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UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

PROJECT ON – CASE LAWS

SUBMITTED TO – MR. AGAMPREET

SUBMITTED BY – RHYTHM BANSAL

B.COM LL.B. (Hons.)
SECTION – D
SEMESTER – 9TH

ROLL NO – 369/19
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ACKNOWLEDGEMENT

I would like to convey my heartfelt regards to Mr. Agampreet, my International Human

Rights teacher who always gave me valuable suggestions and guidance during the
completion of this project. He has been a great source of inspiration to me during the
completion of my project. He helped, understand and remember important details of the
project that I would otherwise forget. My project has been a success only because of his
guidance.

20.10.2023 Rhythm Bansal

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TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. D.K. BASU vs. UNION OF INDIA AND STATE OF 4

WEST BENGAL: Introduction

2. Constitutional and Human Rights Perspective 4-6

3. Facts of the case 6-7

4. Issues Raised 7

5. Contentions of the Petitioner 7

6. Contentions of the Respondent 8

7. Judgement of the Case 8-10

8. Legal Position in India 10

9. Protection under CrPC and IPC 10-12

10. Protection under Indian Evidence Act, 1872 12

11. Conclusion 12-13

12. MANEKA GANDHI vs. UNION OF INDIA 13-16

13. VISHAKA & ORS. Vs STATE OF RAJASTHAN 16-18

14. JUSTICE K.S. PUTTASWAMY (Retd.) & ANR. Vs. 18-21

UNION OF INDIA & ORS.

15. M.C. MEHTA vs. STATE OF TAMIL NADU 21-22

16. References 22-23

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NAME – DK BASU v. STATE OF WEST BENGAL

CITATION – 1997 1 SCC 416

DATE OF JUDGEMENT – DECEMBER 18, 1996

COURT – SUPREME COURT OF INDIA

CASE TYPE – WRIT PETITION (CRL) NO. 592 OF 1987

PETITIONER – DK BASU

RESPONDENT – UNION OF INDIA AND STATE OF WEST BENGAL (AND

OTHERS) BENCH – HON’BLE JUSTICE KULDIP SINGH AND DR. AS ANAND,

JJ.

INTRODUCTION

The rules and regulations through the law always discourage the acts which are against the
public policy and peace in the society. Taking custody of the criminal and trying to impose
punishment is a productive way to decrease the crime rates in society. Custody in the
general sense is defined as putting a restriction on the freedom of movement of an
individual. But nowadays, it has been observed that there is a significant increase in the
death and violence of an accused person in the police lock-ups. Many deaths have taken
place in the custody of police but no attention has been paid to it by the administration.
Custodial deaths are unacceptable in a democratic country like India where each and every
citizen of the country has the right to life and personal liberty enshrined under Article 21 of
the Constitution of India. Fundamental principles of criminal jurisprudence also provide for
the fair and reasonable investigation of the accused. Also, it is the vicarious liability of the
state in case of custodial deaths and it is its duty to rehabilitate the victim and provide
adequate compensation.

CONSTITUTIONAL AND HUMAN RIGHTS PERSPECTIVE

The increasing number of cases of custodial deaths in the world’s largest democracy has
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shaken the faith in democracy and rule of law. Jerome H. Skolnick has posed certain
questions before police authorities for the preservation of rule of law and democracy in the
country. For what purpose do police exist? What values do police preserve in a democratic
country? Are the police principally an agency of social control with their chief value the
efficient enforcement of the prohibitive norms of the substantive criminal law? It is given
by the maxim “salus populi est suprema lex” (the safety of the people is the supreme law).

It has been rightly observed by the court in different cases that every person has a right to
get justice with reasonable and fair means and the law must be against the solitary
confinement of an accused. Also, there must not be inordinate delays in the proceeding of
the investigation as well as trial.

In the case of Sunil Batra v. Delhi Administration, “it was observed by the court that
inhuman torture and treatment is against Article 21 of the Constitution of India which
includes right to live with human dignity. The rights guaranteed under Article 21 are not
merely a fundamental right but also a human right.”

In another case of A.D.M Jabalpur v. ShivKant Shukla, Justice H.R Khanna observed
that “no one can be deprived of his right to life and personal liberty arbitrarily without the
provisions of the law. And it extended the meaning of the term “life” which is something
more than mere animal existence.” The procedure must be followed in accordance with the
law which must not be arbitrary. Thus, the procedure adopted must be fair and reasonable
and in conformity with Article 14 of the Indian Constitution.

In the case of Khatri v. State of Bihar, “it was held by the SC that the police officers must
be punished who barbarically blinded 30 prisoners by pouring acid. Further, the SC
condemned and held that this barbaric torture by the police officials is against the
provisions of Article 21 of the Constitution of India.” Article 20(3) of the Constitution also
safeguards the rights of the arrestee. It provides that a person accused shall not be
compelled to be a witness against himself. And adopting third-degree tortures and methods
to extract the information from the accused is in clear violation of Article 20 (3) of the
Constitution of India.
Human rights are defined as inherent rights available to the people in the society without
which we cannot live as human beings. India is considered as the world’s largest
democracy and adopts various conventions which promote human rights worldwide. These
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rights are generally enshrined under the Constitution of India. India to maintain its sanctity
at its global level shows its commitment at the national as well as international level to
promote human rights.

Custodial death is also considered as ‘extrajudicial killings’ which is in clear transgression

of human rights. It is an offence that destroys the individual personality and constitutes an
assault on the dignity of an individual. In the cases of custodial deaths, the person not only
undergoes physical suffering and external body pain but also mental torture inside the four
walls of lockup. Whether it a mental suffering or a physical infliction of pain, the extent of
torture and trauma, a person experiences is beyond the purview of the law. This issue is
prominent and not only peculiar to this country but it is widespread. The UDHR raises its
concern over the increasing number of cases in India and states that Article 5 must be kept
in mind while treating a person during investigation and trial. Article 5 states that "No one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

FACTS OF THE CASE

Keeping in view the staggering rise of custodial deaths in India, a letter was presented to the
then Chief Justice of India, by Mr. Dilip Kumar Basu, who was the executive chairman of a
non-political organisation, Legal Aid Services, in West Bengal. The letter, dated August
26th, 1986, referred to certain articles in a newspaper, namely the Telegraph Newspaper,
mentioning custodial deaths. The Executive Chairman after reproducing the new items
submitted that it was imperative to examine the issue in depth and to develop "custody
jurisprudence" and formulate modalities for awarding compensation to the victim and/or
family members of the victim for atrocities and death caused in police custody and to
provide for accountability of the efforts are often made to hush up the matter of lock-up
deaths and thus the crime goes unpunished and "flourishes". Mr. Basu requested that the
letter be considered as a writ petition under Public Interest Litigation.
While the letter was being reviewed, another person stepped into the frame with a letter,
Mr. Ashok Kumar Johri, who reiterated the matter by stating in his letter the death of one
Mahesh Bihari, from Pilkhana, Aligarh, Uttar Pradesh, as being a custodial death. This
letter, along with the letter from Mr. Basu, was treated as a writ petition by the Supreme
Court of India. On 14th August, the Court issued notices to all state governments regarding
the same, as well as to the Law Commission of India requesting the formulation of
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appropriate measures to address the situation, within a period of two months.

Subsequently, the Supreme Court received several affidavits by the state governments of
Himachal Pradesh, West Bengal, Assam, Orissa, Haryana, Tamil Nadu and Meghalaya. The
Supreme Court also appointed Dr. A. M. Singhvi, who was the principal counsel on behalf
of the state governments, as the amicus curiae to the court.

ISSUES RAISED
1. Why are crimes against persons in lockups or custody increasing day by
day?

2. The arbitrariness of policemen in arresting a person.

3. Is there any need to specify some guidelines to make an arrest?

CONTENTIONS OF PETITIONER

The petitioner argued that bodily pain and mental agony suffered by a person within the
four walls of the police station or confinement should be avoided. Whether it is physical
assault or rape in police custody, the scope trauma experiences is beyond the scope of the
law.

The petitioner further argued that there is a need for a civilized nation and that some
important steps must be taken to eradicate it.

CONTENTIONS OF THE RESPONDENT

The Counsel representing different states and Dr. AM Singhvi presented the case and stated
that “everything was fine” within their respective states, presented their respective beliefs
and provided useful assistance to this court to examine various facets of the problem and
made sure that suggestions for the formulation of the guidelines by this court to reduce, if
not prevent, violence in custody and the relatives of those who die in custody due to torture.
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In order to defend this important fall of the administrative wing, the state of the
administrative wing, the state of West Bengal made an attempt to convey that there are no
deaths in the confinements and even if there were any, then an investigation should be
carried out on whoever did it.

JUDGEMENT OF THE CASE

The Supreme Court relied on the judgment of Neelabati Behra v. State of Orissa, wherein
it was held that torture of any form, or cruel and inhumane behavior towards arrested
persons deprived them of their Fundamental Rights, especially Article 21, which is against
the law of the country. A restriction on Fundamental Rights could only be imposed on the
citizens in accordance with the provisions of the law. The same view was also observed in
the case of Sunil Batra v. Delhi Administration.

The Supreme Court also mentioned the case of Joginder Kumar v. State of Uttar
Pradesh, and held that even though procedural requirements regarding arrests of criminals
had already been laid down, it was found that police officers were making arrests without
warrants. Simply because a police officer is allowed under law to arrest a person does not
imply that he can arrest a person without reason, i.e. arrests should not be the routine.

The Apex court, in its judgement, issued the following guidelines that govern arrest and
custody procedures required by the police to follow:
1. When the police are making an arrest, the details of all the police personnel involved
in the arrest must be clear and accurate. Their name tags must bear correct and their
particulars should be recorded in a register.

2. The police officer in charge of the arrest must prepare a memo of the arrest at the
time, which shall be signed by at least one witness. This witness can either be a
family member of the arrested person or could be a respected member of the
locality from where the person is arrested. The memo will also contain the signature
of the arrested as well as the date and time of the arrest.

3. When a person is arrested and put in custody by the police, he has a right to inform
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either his family member, or his friend or anyone known to him, of the arrest and of
the place where he is put in custody.

4. The detained person is to be made aware of the abovementioned right as soon as he is

arrested.

5. If the family member, or friend, or the person known to the arrested person lives
outside the district or town, then the time and date as well as the place of custody of
the arrested person must be made known to such person through the Legal Aid
Organization of the district. The same should also be done by the concerned police
station within 8 to 12 hours of the arrest.

6. The details of the arrest as well as of the arrested person must be entered in a diary at
the place of arrest. The entry must also contain the details of the police officer
under whose custody the detained person has been placed.

7. If the detained person requests, then he shall be examined for any injuries or marks
on his body and the same must be recorded. This examination, called the
“Inspection Memo”, must be signed by the arrested person along with the police
officer in charge of the arrest, and a copy must be handed over to the detained
person.

8. While in custody, the detainee shall be medically examined every 48 hours by a

trained doctor, from a panel of doctors approved by the Director of Health Services
of the concerned state. The Director is required to prepare a panel of approved
doctors for tehsils and districts.

9. The copies of all the documents should be sent to the Magistrate of the area for his
record.

10. During interrogation, the arrested person is allowed to meet his lawyer, provided
that such meeting does not last throughout the interrogation.
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11. Every district and state headquarters of police must have a police control room, and
the details of the person arrested should be communicated by the police officer in
charge of the arrest within 12 hours of the same. The said details must be pinned on
a notice board in the control room.

LEGAL POSITION IN INDIA

The Code of Criminal Procedure and the Indian Penal Code provides protection to the
accused person against arbitrary arrest and custodial violence. However, it is necessary for
the legislation to implement new provisions under the Code and Indian Evidence Act
which specifically deals with the issue of custodial deaths whether it is unnatural or natural
death in the police lockup. It was also suggested by the law commission report.

PROTECTION UNDER CrPC AND IPC

The Code of Criminal Procedure, 1973 provides certain provisions to protect the person
from custodial torture. There are various provisions enshrined under CrPC which should be
kept in mind by police officials while having custody of the accused or suspected person.
The power to arrest any person is given under Section 41 of the Code. This section clearly
states that a police officer has the power to arrest any person to investigate the case further,
but has no power to use unnecessary force to extract the information from that person.
Also, the power given to the police officer is discretionary as the word “may” is used in the
section. So, it is his duty to arrest a person according to the facts and circumstances of the
case and not otherwise.

In the case of State of Andhra Pradesh v. Venugopal and Ors (1963)., the court held that
torture in the custody of the police is a serious crime and punished the perpetrators of the
crime with rigorous imprisonment of 5 years.

In the case of State of Uttar Pradesh v. Ram Sagar Yadav and Ors (1985), it was held by the
court that a person beaten up to death in police custody will be covered under the provisions
of the Indian Penal code and convicted under Section 304 of IPC and set aside the
judgement of the High court.
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Section 49 of the Code also provides that the accused must not be subjected to more
restraint or restrictions than necessary to prevent his escape. The word ‘necessary’ is
important here. It is the duty of the state and police officials to make sure that an accused
must not be subjected to unnecessary restraint. The person who is arrested shall not be
subjected to unnecessary force and torture and police officials are liable under different
sections of the Indian Penal Code if they abuse their power. These sections include Section
340 of IPC and also section 349 to 358 of the same Code which contains the provisions
related to assault and criminal force.

Section 50 of the Code provides for the ground of arrest. These grounds of arrest must be in
compliance with Article 22 of the Constitution of India. So, that non compliance with the
section will give rise to illegal arrest and detention of an accused.
Section 161 of the Code provides for the statement to be recorded with all the facts and
circumstances of the case by the police officer. This statement must be distinguished from
the information which starts the investigation. Section 161(2) provides that a person
accused must not be bound to answer those questions which would have a tendency to
expose him to a criminal charge. Also, Section 164 of the Code provides for the
confessional statement. It is observed in this case that a magistrate must take to see the
requirements under section 164 are fully satisfied.

But these sections enshrined under the Code are not sufficient in order to prove the guilt of
the perpetrators of the crime. The perpetrators of the crime are generally acquitted due to
the lack of evidence against them and if they are convicted then there is no specific and
strict punishment defined in the code. Thus, it is necessary for the legislation to pass a law
that is in direct connection to the prevention of torture and violence in the custody of the
police. There should be strict punishment for these officers as they are the protectors of the
citizens. It is recommended that a new provision must be added to the code which
specifically deals with the issue of custodial violence and death. Some other provisions
under the Code such as Sections 53, 54 and 167 also provide and safeguard the procedural
rights of a person.

In the case of Joginder Singh v. State of U.P (1994), it is opined by the Apex court that the
possibility of substituting notice of appearance instead of the arrest of accused. This new
idea is in relation to the summons and this can reduce the possibility of custodial crimes in
India.
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Both the provisions of the Code as provided under the Section 56 of the Code and Art. 22 of
the Constitution lays down that a person must be produced before a magistrate within 24
hours of the arrest. But in the case where a person is not produced before the judge and he
is kept in the custody of the police where he is facing torture and coerced to confession
which leads to the discovery of relevant facts. To prevent this extra-judicial practice and
torture, a magistrate must ensure and enquire the date and time of arrest of the accused
when he is presented before the magistrate and records the same. Thus, the new provision
under CrPC is recommended for the same.
Further, certain provisions of the Indian Penal Code also provides for the protection of the
accused under the custody of the police. Section 330 and 331 of the Code provides for the
protection of the accused from unnecessary harassment in custody as well as to extort
information without his will. Also, the code provides that a police officer is liable to be
punished if he exercises or abuses his power without any necessity.

PROTECTION UNDER INDIAN EVIDENCE ACT, 1872

The accused is also protected under the provisions of the Indian Evidence Act. Section 25
of the Act provides that a confession made to the police cannot be admitted in court. Also,
Section 26 of the Act provides that a confession made to the police by the person cannot be
proved against such person unless it is made before the magistrate.

Also, the Code provides for Section 164 where a magistrate has to record the confessional
statement of the accused made to him in the course of an investigation or any stage of the
trial. Thus, the Indian Evidence Act also provides protection to the accused from being
unnecessarily harassed by the police in the lockup.

CONCLUSION

The study concludes that custodial deaths are increasing in India and various organisations
raise their concern over the same. Death can be of natural or unnatural consequences. But
generally, the death in custody is occurring due to the torture of the pubic officers while
investigating the case. It is necessary and permitted by the law to interrogate an accused
but at the same time, it is also provided that no illegal methods be adopted to investigate
the case.
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To conform with the constitutional provisions and human rights aspects, it is necessary that
these offences against the arrestee must be curbed in the democratic country. The Supreme
Court has taken this matter seriously and raised its concern in the number of cases of
custodial violence and death. But no moral, as well as legal consideration, is taken by the
legislation.
Further, there are various provisions incorporated under the Code of Criminal Procedure,
Indian Penal Code, Indian Evidence Act, and Constitution of India to protect and
safeguards the rights of an arrestee. But these provisions are not sufficient to prove the
guilt of the perpetrators of the crime due to the influence of politics and lack of evidence
against them. These provisions are not specifically dealt with the issue in the hand of
custodial deaths in India, especially unnatural deaths in the lockup. Though the SC
suggested and recommended certain guidelines in various cases of custodial violence,
legislation has not been taken into consideration, and death due to custodial violence is
increasing day by day due to various factors in India. It is the duty of the state to preserve
the Constitution of India and make certain amendments to the law which are prima facie in
violation of rule of law. It is the vicarious liability of the state to curb these offenses as they
are committed by the protectors of the citizens.

MANEKA GANDHI vs. UNION OF INDIA (1978) 1 SCC 248:

This case analysis attempts to analyse the judgement of the Supreme Court in the historical
decision of Maneka Gandhi v Union of India reported in AIR 1978 SC 597 which expanded
the scope of Article 21 of the Constitution and changed the face of Indian polity and law.

'Personal Liberty' means freedom from physical restraint and coercion which is not
authorised by law. This article is about Maneka Gandhi vs. Union of India , which is
famously known as Maneka Gandhi's case or Personal liberty case. This case is not only a
landmark case for the interpretation of Article 21 of Constitution of India but it also gave an
entirely new point of view to Chapter III of the Constitution of India.

Introduction
Prior to this case 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. This case just
turned up pages and extended the protection against legislative actions.

This case is regarded as one of the best judgements delivered by the apex court as it was
instrumental in restoring people's faith in the judiciary and constitutional values. It was in this
case that the "Golden triangle" rule was firmly established by the SC and the court firmly
cemented its seat as the watchdog of democracy.

This decision, which was delivered by a 7-judge bench of the Hon'ble Supreme Court on 25th
January 1978, marked the development of a new era with respect to the interpretation of
fundamental rights guaranteed in the Constitution. This decision altered the very face of the
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Indian Constitution and marked a new era of development in the concept of personal liberty.
The decision stands as a beacon-light adding new dimensions to the interpretation of the
fundamental rights guaranteed by Part III of the Constitution.

Facts Of The Case

1. The petitioner Maneka Gandhi's passport was issued on 1st June 1976 as per the
Passport Act of 1967. On 2nd July 1977, the Regional Passport Office (New Delhi)
ordered her to surrender her passport. The petitioner was also not given any reason for
this arbitrary and unilateral decision of the External Affairs Ministry, citing public
interest.

2. The petitioner approached the Supreme Court by invoking its writ jurisdiction and
contending that the State's act of impounding her passport was a direct assault on her
Right of Personal Liberty as guaranteed by Article 21. It is pertinent to mention that
the Supreme Court in Satwant Singh Sawhney v. Ramarathnam[2] held that right
to travel abroad is well within the ambit of Article 21, although the extent to which
the Passport Act diluted this particular right was unclear.

3. The authorities, however, answered that the reasons are not to be specified in the
"interest of the general public". In response, the petitioner filed a writ petition under
Art 32 for violation of fundamental rights guaranteed under Articles 14, 19 and 21 of
the Constitution alleging that Section 10(3)(c) of the Act was ultra vires the
constitution.

Issues Before The Court

1. Whether the Fundamental Rights are absolute or conditional and what is the extent of
the territory of such Fundamental Rights provided to the citizens by the Constitution
of India?
2. Whether 'Right to Travel Abroad' is protected under the umbrella of Article 21.
3. What is the Connection between the rights guaranteed under Article 14, 19 and 21 of
the Constitution of India?
4. Determining the scope of " Procedure established by Law"
5. Whether the provision laid down in Section 10(3)(c) of the Passport Act 1967 is
violative of Fundamental Rights and if it is whether such legislation is a concrete
Law?
6. Whether the Impugned order of Regional Passport Officer is in contravention of
principles of natural justice?

Arguments Of The Petitioners:

Through the administrative order that seized the passport on 4th July 1977, the State has
infringed upon the Petitioner's fundamental rights of freedom of speech & expression, right to
life & personal liberty, right to travel abroad and the right to freedom of movement.

The provisions given in Articles 14, 19 & 21 should be read together and aren't mutually
exclusive. Only a cumulative reading and subsequent interpretation will lead to the
observance of principles of natural justice and the true spirit of constitutionalism.
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India might not have adopted the American concept of the "due process of law", nevertheless,
the procedure established by law should be fair and just, reasonable, and not be arbitrary.
Section 10(3)(c) of the Passport Act violates Article 21 insofar as it violates the right to life &
personal liberty guaranteed by this Article.

Audi Altrem Partem i.e. the opportunity of being heard is invariably acknowledged as a vital
component of the principles of natural justice. Even if these principles of natural justice are
not expressly mentioned in any of the provisions of the Constitution, the idea behind the spirit
of Fundamental Rights embodies the very crux of these principles.

Contentions Of The Respondents:

The respondent stated before the court that the passport was confiscated since the petitioner
had to appear before a government committee for a hearing.
The respondent asserted that the word 'law' under Article 21 can't be understood as reflected
in the fundamental rules of natural justice, emphasising the principle laid down in the A K
Gopalan case.

Article 21 contains the phrase "procedure established by law" & such procedure does not
have to pass the test of reasonability and need not necessarily be in consonance with the
Articles 14 & 19.

The framers of our Constitution had long debates on the American "due process of law"
versus the British "procedure established by law". The marked absence of the due process of
law from the provisions of the Indian Constitution clearly indicates the constitution-makers'
intentions.

Judgment Of The Court

1. The court said that section 10(3)(c) of passport act, 1967 is void because it violates
Article 14 of Indian constitution because it confers vague and undefined power to the
passport authority. it is violative of Article 14 of the Constitution since it doesn't
provide for an opportunity for the aggrieved party to be heard. It was also held
violative of Article 21 since it does not affirm to the word "procedure" as mentioned
in the clause, and the present procedure performed was the worst possible one. The
Court, however, refrained from passing any formal answer on the matter, and ruled
that the passport would remain with the authorities till they deem fit.

2. This immensely important judgement was delivered on 25th January 1978 and it
altered the landscape of the Indian Constitution. This judgement widened Article 21's
scope immensely and it realized the goal of making India a welfare state, as assured in
the Preamble. The unanimous judgement was given by a 7-judge bench. Before the
enactment of the Passport Act 1967, there was no law regulating the passport
whenever any person wanted to leave his native place and settle abroad. Also, the
executives were entirely discretionary while issuing the passports in an unguided and
unchallenged manner.

3. In Satwant Singh Sawhney v. D Ramarathnam the SC stated that:

Personal liberty in its ambit, also includes the right of locomotion and travel abroad.
Hence, no person can be deprived of such rights, except through procedures
established by law. Since the State had not made any law regarding the regulation or
prohibiting the rights of a person in such a case, the confiscation of the petitioner's
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passport is in violation of Article 21 and its grounds being unchallenged and arbitrary,
it is also violative of Article 14.

4. Further, clause (c) of section 10(3) of the Passports Act, 1967 provides that when the
state finds it necessary to seize the passport or do any such action in the interests of
sovereignty and integrity of the nation, its security, its friendly relations with foreign
countries, or for the interests of the general public, the authority is required to record
in writing the reason of such act and on-demand furnish a copy of that record to the
holder of the passport.

5. The Central Government never did disclose any reasons for impounding the
petitioner's passport; rather she was told that the act was done in the interests of the
general public whereas it was found out that her presence was felt required by the
respondents for the proceedings before a commission of inquiry. The reason was
given explicitly that it was not really necessarily done in the public interests and no
ordinary person would understand the reasons for not disclosing this information or
the grounds of her passport confiscation.

6. The fundamental rights conferred in Part III of the Constitution are not distinctive nor
mutually exclusive." Any law depriving a person of his personal liberty has to stand a
test of one or more of the fundamental rights conferred under Article 19. When
referring to Article 14, ex-hypothesi must be tested. The concept of reasonableness
must be projected in the procedure. The phrase used in Article 21 is "procedure
established by law" instead of due process of law which is said to have procedures
that are free from arbitrariness and irrationality. There is a clear infringement of the
basic ingredient of principles of natural justice i.e., audi alteram partem and hence,
it cannot be condemned as unfair and unjust even when a statute is silent on it.

7. It is true that fundamental rights are sought in case of violation of any rights of an
individual and when the State has violated it. But that does not mean, Right to
Freedom of Speech and Expression is exercisable only in India and not outside.
Merely because the state's action is restricted to its territory, it does not mean that
Fundamental Rights are also restricted in a similar manner. It is possible that certain
rights related to human values are protected by fundamental rights even if it is not
explicitly written in our Constitution. For example, Freedom of the press is covered
under Article 19(1)(a) even though it is not specifically mentioned there.
The right to go abroad is not a part of the Right to Free Speech and Expression as both have
different natures and characters.

A.K Gopalan was overruled stating that there is a unique relationship between the provisions
of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Earlier in
Gopalan, the majority held that these provisions in itself are mutually exclusive. Therefore, to
correct its earlier mistake the court held that these provisions are not mutually exclusive and
are dependent on each other.

VISHAKA & ORS. Vs STATE OF RAJASTHAN, AIR 1997 SC 3011:

Vishaka & ors. Vs State of Rajasthan is a case which deals with the evil of Sexual
Harassment of a women at her workplace. It is a landmark judgment case in the history of
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sexual harassment which as being decide by Supreme Court. Sexual Harassment means an
uninvited/unwelcome sexual favor or sexual gestures from one gender towards the other
gender. It makes the person feel humiliated, offended and insulted to whom it has been done.
In many of the cases, it has been observed that homosexual labour harasses an employee
belonging to the same sex to which he belongs.

Sexual harassment is also termed as “Eve Teasing” in India, and it can be determined from
the following acts like- passing of indicative or typical comments or jokes, uninvited
touching, making appeals for sex, sexually blunt pictures or text messages or emails, discredit
person because of sex. Accordingly, Sexual Harassment violates the fundamental right of the
women of gender equality which is codified under Article 14 of Indian Constitution and also
the fundamental right to life and to live a dignified life is violated/infringed under Article 21
of constitution of India. Even though there has been no provision for sexual harassment at
workplace under Indian Constitution.

Justice Arjit Pasayat beheld from his beautiful thought that- “ while a murderer destroys the
physical frame of the victim, on the other hand the rapist defiles the soul of a helpless
female”.
Sexual harassment is one of the social evil faced by the fragile portion of the society. Now at
this point of time the high society people or the people who commits sexual harassment
should become aware about the vital needs or rights of women or either when this tranquil
volcano of anger will erupt will cause immense danger and shattering which would have
equal consequences which is cause from the burst or eruption of an inactive volcano.

Facts
The facts of this case are given below:-
# Bhanwari Devi who was a social activist/worker in one of Rajasthan's villages.
# She worked under a social development program at rural level which was about to stop
child marriage in a village and this social program was administered/ initiated by the
Rajasthan’s state government.
# Bhanwari Devi en-devoured to stop the marriage of the Ramkaran Gujjars (thakurs)
daughter, who was merely less than one year old i.e. she was an infant only.
# As a part of her duty, Bhanwari Devi tried to terminate the marriage of her infant daughter.
# Even in her vain-full efforts to stop the marriage, it happened, but Bhanwari devi was not
excused or pardoned for her’s this fault.
# She was exposed to or put forward to social punishment or boycott.
# September 1992, she was been gang raped by Ramkaran Gujjar and his five friends in front
of her husband.
# The male doctor at normal primary health center declined to survey her and the doctor at
Jaipur only made confirmation of her age without any recommendation of her being raped in
her medical report.
# At the police station too she was continually taunted by the women countable for the whole
of the night.
# At midnight she was asked by the policeman to leave her lehenga as evidence of that
incident and go back to her village.
# After that, she was only left with the bloodstained dhoti of her husband to wrap her body, as
a result of which they had to spend their whole night in that police station.
# The Trial Court made the discharge of the accused people for not being guilty.
# The High Court in his judgement propounded that –“ it was a case of gang rape which was
conducted out of revengeful situation.
 P a g e | 18

# All these statements and judgement, aroused women and NGO’S to file petition (PIL) in
Supreme Court of India.

Issue Raised In This Case

Whether, the enactment of guidelines mandatory for the repudment of sexual harassment of
women at workplace?

Judgement-
The judgement of Vishakha's case was conveyed by Chief Justice J.S Verma as a
representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ petition
which was filed by Vishakha the victim of this case. The court observed that the fundamental
rights under Article 14[2], 19[3](1)(g) and 21 of the Constitution of India that every
profession, trade or occupation should provide a safe working environment to the employees.
It hampered the right to life and the right to live a dignified life. The basic requirement was
that there should be the availability of a safe working environment at the workplace.

The Supreme Court held that, women have fundamental right towards the freedom of sexual
harassment at workplace. It also put forward various important guidelines for the employees
to follow them and avoid sexual harassment of women at workplace. The court also
suggested to have proper techniques for the implementation of cases where there is sexual
harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender
equality among people and also to ensure that there should be no discrimination towards
women at their workplace.

After this case, the Supreme Court made the term Sexual harassment well defined,
accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or
misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of
sexual harassment.

Critical Analysis
In the case of Vishakha & others v/s the state of Rajasthan, the Supreme Court specifically
underlined the definition of Sexual Harassment,which conveys any unwanted or uninvited
physical touch or conduct or showing of pornography or any definable sexual comments or
texts will come under the ambit of Sexual Harassment. According to me any such conduct
done directly hampers the right of women to life and it also affects their dignity to live. It also
hinders the mental and physical health of women. Sexual harassment shall be avoided and the
equality between the genders shall be established at workplace.

The Supreme Court held out guidelines that, the person-in-charge of the particular institution,
organisation or office whether be it private or public, will be responsible in taking effective
steps to prevent sexual harassment. Penalties shall be charged from the accused people for
conducting sexual harassment. It had became a very crucial topic to act upon for the
prevention of sexual harassment women at workplace. In case of private companies the strict
rules regarding the punishment of sexual harassment shall be included. In case the sexual
harassment is conducted by the outsiders, the person-in charge of that institution must take
strict action for the conduct of such crime.

JUSTICE K.S. PUTTASWAMY (Retd.) & ANR. Vs. UNION OF INDIA &
ORS., (2017) 10 SCC 1:
 P a g e | 19

Facts

This case was initiated through a petition filed by Justice K.S. Puttaswamy, a retired judge of
the Karnataka High Court in relation to the Aadhaar Project, which was spearheaded by the
Unique Identification Authority of India (UIDAI). The Aadhaar number was a 12-digit
identification number issued by the UIDAI to the residents of India. The Aadhaar project was
linked with several welfare schemes, with a view to streamline the process of service delivery
and remove false beneficiaries. The petition filed by Justice Puttaswamy was a case which
sought to challenge the constitutional validity of the Aadhaar card scheme. Over time, other
petitions challenging different aspects of Aadhaar were also referred to the Supreme Court.
In 2015, before a three Judge Bench of the Court, the norms for, and compilation of,
demographic biometric data by the government were questioned on the grounds of violation
of the right to privacy. The Attorney General of India argued against the existence of the
fundamental right to privacy based on the judgments in M.P. Sharma and Kharak Singh.
While addressing these challenges, the three Judge Bench took note of several decisions of
the Supreme Court in which the right to privacy had been held to be a constitutionally
protected fundamental right. However, these subsequent decisions which affirmed the
existence of a constitutionally protected right of privacy, were rendered by benches of a
strength smaller than those in M.P. Sharma and Kharak Singh. The case was referred to a
Constitution Bench to scrutinize the precedents laid down in M.P. Sharma and Kharak Singh
and the correctness of the subsequent decisions. On 18 July 2017, a Constitution Bench
considered it appropriate that the issue be resolved by a bench of nine judges.
Issue
Whether the right to privacy was a fundamental right under Part III of the Constitution of
India?

Arguments
The Respondents mainly relied upon the judgments in the cases of M.P. Sharma, as well as
the case of Kharak Singh, which had observed that the Constitution did not specifically
protect the right to privacy. The judgments were pronounced by an eight Judge and a six
Judge Bench respectively, and the Respondents argued that they would therefore be binding
over the judgments of smaller benches given subsequently. The Respondents further argued
that the makers of the Constitution did not intend to make the right to privacy a fundamental
right.
On the other hand, the submission of the Petitioners was that M.P. Sharma and Kharak Singh
were founded on principles expounded in A.K. Gopalan vs. State of Madras (1950 SCR 88).
The Petitioners argued that A.K. Gopalan, which construed each provision contained in the
Chapter on fundamental rights as embodying a distinct protection, was held not to be good
law by an eleven Judge Bench in Rustom Cavasji Cooper vs. Union of India ((1970) 1 SCC
248). Hence, the Petitioners submitted that the basis of the two earlier decisions was not
valid. It was also urged that in the seven Judge Bench decision in Maneka Gandhi vs. Union
of India ((1978) 1 SCC 248), the minority judgement of Justice Subba Rao in Kharak Singh
was specifically approved while the decision of the majority was overruled.
In addition to this, other arguments made during the hearing dealt with the scope of the right
to privacy. The Petitioners argued for a multi-dimensional model of privacy as a fundamental
right, while the Respondents stated that the right to privacy was an ambiguous concept and
could only be crystallised as a statutory and common law right.
 P a g e | 20

The Petitioners argued that the Constitution would have to be read in line with the Preamble,
while keeping in mind that privacy was a natural right, and an international human right. The
Respondents advocated for a narrow approach which focused on the Constitution as the
repository of fundamental rights and the Parliament as the only body which had the powers to
modify the same.
Decision
The Supreme Court, through six separate opinions, pronounced privacy to be a distinct and
independent fundamental right under Article 21 of the Constitution. The crux of the decision
spelled out an expansive interpretation of the right to privacy - it was not a narrow right
against physical invasion, or a derivative right under Article 21, but one that covered the
body and mind, including decisions, choices, information and freedom. Privacy was held to
be an overarching right of Part III of the Constitution which was enforceable and
multifaceted. Details regarding the scope of the right were discussed in the multiple opinions.
The Court overruled the judgments in M.P. Sharma, and Kharak Singh, insofar as the latter
held that the right to privacy was not a fundamental right. With respect to M.P. Sharma, the
Court held that the judgement was valid for maintaining that the Indian Constitution did not
contain any limit to the laws on search and seizure analogous to the Fourth Amendment in the
United States Constitution. However, the Court held that the Fourth Amendment was not an
exhaustive concept of privacy and an absence of a comparable protection in the Constitution
did not imply that there was no inherent right to privacy in India at all – and therefore the
conclusion in M.P. Sharma was overruled. The Court rejected the insular view of personal
liberty (“ordered liberty”) adopted by Kharak Singh, which Justice D.Y. Chandrachud
referred to the “silos” approach borrowed from A.K. Gopalan. The Court observed that this
approach of viewing fundamental rights in water-tight compartments was abrogated after
Maneka Gandhi. The Court further observed that the majority opinion in Kharak Singh
suffered from an internal contradiction, as there was no legal basis to have struck down
domiciliary visits and police surveillance on any ground other than privacy – a right which
they referred to in theory but held not to be a part of the Constitution. The Court also held
that the decisions subsequent to Kharak Singh upholding the right to privacy were to be read
subject to the principles laid down in the judgement.
The Court also analysed the affirmative case for whether the right to privacy was protected
under the right to life, personal liberty and the freedoms guaranteed under Part III of the
Constitution. The Bench established that privacy was “not an elitist construct”. It rejected the
argument of the Attorney General that the right to privacy must be forsaken in the interest of
welfare entitlements provided by the state.
Significantly, while holding that the right to privacy was not absolute in nature, the
judgement also gave an overview of the standard of judicial review that must be applied in
cases of intrusion by the State in the privacy of an individual. It held that the right to privacy
may be restricted where such invasion meets the three-fold requirement of
A. legality, which postulates the existence of law;
B. need, defined in terms of a legitimate state aim; and
C. proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.

Justice S.K Kaul added a fourth prong to this test which mandated “procedural guarantees
against abuse of such interference”.
 P a g e | 21

At the same time, Justice J. Chelameswar held that the standard of “compelling state interest”
was only to be used in privacy claims which deserve “strict scrutiny”. As for other privacy
claims, he held that the just, fair and reasonable standard under Article 21 would apply.
According to his judgement, the application of the “compelling state interest” standard would
depend on the context of the case.
The Court also emphasised the fact that sexual orientation was an essential facet of privacy. It
further discussed the negative and positive content of the right to privacy, where the State
was not only restrained from committing an intrusion upon the right but was also obligated to
take necessary measures to protect the privacy of an individual.
The judgement held informational privacy to be a part of the right to privacy. The Court,
while noting the need for a data protection law, left it in the domain of Parliament to legislate
on the subject.
M.C. MEHTA vs. STATE OF TAMIL NADU, AIR 1997 SC 699:
SUBJECT: The judgment revolves around abolition of Child labour in the Country.

FACTS: Due to the massive number of child labourers in Sivakasi firework industries, the
petitioner filed a PIL under Article 32 of the Constitution.

IMPORTANT PROVISIONS:
The Indian Constitution:

 Article 32: Remedies for enforcement of rights conferred by Part III

 The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed
 The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by Part III
 Article 24: No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.

ISSUES:
1. Whether there is a need to consider settled law and guidelines with regard to child labour
in India?

JUDGEMENT:
The petitioner filed a writ of mandamus before the hon’ble SC to direct the State government
of TN to immediately take measures to relieve the child labourers involved in the firework
industries. The petitioner has filed the petition as the respondents in the present case failed to
comply with the directions given by this Court in a suo moto petition to eradicate child
labour. He also submitted the reports of a Committee which was formed under the
directions of the SC to probe into the matter of child labour. Few of the notable
recommendations of the Committee include:

 State of Tamil Nadu should be directed to ensure that children are not employed in
fireworks factories
 Employers should not be permitted to take work from the children for more than six
hours a day.
 P a g e | 22

 Facilities for recreation, socialisation and education should be provided either in the
factory or close to the factory.
 Piece-rate wages should be abolished, and payment should be made on monthly basis.

Wages should be equal to the work done by the children.

 Compulsory insurance coverage for all labourers.

The petitioner has further submitted his contentions in the following grounds:

 Since India has accepted the Convention on Rights of Child disregarding social evils
like child labour will hamper the development of the Country.
 Such exploitations violated the fundamental rights of children guaranteed under

Articles 21,14,19 and 24 of the Constitution.

 The State failed to implement various legislations enacted by the parliament in this
regard such as Child Labour (Prohibition and Regulation) Act, 1986.
 Further the State has miserably failed to fulfil its duties under the Directive Principles
of State Policy.

The Court upon hearing the pleadings gave the following guidelines:

 A survey was asked to be conducted in Sivakasi within six months

o The works in which the children were involved were asked to be ranked
from most hazardous to less harmful.
o The State was asked to provide jobs to the parents of the children. If the
State is unable to provide a job a sum of Rs.85,000 has to be paid to each
child, provided the parents send their child to educational institutions.
o The State was asked to make sure that all children went to schools to
pursue education.
o The Executive head of the district was asked to monitor the efficient
functioning of the above stated guidelines
o The Secretary to the Ministry of Labour, Government of India was
asked to submit reports after one year to ensure due compliance of the
guidelines.

REFERENCES:

1. https://blog.ipleaders.in/an-upsurge-of-custodial-deaths-in-india-an-analysis-of-d-k-
basu v-state-of-west-bengal/
 P a g e | 23

2. https://lawcorner.in/dk-basu-v-state-of-west-bengal-case-analysis/
3. https://legalvidhiya.com/dk-basu-v-state-of-west
bengal/#:~:text=The%20DK%20Basu%20case%20 is,effective%20from%20
November% 201%2C%202010.
4. https://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/
5. https://www.legalserviceindia.com/legal/article-7094-case-analysis-on-maneka-
gandhi-v-s-union-of-india-1978-the-golden-triangle.html

6. https://lawfaculty.in/m-c-mehta-v-state-of-tamil-nadu/

7. http://privacylibrary.ccgnlud.org/case/justice-ks-puttaswamy-ors-vs-union-of-india-
ors