years and fine up to ₹ 2000
Transplantation of Human Organs and
Tissues Act, 1994: imprisonment for a term
which shall not be less than 5 five years
but which may extend to 10 ten years and
shall be liable to fine which shall not be
less than ₹ 20 lakh but may extend to ₹1
crore.
Thus, Article 23 stands as a pillar of
protection against human trafficking, its
inclusion reflects India’s commitment to
upholding Human Rights and preventing
Exploitation. While legal provisions are
essential, addressing human trafficking
requires collective efforts from the
government agencies, society and
international nations to ensure that the
rights and dignity of every individual are
safeguarded.
26
 FREEDOM OF CONSCIENCE
Imagine a unique room within your mind
where your personal beliefs, values, and
morals reside. This mental space, known
as the "right to conscience," is like a
sanctuary where no one else can enter or
force their ideas upon you. This special
right gives you the freedom to shape your
thoughts and convictions without anyone
pressuring you. In India, this right is
strongly protected by the Constitution,
and the Supreme Court has played a vital
role in explaining and defending it. Let's
dive into how the Supreme Court's
decisions have highlighted the importance
of this right for every individual.
Deciphering (Interpreting) the Right to
Conscience
Embedded within the tapestry of the
liberty to think, believe, and express, the
right to conscience bestows upon
individuals the sovereignty to nurture
personal convictions, moral tenets, and
ethical principles sans coercion. An edifice
of democracy is erected upon this
cornerstone, upholding the intrinsic
autonomy and plurality of thought.
Advocate's Legal Prisms
Within the realm of India's legal labyrinth,
the apex court has wielded its authority in
shielding the right to conscience,
recognizing it as an indispensable facet of
personal freedom. The landmark verdict in
Keshavananda Bharati v. State of Kerala
(1973) 4 SCC 225 elucidated that personal
liberty enshrines the entitlement to nurture
individual beliefs and values, shielding
them from external incursions. The court's
pronouncement emphasized that this right
is germane for the holistic growth of an
individual's persona.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Precedential Milestones
Navtej Singh Johar v. Union of India AIR
2018 SC 4321: A watershed moment,
this judgment decriminalized consensual
same-sex relations, accentuating the
right to conscience and personal
autonomy. The court's erudition unveiled
that an individual's sexual orientation
forms a natural mosaic of their identity,
entailing the prerogative to lead a life
steeped in dignity.
Shayara Bano v. Union of India (2017) 9
SCC 1: In this case, the court denounced
the practice of Triple Talaq as
unconstitutional, foregrounding gender
equity and individual sovereignty. The
verdict held that personal laws must
harmonize with the tenets of equality
and reverence for personal choices.
Suresh Kumar Koushal v. Naz
Foundation (2014) 1 SCC 1: Despite its
eventual repudiation by the Navtej Singh
Johar verdict, this case fomented
conversations about the right to
conscience in the context of
decriminalizing homosexuality. Although
the ruling did not resonate
harmoniously, the subsequent evolution
of legal contemplation showcased the
court's responsiveness to societal
transmutations.
27
 Juridical Perspectives and Literary Volumes
Numerous publications and legal treatises have
enriched the discourse on the right to conscience:
"Constitutional Law of India" by Dr. J.N. Pandey:
This magnum opus expounds upon the myriad
aspects of India's Constitution, summarizing the
right to conscience in its comprehensive analysis
of fundamental rights.
"Fundamental Rights and Constitutional
Remedies" by Dr. B.R. Ambedkar: This seminal
work by the architect of India's Constitution
provides an insightful interpretation of the
fundamental rights, traversing the crux of
individual liberties including the right to
conscience.
Conclusion
To sum it up, the right to conscience is like your own
personal treasure chest of beliefs and values. It's a
powerful shield that keeps others from telling you
what to think or believe. The Supreme Court of India
has been a guardian of this important right, making
sure that everyone's personal thoughts and choices
are respected. As India continues on its legal
journey, the protection of the right to conscience
reminds us that our individual beliefs are something
to be cherished and safeguarded.
Authored by Mr. Vishisht Singh, Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

28
 FREEDOM TO PROFESS, PRACTICE
AND PROPOGATE RELIGION

India is a country known for its secularism. In Bijoe Emmanuel v. State of Kerala, 1987
It’s the birthplace of numerous religions, the AIR 748, a case that involved three students
only place where religion and culture are who refused to sing the national anthem of
practiced in various forms.
India on religious grounds, the court held
“Religion is that which grows out of, and that the conduct of the children standing up
gives expression to, the experience of the when the national anthem was sung proved
holy in its various aspects,” - Rudolph Otto. the three students’ respect for the national
Our Indian Constitution also recognizes the anthem, along with their belief in their
belief and faith people have in religion, religion by not singing.
making it a part of the Constitution under
Article 25, and adding it to the Preamble by
the 42nd Amendment Act. The word
“Secularism” is dynamic and cannot be This case is the perfect example of the
interpreted in a restricted sense. The balance of Article 19 (1), which gives the
Supreme Court of India in the case of S.R. citizens of India their rights, and Article 25
Bommai v. Union of India (1994) 3 SCC has of the Indian Constitution, giving the
defined the word secularism, stating its
meaning as ‘equal treatment of all citizens the freedom to profess, practice,
religions.’ and propagate religion.
In landmark cases like Keshavananda Bharti
v. Union of India 1973 4 SCC 225, it was
held that secularism is a basic feature of Additionally, the case of Rev. Stainislaus v
our Indian Constitution, and no provision of State of Madhya Pradesh 1977 AIR 908,
legislation can abridge this right. 1977 SCR (2) 611 has been used for the
The Indian Judiciary has also, time and distinction between “propagation” and
again, played a significant role in “conversion.” It was ruled that the right to
emphasizing the importance of religious freely profess, practice, and propagate is
freedom by upholding the right of every an absolute right, whereas the freedom to
individual to follow their religious beliefs, convert others to one’s own religion is not
passing judgments like The Commissioner,
Hindu Religious Endowments Madras v Shri an absolute right.
Lakshmindar Thirtha Swamiyar of Shri
Shirur Mutt 1954 AIR 282, State of
Karnataka v (Dr.) Praveen Bhai Togadia
(2004) 9 SCC, and Shayara Bano v. Union
of India (AIR 2017 SCC 1388).

Rights, Judgements, and Attorneys: The Constitutional Challenge

29
 From the above judgments, it is clear that India,
being a secular country, allows its citizens to
choose, practice, propagate, and even change
his or her religion. Though the rights are not
absolute, they are hand in hand with some
restrictions imposed.
Additionally, the case of Rev. Stainislaus v State
of Madhya Pradesh 1977 AIR 908, 1977 SCR (2)
611 has been used for the distinction between
“propagation” and “conversion.” It was ruled that
the right to freely profess, practice, and
propagate is an absolute right, whereas the
freedom to convert others to one’s own religion is
not an absolute right.
From the above judgments, it is clear that India,
being a secular country, allows its citizens to
choose, practice, propagate, and even change
his or her religion. Though the rights are not
absolute, they are hand in hand with some
restrictions imposed.

Authored by Ms. Bijal Parikh, Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

30
 FREEDOM TO MANAGE RELIGIOUS AFFAIRS
Article 26 of the Constitution of India, 1949
(“Constitution”) discusses the Freedom to
Manage Religious Affairs. This provision
essentially provides religious denominations
or groups autonomy to manage their own
religious affairs and social undertakings with
their own administration and free from
interference from the State (i.e. the
Government and Parliament of India, the
Government and the Legislature of each of
the States, all local or other authorities
within the territory of India or under the
control of the Government of India). Article
26 applies to all religious groups in India
including minority groups.
For this purpose, Article 26 creates certain
rights for religious denominations which are
as follows:
Right to establish and maintain
institutions for religious and charitable
purposes
Right to manage its own affairs in
matters of religion
Right to own and acquire movable and
immovable property
Right to administer such property in
accordance with law
In order to understand the extent of this
provision better, we should discuss the
Essential Religious Practices Test which was
established by the Hon’ble Supreme Court of
India in the case of The Commissioner,
Hindu Religious Endowments, Madras vs.
Shri Lakshmindar Tirtha Swamiyar of Shri
Shirur Mutt (1954 AIR 282)(Shirur Mutt
case) wherein it was held that the word
“religion” would cover all those “essential
religious practices”
Rights, Judgements, and Attorneys: The Constitutional Challenge
which are vital for the practice and
continuance of such religion and what is
essential, would be construed according
to the doctrines, scriptures or principles
of that religion itself.
Further, Article 26 was also applied in case
of Sardar Syedna Taher Saifuddin Saheb
vs. State of Bombay (1962 AIR 853)
wherein, the Dawoodi Bohra community’s
practice of excommunication was
restricted by a state legislation and the
court considered the Essential Religious
Practices Test and Article 26 of the
Constitution and upheld the custom of
power of Syedna in Dawoodi Bohra
community and further applied Article 26
to curtail State’s involvement in
administration of religious denominations.
Thus, we can see that the importance of
this provision is to promote the idea of
secularism, where the religion is
independent from the State and this
provision provides religious groups the
autonomy to administer their own
activities.
However, such religious autonomy is not
without exception. The provision is subject
to the basic limitations of all fundamental
rights namely Public Order, Morality and
Health. This means religious groups are
typically independent from State
administration. However, if their activities
impact Public Order, Morality or Health of
people within that group or of the general
public, the state can intervene.
31
 For example, in the case of Indian Young
Lawyers Association vs. The State of Kerala
(2018 (8) SCJ 609) popularly known as
“Sabarimala Temple case”, the rule that
women of menstruating age were not
allowed into the Sabarimala Temple was
seen as a unconstitutional and discriminatory
and it was struck down by the Hon’ble
Supreme Court of India in year 2018. It was
held that although the religious
denomination has a right to autonomy and
self-administration, such right is superseded
by the State’s duty to enforce the right to
freedom of religion under Article 25(2) (b) of
the Constitution.
Article 26 of the Constitution holds
significant importance as it safeguards the
autonomy and freedom of religious
denominations or groups to manage their
own religious affairs. This article ensures the
protection of various aspects of religious
freedom, organization, and administration.
Overall, Article 26 is important because it
helps maintain a delicate balance between
individual and community religious rights and
the State's legitimate interests, while also
contributing to the cultural richness and
pluralism of India.

Authored by Mr. Shreyas Hingmire, Senior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

32
RIGHT OF EVERY RELIGIOUS OR LINGUISTIC MINORITY TO
CONSERVE ITS CULTURE, LANGUAGE AND SCRIPT

India, a nation renowned for its diverse The language of the article itself implies
tapestry of ethnicities, religions, castes, and that communities possessing distinctive
languages, encompasses a multitude of languages, scripts, or cultures are
minority groups, each connected to distinct categorized as minority communities.
belief systems, subcultures, and regions. However, legal cases such as Bal Patil v.
The task of integrating these varied Union of India (2004) SCC OnLine SC 778
communities has been a central focus of and Islamic Academy of Education v.
Indian governance since its independence in State of Karnataka (2003) 6 SCC 697
1947. The Constitution of India, through have revealed that courts sometimes
provisions like Article 29, establishes consider additional factors, such as
safeguards to protect the rights and cultures economic welfare, when determining
of these minority groups, ensuring their
harmonious coexistence within the nation. minority status.
Fundamental Rights, secure the basic
entitlements of Indian citizens. Article 29 Article 29(2) of the Indian Constitution
specifically aims to safeguard the cultures of extends its protective umbrella to
minority groups. Given India's remarkable individual rights. This provision
diversity, the article's application becomes guarantees the rights of individual
essential due to the intricate nature of the citizens, regardless of their community
country. By acting as a guardian of these affiliation. Consequently, Article 29 as a
rights, the Constitution ensures the whole safeguards both religious and
preservation of marginalized groups and linguistic minorities.
encourages the protection, propagation, and
preservation of their cultural heritage.
Article 29(1) of the Indian Constitution plays
a pivotal role in protecting the rights of
minority communities. It stipulates that any
group possessing "a distinct language,
script, or culture of its own" has the inherent
right to conserve these unique attributes.
Article 29(1) serves to protect the rights of
groups, particularly those belonging to
minority communities, regarding their
cultural distinctiveness.

Rights, Judgements, and Attorneys: The Constitutional Challenge

33
 In the case of State of Madras v. Champakam
Dorairajan (1951) SCC 351, the issue centred
around the admissions policy of the Madras
government to state medical and engineering
colleges. The criteria for admission were
challenged, as they were based solely on caste
and religion. The central question was whether
these provisions violated the rights enshrined in
Article 29(2) and Article 15(4) of the Constitution
of India. The court ruled that the admission
criteria were in violation of Article 29(2) of the
Constitution. Subsequently, Article 15(4) was
amended, empowering the State to formulate
special rules for the advancement of socially and
educationally backward classes, including
Scheduled Castes and Scheduled Tribes.
Article 29 of the Indian Constitution stands as a
bastion of protection for the cultural diversity
inherent in India's minority communities. By
safeguarding their rights and cultural
distinctiveness, the Constitution ensures the
harmonious integration of these groups into the
broader Indian identity. As the nation continues
to evolve, Article 29 remains a testament to
India's commitment to preserving its rich cultural
mosaic.

Authored by Mr. Shubham Dagale, Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

34
 FREEDOM TO ESTABLISH AND MAINTAIN EDUCATIONAL
INSTITUTIONS
The primary obligation cast upon the drafting
committee of the Constitution of India was to
create a framework that defines the political
code, structure, procedures, powers and
duties of government institutions and set out
fundamental rights, directive principles, and
the duties of the citizens.
In the pre-independence era, a vast population
had been deprived of basic human rights and
needs because of the political instability and
the dominant and tyrannical rule of the
western colonialism. It was therefore important
that the framework of the Constitution
encouraged socio-economic development and
advocated the principle of democracy, secular
state and protected human rights.
The key pillars for development of any human
society are equality, sustainability,
productivity and empowerment. The state is
entrusted with a duty to protect the interest of
all its citizens irrespective of its caste, creed,
and religion. Part III of the Indian Constitution
contains Fundamental rights which are
guaranteed to every citizen.
A significant portion of the population in India
consists of people belonging to the notified
minorities. In order to protect the interest of
such minorities the Constitution outlines
provisions that protect the rights of the
minorities and ensures the individual
belonging to such minorities also avail the
benefit of the fundamental rights which are
embodied in the heart of the Constitution.
Rights, Judgements, and Attorneys: The Constitutional Challenge
Educational Rights are basic human rights
necessary for upliftment of the individuals who
belong to the minority class. An education
system plays a pivotal role in ensuring overall
development of the society by providing equal
opportunities, promoting knowledge,
spreading awareness, cultivating ideas and
transmitting cultural values.
Article 30 of the Constitution of India
therefore provides the right to all minorities to
establish and administer educational
institutions of their choice. The Article ensures
that the State does not discriminate and
denies aid to such an educational institution
on the pretext of it being set up under the
management and administration of a minority.
The Article of the Constitution was further
amended to protect the rights guaranteed to
such educational institutions. The amended
Article added that if a situation arises for
acquisition of any property of the educational
institution, the State is to ensure that the
amount fixed for the acquisition of such
property was not detrimental to rights
guaranteed under the said Article.
35
 The Supreme Court in the Judgements of P.A.
Inamdar v. State of Maharashtra (2005) 6 SCC 537,
and The Secretary, Malankara Syrian Catholic
College v. T. Jose (2007) 1 SCC 386 observed that
the right conferred on minorities under Article 30 is
only to ensure equality with the majority and not
intended to place the minorities in a more
advantageous position vis-à-vis the majority.
The Supreme Court in the matter of Ahmedabad St.
Xavier’s College Society and Anr. Versus State of
Gujarat and Anr.(1974) 1 SCC 717, deliberated upon
the scope of Article 30 wherein it has observed that
the right has been conferred on religious and
linguistic minorities so that they are not prohibited
by a legislation from establishing and administering
educational institutions of their choice. Article 30
protects minority rights in education to promote
national unity and uphold the principles of liberty,
equality, and fraternity.
Thus, the Part III of the Constitution of India
guarantees certain rights on minority groups to
strike a balancing system of liberty and confer
equality. These rights however under Article 30(1)
are also subject to some regulations as clarified by
the Apex Court in a catena of decisions for the
protection of various social interests such as health,
morality, security of State, public order and the like,
for the good of the people is the supreme law.

Authored by Mr. Darshil Thakkar, Senior Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

36
 RIGHT TO MOVE THE SUPREME COURT
FOR THE ENFORCEMENT OF FUNDAMNETAL RIGHTS
Introduction:
One of the defining principles of Common
Law is “Ubi Jus, Ibi Remedium.” This
maxim means “where there is a right,
there is a remedy.” The right to a remedy
has been acknowledged as a fundamental
right in all legal systems historically.
Article 32 of the Indian Constitution gives
the right to every citizen to seek
constitutional remedy from the Supreme
Court, when they have been deprived of
their fundamental rights. The Apex Court
is vested with the power to issue directives
or mandates to ensure the implementation
of any of the rights enshrined in the
Constitution, as it is acknowledged as the
“protector and guarantor of Fundamental
rights.” Article 32 forms the basis for PIL to
It would be meaningless to grant
fundamental rights but not provide
remedies for the enforcement of the
rights, if they are violated. Thus, power for
such enforcement has been vested under
Article 32 of the Constitution. The role of
the Supreme Court contributes to
maintaining the balance of power,
ensuring the rule of law, and upholding the
democratic principles of the nation.
Part III (Article 12 to 35)
Part III (Article 12 to 35) of the Indian
Constitution comprises Fundamental
Rights. It is the charter of freedom for the
citizens of India. During the Constituent
Assembly debates, Dr. B.R Ambedkar had
highlighted the significance of Article 32
and referred to it as “the very soul of the
Constitution and the very heart of it.”
Rights, Judgements, and Attorneys: The Constitutional Challenge
Amplitude of Supreme Court’s
Jurisdiction Under Article 32:
Article 32 is itself a Fundamental Right,
and the Supreme Court’s jurisdiction
under Article 32 is mandatory by nature
and not discretionary. The power of the
Supreme Court extends to issuing
orders, writs, or directions including:
writs in the nature of habeas corpus,
mandamus, quo warranto, prohibition,
and certiorari, as may be considered
necessary for the enforcement of the
fundamental rights.
Public Interest Litigation (PIL):
grant the right to the citizens to move
the Supreme Court for enforcement of
the fundamental rights, in the interest of
public welfare. PIL can also be taken up
suo moto by the Court itself. PIL has
served as a vital avenue for ordinary
citizens to elevate matters of societal
significance and ensure that
governmental bodies and public officials
are held answerable.
The Rule of Locus Standi in cases of
PILs is relaxed when the petitioner is
acting in a bona fide manner; PIL should
pertain to matters of greater public
welfare, devoid of any intentions to gain
financial advantage. The first reported
case of PIL in 1979 focused on the
inhuman conditions of prisons and
under-trial prisoners.
37
 In Hussainara Khatoon v. State of Bihar, PIL
was filed by an advocate on the basis of a
news item published in the Indian Express,
highlighting the plight of thousands of
undertrial prisoners in various jails in Bihar.
These proceedings led to the release of more
than 40,000 undertrial prisoners.
Grounds for Dismissal of Petition Under
Article 32:
The Supreme Court can dismiss the petition
under Article 32 in the following
circumstances: Principle of res judicata;
Misrepresentation or Suppression of facts;
Availability of alternate remedy; Inordinate
delay; Malicious Petition.
Conclusion:
Article 32 plays a critical role in maintaining
the rule of law, safeguarding citizens' rights,
and ensuring governmental actions align with
principles of justice and equality. It provides a
direct avenue for citizens to seek justice and
remedy for the infringement of their
fundamental rights, without facing procedural
barriers. In the case of Skill Lotto Solutions
Pvt Ltd. v. Union Of India (2020), the Hon’ble
Supreme Court held that “Article 32 is an
important and integral part of the basic
structure of the Constitution. Article 32 is
meant to ensure observance of rule of law.
Article 32 provides for the enforcement of
fundamental rights, which is the most potent
weapon.”

Authored by Mrs. Hetal Master Patel, Principal Attorney

Rights, Judgements, and Attorneys: The Constitutional Challenge

38
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Rights, Judgements, and Attorneys: The Constitutional Challenge