Fundamental Right 2

Historical Background of Art. 21

• The true test of a democracy is how its laws stand with regard to the life
and liberty of its people. In England, charters of liberties are set out in the
Magna Carta of 1215. In the same vein.
The development of the Fundamental Rights in India was inspired by
England's Bill of rights (1689), the United States Bill of Rights (1791),
France's Declaration of Rights of Man (1789).
• The framers of Indian constitution were deeply influenced by the
international document i.e. Universal Declaration of Human Right (UDHR)
1948 which had a great impact on the drafting of Indian constitution. The
Article 9 of UDHR provides for 'protection of life and personal liberty' of
every person. As India was signatory to the declaration, the constituent
Assembly adopted the similar provision as a fundamental right therein.
• Article 21 is the celebrity provision of the Indian Constitution and occupies
a unique place as a fundamental right2.
MEANING OF 'RIGHT TO LIFE'
• The right to life is undoubtedly the most fundamental of all rights. All
other rights add quality to the life in question and depend on the pre-
existence of life itself for their operation.
• As human rights can only attach to living beings, one might expect the
right to life itself to be in some sense primary, since none of the other
rights would have any value or utility without it. There would have
been no Fundamental Rights worth mentioning if Article 21 had been
interpreted in its original sense.
• The smallest Article of eighteen words has the greatest significance
for those who cherish the ideals of liberty. What can be more
important than liberty?
Developments in Art 21.
• Concept of Right to Life And Personal Liberty & Its Changing Dimensions: Article 21 lays down
that no person shall be deprived of his life and personal liberty except according to the procedure
established by law. The Supreme Court of India in the case of A.K. Gopalan v. State of Madras AIR
1950 SC 27, the validity of the Preventive Detection Act. 1950 was challenged. The main question
was whether Art. 21 envisaged any procedure laid down by a law enacted by the legislature, or
the procedure should be fair and reasonable.

• Three arguments were presented from the Appellant side and the arguments were:
(1) The word law in Art. 21 does not mean merely enacted law but incorporates principle of natural
justice so that a law to deprive a person of his life or personal liberty cannot be valid unless it
incorporates these principles laid down by it.

(2) The reasonableness of the law of preventive detention ought to be judged under Art. 19.

(3) The expression procedure established by law introduces into India the American concept of
procedural due process which enables the Courts to see whether the law fulfils the requisite
elements of a reasonable procedure.
Contd…
• A.K. Gopalan v. State of Madras held the field for almost three
decades, i.e., 1950 to 1977. This case settled two major in points in
relation to Art. 21. One, Arts. 19, 21 and 22 are mutually exclusive
and independent of each other. Two, a law affecting life or personal
liberty of a person could not be declared unconstitutional merely
because it lacked natural justice or due process. The legislature was
free to lay down any procedure for this purpose.
Aspect of Personal Liberty
• Maneka Gandhi v. UOI 1978 AIR 597, is a landmark case of the post-
emergency period. This case shows how liberal tendencies have influenced
the Supreme Court in the matter of interpreting Fundamental Rights,
Particularly Art. 21,
• A great Transformation has came about in the judicial attitude towards the
protection of personal liberty after the traumatic experiences of the
emergency during 1975-77 when personal liberty had reached its lowest.
• Maneka Gandhi's passport was impounded by the Central Government
under Passport Act in the interest of general public.
• One of the major grounds of challenge was that the order impounding the
passport was null and void as it had been made without afford in gher an
opportunity of being heard in her defence.
Golden Triangle
• The leading opinion in Maneka Gandhi case was pronounced by Justice Bhagwati. The Court
reiterated the proposition that Art. 14, 19, and 21 are not mutually exclusive. This means that a
law prescribing a procedure for depriving a person of 'personal liberty' has to meet the
requirement of Art. 19. Also, the procedure established by law in Art. 21 must answer the
requirement of Art. 14 of the Constitution of India.
• The expression ought not to be read in a narrow and restricted sense so as to exclude those
attributes of personal liberty which are specifically dealt with in Art. 19.
• The attempt of the Court should be to expand the reach and ambit of the fundamental rights
rather than attenuate their meaning and content by the process of judicial construction, and
hence right to travel abroad falls under Art. 21.
• The most significant aspect of the case is the reinterpretation of the expression procedure
established by law used in Art. 21. Art. 21 would no longer mean that law could prescribe some
semblance of procedure, however arbitrary or fanciful, to deprive a person of his personal liberty.
• It now means that a procedure must satisfy certain requisites in the sense of being just, fair and
reasonable. The process cannot be arbitrary, unfair or unreasonable. Thus, the procedure in
Art.21 must be right and just and fair and not arbitrary, fanciful and oppressive. The Court
reached it decision by holding that Arts. 21, 19 and 14 are mutually inclusive.
Contd..
• In Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802 the Supreme Court
expanded the horizon of Art. 21 and held that right to life includes right to live
with human dignity, free from exploitation and to have equal opportunity.
The judicial approach with time thus has led to two very important results, viz:
1. Many Directive Principles which, as such, are not enforceable have been
activated and has become enforceable.
2. The Supreme Court has implied a number of fundamental rights from Art. 21.
In course of time, Art. 21 have come to be regarded as the heart of Fundamental
Right. Art. 21 has enough of positive content in it and it is not merely negative in its
reach.Over time, since Maneka Gandhi, the Supreme Court has been able to imply
several Fundamental Rights out of Art.21. This has been possible by reading Art.21
along with some Directive Principles. Art. 21 has thus emerged into a multi-
dimensional Fundamental Right.
RIGHT TO LIVELIHOOD
• With the defining of the word life in Art. 21 in a broad and expansive
manner, the Court came to hold that the right o life guaranteed by Art. 21
include the right to livelihood.
• The Supreme Court has argued in the Slum Dwellers’ Case of Bombay- Olga
Tellis v. Bombay Municipal Corp [1985] 2 Supp SCR 51 that the right to
livelihood is born out of the right to life, as no person can live without the
means of living, i.e., the means of livelihood. SC also held-
• (i) sites should be provided to residents presented with census cards in
1976; (ii) slums in existence for 20 years or more were not to be removed
unless land was required for public purposes and, in that case, alternative
sites must be provided; (iii) high priority should be given to resettlement.
•
RIGHT TO SHELTER
• In Shantisar Builders v. Narayan Khimlal Totame (1990) 1 SCC 520 the Supreme
Court has ruled that the right to life is guaranteed in any civilized society. That
would take within its scope the right to food, the right to clothing, the right to
decent environment and a reasonable accommodation to live in.
• The difference between the need of an animal and a human being for shelter has
to be kept in view. For an animal, it is the bare protection of the body; for a
human being it has to be a suitable accommodation which would allow his to
grow in all aspect physical, mental and intellectual.
• This concept was further expounded in the case of Chameli Singh v. State of
Uttar Pradesh AIR 1996 SC 1051, In the case of U.P. Avas Evam Vikas Parishad AIR
1996 SC 114 case the Supreme Court stated that the right to shelter is a
Fundamental Right, which springs from the right to residence assured in Art.
19(1) (e) and right to life under Art. 21 of the Constitution.
RIGHT TO ENVIRONMENT
• SC’s significant contribution to the welfare of the people by using Art.21 for the
improvement of the environment.
• In Subhash Kumar v. State of Bihar AIR 1991 SC 420the Apex Court held that
enjoyment of pollution free environment is included in the right to life under
Art.21.
• Also in the case of A.P. Pollution Control Board v. M.V.Nayudu AIR 1999 SC 812
the SC has made very valuable suggestions for the improvement of adjudicatory
machinery under the various environmental laws.
• The Supreme Court has accepted the doctrine of public trust which rests on the
premise that certain natural resources like air, sea, water are means for general
use and cannot be restricted to private ownership.
• The state is a trustee, and general public is a beneficiary to such resources. These
resources are gift of nature and State as a trustee is duty bound to protect them.
RIGHT TO MEDICAL CARE
• In Parmananda Katara v. Union of India AIR 1989 SC 2039 the Supreme
Court pronounced that preservation of life is of paramount importance.
Once life is lost, status quo ante cannot be restored. It is the duty of the
doctors to preserve the life without any discrimination.
• In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal AIR 1996
SC 2426 the Supreme Court ruled that the Constitution envisages
establishment of a welfare state, and in a welfare state, the primary duty of
the government is to provide to provide adequate medical facilities for the
people. The Supreme Court has insisted that government hospitals and the
medical officers employed therein are duty bound to extend medical
assistance for preserving human life.
• Failure, by a government hospital to provide timely medical treatment to a
needy person violates his right to life guaranteed by Art. 21.
RIGHT AGAINST SEXUAL HARASSMENT
• The Supreme Court ensured that the female workers are not sexually
harassed by their male co-workers at their work places. In Vishaka v.
State of Rajasthan (Social worker_Child marriage_Gang rape)AIR 1997
SC 3011 the Supreme Court has declared sexual harassment of a
working woman at her place of work as amounting to violation of
rights of gender equality and right to life and liberty which is a clear
violation of Arts. 14, 15 and 21 of the Constitution.
• Rape has been held to be a violation of a person's fundamental rights
guaranteed under Art. 21. The Supreme Court held that rape is a
crime against basic human rights and is also violative of the victim's
right to life contained in Art. 21.
RIGHT OF MEDICAL CONFIDENTIALITY
• In X. v. Hospital Z the SC argued that a lady proposing to marry a
person is entitled to all the human rights which are available to
humans.
• The right to life guaranteed under Art. 21 would positively include the
right to be told that a person, with whom she was proposed to be
married, was the victim of a deadly disease, which was sexually
communicable.
• Moreover, when two fundamental rights clash, viz., right to privacy
and right to live a healthy life, the right which would advance the
public morality or public interests, would alone is enforced through
the process.
RIGHT OF LEGAL AID
• In Madhav Hayawandan rao Haskot v. State of Maharashtra AIR
1978 SC 1548 the SC held that an accused who cannot afford legal
action is entitled for legal aid at the cost of the State.
• Also, held in the case of Hussainara Khatoon v. State of Bihar AIR 1979
SC 1369 SC held that a prisoner shall not be imprisoned for a period
longer than the sentence pronounced by the court else it will led to
deprivation of the prisoner's right to life to life and liberty under Art.
21.
Right to speedy trial
• Speedy trial is a fundamental right implicit in the guarantee of life and
personal liberty enshrined in Art. 21 of the Constitution and any
accused who is denied this right of speedy trial is entitled to approach
the Court for the purpose of enforcing such right.
• The SC held in Hussainara Khatoon v. Home Secretary, State of Bihar
that speedy trial is a fundamental right implicit in the guarantee of life
and personal liberty enshrined in Art. 21 of the Constitution and any
accused who is denied this right of speedy trial is entitled to approach
Supreme Court under Art. 32 for the purpose of enforcing such right
• The SC in discharge of its constitutional obligation have the power to
give necessary directions to the State.
Right to life and Right to die
• SC has shown radical change in its view.
• In Gian Kaur v. State of Punjab(1996) 2 SCC 648 while deciding the validity
of Sec.309 of I.P.C, the Court overruled the earlier view which was taken in
P. Rathinam's case (1994) 3 SCC 394 and held that right to life does not
include right to die and the extinction of life is not included in protection of
life thus provision penalizing attempt to commit suicide is not violative to
Art. 21 of the Constitution.
• But in landmark judgement Supreme Court reverse the earlier view and
approves passive euthanasia, and upholds right to die with dignity, SC
permits creation of a living will that will allow individuals to decide against
artificial life support Aruna Ramachandra Shanbaug v. Union of India and
others 5 (2011) 4 SCC 454
Right to Privacy
• The issue was raised in Kharak Singh v State of Tamil Nadu 1993.
• Justice Subba Rao in his minority judgment said that the right to privacy
flows from the expression personal liberty.
• This minority judgment paved path for the further development. In R.
Rajgopal v. State of Tamil Nadu 1995. the SC observed that right to privacy
is nothing but 'right to be let alone and it is implicit in right to life and
personal liberty guaranteed under Art.21 of Indian Constitution.
• Last Year unanimous judgment by the Supreme Court of India (SCI) in
Justice K.S. Puttaswamy (Retd) vs Union of India is a resounding victory for
privacy. The ruling is the outcome of a petition challenging the
constitutional validity of the Indian biometric identity scheme Aadhaar. The
judgment's ringing endorsement of the right to privacy as a fundamental
right marks a watershed moment in the constitutional history of India.
Due Process & Procedure Established By Law

• Procedure Established by law: (This Doctrine is originated under British

Constitution and India follows it.)
As per this concept, any right of any person can be taken away by law, but, only
one situation to take rights from the people and that condition lies in the name
itself which is the system established by law which means proper procedure shall
be followed.
• This principle has a main flaw. It does not asses if the laws made by Parliament
are fair, just, and not arbitrary.
Procedure established by law states a law duly enacted is valid even if it's
different to principles of justice and equity.
• Procedures that are followed strictly are established by law that may increase the
risk of compromise to life and personal liberty of individuals due to unjust laws
made by the law making authorities. Thus Procedure established by law protects
the individual against the arbitrary action of only the executive.
Contd..
• Due Process of Law: (This Doctrine is originated under the US
Constitution).
• This doctrine not only checks if there is a law to deprive the life of personal
liberty of a person, but also see whether the law made is fair, just and not
arbitrary.
• If the Supreme Court comes to know that any law as unfair, it will declare it
as null and void. This doctrine leads to more fair treatment of individual
rights. It gives the judiciary to judge the fundamental fairness, justice, and
liberty of any legislation.
• Thus, Due process protects the individual against the arbitrary action of
both executive and legislature. In India, there is no mention of the word
'Due Process.
Recent Cases and Conclusion
• SC allows women entry to Sabarimala temple, says exclusionary
practices violate right to worship under Art.25, 14, and 21. Rules
disallowing women in Sabarimala are unconstitutional and violative of
Article 21.
• Supreme Court Struck down Victorian era Section 497 of IPC as
Unconstitutional, Plea filed in the Supreme Court challenging the
constitutional validity of Section 497 of IPC, by an NRI from Kerala,
Joseph Shine, who in his petition said Section 497 was "prima facie
unconstitutional on the ground that it discriminates against men and
violates Article 14, 15 and 21 of the Constitution".
Contd..
• The Supreme Court on Sept,2018-pronounced that Section 377 of the
Indian Penal Code is unconstitutional.
• The five-judge bench read out four judgments, all of which held that
the law, which criminalises 'unnatural sex' between consenting adults,
and has been used to target the LGBTQI+ community in India, has
been struck down in so far as it criminalises same sex intercourse.
LGBT rights, National Legal Services Authority versus Union of India
(2014) 5 SCC 438.
Conclusion
• Following RC Cooper’s Case (Bank Nationalization Case), Maneka Gandhi's case
is not only a landmark case for the interpretation of Article 21 but it also gave an
entirely new viewpoint to look at the Chapter III of the Constitution.
• Prior to Maneka Gandhi's decision, Article 21 guaranteed the right to life and
personal liberty only against the arbitrary action of the executive and not from
the legislative action.
• Broadly speaking, what this case did was extend this protection against legislative
action too. In Maneka Gandhi's case, the meaning and content of the words
'personal liberty' again came up for the consideration of the Supreme Court. In
this case the Supreme Court not only overruled A.K. Gopalan's case but also
widened the scope of words 'personal liberty’.
• After that the meaning Art. 21 right to life & personal liberty has changed
multidimensional approaches and reached the new horizon.
Art. 21A
• The State shall provide free and compulsory education to all children of 6 to
14 years in such manner as the State, may by law determine.”
• According to Supreme Court, “the right to life and dignity of an individual
cannot be assured unless it is accompanied by the right to education”.
• The right to education has also been held to be a part of Article 21 and by
86th Amendment Act, 2002, a new article 21-A has been added after
Article 21. Accordingly, Right to Education has been made a Fundamental
Right and has been deleted from the list of Directive Principles of State
Policy.
• The Right of Children to Free and Compulsory Education (RTE) Act, 2009
envisaged under Article 21-A, states that every child has a right to full time
elementary education.
Basic features of Right to Education
• Right of children to free and compulsory education till completion of
elementary education in a neighbourhood school.
• It clarifies that ‘compulsory education’ means obligation of the
appropriate government to provide free elementary education and
ensure compulsory admission, attendance and completion of
elementary education to every child in the six to fourteen age group.
• ‘Free’ means that no child shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from pursuing and
completing elementary education.
Art. 22
• Preventive Detention is the the most contentious part of the scheme
fundamental rights in the Indian constitutions.
• The Article 22 (3) of the Indian constitution provides that, if a person
is arrested or detained under a law providing for preventive
detention, then the protection against arrest and detention under
Article 22 (1) and 22 (2) shall not be available.
• Preventive detention thus is action taken on grounds of suspicion that
some wrong actions may be done by the person concerned.
Grounds or Preventive Detention:

• The grounds for Preventive detention are:

1. Security of state, maintenance of public order,
2. maintenance of supplies and essential services and defense,
3. foreign affairs or security of India.

• A person may be detained without trial only on any or some of the

above grounds. A detainee under preventive detention can have no
right of personal liberty guaranteed by Article 19 or Article 21.
Safeguards against Preventive Detention
1. A person may be taken to preventive custody only for 3 months at
the first instance.
2. If the period of detention is extended beyond 3 months, the case
must be referred to an Advisory Board consisting of persons with
qualifications for appointment as judges of High Courts.
3. It is implicit, that the period of detention may be extended beyond
3 months, only on approval by the Advisory Board.
4. The detainee is entitled to know the grounds of his detention.
Contd..
5. The state, however, may refuse to divulge the grounds of detention if
it is in the public interest to do so.
6. Needless to say, this power conferred on the state leaves scope for
arbitrary action on the part of the authorities.
7. The detaining authorities must give the detainee earliest
opportunities for making representation against the detention.
8. These safeguards are designed to minimize the misuse of preventive
detention. It is because of these safeguards that preventive detention,
basically a denial of liberty, finds a place on the chapter on
fundamental rights. These safeguards are not available to enemy aliens.
Contd..
• Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 2005 SC 2115
while upholding the validity of the power of the Police under section 151 of
the Criminal Procedure Code 1973 to arrest and detention of a person
without a warrant to prevent the commission of a Cognizable offense
ruled-
• A provision could not be held to be unreasonable as arbitrary and
therefore unconstitutional merely because the Police official might abuse
his authority.
This preventive detention act is a necessary tool in the hands of the
executive which authorizes them to arrest any person from whom
reasonable suspicious arises that he can commit any cognizable offense
or his activities are prejudicial to law and order to state and the police
can arrest that person without warrant.
Art. 23
• Article 23 of the Constitution prohibits traffic in human being and
beggar and other similar forms of forced labour.
• The second part of this Article declares that any contravention of this
provision shall be an offence punishable in accordance with law.
• Clause (2) however permits the State to impose compulsory services
for public purposes provided that in making so it shall not make any
discrimination on grounds only of religion, race, caste or class or any
of them.
• 'Traffic in human beings' means selling and buying men and women
like goods and includes immoral traffic in women and children for
immoral" or other purposes.
Contd…
• Article 23 protects the individual not only against the State but also private
citizens. It imposes a positive obligation on the State to take steps to
abolish evils of "traffic in human beings" and beggar and other similar
forms of forced labour wherever they are found.
• Article 23 prohibits the system of 'bonded labour' because it is a form of
force labour within the meaning of this Article.
• "Beggar" means involuntary work without payment.
• What is prohibited by this clause is the making of a person to render
service where he was lawfully entitled not to work or to receive
remuneration of the services rendered by him.
• This clause, therefore, does not prohibit forced labour as a punishment for
a criminal offence.
• The protection is not confined to beggar only but also to "other forms of
forced labour". It means to compel a person to work against his will.
Contd..
• Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1943
• The Supreme Court considered the scope and ambit of Article 23 in detail.
• The Court held that the scope of Article 23 is wide and unlimited and
strikes at "traffic in human beings" and "beggar and other forms of forced
labour" wherever they are found.
• It is not merely "beggar" which is prohibited by Article 23 but also all other
forms of forced labour, "Beggar is a form of forced labour under which a
person is compelled to work without receiving any remuneration.
• This Article strikes at forced labour in whatever form it may manifest itself,
because it is violative of human dignity and contrary to basic human
values.
• The practice of forced labour is condemned in almost every international
instrument dealing with human rights.
Contd..
• The word "force" was interpreted by the court very widely. Bhagwati,
J. said, 'The word 'force' must therefore be construed to include not
only physical or legal force but also force arising from the compulsion
of economic circumstances.
• Which leaves no choice of alternatives to a person in want and
compels him to provide labour or service even though the
remuneration received for it is less than the minimum wage
Art. 24
• Article 24 of the Constitution prohibits employment of children below
14 years of age in factories and hazardous employment.
• This provision is certainly in the interest of public health and safety of
life of children. Children are assets of the nation.
• In People's Union for Democratic Rights v. Union of India, AIR 1983 SC
1155.
• it was contended that the Employment of Children Act, 1938 was not
applicable in case of employment of children in the construction work
of Asiad Projects in Delhi since construction industry was not a
process specified in the schedule to the Children Act.
Contd…
• The Court rejected this contention and held that the construction
work is hazardous employment.
• Therefore under Art. 24 no child below the age of 14 years can be
employed in the construction work even if construction industry is
not specified in the schedule to the Employment of Children Act,
1938.
• Expressing concern about the 'sad and deplorable omission',
Bhagwati, J., advised the State Government to take immediate steps
for inclusion of construction work in the schedule to the Act, and to
ensure that the constitutional mandate of Article 24 is not violated in
any part of the country.
Freedom of Religion
• Article 25 to Article 28 of the Indian Constitution guarantees the right
to freedom of religion to all the citizens residing within the territorial
boundaries of the country.
1. Freedom of conscience and free profession of religion.( Article 25)
2. Freedom to manage religious affairs (Article 26)
3. Freedom from payment of taxes for promotion of any particular
religion( Article 27)
4. Freedom to attend religious instructions ( Article 28)
• In Western political history the concept of secular State and granting
of religious freedom developed out of many different historical
situations and philosophical impulses.
• In particular, they have been shaped by the process of secularizations
of the State and sundering of the medieval fusion between the
Church and the State.
• The question, however, may be raised whether the separation
between religion and the State in the absolute sense can ever be
maintained in this age of ours, when political decisions affect every
aspect of human life, especially moral and religious issues, which
people hold important in their lives.
Contd…
• The framers of the Indian Constitution envisaged a model of secular
political system that protects all religions with equal regard (Sarva Dharma
Samabhava) but under the framework of an egalitarian social order,
informed by the principles of welfare State consistent with the progressive
enhancement of human dignity.
• The State’s approach towards religion embedded in these constitutional
provisions is one that maintains a ‘principled distance’ from religion.
• This, however, does not prohibit the State to intervene when practice of
religion contravenes public order, morality, health, egalitarian social order
and objectives of the welfare State intended for integrated development of
the individuals and communities.
Contd..
• In this context, the Courts in India have taken upon themselves the
task of giving judicial definition to ‘religion’ protected under the
secular provisions of the country’s Constitution.
• The central provisions are given in articles 25 and 26, which deal with
individual and corporate freedom of religion.
Contd…
• The religious freedom of the individual person guaranteed by the
Constitution of India is given in clause (1) of article 25 that reads:
Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate
religion.
• In precise terms, the Constitution makes it clear that the rights
provided in clause (1) of article 25 are subject to public order,
morality and health and to the other provisions of Part III of the
Constitution that lays down the fundamental rights.
Contd..
• Clause (2) of article 25 is a saving clause for the State so that the
religious rights guaranteed under clause (1) are further subject to any
existing law or a law which the State deems it fit to pass that-
• (a) regulates or lays restriction on any economic, financial, political or
other secular activity which may be associated with religious
practices, or,
• (b) provides for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes and
sections of Hindus.
Contd..
• Similarly Article 26 is the main article that provides the corporate freedom of religion
governing the relation between the State and Subject to public order, morality and
health every religious denomination or any section thereof shall have the right,
• (a) to establish and maintain institutions for religious and charitable purposes; (b) to
manage its own affairs in matters of religion; (c) to own and acquire movable and
immovable property; and (d) to administer such property in accordance with law.
• Clause (b) of article 26 guarantees to every religious denomination or any section thereof
the right to manage its own affairs in matters of religion and clause
• (d) gives them the right to administer their property (institutions) in accordance with
laws passed by the State.
• The clauses (b) and (d) of article 26 that there is an essential difference between the
right of a denomination to manage its religious affairs and its right to manage its
property.
Contd..
• Hence, in the exercise of individual and corporate freedom of religion
as guaranteed in articles 25 and 26 of the Constitution of India, it is
necessary to understand the judicial definition of ‘religion’ as given in
article 25(1) and ‘matters of religion’ as provided in article 26(b).
Case Laws:
• In Quareshi v The State, an interesting question arose, whether
prohibiting cow- slaughter affected the religious right of the
Mahomedans. It was argued on behalf of the petitioner that the
sacrifice of a cow on the Bakri- Id day was a part of the Muslim
religion and also approved by the Khuran.
• However, the Supreme Court rejected this contention on the ground
that satisfactory evidence to support it had not been produced.
• In L. T .Swumiar v Commr. H.R.F. Madras it has been held that even if
a tax is imposed on persons belonging to a particular religion, in order
to meet the expenses of that particular religion , such tax is void.
• Shaikh Piru Bux v. Kalandi Pati, AIR 1970 SC 1885.
• The leaders of Hindus and Muslims of some villages in Orissa entered into
an agreement in 1931 about the manner of taking religious processions.
According this agreement, the Hindus should not play music near a mosque
in order to enable the Muslims to hold their prayers in a calm atmosphere.
• In 1964 the Hindus filed a case before the Orissa High Court152 claiming
that they were not bound by the 1931 agreement and that they were
entitled to play music in religious and non-religious processions on the high
way. The Orissa High Court rejected the petitioners’ claim.
• On appeal, the Supreme Court upheld the verdict of the Orissa High Court
and asserted that the restrictions on playing music and beating drums by
the Hindus near the mosque were not justified.
Contd…
• In Masud Alam v. Commissioner of Police, A.I.R. 1956 Cal. 9.
• The banning of electrical loudspeakers was held valid. The court
observed that every religion has right to have propagandists.
• But when such propaganda is made through loudspeakers in a
crowded and noisy locality to detriment of public morals, health,
order, it is prohibited by Article 25.
• A loudspeaker may take one to Hell instead of Heaven by very
volume of its sound.
Sabarimala Case
• The Ayyappa temple in Sabarimala region in Kerala has been in the
news for its controversial provision of denying entry to women of
menstruating age (ten to fifty years).
• The prohibition to temple entry for women can be traced in the
legend that the deity of the temple Lord Ayyapa was a ‘Naishtika
Brahmachari’ (who followed celibacy), and as per the supporters of
the temple ban, women of menstruating age are regarded as “not
pure” to enter the temple as that would disturb the celibacy of the
deity.
Contd…
Indian Young Lawyers Association & Ors v The State of Kerala & Ors in
Writ Petition (Civil) No. 373 of 2006
The clash here is between the temple’s right to decide for itself, how its
religious affairs ought to be managed.
The viewpoint of devotees in favor of the ban and those women
seeking to assert their freedom, to not only enter and pray at the
shrine but also to be recognized as equals under the constitution.
The SC laudably permitted entry of women of all age groups to the
Sabarimala temple, holding that 'devotion cannot be subjected to
gender discrimination'. It is one of the most progressive and path
breaking judgment that we have witnessed.
Contd…